The argument that under Regulation 22(6), the CHA is required
to make representation only to the extent the findings in the inquiry report
that are against the CHA cannot be accepted. Even if the inquiry report is in
favour of the CHA, it is open to the CHA to make representation if the CHA
considers that some of the view points putforth by the CHA have not been
properly appreciated by the inquiry officer. Therefore, the regulation 22(6)
requires the CHA to make representation against the inquiry report
irrespective of the fact as to whether the report is in favour of the CHA or
not. In any event, whatever may be the representation of the CHA on the
inquiry report, the final decision on the showcause notice shall be that of the
Commissioner as he deems fit and not that of the inquiry officer
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7122 OF 2011
M/s.Delta Logistics,Vs. Union of India,
CORAM : J.P. Devadhar,
K.K. Tated &
M.S. Sanklecha, JJJ.
Pronounced on : 19th July 2012
ORAL JUDGMENT : (Per J.P. Devadhar, J.)
1. A Division Bench of this Court finding it difficult to agree with
the views expressed by another Division Bench of this Court in the case of
Commissioner of Customs (General) V/s. Rajan Virji & Company in Customs
Appeal No.25 of 2006 decided on 27th
January 2010 has by its order dated
14th September 2011 passed in the aforesaid Writ Petition referred two
questions to the learned Chief Justice for being considered by a Larger Bench.
Accordingly, the learned Chief Justice has constituted this larger Bench for
considering the said two questions which read thus :
(i) Under the provisions of Regulation 22 of the Custom House Agents
Licensing Regulations, 2004, is the Commissioner of Customs
entitled to differ with the findings which have been arrived at by
the Deputy Commissioner of Customs or, as the case may be, the
Assistant Commissioner of Customs in the report submitted under
clause (5) of the Regulation ?
(ii) Is it a correct proposition of law that under Regulation 22 no
power or authority has been vested with the Commissioner of
Customs to disagree with the report of the Inquiry Officer ?
agk 2 of 11aswp7122-11 (FB)
2. The relevant facts are that the petitioner has been carrying on
business as a Customs House Agent ('CHA' for short), by obtaining a license
under the Customs House Agents Licensing Regulations, 2004 ('2004
Regulations' for short). The said license was suspended by the Commissioner
of Customs on 22
nd
December 2008. On 29
th
October 2009, a chargesheet
was issued to the petitioner. On the same day i.e. 29
th
October 2009 itself,
the Commissioner of Customs appointed Shri Y S Reddy, Assistant
Commissioner of Customs to inquire into the charges levelled against the
petitioner and to submit his report to the Commissioner. Accordingly, the
Inquiry Officer conducted the inquiry and submitted his report to the
Commissioner on 23
rd
December 2010. As per the inquiry report, none of the
charges levelled against the petitioner were proved beyond doubt.
3. After forwarding a copy of the inquiry report and calling for
objections, the petitioner was heard by the Commissioner of Customs and by
an orderinoriginal dated 7
th
July 2011, the Commissioner of Customs
revoked the CHA license granted to the petitioner under Regulation 22(7) of
the 2004 Regulations. Challenging the aforesaid order, the petitioner filed
the aforesaid Writ Petition No.7122 of 2011 inter alia on the ground that
under 2004 Regulations, the Commissioner had no power or authority to
disagree with the report of the Inquiry Officer. In support of the above
contention, the petitioner relied on a decision of this Court in the case of
agk 3 of 11aswp7122-11 (FB)
Rajan Virji & Company (supra). As the Division Bench hearing the above
Writ Petition found it difficult to agree with the ratio laid down by a Division
Bench of this Court in the case of Rajan Virji & Company (supra) referred the
questions framed by it for being considered by a Larger Bench. Accordingly,
the present Larger Bench is constituted.
4. Regulation 22 of the 2004 Regulation reads thus :
“Regulation 22. Procedure for suspending or revoking licence
under Regulation 20. (1) The Commissioner of Customs shall issue a
notice in writing to the Customs House Agent stating the grounds on which it
is proposed to suspend or revoke the licence and requiring the said Customs
House Agent to submit, within such time as may be specified in the notice,
not being less than fortyfive days, to the Deputy Commissioner of Customs
or Assistant Commissioner of Customs nominated by him, a written
statement of defense and also to specify in the said statement whether the
Customs House Agent desires to be heard in person by the said Deputy
Commissioner of Customs or Assistant Commissioner of Customs.
