K.A. Usha w/o Dasan v. Chief Commissioner of Central Excise & Customs, Central Revenue Buildings, Cochin, and Union of India (OP (CAT) No. 200 of 2016 (Z))

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU TUESDAY, THE 27TH DAY OF SEPTEMBER 2016/5TH ASWINA, 1938 OP (CAT).No. 200 of 2016 (Z) ----------------------------- AGAINST THE ORDER/JUDGMENT IN OA 867/2012 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 08-04-2016 PETITIONER(S): ------------------ K.A.USHA W/O. DASAN, AGED 53 YEARS, HAWILDAR (FORMERLY SEPOY) OF CENTRAL EXCISE, ALUVA RANGE, ALUVA, ERNAKULAM DISTRICT. BY ADVS.SRI.C.S.GOPALAKRISHNAN NAIR SMT.CHANDINI G.NAIR RESPONDENT(S): -------------------- 1. CHIEF COMMISSIONER OF CENTRAL EXCISE & CUSTOMS CENTRAL REVENUE BUILDINGS, I S PRESS ROAD, COCHIN-682 018. 2. COMMISSIONER OF CENTRAL EXCISE & CUSTOMS CENTRAL REVENUE BUILDINGS, I S PRESS ROAD, COCHIN-682 018. 3. JOINT COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, CENTRAL REVENUE BUILDINGS, I S PRESS ROAD, COCHIN-682 018. 4. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI-110 001. R1-R4 BY ADV. SRI.K.SHRI HARI RAO, CGC R BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 27-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 200 of 2016 (Z) --------------------------------- : 2 : ## **APPENDIX** PETITIONER(S)' EXHIBITS: EXT. P1 A TRUE COPY OF OA NO.867/2012 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL. ANNEXURE A1 IN EXT.P1: PHOTOCOPY OF THE ABOVE MEMORANDUM NO.C NO.II/10A/9/2007 VIG. CX/214/07 DT. 22.02.2007 ISSUED BY THE THIRD RESPONDENT. ANNEXURE A7 IN EXHIBIT P1: PHOTOCOPY OF THE INQUIRY REPORT ALONG WITH THE MEMO C NO.II/10A/9/2007 VIG. CX/561/09 DT. 14.08.2009 ISSUED BY THE 3RD RESPONDENT. ANNEXURE A9 IN EXHIBIT P1: PHOTO COPY OF THE DISCIPLINARY ORDER DT. 26.04.2011. ANNEXURE A11 IN EXHIBIT P1: TRUE COPY OF THE ORDER IN APPEAL ALONG WITH THE COVERING LETTER DATED 16.03.2012. ANNEXURE A2 IN EXHIBIT P1: TRUE COPY OF THE ABOVE REPRESENTATION DATED NIL. ANNEXURE A3 IN EXHIBIT P1: PHOTOCOPY OF THE ORDER C.NO.II/39/31/2006 VIG.CX PART I/562/07 DATED 08.05.2007 ISSUED BY THE 3RD RESPONDENT. ANNEXURE A4 IN EXHIBIT P1: PHOTO COPY OF S5 DOCUMENT IN THE ENQUIRY. ANNEXURE A5 IN EXHIBIT P1: PHOTOCOPY OF THE ARGUMENT NOTE SUBMITTED BY THE PRESENTING OFFICER TO THE INQUIRY OFFICER. ANNEXURE A6 IN EXHIBIT P1: TRUE COPY OF THE DEFENCE NOTE. ANNEXURE A8 IN EXHIBIT P1: TRUE COPY OF THE ABOVE REPRESENTATION DATED /09/09. ANNEXURE A10 IN EXHIBIT P1: TRUE COPY OF THE APPEAL PETITION FILED ALONG WITH THE COVERING LETTER DT. 21.07.2011. EXT. P2 PHOTOCOPY OF THE REPLY STATEMENT. EXT. P3 PHOTOCOPY OF THE REJOINDER. EXT. P4 TRUE COPY OF THE ORDER ON 26.05.2014. EXT. P5 TRUE COPY OF THE ORDER DATED 16.1.2015 IN RA NO.14/2014. EXT. P6 PHOTOCOPY OF THE JUDGMENT DATED 1.7.2015 IN OP (CAT) 108/2015. EXT. P7 TRUE COPY OF THE ORDER DATED 8.4.2016 IN OA 867/12 RESPONDENT(S)' EXHIBITS: NIL -------------------------------- P.R. RAMACHANDRA MENON & DAMA SESHADRI NAIDU, JJ. ------------------------------------------- **==> picture [185 x 13] intentionally omitted <==** -----------------------------------------Dated this the 27[th] day of September, 2016. ## JUDGMENT ## Ramachandra Menon,J. Challenge is against the interference declined by the Tribunal in O.A. No. 867 of 2012, in respect of the punishment imposed upon the petitioner by way of barring two increments with cumulative effect for a period of two years, on finding her guilty for receiving share of bribe collected from the passengers. 2. The sequence of events reveals that the petitioner was working as a Sepoy in the Calicut Airport from 05.11.2004 to 02.11.2005. While so, there was a surprise inspection by the CBI, whereby some incriminating materials were traced out, leading to registration of a crime. The criminal case was registered against 36 accused persons, and in respect of others, departmental proceedings were initiated. 