And MA No.9/2011
Central Administrative Tribunal - Mumbai
Mr. Yashwant Balu Lotale vs The Union Of India on 13 June, 2013
OA No.465/2010 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION NO.: 465 OF 2010 DATED OF DECISION:13.6.2013 CORAM: HON'BLE SHRI JUSTICE A.K. BASHEER, MEMBER (J) HON'BLE SMT.LEENA MEHENDALE, MEMBER (A) Mr. Yashwant Balu Lotale, R/at 22, Jai Sharda, Rajaji Path, Mhatre Nagar, Dombivli 421 201. ... Applicant (By Advocate Shri S.V. Marne) VERSUS 1. The Union of India, through the Secretary, Ministry of Finance, Department of Revenue, Central Board of Excise & Customs, North Block, New Delhi. 2. The Commissioner of Central Excise, Mumbai I, New Central Excise Bldg., M.K. Road, Churchgate, Mumbai 400 020. ... Respondents (By Advocate Shri N.K. Rajpurohit with Shri S.G. Pillai) O R D E R (ORAL)
Per: Smt. Leena Mehendale, Member (A)
This OA was filed on 01.07.2010 under Section 19 of the Administrative Tribunals Act, 1985 with a prayer to quash the order of penalty dated 31.01.2008 Annexure A-1 in a disciplinary proceeding and also the Appellate Authority's order dated 22.4.2010 Annexure A-2. The penalty order as confirmed by Appellate Authority is for imposing a penalty of compulsory retirement with 65% of the full compensation pension and gratuity admissible on the date of retirement.
2. The charge memo is attached at Annexure A-3 of the OA and has two Articles of Charge. The Inquiry Officer s Report dated 04.12.2006 which is at Annexure A-5 shows that he held both charges as proved.
The Article of Charge reads as below:- Article of Charge I Shri Y.B. Lotale while working as Superintendent, Murud Circle, Alibag Division of M&P wing was alerted by Commissioner of Customs (Preventive) through Assistant Commissioner, Alibag about possible landing of contraband. However, he failed to take appropriate preventive measures to prevent the landing of contraband in his jurisdiction by effectively mobilising directly and controlling his team of officers. The laxity shown by him contributed to subsequent landing of smuggled explosives, arms and ammunitions in the country which were used in conducting bomb blasts at various places in Mumbai during 1993 which led to the destruction of buildings and loss of hundreds of lives. Consequently Shri Y.B. Lotale, Superintendent, thus failed to maintain integrity, exhibited lack of devotion to duty and acted in a manner unbecoming of a Government servant and thus contravened the provisions of Rule 3(1), (i), (ii) and (iii) of the CCS (Conduct) Rules, 1964 . Article of Charge II Shri Y.B. Lotale while working as Superintendent of Customs (Preventive), Murud Circle, Alibag Division received an illegal gratification for turning a blind eye towards the landing of contraband consisting of explosives, arms and ammunitions.
By his above acts of omission and commission Shri Y.B. Lotale, Superintendent, thus failed to maintain integrity, and acted in a manner unbecoming of a Government servant and thus contravened the provisions of Rule 3(1), (i), (ii) and (iii) of the CCS (Conduct) Rules, 1964 .
3. These are serious charges alleging the applicant to be negligent in taking appropriate preventive measures to prevent the landing of contraband goods which resulted in landing of smuggled explosives, arms and ammunitions in the country which were used in conducting bomb blasts at various places in Mumbai during 1993.
The Statement of Imputation reads as below:
Statement of Imputation for Charge I Shri Y.B. Lotale while working as Superintendent of Customs (Preventive) Murud under Alibag Division was alerted by the then Commissioner of Customs (Preventive), through Assistant Commissioner (Alibag) vide his letter F. No.II/7-9/93 dated 2.2.93 (which was circulated to all the Superintendents of Alibag Division) about possible landings of arms, ammunitions alongwith contraband gold at Vasai, Dadar, Pen, around Bombay, Shriwardhan, Bank of Ratnagiri and Southern areas of Goa. In spite of the above alert message Shri Y.B. Lotale, Superintendent failed to effectively direct and mobilise his officers by keeping effective surveillance, patrolling, collecting specific informations and other appropriate measures to prevent the said landings of contraband in his jurisdiction. He exhibited a callousness, laxity and lack of responsible attitude which subsequently contributed to the landing of explosives and arms and ammunitions which were used in conducting bomb blasts at various places in Mumbai which resulted into the loss of innocent lives.
