The Union Of India Throgh The Chairman, Central Board Of Excise And Customs And ORS. v. Balakrishna Thiruvengadam Mudaliar

* 1/14 *

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6368 OF 2013 1 The Union of India, through The Chairman, Central Board of Excise & Customs, North Block, New Delhi-110 001 2 The Chief Commissioner of Central Excise, Mumbai Zone-I, 115, Maharshi Karve Road, New Central Excise Building, Churchgate, Mumbai 400 020 3 The Commissioner of Central Excise, Thane-I, Nav Prabhat Chambers, Ranade Road, Dadar (West), Mumbai 400 028.

4 The Joint Commissioner (P&V), Central Excise, Thane-I, Nav Prabhat Chambers, Ranade Road, Dadar (West), Mumbai 400 028.

......Petitioners

Versus

Balakrishnan Thiruvengadam Mudaliar, Last employed at :

Central Excise, Thane-I Commissionerate, Nav Prabhat Chambers, Ranade Road, Dadar (West), Mumbai 400 028 Residing at: BDD Chawl No.18, Room No.6, Worli, Mumbai- 400 018.

.......Respondent

* 2/14 * Mrs. Neeta V. Masurkar , Advocate for Petitioners. Mr. Milan Topkar i/by Ranjan Todankar, Advocates for Respondents.

CORAM :

CORAM : SMT. V.K. TAHILRAMANI, & SMT. V.K. TAHILRAMANI, & SANDEEP K. SHINDE, JJ.

SANDEEP K. SHINDE, JJ.

DATE :

DATE :

June 21, 2017.

June 21, 2017.

JUDGMENT : [Per Shri Sandeep K. Shinde, J.] JUDGMENT : [Per Shri Sandeep K. Shinde, J.] Rule.

Rule. Rule made returnable forthwith. With Rule made returnable forthwith. With consent of the learned counsel for the parties, the matter is consent of the learned counsel for the parties, the matter is taken up for final hearing forthwith.

taken up for final hearing forthwith.

The Union of India has preferred this writ The Union of India has preferred this writ petition against the order dated 21.2.2013 passed by the petition against the order dated 21.2.2013 passed by the Central Administrative Tribunal in Original Application Central Administrative Tribunal in Original Application No.787 of 2010 whereby the Union of India and other No.787 of 2010 whereby the Union of India and other petitioners herein were directed to reinstate the petitioners herein were directed to reinstate the respondent (Original Applicant) in service with continuity of respondent (Original Applicant) in service with continuity of service and the penalty imposed on him of compulsory service and the penalty imposed on him of compulsory retirement was reduced to stoppage of one increment for a retirement was reduced to stoppage of one increment for a period of three years. Aggrieved by the said order, the period of three years. Aggrieved by the said order, the

* 3/14 * Union of India has preferred this petition under Articles 226 Union of India has preferred this petition under Articles 226 and 227 of the Constitution of India.

and 227 of the Constitution of India.

The Respondent/Original Applicant was working The Respondent/Original Applicant was working as driver in the Central Excise Commissionerate, Bombay as driver in the Central Excise Commissionerate, Bombay (II). On 4.6.2003, the respondent was in the (II). On 4.6.2003, the respondent was in the office/chamber of one Mr. Keer, public servant working in office/chamber of one Mr. Keer, public servant working in the office of Central Excise. At the relevant time, Mr. Keer the office of Central Excise. At the relevant time, Mr. Keer asked the respondent to count Rs.1,000/- allegedly given to asked the respondent to count Rs.1,000/- allegedly given to him by Mr. Pasha as bribe. After counting money, the him by Mr. Pasha as bribe. After counting money, the respondent returned the same to Mr. Keer. Mr. Keer respondent returned the same to Mr.

