w w w . L a w y e r S e r v i c e s . i n



Commissioner Central Excise & Customs & Others v/s C.P. Sonkar

    Civil Misc. Writ Petition No. 64051 of 2007

    Decided On, 26 February 2014

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE RAJESH KUMAR AGRAWAL & THE HONOURABLE MR. JUSTICE ASHWANI KUMAR MISHRA

    For the Appellants: K.C. Sinha, R.C. Shukla, Advocates. For the Respondent: M.A. Siddiqui, P. Padia, S.C, Advocates.



Judgment Text

1. Heard Sri R.C. Shukla, learned counsel for the petitioner and Sri Prakash Padia, learned counsel for the respondent. By means of the present writ petition, the petitioner has challenged the order dated 25.1.2007 passed by the Central Administrative Tribunal in Original Application No. 908 of 2005, by which the punishment order dated 3.5.2005 has been set aside and the matter has been remanded back to the disciplinary authority to pass a fresh order.

2. The brief facts of the case are that the petitioner is a retired Superintendent of Central Excise. By the order dated 3.5.

Please Login To View The Full Judgment!

2005, he has been awarded punishment reducing monthly pension by 25%. It appears that before awarding the aforesaid punishment, an advice has been taken by the disciplinary authority under Rule 15 of Central Civil Services (Classification, Control and Appeal) Rules, from the Commission and on the basis of advice of the Commission, the punishment order has been passed. Before the tribunal, it was contended by the respondent that without providing the copy of the advice of the Commission the impugned punishment order dated 3.5.2005 has been passed. The tribunal accepted the contention of the petitioner and set aside the impugned order dated 3.5.2005 and directed the petitioner to pass a fresh order after giving opportunity to meet the advice dated 2.5.2005 of the Union Public Service Commission, which was heavily relied upon by the petitioner.

3. Learned counsel for the petitioner submitted that Rule 32 provides that copy of the advice be provided to the delinquent officer alongwith copy of the order and not before passing of the final order and, therefore, the order of the tribunal directing to provide the copy of the advice dated 2.5.2005 and pass a fresh order after giving opportunity to the respondent to meet the advice, is wholly unjustified.

4. We do not find substance in the argument of the learned counsel for the petitioner. Rule 32 reads as follows:

Rule 32 provides that wherever the commission is consulted as provided in these rules, copy of the advice by the Commission and where such advice has not been accepted, also a brief statement of reasons for such non-acceptance, shall be furnished to the Government officer concerned alongwith copy of the order passed in the case, by the authority making the order.

5. It only contemplates, to provide the copy of the advice of the Commission alongwith the copy of the order, by which the advice of the Commission has not been accepted by the disciplinary authority after recording the reasons. It does not prohibit that in case, if the disciplinary authority proposed to rely upon the advice of the Commission, the copy of the advice of the Commission may not be provided to delinquent officer or it may be provided only alongwith copy of the final order.

6. If the advice is sought from the Commission then on the receipt of the advice, there can be two situations, either to accept it or not to accept it. Rule 32 provides that in case, if the advice of the Commission is not accepted then reasons should be recorded and copy of the advice of the Commission be provided alongwith such order, not accepting the advice. Rule 32 does not deal with a situation, where the advice is proposed to be accepted. In case, if the authority proposes to accept the advice, there can be two situations, one, if the advice is in the favour of delinquent officer, such advice need not be confronted, but if the advice is adverse to the delinquent officer, such advice must be confronted by providing the copy of advice to enable the delinquent officer to rebut the same, on the principle of natural justice before passing the final order. Any other view, to the contrary, amounts to violation of principle of natural justice.

7. The submission of the learned counsel for the petitioner that under rule 32 the copy of the advice of the commission is required to be supplied to the delinquent officer only alongwith final order, is without any substance. It is the settled principle of law, if any document is being relied upon against the delinquent officer, the same ought to have been confronted. In case, if it is not confronted, it amounts to violation of principle of natural justice.

8. In the case of Union of India and others Vs. Mohd. Ramzan Khan, , the Apex Court has held that the disciplinary proceeding is a quasi judicial proceeding and attracts the principles of natural justice. The supply of copy of the enquiry report, alongwith the recommendation, if any, in the matter of proposed punishment to be inflicted, would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. To have the proceeding completed by using the some material behind the back of the delinquent, is a position not countenanced by fair procedure. While by law, application of natural justice could be totally ruled out. The report is treated as an adverse material if the Enquiry Officer records a finding of guilt and proposes a punishment, so far as delinquent is concerned. In a quasi Judicial matter, if the delinquent is being deprived of knowledge of the material against him, though the same is made available to the punishing authority in the matter of reaching its conclusion, rules of natural justice would be affected.

9. In the case of Mazharul Islam Hashmi Vs. State of U.P. and Another, , the Apex Court held that "every person must know what he is to meet and he must have opportunity of meeting that case. The legislature, however, can exclude operation of these principles expressly or implicitly. But, in the absence of any such exclusion, the principle of natural justice will have to be proved". In view of the above, we do not find any error in the impugned order, which requires interference by this Court. The writ petition fails and is dismissed.

O R