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R. Abdul Wahab Vs. Union of India (Uoi) Represented by Its Secretary, Ministry of Finance and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1976)2MLJ92
AppellantR. Abdul Wahab
RespondentUnion of India (Uoi) Represented by Its Secretary, Ministry of Finance and ors.
Cases ReferredC.L. Subtamaniam v. Collector of Customs
Excerpt:
- .....matches without payment of duty in contravention of rule's 9(1), 81 and 82 of the central excise rule's, 1944:(b) of admitting clearance applications (a.r.is.) without factual removals in contravention of rule 81 of the central excise rule's, 1944, and thereby endangered the government revenue.charge ii: during the aforesaid period and while functioning it) the aforesaid office, the said shri r. abdul wahab committed breach of trust placed in him by the government under rule 75 of the central excises rule's, 1944.charge iii: during the aforesaid period and while functioning in the aforesaid office, the said shri r. abdul wahab, exhibited gross negligence in the discharge of his official duties:(a) in not complying with the provisions of rule 81 of the central excise rule's,.....
Judgment:
ORDER

G. Ramanujam, J.

1. The petitioner joined the Department of Salt and Customs in the year 1937 as a clerk and was later transferred to the Central Excise Department in 1943. He was then promoted as a Sub-Inspector of Central Excise ir the year 1945. Later, the same post was upgraded to the post of Inspector and the petitioner served as Inspector of Central Excise till 13th May, 1960 when he was compul-sorily retired from service as a result of certain disciplinary proceedings initiated against him. The petitioner filed an appeal against the order of compulsory retirement dated 13th May, 1960 passed by the Collector of Central Excise, the third respondent herein, to the Central Board of Excise and Customs, New Delhi, the second respondent herein. Since the said appeal had been dismissed, the petitioner approached this Court seeking a writ of certiorari to quash the said appellate orderdated 23rd May, 1962 confirming the order of the third respondent ompulsorily retiring him from service. The petitioner has attacked the validity of the appellate order of the second Respondent on various grounds. Before dealing with the various grounds of attack it is necessry to set out briefly the charges framed against the petitioner and his defence.

2. When the petitioner was the Inspector of Central Excise at Sivakasi, the following four charges have been framed against him, relating to certain commissions and omissions:

Charge I: Shri R. Abdul Wahab while functioning as Inspector of Central Excise at Sivakasi during the period from 23rd April, 1955 onwards misussd his official position and connived with the licensees by introducing an illegal practice:

(a) of facilitating clearances in respeGt of credit-banderolled matches without payment of duty in contravention of Rule's 9(1), 81 and 82 of the Central Excise Rule's, 1944:

(b) of admitting clearance applications (A.R.Is.) without factual removals in contravention of Rule 81 of the Central Excise Rule's, 1944, and thereby endangered the Government Revenue.

Charge II: During the aforesaid period and while functioning it) the aforesaid office, the said Shri R. Abdul Wahab committed breach of trust placed in him by the Government under Rule 75 of the Central Excises Rule's, 1944.

Charge III: During the aforesaid period and while functioning in the aforesaid office, the said Shri R. Abdul Wahab, exhibited gross negligence in the discharge of his official duties:

(a) in not complying with the provisions of Rule 81 of the Central Excise Rule's, 1944:

(b) in not complying with the instructions contained in para. 57(c) of the Manual of Departmental Instructions on matches.

Charge IV - During the aforesaid period and while functioning in the aforesaid office, the said Shri Abdul 2Wahab connived with the licensees in the illicit removal of credit-banderolled matches from the factories in contravention of Rule's 9(1) 81 and 82 of the Central Excise Rule's, 1944 and failed to exercise proper cheek and control over the ad ministration of the factories under his charge in discharge of the instructions contained, in Collector's CJ./15/55/56-A.I., dated 9th October, 1956 and thereby endangered Government Revenue.

12 other officers were also charge-sheeted for similar charges. The third respondent herein, by an oidei dated 14th November, 1958, ordered a joint enquiry to be conducted by the then Assistant Collector (Vigilance) with respect to all the thirteen officers. Ihe Enquiry Officer after the completion of the cnquiiy submitted his findings tc the third respondent on 18th February, 1959. The third respondent, by his order dated J3th May, 1960, after issuing the necessary show cause notice, found all the four charges proved and imposed the punishment of compulsory retirement on the petitioner.

3. The petitioner appealed against the said order dated 13th May, 1960 of the third respondent compulsorily retiring him from service to the second respondent herein. In the said appeal, the petitioner had raided, inter alia, the following contentions, (1) that the joint enquiry ordered by the third respondent in respect of the changes levelled against all the 13 officers has resulted in considerable prejudice to him and therefore, the final order passed as a result of such a joint enquiry stood vitiated, (2) that tne'Enquiry Officer did not give him a reasonable opportunity to cross-examine the jurisdietional Assistant Collector to prove' that all the officers have followed a similar procedure as the one the petitioner has followed in the matter of inspection of the 1 stocks of the various factories and (3) that there was a change in the procedure after 1st January, 1958 and therefore, the 'petitioner cannot be found fault for not' following the procedure which was pre 1 valent before 1st January, 1958. The c second respondent as an appellate authority, passed an order dated 23rd May, 1962 holding:

that while admissible evidence on I record is not sufficient to establish conclusively the charges I, II and IV,never the less charge III has been properly established against the appellant. The appellant has thus proved to be grossly, negligent in the discharge of his official duties. Having regard to the gravity of charge III the Board consider that a the penalty of compulsory retirement o from service imposed on the appellant is justified on this ground alone.