Keer. Mr. Keer thereafter handed over the said amount to Mr. M.S.Kamble, thereafter handed over the said amount to Mr. M.S.Kamble, who was clerk in the very office. Money given by Mr. Pasha who was clerk in the very office. Money given by Mr. Pasha to Mr. Keer was tainted money in-as-much as a trap was led to Mr. Keer was tainted money in-as-much as a trap was led by the Anti Corruption Bureau, CBI and Mr. Keer was by the Anti Corruption Bureau, CBI and Mr. Keer was apprehended by the officers of the ACB. Mr. Keer was tried apprehended by the officers of the ACB. Mr. Keer was tried in the Special Case No.51/2004 under the provisions of the in the Special Case No.51/2004 under the provisions of the Prevention of Corruption Act, 1988. Mr. Keer was dismissed Prevention of Corruption Act, 1988. Mr. Keer was dismissed from service.

Neither the respondent nor Mr. Kamble were from service. Neither the respondent nor Mr. Kamble were prosecuted. In fact, respondent/original applicant was prosecuted. In fact, respondent/original applicant was prosecution witness in the Special Case No.51 of 2004. On prosecution witness in the Special Case No.51 of 2004.

* 4/14 * the backdrop of these facts, the respondent was suspended the backdrop of these facts, the respondent was suspended on 5.6.2003 and the disciplinary proceedings were initiated on 5.6.2003 and the disciplinary proceedings were initiated against him and Mr. Kamble. Charge-sheet was issued against him and Mr. Kamble. Charge-sheet was issued against him on 13.9.2004 and the article of charge would against him on 13.9.2004 and the article of charge would read:

read:

" Shri Balakrishnan Thiruvengadan Mudaliar, Shri Balakrishnan Thiruvengadan Mudaliar, Driver, Customs Marine & Preventive Wing, 3 Driver, Customs Marine & Preventive Wing, 3rd rd Floor, Everest House, Marine Drive, Mumbai, while Floor, Everest House, Marine Drive, Mumbai, while functioning as above, being Government servant, functioning as above, being Government servant, committed gross mis-conduct in as much as he committed gross mis-conduct in as much as he received the tainted bribe amount from Shri received the tainted bribe amount from Shri S.A.Keer who accepted this amount as a S.A.

Keer who accepted this amount as a bribe/illegal gratification from Shri Abdul Pasha in bribe/illegal gratification from Shri Abdul Pasha in connection with disbursing the sanctioned reward connection with disbursing the sanctioned reward amount to Shri Pasha. Shri Mudaliar was aware amount to Shri Pasha. Shri Mudaliar was aware that this amount was not a legal income of Shri that this amount was not a legal income of Shri Keer. He did not maintain absolute integrity and Keer. He did not maintain absolute integrity and showed lack of devotion to duty and acted as showed lack of devotion to duty and acted as unbecoming of Government servant.

unbecoming of Government servant.

The above acts of Shri B.T.Mudaliar are The above acts of Shri B.T.Mudaliar are unbecoming of a Government Servant and he unbecoming of a Government Servant and he thereby contravened Rule 3(1)(i), (ii) & (iii) of CCS thereby contravened Rule 3(1)(i), (ii) & (iii) of CCS (Conduct) Rules, 1964."

(Conduct) Rules, 1964."

Inquiry officer held enquiry under Rule 14 of CCS Inquiry officer held enquiry under Rule 14 of CCS (CCA) Rules, 1965 against M.S.Kamble and the respondent (CCA) Rules, 1965 against M.S.Kamble and the respondent

* 5/14 * herein. Vide enquiry report 15.6.2006, he recorded the herein. Vide enquiry report 15.6.2006, he recorded the finding thus, "as far as charged officers Shri B.T.Mudaliar finding thus, "as far as charged officers Shri B.T.Mudaliar (Driver/Respondent herein) and Shri Kamble (LDC) are (Driver/Respondent herein) and Shri Kamble (LDC) are concerned, there was no charge of demand of bribe against concerned, there was no charge of demand of bribe against them, but they were part of game and their nexus cannot them, but they were part of game and their nexus cannot be ruled out. As Shri Mudaliyar and M.S.Kamble were be ruled out. As Shri Mudaliyar and M.S.Kamble were assisting Mr. Keer in his activities, suitable punishment may assisting Mr.

Keer in his activities, suitable punishment may be considered against them by the disciplinary authority." be considered against them by the disciplinary authority." It may be stated that disciplinary authority of It may be stated that disciplinary authority of the Respondent was Joint Commissioner (P&V) Central the Respondent was Joint Commissioner (P&V) Central Excise, Thane whereas the disciplinary authority of Mr. Excise, Thane whereas the disciplinary authority of Mr. Kamble was different. Be that as it may, disciplinary Kamble was different. Be that as it may, disciplinary authority of the respondent vide order dated 8.1.2008 held authority of the respondent vide order dated 8.1.

