IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
TUESDAY, THE 5TH DAY OF JUNE 2012/15TH JYAISHTA 1934
OP (CAT).No. 1727 of 2012 (Z)
----------------------------AGAINST ORDER DATED 16.03.2012 IN OA.799/2011 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
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PETITIONER:
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K.S.SASIDHARAN, AGED 61 YEARS S/O.THE LATE SUBRAMANIAN MOOSAD DEPUTY COMMISSIONER OF CENTRAL EXCISE (RETIRED) RESIDING AT KIZHAKKE ILLAM DH ROAD, COCHIN 682016
BY ADVS.SRI.O.V.RADHAKRISHNAN (SR.) SRI.C.S.GOPALAKRISHNAN NAIR SMT.CHANDINI G.NAIR
RESPONDENTS:
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1. UNION OF INDIA REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE MINISTRY OF FINANCE, NEW DELHI- 110 001.
2. CHAIRMAN, CENTRAL BOARD OF EXCISE & CUSTOMS, NORTH BLOCK NEW DELHI -110 001.
3. CHIEF COMMISSIONER OF CUSTOMS & CENTRAL EXCISE KERALA ZONE, CENTRAL REVENUE BUILDINGS I.S.PRESS ROAD, COCHIN-682 018.
4. COMMISSIONER OF CENTRAL EXCISE & CUSTOMS CENTRAL REVENUE BUILDINGS, MANANCHIRA KOZHIKODE - 673 001.
5. COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, WILLINGTON ISLAND, COCHIN-682009.
6. CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, REPRESENTED BY ITS REGISTRAR KALOOR ERNAKULAM 682 017.
BY ADV. SRI.JOHN VARGHESE,SC,CEN.BOARD OF EXCISE BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA BY SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EX
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 05-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (CAT).No. 1727 of 2012 (Z)
APPENDIX
PETITIONERS' EXHIBITS :
EXHIBIT-P1 - COPY OF THE O.A.NO.799 OF 2011 DATED 15-09-2011.
ANNEXURE-A3 - COPY OF MEMORANDUM F.NO.C-14011/68-B/2010-AD.V/1177 DATED 25-2-2011 WITH ANNEXURES 1 TO IV ALONG WITH THE COVERING LETTTER F.NO.VIG.01/11 CUS. DATED 8.3.2011 OF THE ADDL. COMMISSIONER OF CUSTOMS (VIG).
ANNEXURE-A1 - COPY OF MEMORANDUM F.NO.C-14011/48/2010-AD.V/5288 DATED 31.8.2010 ALONG WITH THE COVERING LETTER F.NO.VIG./03/10 US DATED 13.9.2010 OF THE ADDL. COMMISSIONER OF CUSTOMS (VIG.), COCHIN.
ANNEXURE-A2 - COPY OF THE REPRESENTATION DATED 17.9.2010 OF THE APPLICANT TO THE UNDER SECRETARY CENTRAL BOARD OF EXCISE & CUSTOMS, NEW DELHI.
ANNEXURE-A4 - COPY OF TH REPRESENTATION DATED 10.3.2011 OF THE APPLICANT TO THE 1ST RESPONDENT.
ANNEXURE-A5 - COPY OF THE REMINDER LETTER DATED 08.06.2011 OF THE APPLICANT TO THE 1ST RESPONDENT
ANNEXURE-A6 - COPY OF THE REMINDER LETTER DATED 25.8.2011 OF THE APPLICANT TO THE 1ST RESPONDENT
ANNEXURE-A7 - COPY OF THE ORDER 20/2011(F.NO.14011/48/2010-AD.V/2951 DATED 23.5.2011 OF THE 1ST RESPONDENT
EXHIBIT-P2 - COPY OF THE LIST OF 63 BILLS OF ENTRY FURNISHED ALONG WITH ANNEXURE A3.
- EXHIBIT-P3 - COPY OF THE LIST OF 17 BILLS OF ENTRY.
EXHIBIT-P4 - COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE OFFICIAL RESPONDENTS DATED 03.02.2012.
EXHIBIT-P5 - COPY OF THE M.A.NO.194 OF 2011 DATED 09-02-2012.
ANNEXUREMA1. COPY OF THE LETTER F.NO.C-14011/68-B/2010-AD.V/9184 DATED 3.1.12 ISSUED BY THE UNDER SECRETARY DEPARTMENT OF REVENUE ALONG WITH LETTER F.NO.VIG./01.11./CUS DATED 25/1/2012 OF THE 5TH RESPONDENT.
EXHIBIT-P6 - COPY OF THE REJOINDER STTMENT DATED 23.2.2012.
ANNEXURE-A-8. COPY OF THE FIR DATED 21.12.2007 IN RC-21(A)/2007 FILED BEFORE THE HON'BLE COURT OF SPECIAL JUDGE-II, EBI ERNAKULAM.
ANNEXURE-A-9. COPY OF THE FIR DATED 27.12.08 IN RC-25(A)/2008-KER FILED BEFORE THE HON'BLE COURT OF SPECIAL JUDGE-II, CBI, ERNAKULAM
OP (CAT).No. 1727 of 2012 (Z)
EXHIBIT-P7 - COPY OF THE MEMO DATED 13.3.2012.
