Saturday, November 3, 2012

CP 22 / 2010 on 23.08.2010 An imp observation

CP 22 / 2010 -- An imp observation

            While adjourning this CP as above, it is necessary to comment upon certain peculiarities of the case and pass some further directions.  OA No.152/2010 was allowed on 10.6.2010 with a specific direction to the Respondents No.1 and 2 "to convene a Review DPC within 10 days to consider the claim of the applicant for promotion and pass appropriate orders........"  When Respondents No.1 and 2 failed to comply in time, the present CP (Contempt Petition) was filed.  Subsequently, Respondents No.1 and 2 filed MA No.276/2010 in OA No.152/2010 seeking extension of time and also filed a Review Application.  In both these applications the respondents are heavily relying on a particular matter which is allegedly similar to that in the OA and has been referred to a larger Bench of the Supreme Court and may come up for hearing and direction on some unknown time in future.  It appears that Respondents No.1 and 2 have taken it upon themselves to connect the OA with the said referred matter and have come again and again to draw a conclusion that the direction in the OA needs to be complied with, if at all, only in the eventuality of the outcome of the said reference to the Supreme Court in the said allegedly related matter. 

            This Tribunal has already rejected this plea in no uncertain terms while rejecting the MA on 21.07.2010  Immediately thereafter, this CP came up for hearing on 23.7.2010 on which date, again this Tribunal has categorically noted our displeasure at lot of lapses by the respondent department including not responding even to their own counsel's communications.  We categorically questioned the learned counsel as to why their lapses in not following the directions in the OA should not be viewed very seriously, but the learned counsel for respondents submitted that he would be asking both Respondent No.1 and 2 viz., the Secretary, Department of Revenue, Ministry of Finance, and the Chairman, Central Board of Excise and Customs, Dept. of Revenue, Ministry of Finance, New Delhi, to file an affidavit as to how quickly they would comply with the directions in the said OA.  The learned counsel for Respondents has taken due care to receive the affidvit of Respondents No.1 and 2 and file it before this Bench before promised.  But, the case could not be heard on 3.8.2010 and has come up for hearing today, having been adjourned at the request of the applicant, and without any objection from the Respondents for reasons stated therein.

            Now to our surprise and chagrin, we note that the affidavit is far lacking in satisfying this Bench as to the effective action as well as sincerity and intentions of the respondents in complying with the directions in the OA.  It is made with certain impunity.  Especially para 10 sub-para 1 reiterates that the outcome of the Review DPC, now being held to consider the promotion of the applicant, in view of the directions given in the OA will be "subject to the outcome of the appeal pending before the Hon'ble Supreme Court".  We are extremely displeased that Respondents No.1 and 2 have taken up on themselves to completely disregard the directions given in the OA and in fact are trying to discharge the functions of this Tribunal by having their own interpretation regarding the effect of referred matter on a settled matter.  We further note that their apology expressed in para 10 sub-para 2 is not unconditional apology and on its face, it cannot be called a sincere apology.  We further observe that at
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para 6 sub-para 3, they have even commented upon the interim direction given to them in this CP on 23.7.2010 and tried to again raise the issue of their Review Application but without bothering to take cognizance of the directions issued while dismissing their MA in the OA on 21.7.2010.  Further, at para 7, they are seemingly agreeing to grant the promotional benefits to the applicant only after finalisation of the said appealed matter before the Supreme Court.  We find that since we have already dealt with this aspect very elaborately and categorically while dismissing the MA on 21.7.2010, the promises made in para 7 border to mischief, to say the least.

            We are therefore, forced to record our displeasure and to direct Respondents No.1 and 2 to file a fresh affidavit tendering their unqualified and sincere apology for having failed to grant the relief to the applicant as directed in OA.  They should also let us know by way of the same affidavit whether the file containing the outcome of the Review DPC held by them on 29.7.2010 has begun its onward journey for getting clearances of ACC and if so, whether any mention has been made about the appeal pending before the Supreme Court in such a way as to give an indication or suggestion to the senior authorities to reject the claim of the applicant on that ground.  If the said file of the Review DPC contains any such mention, this Tribunal will be constrained to doubt the sincerity and fairness of Respondents No.1 and 2 in obeying the orders of this Tribunal for which they are duty bound by the very constitution under which they enjoy the office of Secretary, Finance and Chairman, Central Board of Customs and Excise.    .

            With the above directions to file a fresh affidavit, this CP is adjourned to 17.09.2010.

            A copy of this order may be furnished to each of the counsel representing the parties in these proceedings before us as requested by them for them to forward to the concerned Respondent to expedite compliance of this order.

                        (LEENA MEHENDALE)                              (N.D. RAGHAVAN)
                             MEMBER (A)                                           VICE-CHAIRMAN


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