The petitioner thereafter filed a revision I petition to the Government of India, the first respondent. That was, however, dismissed on 26th October, 1968.

4. In this writ petition, the learned Counsel for the petitioner contends(1) that the order of the second respondent is vitiated in that it is not a speaking order; (2) that ia any event, the materials on record do not establish charge III, levelled against the petitioner; (3) that the first part of charge III relates to the duties set out in Rule 81 of the Central Excise Rules which are normally expected to be done by a departmental sepoy who is having a watch at the gate of the factory and that it is not the function of the petitioner to verify clearances at the gate; and (4) that: as regards the second limb of charge III though the petitioner had not complied with the instructions contained in paragraph 57(e) of the Departmental Manual he has in fact followed the procedure contemplated by the Central Excise Rules; and endorsed the results of the check on. the R.G. Ill, register instead of doing it in E.B. IV register as per the instructions which were followed prior to 1st January, 1958.

5. As regards the first cortention, the learned Counsel for the petitioner points, out that though the second respondent has merely stated that charge III had. properly been established against the petitioner, it does not appear that the petitioner's defence in respect of this charge have been duly considered that the second respondent, acting as an appellate authority should haves duly considered the evidence and documents pro and eon and then come to a conclusion based on the said evidence and documents, and that; it is not clear on what materials the second respondent held chargelll proved.... Reference is made to Rule 30 of the Central Civil Services (Classification,. Control and Appeal) Rules, 1957, which imposes a duty on the appellate authority to consider various matters. One of the matters to be considered by the appellate authority under that rule is ss to. whether the findings given by the initial authority are justified on the materials on record. It is said that since the order of the second respondent merely states. that charge III has been properly established against the appellant without referring to any material for or against the petitioner it is not a due compliance with the said Rule 30.

6. The learned Counsel for the petitioner refers to a decision of the Supreme Court in Travancore Rayons v. Uinon of India : 1978(2)ELT378(SC) and of this Court in W.P. No. 4727 of 1973 in support of his stand that such a laconic and non-speaking order as the on passed by the second respondent herein cannot legally be sustained.

In Mahabir Prasad v. State of litter Pradesk : [1971]1SCR201 the Supreme Court has clearly set out the attributes of a quasi judicial order. One of the attributes of a quasi judicial order is that it must be a reasoned order upon a finding on the facts in controversy and application of law to the facts found. Recording of reasons in support of a decision by a quasi judicial authority is obligatory as it ensures that the decision is reached according to a law and is not a result of caprice, whim or fancy or reached on ground of policy or expediency. The necessity to record reasons is greatei if the order is subject to appeal or revision to a higher authority or a Court. The Supreme Court had pointed out in that case:

The practice of the executive authority dismissing statutory appeals against orders which prima jacie seriously prejudice the rights of the aggrieved party without giving reasons is a negation of the Rule of law. This Court had occasion to protest against this practice is several decisions.

In Travancore Rayons v. Union of India : 1978(2)ELT378(SC) the Supreme Court was dealing with a revisional order passed by the Central Government, under Section 36 of the Central Excise and Salt Act. The order passed by ths Central Government read:

Government of India have carefully considered the points rrade by the applicant but see no justification for interfering with the order in appeal. The revision application is accordingly rejected.

This order was attacked by the aggrieved party before the Supreme Court on the ground that it is not a speaking order. The Supreme Court upheld that attack and set aside the said order passed by the Central Government with a direction to dispose of the matter afresh. The Supreme Court was of the view that as orders involving important disputes are brought before the Government, it is incumbent upon the Government to pass a reasoned order reasonably disclosing that the matter received its due consideration. The followirg observations of the Supreme Court are pertinent in this connection:

Necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved, and the mental process by which the conclusion is reached in cases where a non-judicial authority exercises judicial functions is obvious. When judicial power is exercised by an authority normally performing executive or administrative function this Court would require to be satisfied that the decision has been reached after due consideration; of the merits of the dispute, uninfluenced by extraneous considerations or policy or expediency. The Court insists upon disclosure of reasons in support of the order on two grounds: One, that the party aggrieved in a proceeding before the High Court or this Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous; the other, that the obligation to record reasons, operates as a deterrent against possible arbitrary action by the authority invested with the judicial power.

7. In a recent decision of this Court in W.P. No. 4727 of 1973, also arising out of an order of the appellate authority in a disciplinary proceeding, it has been expressed:

Under the statutory rule's, the second respondent as an appellate authority has to go into the correctness of the findings given by the initial authority, the first respondent and also to consider the quantum of the punishment. An appellate authority is normally expected to deal with the facts relating to the charges and to give cut whether the findings given by the initial authority are justified, whether on the charges proved the punishment moved out was proper and whether the procedure followed by the initial authority in the conduct of the enquiry is in accordance with the rule's.