(2) The Commissioner of Customs may, on receipt of the written
statement from the Customs House Agent, or where no such statement has
been received within the timelimit specified in the notice referred to in sub
regulation (1), direct the Deputy Commissioner of Customs or Assistant
Commissioner of Customs to inquire into the grounds which are not admitted
by the Customs House Agent.
(3) The Deputy Commissioner of Customs or Assistant Commissioner
of Customs shall, in the course of inquiry, consider such documentary
evidence and take such oral evidence as may be relevant or material to the
inquiry in regard to the grounds forming the basis of the proceedings, and he
may also put any question to any person tendering evidence for or against
the Customs House Agent, for the purpose of ascertaining the correct
position.
(4) The Customs House Agent shall be entitled to crossexamine the
persons examined in support of the grounds forming the basis of the
proceedings, and where the Deputy Commissioner of Customs or Assistant
agk 4 of 11aswp7122-11 (FB)
Commissioner of Customs declines to examine any person on the grounds
that his evidence is not relevant or material, he shall record his reasons in
writing for so doing.
(5) At the conclusion of the inquiry, the Deputy Commissioner of
Customs or Assistant Commissioner of Customs shall prepare a report of the
inquiry recording his findings.
(6) The Commissioner of Customs shall furnish to the Customs
House Agent a copy of the report of the Deputy Commissioner of Customs or
Assistant Commissioner of Customs, and shall require the Customs House
Agent to submit, within the specified period not being less than sixty days,
any representation that he may wish to make against the findings of the
Deputy Commissioner of Customs or Assistant Commissioner of Customs.
(7) The Commissioner of Customs shall, after considering the report
of the inquiry and the representation thereon, if any, made by the Customs
House Agent, pass such orders as he deems fit.
(8) Any Customs House Agent aggrieved by any decision or order
passed under regulation 20 or subregulation (7) of regulation 22, may prefer
an appeal under section 129A of the Act to the Customs, Central Excise and
Service Tax Appellate Tribunal established under subsection (1) of section
129 of the Act.”
5. It is argued on behalf of the petitioner, firstly, that under
Regulation 22(6), the CHA is required to make representation only against
the findings in the inquiry report i.e. only where the findings are against the
CHA. Therefore, if the findings in the inquiry report are in favour of the
CHA, there is no question of making any representation and consequently
there would be no question of passing any order against the inquiry report.
Secondly, by relying upon rule 15(2) of the Central Civil Services
(Classification, Control & Appeal) Rules, 1965, it is argued that wherever the
rule making authority thought it fit to permit the Disciplinary Authority to
agk 5 of 11aswp7122-11 (FB)
disagree with the findings in the inquiry report, the rule making authority has
specifically provided that the Disciplinary Authority shall record its own
reasons for disagreeing with the report of the Inquiry Authority and forward
the same to the charged person for his comments. Regulation 22 of the 2004
Regulations does not provide any such power to the Commissioner of
Customs and, therefore, in the absence of any power to disagree with the
findings in the inquiry report, the Commissioner of Customs would be bound
by the findings in the inquiry report. Thirdly, by relying upon a Division
Bench judgment of this Court in the case of Rajan Virji & Company (supra), it
is submitted that since it is mandatory for the Commissioner under
Regulation 22(6) to furnish a copy of the inquiry report to the CHA, even if
the report is in favour of the CHA, it has to be presumed that the
Commissioner is bound by the report and has no power or authority to
disagree with the report of the Inquiry Authority.
6. On behalf of the Revenue, it is contended that the decision of
this Court in the case of Rajan Virji & Company (supra) has not been accepted
and the matter is pending before the Apex Court. It is further argued that the
inquiry officer being subordinate to the Commissioner, it cannot be said that
the Commissioner is bound by the report of the inquiry officer.