WRITTEN STATEMENT OF DEFENCE DATED 3.2.2012 OF THE APPLICANT TO THE UNDER SECRETARY TO THE GOVERNMENT OF INDIA, NEW DLEHI.
EXHIBIT-P8 - COPY OF THE ORDER DTED 16.3.2012 IN O.ANO.799/2011 OF THE 6TH RESPONDENT.
/TRUE COPY/
PA TO JUDGE
## **Manjula Chellur, Ag. C.J. & A.M. Shaffique, J.**
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O.P.(CAT) No. 1727 OF 2012
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## **JUDGMENT**
## **Manjula Chellur, Ag. C.J.**
Heard the learned Senior Counsel arguing for the petitioner Sri.O.V. Radhakrishnan, so also the respondent.
2. The main challenge in this original petition is initiation of proceedings under Rule 14 of Central Civil Services (Classification, Control and Appeal) Rules of 1965, when the proceedings initiated under Rule 16 were still pending.
3. It is not in dispute that pertaining to certain counter signatures of the petitioner herein in bills of entries while discharging his functions as Assistant Commissioner of Customs holding charge of Air Cargo complex, Karipur from November 2005 to 2006, memorandum of charges came to be issued on 31.08.2010 under the above said rules. This charge admittedly pertains to three bills of entries dated 08.12.2005, 12.12.2005 and 30.01.2006. It is also not in dispute that he gave a reply to the memorandum of charges as per letter
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dated 17.09.2010. The petitioner superannuated on
30.04.2011.
3. What is relevant is what happened prior to his superannuation. On 08.03.2011 Annexure A3 memo was issued alleging two articles of charges; one pertaining to 63 bills of entries and another with reference to 17 bills of entries. Some time was spent in correspondence, asking for the copies of bills of entry etc. On 31.10.2011 the proceedings initiated under Rule 16 of the Rules came to be closed. The challenge is that when the proceedings initiated under Rule 16 was still pending, there was no justification to initiate action for similar misconduct under Rule 14 of the Rules.
4. Apparently, immediately after service of memo at Annexure A3 dated 08.03.2011, the petitioner did not challenge the initiation of action while proceedings under Rule 16 was pending. Subsequent to the closure of proceedings under Rule 16 of the rules, a challenge came to be made before the administrative tribunal. During the course of submission, the main emphasis was that the proceedings initiated in the first
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instance were not yet concluded when second memo was issued, therefore there was no justification for initiation of second proceedings during the pendency of first proceedings by issuing another articles of charges, as there is no such provision in the above rules.
5. Apparently in the absence of rules pertaining to initiation of two proceedings for the same misconduct one has to see what is provided under General Law. It is nothing but a defence of double jeopardy. As on the date of challenge before the CAT, proceedings under Rule 16 for minor penalty was closed and only proceedings for major penalty under Rule 14 were pending. In that context CAT went to the extent of addressing the controversy saying whether at the stage of issuance of the second charge, the petitioner could have challenged the proceedings as there was only three bills of entries in the first memo in which minor penalty proceedings were initiated. By virtue of second memo dated 08.03.2011 apart from including the three earlier bills of entries, there were others one relating to 63 bills of entries and another relating to 17 bills of entries.
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However, the learned Senior Counsel contends 17 bills of entries are part of 63 bills of entries. The fact remains 63 bills of entires were not the subject matter of minor penalty proceedings. In that view of the matter, the second memo that came to be issued on 08.03.2011 may be for similar misconduct but altogether a different cause of action pertaining to different set of bills of entries.
6. Then coming to the next question that during the pendency of earlier proceedings whether initiation of major penalty proceedings was justified or not, it was always open to the petitioner to seek deletion of the details of the earlier bills of entries as they were subject matter of earlier proceedings. if both proceedings were to continue. In the present case the earlier proceedings are closed, therefore, simultaneous proceedings for the same bills of entries would not arise for the simple reason that there is only one proceedings under Rule 14 which contemplate major penalty.
7. It is always open to the present petitioner to contend that there was already a proceedings for earlier bills of
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entries, therefore, the second charge including earlier bills of entries was wrong and he could have asked for modification or reassessment of memorandum of charges. Such situation would not arise in the present case as the earlier proceedings are closed and 63 bills of entries are the subject matter of memorandum of charges dated 08.03.2011. In the absence of simultaneous proceedings pending, both for minor penalty and major penalty, we are unable to accept the arguments of learned counsel for the petitioner that in the light of pendency of first proceedings, there was no justification for initiation of the second proceedings. We are not faced with a situation where simultaneous proceedings of major penalty and minor penalty are pending.
8. Even otherwise, the learned counsel for the respondent department brings to our notice that minor penalty proceedings could not have been completed on account of superannuation of the petitioner on 30.04.2011 and further details of unauthorised counter signatures in the bills of entries came to light, therefore, proceedings for major penalty came to be initiated.
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Having regard to the above situation, we are of the opinion the law laid down in **Kanailal Bera v. Union of India** [(2007) 11 SCC 517] relied on by the learned Senior counsel is not applicable to the facts of the present case as there is no parallel proceedings pending for the same misconduct. Accordingly, the Original Petition is dismissed.
**Manjula Chellur, Ag. Chief Justice.**
**A.M. Shaffique, Judge.**
ttb/06/06