Normally, when quasi-judicial power is exercised by an authority performing the executive or administrative functions, one expects the authority to disclose reasons in support of the order to enable the higher authority to find out whether the initial authority has properly exercised his mind. The obligation to iecord reasons will also operate as a deterrent againt possible arbitraiy action by the executive authority invested with the quasi judicial power. In my view, the order of the second respondent in this case is vitiated for the reason that it is not a speaking order

8. The second respondent who is the appellate authority in this case is obliged under Rule 30 to consider whethsr the findings given by the initial authority are justified, whether the punishment meted out was proper and whetner the procedure followed by the initial authority in the conduct of the enquiry was in accordance with law. The petitioner has specifically alleged in the grounds of appeal that the joint enquiry directed by the third respondent has caused him considerable prejudice and that he was not given an opportunity to cross-examine the jurisdictional Assistant Collector at Sivakasi with regard to the procedure normally followed in the checking and inspection of the factories and stores. He has also pointed out that there was a change in procedure after 1st January, 1958 and that whatever he did in the course of inspection of the stocks was consistent with the procedure which was in force after 1st January, 1958. The second respondent, before finding the petitioner guilty of cha.rge III should h ave dealt with the said points urged by the petitioners.

9. Further, the second respondent has Itself held that charges I, II and IV have not been proved, but had however, sustained the punishment of compulsory retirement imposed by the initial authority. The charges which were held to be not proved appear to be somewhat serious and that charge III relates merely to procedural irregularities. The initial authority imposed the punishment of compulsory retirement in view of its finding that all the charges have been proved. When the second respondent held that charge III alone had been established against the petitioner, it, however, sustained the same punishment on the ground that charge III is a grave one. It is pertinent in this context to note the averments in paragraph 8 of the counter-affidvait. It has been, stated there that if the petitioner had adopted a different method to arrive at the stock, it shows that he has applied an unapproved method which was a mistake committed by him. If really what the petitioner has done is only a mistake, then it may not call for such a serious punishment as compulsory retirement. The scope and nature of the charges have to be duly considered by the second respondent before sustaining the same punishment which was given in respect of four charges by the initial authority.

10. In this case, the second respondent, the appellate authority, has merely passed a laconic order stating that charge III is held to be proved and that the penalty of compulsory retirement from service can be justified on that charge alone. Since the second respondent has not passed a speaking order, one is not able to find as to what are the matters which weighed with the secoad respondent firstly in holding charge HI as proved and secondly for justifying the order of compulsory retirement on the basis of charge III alone. As already stated, Rule 30 enjoins a duty on the part of the second respondent to consider the findings of the initial authority and whether the punishment imposed was justified on the materials. The laconic order passed by the second respondent does not indicate as to the consideration the second respondent gave in relation to those matters. Admittedly the order passed by the second respondent is subject to review under Rule 29(3). Unless the second respondent passes a reasoned order or a speaking order, it is reasoned order or a speaking order, it is rot possible for the reviewing authority, the Central Government to exercise its review power under the said provision. The order of the second respondent has, therefore, to be set aside on the grourd that it is not a speaking order

The learned Counsel for the petitioner would, however, submit that having regard to the long lapse of time since the date of commencemer.t of the disciplinary proceedings in 1958, the matter need not be remanded to the second respondent for dealing with the matter afresh and that the matter could be finally disposed of by this Court. The learned Counsel for the petitioner invites this Court to go into the materials and find out whether Charge III is proved or not, and if it, is fouwd that Charge III is not supported by the materials on record, to set aside the order compulsorily retiring the petitiotier from service straightaway. The learnd counsel refers to a decision in C.L. Subtamaniam v. Collector of Customs, Cochin : (1972)ILLJ465SC and the decision of this Court in W.P. No. 2482 of 1971 in support of his statid that this Comt is entitled in suitable casess to dispose of the matter without remitting it back for disposal afresh and to straightaway set aside the order impugmed. There cannot be any controversy as to the power of this Court to gra&jt; relief to an aggrieved party if the circumstance of the case warant the same without remitting the matter once again to the authorities concerned. But the nature of the order to be passed by this Court should in every case depend on the facts of each case. I am of the view that an this case; having regard to the iiei that the matter involves the considercataon of the correct procedure that should; have been followed by the petitioiier in the matter of inspection of the Factories and cheek of Stores with reference the technical rule's it is but proper that the secorad respondent who is normally conversant with those technical rules and 'procedures should be directed to dispose of the petitioner's appeal afresh it the light of the various contentions put forward by the petitioner. I, therefore, allow the writ petition and set aside the order dated 23rd May, 1962 passed by the second respondent with a direction to dispose of the petitioner's appeal afresh after duly considering the various contentions raised by him in his grounds of appeal. Having regard to the long lapse of time that has elapsed from the year 1958 when the disciplinary proceedings started and also the fact that the petitioner has been agitating the matter since then, the second respondent is directed to dispose of the appeal within two months from the date of receipt of this order.


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