3. The petitioner herein was not an accused in the criminal case, but a show cause notice was issued intending to proceed with the disciplinary proceedings. On receipt of the said notice, an O.P.(CAT) No. 200/2016 -2- explanation was submitted, which was not satisfactory to the Department, and accordingly a detailed domestic enquiry was conducted in terms of Rule 14 of the Central Civil Services (Classification, Control & Appeal) Rules 1965. Evidence was adduced by both the sides. Based on the evidence tendered, a finding was arrived at by the Enquiry Officer, to the effect that the delinquent employee was guilty of the misconduct alleged against her. It was accordingly that the matter was considered by the Disciplinary authority and imposed the punishment as per Annexure A9 order, whereby two increments were barred for a period of two years with cumulative effect. Feeling aggrieved of the said order, the matter was taken up by the petitioner before the appellate authority as provided under the relevant Rules. After considering the appeal, interference was declined and the appeal was dismissed by the appellate authority as per Annexure A11 order, which made the petitioner to rush to the Tribunal by filing O.A. No. 867 of 2012. 4. The following were the prayers raised in the OA: - 1.To call for the records leading to Annexure A1, A7, A9 and A11 to set aside the same. - 2.To declare that the Inquiry held against the applicant O.P.(CAT) No. 200/2016 -3- having been vitiated by non-observance of the principles of natural justice and the finding of guilt being not supported by legal evidence and is based on conjunctions and surmises, the penalty imposed on the applicant as per Annexure A9 order and confirmed in Appeal in Annexure A11 is non est and shall not visit the applicant with any adverse consequences in the matter of her service benefits including financial upgradations. - 3.To issue appropriate direction or order directing the respondents to restore the pay and allowances to the applicant without regard to Annexure A9 order of the Disciplinary authority and Annexure A11 order of Appellant authority, consequent on setting aside the same. - 4.To issue appropriate direction, order directing the respondents to refund the amount illegally deducted and reduced from the pay of the applicant based on Annexure A9 and Annexure A11 orders within a time frame that may be fixed by this Hon'ble Tribunal.” 5. The reliefs sought for were resisted on the part of the Department. After hearing both the sides, the Tribunal, as per Ext.P4 order dated 26.05.2014, held that the applicant was having an effective alternative remedy by way of 'revision', and accordingly the petitioner was relegated to pursue such remedy, without dealing the merits of the case. Though a review application was filed, the same came to be dismissed as per Exhibit P5 order dated 16.01.2015. The said orders were sought to be challenged by filing O.P (CAT) No.108/2015 before this Court, mainly contending that the so-called O.P.(CAT) No. 200/2016 -4- remedy by way of 'revision' was not an alternative available to the petitioner, which in fact was available only in the given set of facts and circumstances. The matter was dealt with in detail by this Court, wherein Ext.P6 judgment (to which one of us—PRRM(J)—was a party) was passed in support of the case projected by the petitioner and the merit of the case was directed to be considered. It was accordingly, that the matter was remitted to the Tribunal. Pursuant to Ext.P6 verdict, the merit of the case was considered by the Tribunal. After dealing with the facts and circumstances, including the proceedings pursued by the Enquiry Officer, the orders passed by the Disciplinary authority and the appellate order passed by the Appellate authority, the learned Tribunal referred to the binding precedents and applied the law to the given set of facts and circumstances, based on which, a finding was arrived at to the effect that no interference was to be called for, and accordingly, O.A. came to be dismissed. This, in turn, is under challenge in this Original Petition. 