2008 held him guilty of charge and inflicted penalty of compulsory him guilty of charge and inflicted penalty of compulsory retirement from the service with immediate effect. retirement from the service with immediate effect. Respondent preferred an appeal before the Respondent preferred an appeal before the Commissioner Central Excise, Thane (I) who by order dated Commissioner Central Excise, Thane (I) who by order dated 30.3.2009 dismissed the appeal. Aggrieved by the same, a 30.3.2009 dismissed the appeal. Aggrieved by the same, a revision was preferred but it met with same fate vide order revision was preferred but it met with same fate vide order dated 27.8.2010.

dated 27.8.2010.

* 6/14 * That aggrieved by the order passed by the That aggrieved by the order passed by the disciplinary authority dated 8.1.2008, the order dated disciplinary authority dated 8.1.2008, the order dated 30.3.2009 passed by the appellate authority and the order 30.3.2009 passed by the appellate authority and the order dated 27.8.2010 passed by the revisional authority, he dated 27.8.2010 passed by the revisional authority, he preferred the Original Application before the CAT, which preferred the Original Application before the CAT, which was allowed as stated here-in-above and thus, this petition was allowed as stated here-in-above and thus, this petition by the Union of India.

by the Union of India.

Heard the learned counsel for the petitioners Heard the learned counsel for the petitioners and the respondent. Perused the pleadings, disciplinary and the respondent. Perused the pleadings, disciplinary proceedings and such other reports.

proceedings and such other reports.

The learned counsel for the petitioners would The learned counsel for the petitioners would contend that the CAT exceeded its jurisdiction by contend that the CAT exceeded its jurisdiction by interfering with the administrative order without recording interfering with the administrative order without recording finding that the punishment imposed was shockingly finding that the punishment imposed was shockingly disproportionate. She would contend that the Court cannot disproportionate. She would contend that the Court cannot interfere with quantum of punishment unless it is shown interfere with quantum of punishment unless it is shown that administrative decision was illogical or suffers from that administrative decision was illogical or suffers from procedural impropriety. She would submit that the CAT has procedural impropriety. She would submit that the CAT has not recorded finding on either of these counts. She would not recorded finding on either of these counts. She would

* 7/14 * also submit that the CAT has committed error by reducing also submit that the CAT has committed error by reducing the quantum of punishment at par that with Mr. Kamble. the quantum of punishment at par that with Mr. Kamble. She would submit that reliance of the CAT on the judgment She would submit that reliance of the CAT on the judgment in the case of in the case of Tata Engineering & Locomotive Co. v. Tata Engineering & Locomotive Co. v.

Jitendra Pd. Singh and Anr.

Jitendra Pd. Singh and Anr. reported in reported in 2002 SCC (L & 2002 SCC (L & S) 909 S) 909 was misplaced. She, therefore, submitted that the was misplaced. She, therefore, submitted that the order passed by the CAT is against settled principles of law order passed by the CAT is against settled principles of law and, therefore, the said order may be quashed and set and, therefore, the said order may be quashed and set aside.

aside.

The learned counsel for the respondent, on the The learned counsel for the respondent, on the other hand, has supported the order of the CAT. other hand, has supported the order of the CAT. The following facts are not disputed viz., The following facts are not disputed viz., (a) (a) That the respondent and Mr. Kamble That the respondent and Mr. Kamble were not prosecuted by Anti Corruption Bureau. were not prosecuted by Anti Corruption Bureau. (b) (b) That the respondent and Mr. Kamble That the respondent and Mr. Kamble were present in the cabin of Mr. Keer on 4.6.2003. were present in the cabin of Mr. Keer on 4.6.2003. The charge against the respondent was gross The charge against the respondent was gross misconduct for counting tainted bribe amount from misconduct for counting tainted bribe amount from S.A.

Keer and that the respondent was aware that this S.A.Keer and that the respondent was aware that this amount was not legal income of Shri Keer. He was amount was not legal income of Shri Keer.

