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devendra devidasani (executive)     05 July 2013

Section 155 of the customs act, 1962

No show cause notice was issued by DRI  eight years back against the officers because during  investigation of fraud  they were not found to be involved.  The CIU  also did not find any fault with the officers  and recommended closure of the case.  The CVO after eight years have begun investigation of the same case and recommended action against the officers.  The disciplinary authority has meekly accepted the advice of the CVO as if he is bound by the advice off the CVO who has given the names of the officers vide their letters and the names of the officers have been put  in ODI List and Agreed List even before issuing the charge sheet.  Now discrimination is being meted out to the officers in matters of employment.  Officers are undergoing mental agony.  Their families are getting  affected.  God knows when the charge sheets will be issued and when the departmental inquiry proceedings will be completed. Past precedents have shown that it takes more than 7-8 years for thecase to get over.  It is seen that justice have been done to the officers either by the CAT or High Court or Supreme Court.  Departmental inquiries are prejudiced and biased and are only a farce.    It is understood that till the departmental inquiry proceedings get over, the officers will have to remain under cloud.  This is against the judgement of our Hon'ble Supreme Court in the case of Jankiraman vs. UOI relied upon in the case of Birpal Singh vs. Bidesh Sanchar Nigam Ltd.  No consideration is being given to ACRs.  Can the officers get copies of illegally issued ODI Lists and Agreed Lists and appeal against it in the CAT or Court.  Can they seek protection under Section 155 of the Customs Act, 1962  as they had done their work in good faith in pursuance of the trade facilitation measures adopted by the department.  Can officers get justice. 

 



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 4 Replies

Kappil Cchandna (Expert Bail & Criminal Defence Lawyer at Delhi Supreme Court of India)     06 July 2013

Q.1: Can the officers get copies of illegally issued ..................?

Answer 1: In terms of the Principles of Natural Justice, officers are entitled to the said documents in order to defend the departmental inquiry and not before that .However in a W.P U/S 226 of the Indian Constitution officers may convince the court that even at this stage they are entitled to these documents for taking appropriate recourse. Not only this a writ of Mandamus may also be issued to the concerned authorities for expediting the departmental inquiries in view of A 21 of the constitution, which ,as per Maneka Gandhi landmark judgment includes "right to livelihood". Therefore, at the moment remedy for the officers lies in filing the writ petition before the Hon'ble H.C under the constitution for issuance of writ of mandamus and/or any other appropriate writ, order and/or a direction in the nature thereof.

 

Q.2: Can they seek permission U/S 155 of The Customs Act, 1962?

Answer 2: Answer is big NO. The reason is that a custom officer is supposed to discharge his duties in terms of the provisions of the said act and anything done or omitted to have done, which amounts to committing fraud and for another offence does not fall within the definition of "in discharge of official duties". Therefore, in view of settled law and, more particularly because of the biased attitude of the courts in this regard, the officers would not get the benefit of S.155 of the said act.

 

Advocate Kapil Chandna

+91-9911218741 

 

devendra devidasani (executive)     08 July 2013

Thanks very much for your kind advice.   Please advise me on the following :-

1.  Can the names of the officers be included in the ODI List or Agreed List even before the investigations against them are completed and charge sheets issued to them ?  Is this not against the Judgement of Hon'ble Supreme Court of India  in the case of K.V. Jankiraman [1991(4)SCC 109] .

2.   Can Charge sheets be issued to officers eight years to 10 years after the incident had taken place  especially when the issue was investigated by the DRI and CIU and officers were not found involved ?

Thanks

DBD

devendra devidasani (executive)     09 July 2013

Thanks very much for your words of wisdom.  I am greatly obliged.

Rgds., DBD

Saran (Executive)     08 August 2013

Dear DBD,

Can understand your situation, as I am personally familiar with your kind of situation. Your case can be better addressed, if only more details are made known.

The following are required:

Issue in detail. Time lines. Present stage. Individual charge memos / charge sheets details. DRI case details. Your designations i.e. IRS(I.C&C.E) / Non-IRS.

Nature of solution sought by you is directly dependent on these factors. Knowing the Department and the biased mindset of the administrators is a well known fact, which has not been tackled in the Courts. Additionally, under the Customs Act, nothing prevents such biased proceedings from being repeated against you, at another time and space. You need to gear up for a strategic and bitter fight, to clear your name. This is the realistic situation, because of the years of  indifference and complacence displayed by colleagues and officers, when others have been persecuted in the past. It has begun to come full circle. Approaching Courts or the CAT, for quashing Disciplinary proceedings is high risk, if the victimised officer cannot prove perversion or non-evidence. Inordinate delay is not a sure guarantee, unless the time line for inordinateness of the delay can be evidenced. 

Get in touch. Will be glad to help and guide - If you are willing, time willing & God willing. All the best anyway.

pyshsrn@gmail.com


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