6. Heard the learned counsel for the petitioner at length. 7. The learned counsel submits that though the order passed by the Tribunal is a detailed one, the relevant aspect sought to be O.P.(CAT) No. 200/2016 -5- projected by the petitioner was not adverted to with proper application of mind. The only evidence stated as available is the incriminating material/piece of paper recovered from the tiffin box of one Mr. Aravindan and the version given by the said person before the authorities concerned. The said version is stated as not liable to be accepted in evidence and he was never examined. As such, the finding rendered by the Enquiry Officer that the delinquent employee was guilty of the offence, which, in fact, was set aside by the Disciplinary authority and confirmed by the Appellate authority are countered as quite wrong and unsustainable. 8. During the course of hearing, the learned counsel has placed reliance on a decision of the Supreme Court in Ram Kishan Singh v. Harmit Kaur and another[1] as to the evidential value of Section 164 statement (of the Cr.P.C). We have gone through the said judgment. The observation made by the Supreme Court in paragraph 8 is in the following terms: “A statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness. The first information report was considered by the Session Judge. Any special consideration of the statement of Hazura Singh under 1 (1972) 3 SCC 280 O.P.(CAT) No. 200/2016 -6- Section 164 of the Code of Criminal Procedure could not have produced a different result by reason of the conclusions of the Sessions Judge as to rejecting the oral evidence of Nihal Kaur, Harmit Kaur and Hazura Singh as unreliable, untruthful and unworthy of credence.” 9. There is no dispute with regard to the position of law sought to be canvassed by the petitioner with reference to Section 164 of Cr.P.C, but the verdict cited above was in respect of a criminal case. The adequacy of evidence is not the same when it comes to disciplinary proceedings. The legal position has been made clear by the Supreme Court on many an occasion and the judgments in this regard have been referred to and discussed in detail by the Tribunal. The evidence available on record has also been discussed in detail, particularly as discernible from 'paragraph 13' onwards. We do not find it necessary to reproduce the same as it forms part of the record and both the sides are aware of the proceedings. No dispute is raised with regard to the availability of such materials, to the extent as discussed by the Tribunal. It is settled law that in the case of a 'disciplinary proceeding', the guilt need not be established beyond any reasonable doubt, unlike a criminal proceeding and that preponderance of probability is sufficient in the former case. As O.P.(CAT) No. 200/2016 -7- already held by the Apex Court in State of Hayana and another v. Rattan Singh[2] , there is no allergy even to 'hear-say evidence', if it is having some nexus. In the said circumstance, we find that the verdict passed by the Tribunal is perfectly within the four walls of the law and is not liable to be assailed in any circumstance. No tenable ground is brought to the notice. Interference is declined and the Original Petition fails and is dismissed accordingly. P.R. RAMACHANDRA MENON, JUDGE. DAMA SESHADRI NAIDU, JUDGE. _Rv_ 2 1977(2) SCC 491 O.P.(CAT) No. 200/2016 -8-