* 8/14 * for lack of devotion to duty.

for lack of devotion to duty.

( c ) ( c ) In enquiry report dated In enquiry report dated 15.6.2006 15.6.2006, the , the respondent and Kamble were held guilty of charge on respondent and Kamble were held guilty of charge on the ground that their nexus with Mr. Keer cannot be the ground that their nexus with Mr. Keer cannot be ruled out with a finding that they were assisting S.A. ruled out with a finding that they were assisting S.A. Keer in his activities.

Keer in his activities.

(d) (d) That Mr. Kamble was awarded That Mr. Kamble was awarded punishment of reduction of increment for five years punishment of reduction of increment for five years by the disciplinary authority, which was further by the disciplinary authority, which was further reduced for a period of 3 years by the appellate reduced for a period of 3 years by the appellate authority authority (e) (e) The respondent was punished with The respondent was punished with compulsory retirement by the disciplinary authority compulsory retirement by the disciplinary authority and it was confirmed by the appellate and revisional and it was confirmed by the appellate and revisional authority.

authority.

The learned counsel for the respondent The learned counsel for the respondent vehemently submitted that finding recorded by the enquiry vehemently submitted that finding recorded by the enquiry officer against respondent and Mr. Kamble is the same officer against respondent and Mr. Kamble is the same but the punishments awarded to the present respondent is but the punishments awarded to the present respondent is not only disproportionate but also harsh. He would further not only disproportionate but also harsh. He would further submit that Mr. Kamble though found guilty of charge for submit that Mr. Kamble though found guilty of charge for assisting Mr. Keer in his activities, he was awarded lesser assisting Mr. Keer in his activities, he was awarded lesser

* 9/14 * punishment of stoppage of increment for 3 years as against punishment of stoppage of increment for 3 years as against the punishment awarded to the respondent of compulsory the punishment awarded to the respondent of compulsory retirement. He, therefore, urged that the CAT has correctly retirement. He, therefore, urged that the CAT has correctly placed reliance on judgment in the case of placed reliance on judgment in the case of Tata Tata Engineering and Locomotive (Supra).

Engineering and Locomotive (Supra). Mr. Topkar, the Mr. Topkar, the learned counsel for the respondent, has relied on the learned counsel for the respondent, has relied on the observations of the Supreme Court in the said case wherein observations of the Supreme Court in the said case wherein it was held that:

it was held that:

"Since as many as three workmen on Since as many as three workmen on almost identical charges were found guilty almost identical charges were found guilty of misconduct in connection with the of misconduct in connection with the same incident, though in separate same incident, though in separate proceedings, and one was punished with proceedings, and one was punished with only one month's suspension, and the only one month's suspension, and the other was ultimately reinstated in view of other was ultimately reinstated in view of the findings recorded by the Labour Court the findings recorded by the Labour Court and affirmed by the High Court and the and affirmed by the High Court and the Supreme Court, it would be denial of Supreme Court, it would be denial of justice to the appellant if he alone is justice to the appellant if he alone is singled out for punishment by way of singled out for punishment by way of dismissal from service."

dismissal from service."

Mr. Topkar has taken us through the orders passed by the Mr. Topkar has taken us through the orders passed by the Appellate authority and the revisional authority on the Appellate authority and the revisional authority on the quantum of punishment. He has also taken us through the quantum of punishment. He has also taken us through the transcript of conversation between Mr. Keer and Mr. Pasha, transcript of conversation between Mr. Keer and Mr. Pasha,

* 10/14 * eventually recorded by raiding party members. Mr. Topkar eventually recorded by raiding party members. Mr. Topkar has taken us through the finding of the appellate authority has taken us through the finding of the appellate authority wherein (Para 34) it is recorded that conversation between wherein (Para 34) it is recorded that conversation between Mr. Keer and Mr. Pasha was heard by this respondent. Same Mr. Keer and Mr. Pasha was heard by this respondent. Same finding is recorded by the revisional authority in paragraph finding is recorded by the revisional authority in paragraph

20. On this premise, Mr. Topkar submitted finding recorded

20. On this premise, Mr. Topkar submitted finding recorded by both the authorities is contrary to the material on record by both the authorities is contrary to the material on record and particularly, transcript of conversation between Mr. and particularly, transcript of conversation between Mr. Keer and Mr. Pasha.