Shri Lotale, Superintendent in his statement dated 13.5.93 recorded by Superintendent of Police, has stated that he alongwith Shri R.K. Singh, the then Assistant Collector, and Shri Sayyed, Superintendent attended the pre-planned meeting held at Hotel Persian Darbar on 06-01-93 with Mohamed Bhai Dosa who wished to land the contraband in Raigad District. During the said meeting the amount of illegal gratification to be given to Customs staff was also discussed and fixed for allowing the landing of contraband in Raigad district. The above fact has also been corroborated by the then Assistant Collector Shri R.K. Singh, in his statement dated 26.5.93 recorded by S.P., Raigad, Alibag in which Shri R.K. Singh, has stated that Shri Lotale introduced him to Mohamed Bhai Dosa. He has further stated that he alongwith Superintendent Sayyed and Superintendent Lotale demanded a higher amount of money than was paid previously for allowing the landing of contrabands in Raigad District. In view of above it appears that Superintendent Lotale had a nexus with the smuggler Mohamed Bhai Dosa, whose landing agent was Uttam Potdar. It appears that because of the pact to receive illegal gratification from a smuggler for turning a blind eye to landings of contraband by the smuggler, Shri Lotale, displayed laxity and inaction and failed to take preventive measures to check the landing. He has therefore failed to maintain obsolute integrity, devotion to duty, acted in a manner unbecoming of a Government servant and thus contravened the provisions of Rule 3(1),(i)(ii) and (iii) of CCS (Conduct) Rules, 1964 .
Statement of Imputation for Charge II Shri Uttam Potdar, a landing agent in his statement dated 15.7.93 has stated that for the landing of contraband done by him on 3.12.92 at Dighi, he paid Rs.1.25 lakhs for the entire Murud Customs staff which was paid by him to Shri R.A. Patil, Inspector Murud at his residence. Shri R.A. Patil, Inspector was working under Superintendent Shri Y.B. Lotale. Shri R.A. Patil had prior knowledge of the landing of contraband at Dighi on 03.12.92. Creek of Dighi and Rajapuri Port is a sea patrolling area of Murud Circle. Shri Lotale failed to prevent the landing even though he had prior knowledge of same. He knowingly turned a blind eye to these landings as he received a share of illegal gratification for doing so. It therefore, appears that Shri Lotale has failed to maintain absolute integrity and acted in a manner unbecoming of a government servant. The aforesaid acts of omission/commission as set out in Articles of Charge I & II above in respect of Shri Y.B. Lotale, while he was functioning as Superintendent of Customs (Preventive) of Murud under Alibag Division of M&P wing appear to be of a grave nature prejudicial to the security of the state. He has thus failed to maintain absolute integrity, devotion to duty, and acted in a manner unbecoming of a Government servant. He has thus contravened the provisions of Rule 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules, 1964.
4. It is the claim of the applicant in the OA that he was posted as Superintendent of Customs, Marine & Preventive Wing at Murud Circle of Alibag Division during the period from August 1992 to April 1993. He claims that after the investigations in the series bomb blasts in Mumbai on 12.3.1993, many employees and officers of customs Department were prosecuted by the CBI on the allegation of helping smugglers in landing the explosive, but no incriminating evidence was found against the applicant and hence his name was not included in the list of custom officers to be prosecuted. Applicant also claims unjustified delay as the charge memo was issued to him on 25.5.1998 which is nearly after 5 years of the incident of bomb blasts.
5. The applicant challenges the order of Disciplinary Authority on these grounds:
1. Delay in filing the charge-sheet and in completing the enquiry.
2. The Disciplinary Authority had formed his tentative opinion before obtaining the second stage advice of CVC.
3. Act alleged in the charge memo is not a positive act of misconduct. The applicant cites the judgment of Hon'ble Supreme Court in the case of Union of India Vs. J. Ahmed (1979) 2 ACC 286. In the said case the Hon ble Supreme Court has defined as to which act can constitute misconduct.