7. We have carefully considered the rival submissions.
agk 6 of 11aswp7122-11 (FB)
8. There can be no dispute that the rank of the Commissioner of
Customs is higher than the rank of Assistant Commissioner of Customs /
Deputy Commissioner of Customs. Under Regulation 22(1), it is the
Commissioner who is empowered to issue notice to the CHA setting out the
grounds on the basis of which he proposes to suspend or revoke the CHA
license and require the CHA to submit his written statement of defense to the
Deputy Commissioner of Customs or Assistant Commissioner of Customs
nominated by the Commissioner of Customs. Under Regulation 22(2), the
Commissioner is empowered to direct the Deputy Commissioner of Customs
or Assistant Commissioner of Customs to inquire into the grounds which are
disputed by the CHA. Regulation 22(3) to Regulation 22(5) set out the mode
and the manner in which the inquiry is to be conducted by the inquiry officer
and submit the report to the Commissioner. Regulation 22(6) requires the
Commissioner to furnish to the CHA a copy of the inquiry report and require
the CHA to give his representation against the findings of the Inquiry
Authority. Regulation 22(7) requires the Commissioner to consider the
inquiry report and the representation if any made by the CHA and pass such
orders as he deems fit.
9. Thus, under Regulation 22 it is the Commissioner who is
empowered to issue showcause notice to the CHA to suspend or revoke the
CHA license and it is the Commissioner who is empowered to pass 'such
agk 7 of 11aswp7122-11 (FB)
orders as he deems fit' after considering the inquiry report and the
representation of the CHA, if any. Therefore, whether the inquiry report is
in favour of the CHA or not, it is the Commissioner who has to pass the final
order as he deems fit on the showcause notice issued by the Commissioner.
The words 'such orders as he deems fit' in Regulation 22(7) leave no manner
of doubt that it is entirely at the discretion of the Commissioner, whether to
agree or disagree with the inquiry report and pass such orders as he deems
fit on the showcause notice. Where the Commissioner disagrees with the
inquiry report, should he record the reasons for such disagreement and
forward the same to the CHA for his comments before passing the final order
is a totally different question to be addressed while considering the merits of
the order passed by the Commissioner. But when Regulation 22(7) expressly
empowers the Commissioner to pass such orders as he deems fit, it would not
be possible to hold that if the inquiry report is in favour of the CHA, the
Commissioner cannot pass an order against the CHA even if the
Commissioner disagrees with the inquiry report.
10. The argument that under Regulation 22(6), the CHA is required
to make representation only to the extent the findings in the inquiry report
that are against the CHA cannot be accepted. Even if the inquiry report is in
favour of the CHA, it is open to the CHA to make representation if the CHA
considers that some of the view points putforth by the CHA have not been
agk 8 of 11aswp7122-11 (FB)
properly appreciated by the inquiry officer. Therefore, the regulation 22(6)
requires the CHA to make representation against the inquiry report
irrespective of the fact as to whether the report is in favour of the CHA or
not. In any event, whatever may be the representation of the CHA on the
inquiry report, the final decision on the showcause notice shall be that of the
Commissioner as he deems fit and not that of the inquiry officer.
11. Reliance placed by the counsel for the petitioner on rule 15(2) of
the Central Civil Services (Classification, Control & Appeal) Rules, 1965, is in
our opinion, misplaced. No doubt that the said rule requires the Disciplinary
Authority to record its tentative reasons for disagreeing with the findings of
the Inquiry Authority, whereas, no such provisions are to be found in the
2004 Regulations. But in the absence of such provisions in the 2004
Regulations, it cannot be inferred that the Commissioner is bound by the
findings recorded in the inquiry report if the said findings are in favour of the
CHA, especially when the Regulation 22(7) specifically empowers the
Commissioner to pass such orders as he deems fit, inter alia, after considering
the inquiry report. Whether, failure on the part of the Commissioner to
communicate the reasons for his disagreeing with the inquiry report has led
to miscarriage of justice is a question to be considered while considering the
merits of the order passed by the Commissioner. The fact that Regulation
22(7) provides that the Commissioner shall pass an order after considering
agk 9 of 11aswp7122-11 (FB)
the inquiry report and the representation of the CHA, if any, it cannot be said
that the Commissioner while passing the final order is not required to
consider the grounds set out in the showcause notice, written statement of
defense and other evidence on record. In other words, under Regulation
22(7) the Commissioner is required to pass such orders as he deems fit after
considering all the relevant facts including the inquiry report and, therefore,
it is not possible to accept the contention of the petitioner that the
Commissioner is bound to pass an order in favour of the CHA if the inquiry
report is in favour of the CHA.
