Unless it can be shown that order passed by authority while discharging quasi-judicial function was taken malafide, for a wrong decision taken, there cannot be disciplinary action as it is not a misconduct: HC
By TIOL News Service
PATNA, APR 11, 2016: BEING aggrieved by the order of the Central Administrative Tribunal, Patna Bench the petitioner is before the High Court.
A departmental proceeding was initiated against the petitioner for major penalty in respect of his role in assessing and granting wrong refunds and then not seeking its repayment and/or not recovering refunds.
The Enquiry Officer came to a finding that none of the charges could be proved or established.
The Enquiry Officer observed that the audit objection that the CE duty was wrongly refunded and a demand ought to have been issued was itself raised much after the six months limitation as prescribed in Section 11-A of the CEA and, therefore, the petitioner was helpless in the matter and could not have sought to recover the alleged wrong refund.
The Department then sought advice and opinion from the UPSC and which too concurred with the Enquiry Officer's report and was clearly of the opinion that the charges could not be established. However, the UPSC found negligence on part of the petitioner.
Nonetheless, the Disciplinary Authority rejected the plea of the petitioner to exonerate him and imposed a penalty of withholding 30% pension for a period of 5 years for negligence in granting refund not to the buyer but to the seller/manufacturer.
The CAT dismissed the appeal and hence the writ petition.
The petitioner submitted –
(i) That the acts of the petitioner were acts in quasi-judicial capacity and as such disciplinary proceedings could not be taken up as it was not a matter of discipline. A wrongful exercise of judicial discretion is not punishable as it is not?misconduct in matters of discipline.
(ii) The disciplinary authority erred in holding that the petitioner was negligent in not pursuing the matter of recovery in spite of audit objection.
(iii) Negligence, as noticed by U.P.S.C., cannot be subject matter because there was no charge in this regard at all nor was any explanation in this regard called for with the intent to punish.
The High Court, at the outset, viewed that the contentions raised by the petitioner were correct
The High Court observed -
++ An officer who has been conferred with statutory jurisdiction to adjudicate matters acts in a quasi-judicial capacity. Unless it can be shown that the decision was taken malafide or with ulterior motive, for a wrong decision taken, there cannot be disciplinary proceedings as it is not a misconduct.
++ There is no allegation of malafide, ulterior motive or such like. It is not in dispute that excess duty had been deposited and refund was due. The Department has not raised the plea that no refund at all was due and the duty was rightly deposited.
++ It is not the case of Department that refunds were ordered when refunds were not due and that too with ulterior motive. That being so, for orders passed in quasi-judicial functions by statutory authorities, disciplinary proceeding for misconduct cannot be initiated, much less officer penalized.
++ The last date within which demands for recovery of excess refund could be made, in terms of Section 11-A of the Act being 18.11.1992 to 21.03.1994, the audit objection having been made only on 05.05.1994 was clearly after the six months statutory period prescribed. Thus, to say that petitioner ought to have taken proper steps for recovery is a far cry, for Section 11-A of the Act prohibits any action after six months. Petitioner cannot be alleged to have been negligent in that respect.
In fine, the order of the disciplinary authority as also the order of the Tribunal not interfering with the order of punishment, 30% reduction of pension for 5 years, was set aside and the writ petition was allowed. Any deduction that had already been made on the above count is ordered to be refunded to the petitioner without delay.
(See 2016-TIOL-727-HC-PATNA -CX)