4. The act of negligence cannot be called a positive act of misconduct.
5. Applicant claims that he was provided with a jeep for road patrolling and no vessel or crew for sea petrolling. Since the place of landing of contraband namely Dighi does not fall in the geographical jurisdiction of Murud Customs Circle, therefore, he cannot be held responsible for any contraband landing at Dighi.
6. The Alert Circular issued by Commissioner of Customs dated 25.1.1993 is at a later date than the landing of contraband at Dighi which is 03.12.1992. Hence it cannot be said that negligent despite the Alert Circular.
7. The statement obtained against the applicant from witness are recorded under provisions of TADA Act hence should not be held as admissible (Even though it is admissible in criminal court).
8. The charge of accepting illegal gratification is not directly proved.
Applicant has merely challenged the order of the Appellate Authority but not elaborated the reasons thereof.
6. We have heard both the learned counsel at length and have gone through the records before us.
7. The Respondents have cited the judgment of Hon ble Apex Court in the case of Principal Secretary government of Andhara Pradesh & Anr. Vs. M. Adinarayan (2004) SCC 579, in which the Hon ble Apex Court has held that the CAT or any other Judicial forum is not doing a job of a fact finding. The conclusion or the findings arrived at by the Disciplinary Authority can be challenged only if there is no material. They have also cited the case of Chairman and Managing Director, United Commercial Bank & Ors. Vs. P.C. Kakkar 2003 (4) SCC 364, in which it is held that the Court should not interfere with the administration decision, unless it is illogical or suffers from procedural improprietory and was shocking to the conscious of the Court. They also point out that looking at the gravity and a large number of investigations it cannot be said that there was unjustified delay. As for later receipt of alert warning, it is pointed out that custom officers are in any case required to remain alert for all kinds of evasions.
8. The applicant and the respondents have both relied on the judgment in Union of India Vs. J. Ahmed (1979) 2 ACC 286. The applicant has relied on the following part of the citation;
competence for the post, capability to hold the same, efficiency requisite for the post, ability to discharge function attached to the post are things different from some act or omission of the holder of posts which may be styled as misconduct so as to incur the penalty under the Rules . The Court has further held the lack of qualities alleged may be relevant consideration on the question of retaining the government servant in the post or for promotion, but such lack of personal quality cannot constitute misconduct for the purpose of disciplinary proceedings. The court has further held that a single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in series or atrocious consequences, the same may amounts to misconduct, however lack of efficiency, failure to attend the highest standard of administrative ability while holding a high post would not themselves constitute misconduct. There may be negligence in performance of duties and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duties but would not constitute misconduct unless the consequences ............ .
The respondents have pointed out that in the same case it has been further observed by the Hon ble Supreme Court that;
there may be negligence in performance of duty and lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar examples of which are a railway cabin-man signaling in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy an be of a great evil.
9. The reply statement also points out that although the contraband had actually landed at Dighi which geographically does not fall within the jurisdiction of Murud Circle, the sea route in that area is such that no contraband can reach Dighi without passing the area that falls in the geographical jurisdiction of Murud custom circle.
10. As regards non-admissibility of the evidence collected under TADA or the claim that there was no direct evidence of the applicant collecting bribe money, the respondents points out that no criminal charges have been brought against the applicant as it was felt that there was no clinching evidence to prove a criminal case was available against the applicant. However, in a departmental enquiry the disciplinary authority has to examine whether there has been a preponderance of probability. The claim of the applicant in para 4.11 where he points to certain observations of the Disciplinary Authority indicating some uncertainty about the involvement of the applicant is not final. The Disciplinary Authority has considered those points as well as all other facts before him and has arrived at final conclusion regarding the preponderance of probability of applicant's role and laxity. This is finally reflected in the punishment order.
11. We have gone through the orders passed by Disciplinary and Appellate Authorities and find that they fairly deal with all the points raised by the applicant before them. There appears no reason to interfere with these orders.
12. In view of this, the OA is dismissed. MA No.9/2011 is closed. No order as to costs.
(Smt. Leena Mehendale) (Justice A.K. Basheer)
Member (A) ( Member (J)