12. The Division Bench of this Court in the case of Rajan Virji &
Company (supra), in our opinion, committed an error in holding that the
regulation 22 has been framed on the presumption that the inquiry report
under Regulation 22(5) would be implicating the CHA and, therefore, in
Regulation 22(6) no provision has been made for the Commissioner to
disagree with the inquiry report. Based on the above presumption, the
Division Bench in the case of Rajan Virji & Company (supra) has held that
there is no power or authority with the Commissioner to disagree with the
inquiry report. Such an interpretation given by the Division Bench, in our
opinion, runs counter to the express words used in Regulation 22(7) to the
effect that the Commissioner shall after considering the inquiry report pass
such orders as he deems fit. If the Commissioner is empowered under the
agk 10 of 11aswp7122-11 (FB)
Regulation to pass such orders as he deems fit after considering the inquiry
report, it obviously means that the Commissioner is empowered to take
decision contrary to the inquiry report and if the CHA is aggrieved by the
decision of the Commissioner, there is remedy of filing an appeal against the
order of the Commissioner provided under Regulation 22(8) of the 2004
Regulations.
13. For all the aforesaid reasons, we hold that under Regulation 22
of the 2004 Regulations, the Commissioner is empowered to disagree with
the findings recorded in the inquiry report and pass such orders as he deems
fit and if the CHA is aggrieved by the order of the Commissioner, he is
entitled to challenge the said order by filing an appeal.
14. The reference is disposed off accordingly by answering the
questions referred to us in the above terms with no order as to costs.
15. The registry is directed to place the Writ Petition before the
regular bench for disposal in accordance with law.
(M.S. Sanklecha, J.) (K.K. Tated, J.) (J.P. Devadhar, J.)
agk 11 of 11
to make representation only to the extent the findings in the inquiry report
that are against the CHA cannot be accepted. Even if the inquiry report is in
favour of the CHA, it is open to the CHA to make representation if the CHA
considers that some of the view points putforth by the CHA have not been
properly appreciated by the inquiry officer. Therefore, the regulation 22(6)
requires the CHA to make representation against the inquiry report
irrespective of the fact as to whether the report is in favour of the CHA or
not. In any event, whatever may be the representation of the CHA on the
inquiry report, the final decision on the showcause notice shall be that of the
Commissioner as he deems fit and not that of the inquiry officer
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7122 OF 2011
M/s.Delta Logistics,Vs. Union of India,
CORAM : J.P. Devadhar,
K.K. Tated &
M.S. Sanklecha, JJJ.
Pronounced on : 19th July 2012
ORAL JUDGMENT : (Per J.P. Devadhar, J.)
1. A Division Bench of this Court finding it difficult to agree with
the views expressed by another Division Bench of this Court in the case of
Commissioner of Customs (General) V/s. Rajan Virji & Company in Customs
Appeal No.25 of 2006 decided on 27th
January 2010 has by its order dated
14th September 2011 passed in the aforesaid Writ Petition referred two
questions to the learned Chief Justice for being considered by a Larger Bench.
Accordingly, the learned Chief Justice has constituted this larger Bench for
considering the said two questions which read thus :
(i) Under the provisions of Regulation 22 of the Custom House Agents
Licensing Regulations, 2004, is the Commissioner of Customs
entitled to differ with the findings which have been arrived at by
the Deputy Commissioner of Customs or, as the case may be, the
Assistant Commissioner of Customs in the report submitted under
clause (5) of the Regulation ?