Keer and Mr. Pasha.

We have perused the orders passed by the We have perused the orders passed by the appellate authority and the transcript of conversation appellate authority and the transcript of conversation between Mr. Pasha and Mr. Keer. At the first place, between Mr. Pasha and Mr. Keer. At the first place, transcript does not suggest demand by Mr. Keer. The said transcript does not suggest demand by Mr. Keer. The said conversation in no manner suggest that Mr. Keer demanded conversation in no manner suggest that Mr. Keer demanded the bribe. It is not possible to conceive even on the touchthe bribe. It is not possible to conceive even on the touchstone of preponderance of probabilities, that the stone of preponderance of probabilities, that the respondent would know Rs.1,000/- given to him by Mr. Keer respondent would know Rs.

1,000/- given to him by Mr. Keer was tainted money or bribe given to him by Mr. Pasha. was tainted money or bribe given to him by Mr. Pasha. There appears nothing on record to indicate that the There appears nothing on record to indicate that the respondent was either sharing intention or had knowledge respondent was either sharing intention or had knowledge that money given to him was tainted or a bribe. The that money given to him was tainted or a bribe.

* 11/14 * transcript does not suggest anything. No other evidence transcript does not suggest anything. No other evidence was brought on record to show that respondent was aware was brought on record to show that respondent was aware that Mr. Pasha would be giving bribe to Mr. Keer. Both the that Mr. Pasha would be giving bribe to Mr. Keer. Both the authorities have held that it was within the knowledge of authorities have held that it was within the knowledge of the respondent and, therefore, he assisted Mr. Keer in his the respondent and, therefore, he assisted Mr. Keer in his activities.

activities.

The finding recorded by both the authorities that the The finding recorded by both the authorities that the respondent was aware that the money counted by him at respondent was aware that the money counted by him at the instance of Mr. Keer was tainted money was without the instance of Mr. Keer was tainted money was without any foundation and/or material. In the circumstances, such any foundation and/or material. In the circumstances, such finding recorded by both the authorities as was de-horse finding recorded by both the authorities as was de-horse the material on record and hence, incorrect.

the material on record and hence, incorrect.

Another charge against him was not maintaining Another charge against him was not maintaining absolute integrity and the lack of devotion to duty. The absolute integrity and the lack of devotion to duty. The learned counsel for the petitioners relied on communication learned counsel for the petitioners relied on communication dated 10.4.2003, addressed by one Shri S.A.Rahate, dated 10.4.2003, addressed by one Shri S.A.Rahate, Superintendent (Maintenance), Mole Station whereby he Superintendent (Maintenance), Mole Station whereby he requested office of petitioners for provision of vehicle to requested office of petitioners for provision of vehicle to carry out maintenance job at Alibag, Shrivardhan and carry out maintenance job at Alibag, Shrivardhan and Murud and for aerials, wire-less sets. She submitted that Murud and for aerials, wire-less sets. She submitted that date mentioned in the request letter for vehicle was erased date mentioned in the request letter for vehicle was erased

* 12/14 * with white fluid and substituted with with white fluid and substituted with 4.6.2003 4.6.2003 in place of in place of 10.4.2003 10.4.2003. She would contend that on the basis of this . She would contend that on the basis of this forged letter, the respondent was claiming he was to drive forged letter, the respondent was claiming he was to drive the vehicle to the destination on 4.6.2003 and as Mr. Keer the vehicle to the destination on 4.6.2003 and as Mr. Keer was interested to travel in the said vehicle, he came in the was interested to travel in the said vehicle, he came in the office of Mr. Keer.

office of Mr. Keer.

That relying on this document, learned counsel That relying on this document, learned counsel for Petitioners submitted that presence of the respondent in for Petitioners submitted that presence of the respondent in cabin of Mr. Keer was voluntary and, therefore, knowledge cabin of Mr. Keer was voluntary and, therefore, knowledge on his part that it was tainted money is to be inferred. This on his part that it was tainted money is to be inferred. This contention cannot be accepted, firstly, for the reason that contention cannot be accepted, firstly, for the reason that the respondent was not charged for forging official the respondent was not charged for forging official communication dated 10.4.2003 and secondly, from this communication dated 10.4.