(ii) Is it a correct proposition of law that under Regulation 22 no
power or authority has been vested with the Commissioner of
Customs to disagree with the report of the Inquiry Officer ?
agk 2 of 11aswp7122-11 (FB)
2. The relevant facts are that the petitioner has been carrying on
business as a Customs House Agent ('CHA' for short), by obtaining a license
under the Customs House Agents Licensing Regulations, 2004 ('2004
Regulations' for short). The said license was suspended by the Commissioner
of Customs on 22
nd
December 2008. On 29
th
October 2009, a chargesheet
was issued to the petitioner. On the same day i.e. 29
th
October 2009 itself,
the Commissioner of Customs appointed Shri Y S Reddy, Assistant
Commissioner of Customs to inquire into the charges levelled against the
petitioner and to submit his report to the Commissioner. Accordingly, the
Inquiry Officer conducted the inquiry and submitted his report to the
Commissioner on 23
rd
December 2010. As per the inquiry report, none of the
charges levelled against the petitioner were proved beyond doubt.
3. After forwarding a copy of the inquiry report and calling for
objections, the petitioner was heard by the Commissioner of Customs and by
an orderinoriginal dated 7
th
July 2011, the Commissioner of Customs
revoked the CHA license granted to the petitioner under Regulation 22(7) of
the 2004 Regulations. Challenging the aforesaid order, the petitioner filed
the aforesaid Writ Petition No.7122 of 2011 inter alia on the ground that
under 2004 Regulations, the Commissioner had no power or authority to
disagree with the report of the Inquiry Officer. In support of the above
contention, the petitioner relied on a decision of this Court in the case of
agk 3 of 11aswp7122-11 (FB)
Rajan Virji & Company (supra). As the Division Bench hearing the above
Writ Petition found it difficult to agree with the ratio laid down by a Division
Bench of this Court in the case of Rajan Virji & Company (supra) referred the
questions framed by it for being considered by a Larger Bench. Accordingly,
the present Larger Bench is constituted.
4. Regulation 22 of the 2004 Regulation reads thus :
“Regulation 22. Procedure for suspending or revoking licence
under Regulation 20. (1) The Commissioner of Customs shall issue a
notice in writing to the Customs House Agent stating the grounds on which it
is proposed to suspend or revoke the licence and requiring the said Customs
House Agent to submit, within such time as may be specified in the notice,
not being less than fortyfive days, to the Deputy Commissioner of Customs
or Assistant Commissioner of Customs nominated by him, a written
statement of defense and also to specify in the said statement whether the
Customs House Agent desires to be heard in person by the said Deputy
Commissioner of Customs or Assistant Commissioner of Customs.
(2) The Commissioner of Customs may, on receipt of the written
statement from the Customs House Agent, or where no such statement has
been received within the timelimit specified in the notice referred to in sub
regulation (1), direct the Deputy Commissioner of Customs or Assistant
Commissioner of Customs to inquire into the grounds which are not admitted
by the Customs House Agent.
(3) The Deputy Commissioner of Customs or Assistant Commissioner
of Customs shall, in the course of inquiry, consider such documentary
evidence and take such oral evidence as may be relevant or material to the
inquiry in regard to the grounds forming the basis of the proceedings, and he
may also put any question to any person tendering evidence for or against
the Customs House Agent, for the purpose of ascertaining the correct
position.
(4) The Customs House Agent shall be entitled to crossexamine the
persons examined in support of the grounds forming the basis of the
proceedings, and where the Deputy Commissioner of Customs or Assistant
agk 4 of 11aswp7122-11 (FB)
Commissioner of Customs declines to examine any person on the grounds
that his evidence is not relevant or material, he shall record his reasons in
writing for so doing.
(5) At the conclusion of the inquiry, the Deputy Commissioner of
Customs or Assistant Commissioner of Customs shall prepare a report of the
inquiry recording his findings.
(6) The Commissioner of Customs shall furnish to the Customs
House Agent a copy of the report of the Deputy Commissioner of Customs or
Assistant Commissioner of Customs, and shall require the Customs House
Agent to submit, within the specified period not being less than sixty days,
any representation that he may wish to make against the findings of the
Deputy Commissioner of Customs or Assistant Commissioner of Customs.
(7) The Commissioner of Customs shall, after considering the report
of the inquiry and the representation thereon, if any, made by the Customs
House Agent, pass such orders as he deems fit.
(8) Any Customs House Agent aggrieved by any decision or order
passed under regulation 20 or subregulation (7) of regulation 22, may prefer
an appeal under section 129A of the Act to the Customs, Central Excise and
Service Tax Appellate Tribunal established under subsection (1) of section
129 of the Act.”
5. It is argued on behalf of the petitioner, firstly, that under
Regulation 22(6), the CHA is required to make representation only against
the findings in the inquiry report i.e. only where the findings are against the
CHA. Therefore, if the findings in the inquiry report are in favour of the
CHA, there is no question of making any representation and consequently
there would be no question of passing any order against the inquiry report.
Secondly, by relying upon rule 15(2) of the Central Civil Services
(Classification, Control & Appeal) Rules, 1965, it is argued that wherever the
rule making authority thought it fit to permit the Disciplinary Authority to
agk 5 of 11aswp7122-11 (FB)
disagree with the findings in the inquiry report, the rule making authority has
specifically provided that the Disciplinary Authority shall record its own
reasons for disagreeing with the report of the Inquiry Authority and forward
the same to the charged person for his comments. Regulation 22 of the 2004
Regulations does not provide any such power to the Commissioner of
Customs and, therefore, in the absence of any power to disagree with the
findings in the inquiry report, the Commissioner of Customs would be bound
by the findings in the inquiry report. Thirdly, by relying upon a Division
Bench judgment of this Court in the case of Rajan Virji & Company (supra), it
is submitted that since it is mandatory for the Commissioner under
Regulation 22(6) to furnish a copy of the inquiry report to the CHA, even if
the report is in favour of the CHA, it has to be presumed that the
Commissioner is bound by the report and has no power or authority to
disagree with the report of the Inquiry Authority.
6. On behalf of the Revenue, it is contended that the decision of
this Court in the case of Rajan Virji & Company (supra) has not been accepted
and the matter is pending before the Apex Court. It is further argued that the
inquiry officer being subordinate to the Commissioner, it cannot be said that
the Commissioner is bound by the report of the inquiry officer.
7. We have carefully considered the rival submissions.
agk 6 of 11aswp7122-11 (FB)
8. There can be no dispute that the rank of the Commissioner of
Customs is higher than the rank of Assistant Commissioner of Customs /
Deputy Commissioner of Customs. Under Regulation 22(1), it is the
Commissioner who is empowered to issue notice to the CHA setting out the
grounds on the basis of which he proposes to suspend or revoke the CHA
license and require the CHA to submit his written statement of defense to the
Deputy Commissioner of Customs or Assistant Commissioner of Customs
nominated by the Commissioner of Customs. Under Regulation 22(2), the
Commissioner is empowered to direct the Deputy Commissioner of Customs
or Assistant Commissioner of Customs to inquire into the grounds which are
disputed by the CHA. Regulation 22(3) to Regulation 22(5) set out the mode
and the manner in which the inquiry is to be conducted by the inquiry officer
and submit the report to the Commissioner. Regulation 22(6) requires the
Commissioner to furnish to the CHA a copy of the inquiry report and require
the CHA to give his representation against the findings of the Inquiry
Authority. Regulation 22(7) requires the Commissioner to consider the
inquiry report and the representation if any made by the CHA and pass such
orders as he deems fit.
9. Thus, under Regulation 22 it is the Commissioner who is
empowered to issue showcause notice to the CHA to suspend or revoke the
CHA license and it is the Commissioner who is empowered to pass 'such
agk 7 of 11aswp7122-11 (FB)
orders as he deems fit' after considering the inquiry report and the
representation of the CHA, if any. Therefore, whether the inquiry report is
in favour of the CHA or not, it is the Commissioner who has to pass the final
order as he deems fit on the showcause notice issued by the Commissioner.
The words 'such orders as he deems fit' in Regulation 22(7) leave no manner
of doubt that it is entirely at the discretion of the Commissioner, whether to
agree or disagree with the inquiry report and pass such orders as he deems
fit on the showcause notice. Where the Commissioner disagrees with the
inquiry report, should he record the reasons for such disagreement and
forward the same to the CHA for his comments before passing the final order
is a totally different question to be addressed while considering the merits of
the order passed by the Commissioner. But when Regulation 22(7) expressly
empowers the Commissioner to pass such orders as he deems fit, it would not
be possible to hold that if the inquiry report is in favour of the CHA, the
Commissioner cannot pass an order against the CHA even if the
Commissioner disagrees with the inquiry report.