2003 and secondly, from this document, it cannot be inferred that he was either sharing document, it cannot be inferred that he was either sharing intention and/or knowledge with Mr. Keer. It is for this intention and/or knowledge with Mr. Keer. It is for this reason, it cannot be held even on touch-stone of reason, it cannot be held even on touch-stone of preponderance of probabilities that respondent was helping preponderance of probabilities that respondent was helping Mr. Keer in his activities.

Mr. Keer in his activities.

Now the question arises as to whether the Now the question arises as to whether the petitioners were justified in inflicting major penalty on the petitioners were justified in inflicting major penalty on the

* 13/14 * respondent, as admittedly much lesser penalty was respondent, as admittedly much lesser penalty was inflicted on Mr. Kamble though both were held guilty for inflicted on Mr. Kamble though both were held guilty for helping Mr. Keer in his activities in one and same enquiry. helping Mr. Keer in his activities in one and same enquiry. The disciplinary as well as the revisional authorities while The disciplinary as well as the revisional authorities while dealing with this contention held in the respective orders dealing with this contention held in the respective orders that the disciplinary and the appellate authority of Mr. that the disciplinary and the appellate authority of Mr. Kamble was different and, therefore, decision taken by Kamble was different and, therefore, decision taken by those authorities would not bind them.

This finding appears those authorities would not bind them. This finding appears to be strange and not sustainable for the simple reason to be strange and not sustainable for the simple reason that Mr. Kamble and the respondent were held guilty in the that Mr. Kamble and the respondent were held guilty in the one and the same enquiry. Evidence gathered against them one and the same enquiry. Evidence gathered against them was common and under these circumstances the was common and under these circumstances the authorities could not have awarded different punishments authorities could not have awarded different punishments to the respondent when both were held guilty of the same to the respondent when both were held guilty of the same charge and by same enquiry officer.

charge and by same enquiry officer.

That after appreciating the material on record, That after appreciating the material on record, we are of the opinion that disciplinary as well as revisional we are of the opinion that disciplinary as well as revisional authorities have committed an error by concluding a fact authorities have committed an error by concluding a fact that the respondent "was aware" and was "knowing" that that the respondent "was aware" and was "knowing" that the money counted by him was bribe given to Mr. Keer by the money counted by him was bribe given to Mr. Keer by Mr. Pasha. There is absolutely no evidence to support such Mr. Pasha. There is absolutely no evidence to support such

* 14/14 * finding. What remains is to ascertain as to whether finding. What remains is to ascertain as to whether presence of the respondent in the cabin of Mr. Keer was presence of the respondent in the cabin of Mr. Keer was voluntary or otherwise. That even assuming that the voluntary or otherwise. That even assuming that the respondent was party to forged communication of March, respondent was party to forged communication of March, 2003 but since he was not charged with this, he cannot be 2003 but since he was not charged with this, he cannot be held guilty. That even otherwise the punishment awarded held guilty. That even otherwise the punishment awarded to the respondent in the aforesaid facts and circumstances to the respondent in the aforesaid facts and circumstances is illogical and highly disproportionate.

A co-delinquent has is illogical and highly disproportionate. A co-delinquent has been awarded punishment of stoppage of increment for a been awarded punishment of stoppage of increment for a period of three years whereas punishment awarded to the period of three years whereas punishment awarded to the respondent is compulsory retirement. In view of these facts respondent is compulsory retirement. In view of these facts and circumstances, we are of the opinion that the learned and circumstances, we are of the opinion that the learned CAT committed no error and no interference is called for in CAT committed no error and no interference is called for in its order dated 21.2.2013. Resultantly,the petition fails. The its order dated 21.2.2013. Resultantly,the petition fails. The same is dismissed. Rule is discharged.

same is dismissed. Rule is discharged.

(SANDEEP K. SHINDE, J) (SANDEEP K. SHINDE, J) (SMT. V.K. TAHILRAMANI, J) (SMT. V.K. TAHILRAMANI, J)