10. The argument that under Regulation 22(6), the CHA is required
to make representation only to the extent the findings in the inquiry report
that are against the CHA cannot be accepted. Even if the inquiry report is in
favour of the CHA, it is open to the CHA to make representation if the CHA
considers that some of the view points putforth by the CHA have not been
agk 8 of 11aswp7122-11 (FB)
properly appreciated by the inquiry officer. Therefore, the regulation 22(6)
requires the CHA to make representation against the inquiry report
irrespective of the fact as to whether the report is in favour of the CHA or
not. In any event, whatever may be the representation of the CHA on the
inquiry report, the final decision on the showcause notice shall be that of the
Commissioner as he deems fit and not that of the inquiry officer.
11. Reliance placed by the counsel for the petitioner on rule 15(2) of
the Central Civil Services (Classification, Control & Appeal) Rules, 1965, is in
our opinion, misplaced. No doubt that the said rule requires the Disciplinary
Authority to record its tentative reasons for disagreeing with the findings of
the Inquiry Authority, whereas, no such provisions are to be found in the
2004 Regulations. But in the absence of such provisions in the 2004
Regulations, it cannot be inferred that the Commissioner is bound by the
findings recorded in the inquiry report if the said findings are in favour of the
CHA, especially when the Regulation 22(7) specifically empowers the
Commissioner to pass such orders as he deems fit, inter alia, after considering
the inquiry report. Whether, failure on the part of the Commissioner to
communicate the reasons for his disagreeing with the inquiry report has led
to miscarriage of justice is a question to be considered while considering the
merits of the order passed by the Commissioner. The fact that Regulation
22(7) provides that the Commissioner shall pass an order after considering
agk 9 of 11aswp7122-11 (FB)
the inquiry report and the representation of the CHA, if any, it cannot be said
that the Commissioner while passing the final order is not required to
consider the grounds set out in the showcause notice, written statement of
defense and other evidence on record. In other words, under Regulation
22(7) the Commissioner is required to pass such orders as he deems fit after
considering all the relevant facts including the inquiry report and, therefore,
it is not possible to accept the contention of the petitioner that the
Commissioner is bound to pass an order in favour of the CHA if the inquiry
report is in favour of the CHA.
12. The Division Bench of this Court in the case of Rajan Virji &
Company (supra), in our opinion, committed an error in holding that the
regulation 22 has been framed on the presumption that the inquiry report
under Regulation 22(5) would be implicating the CHA and, therefore, in
Regulation 22(6) no provision has been made for the Commissioner to
disagree with the inquiry report. Based on the above presumption, the
Division Bench in the case of Rajan Virji & Company (supra) has held that
there is no power or authority with the Commissioner to disagree with the
inquiry report. Such an interpretation given by the Division Bench, in our
opinion, runs counter to the express words used in Regulation 22(7) to the
effect that the Commissioner shall after considering the inquiry report pass
such orders as he deems fit. If the Commissioner is empowered under the
agk 10 of 11aswp7122-11 (FB)
Regulation to pass such orders as he deems fit after considering the inquiry
report, it obviously means that the Commissioner is empowered to take
decision contrary to the inquiry report and if the CHA is aggrieved by the
decision of the Commissioner, there is remedy of filing an appeal against the
order of the Commissioner provided under Regulation 22(8) of the 2004
Regulations.
13. For all the aforesaid reasons, we hold that under Regulation 22
of the 2004 Regulations, the Commissioner is empowered to disagree with
the findings recorded in the inquiry report and pass such orders as he deems
fit and if the CHA is aggrieved by the order of the Commissioner, he is
entitled to challenge the said order by filing an appeal.
14. The reference is disposed off accordingly by answering the
questions referred to us in the above terms with no order as to costs.
15. The registry is directed to place the Writ Petition before the
regular bench for disposal in accordance with law.
(M.S. Sanklecha, J.) (K.K. Tated, J.) (J.P. Devadhar, J.)
agk 11 of 11
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