ORDER
S.R. Singh, J. (Vice Chairman)
1. Since common question of law and facts are involved in the two original applications before us, they were heard together with the consent of the parties Counsel, for convenient disposal by a common judgment.
2. Shri K.V. Ravindran, who is the applicant in O.A. No. 484/02 was appointed as Inspector of Customs and Central Excise on 17.4.1982 and had the opportunity to serve in that capacity at various places and offices in Karnataka State. While working as Inspector of Customs in the Docks Section of Mangalore Customs from 16.12.1993, he was placed under suspension vide order dated 17.2.1994 (Annexure-A) in exercise of the powers conferred by Sub-rule (1) of Rule 10 of Central Civil Services (Classification Control and Appeal) Rules, 1965. It would appear from the grounds of suspension contained in C. No. II/10A/94/A.3 dated 12.5.1994 (Annexure-A2) that on the basis of preliminary investigation report of the DRI, Mangalore, a criminal case came to be registered against M/s. Sheth International Bombay, for alleged fraudulent export under DEEC scheme and the export cargo seized by the DRI, Mangalore vide Mahazar dated 2.2.1994. The applicant K.V. Ravindran had examined and certified the shipping bill Nos. 285 to 288 dated 29.1.1994 involved in the said fraudulent export cargo seized by the DRI, Mangalore. Charge memo No. II/10-A/1/94/A.3 dated 28.11.1994 issued to the applicant K.V. Ravindran along with the statement of article of charge and the statement of imputation of misconduct or misbehaviour in support of the article of charge framed against the applicant and two other Inspectors of Custom, one of whom, Shri Sudhir Pai, is the applicant in O.A. No. 537/2002, would show that the following charges were levelled against him:
“That the said Shri K.V. Ravindran, Inspector of Customs, while working in Custom House, Mangalore alleged to have conducted improper inspection and open examination of Export Cargo covered under Shipping Bill Nos. 285 to 288 dated 29.1.94 in as much as, in the absence of specific direction, the same were examined by him outside the Customs Notified area in contravention of existing Rules and procedures and failed to verify the correctness and the authenticity of the declaration filed by the exporter. He is alleged to have given a false Inspection/Examination report in respect of the said shipping bills examined by him. Wilfully, he failed to safeguard the Government revenue and policy, and alleged to have abetted or attempted to abet the exporter viz. M/s. Sheth International, Bombay, in causing revenue loss and policy violation.
The above said officer, by his above act, has failed to maintain devotion to duty and acted in a manner unbecoming of a Government servant and thereby, he had contravened the provisions of Rule 3(i)(ii) and (iii) of CCS (CCA) Rules, 1965.”
3. According to the statement of imputation of misconduct and misbehaviour in support of the Article of Charge framed against the applicant, K.V. Ravindran, M/s. Sheth International, Bombay, through their customs house agent filed shipping bill Nos. 285 to 288 all dated 29.1.1994 for export of goods declared to be 80 Denier Polyester texturised yarn packed in carton. These goods were shown to be duty exempt and exported by the exporter in fulfillment of export obligation under DEEC scheme. As per the prevailing procedure, shipping bills were sorted and marked to the applicant for inspection and examination report. The applicant conducted the inspection and examination and submitted the examination report on the duplicate copy of the respective shipping bills certifying that he had inspected the goods at exporters godown and found that the description of goods conformed to the documents, viz., shipping bills and invoices. The report was submitted to the Superintendent of Exports who assigned ‘Let export’ on 28.1.1994 and 29.1.1994 and thereafter the goods were loaded on to the ship ‘MV ELNEIL’. It is alleged in the statement of imputation of misconduct and misbehaviour that in the light of inspection conducted by DRI, Mangalore, “there was serious dereliction of duty” on the part of the applicant, in that “the consignment was not examined by him in the notified area of customs” and thus he violated the rules and procedures concerning to the examination of goods and further that the applicant did not conduct the examination at all and even without acknowledging the presence of the actual consignment, furnished a false examination report on the shipping bills and thus by his act of omission and commission he “helped the exporters in violating the export obligation and causing revenue loss to the Government” and accordingly failed to maintain devotion to duty and exhibited the conduct which is unbecoming of a Government servant and thus contravened the provisions of Rule 3(i)(ii) and (iii) of CCS (CCA) Rules, 1965.
4. The charge as against M. Sudhir Pai, the applicant in O.A. No. 537/2002 was similar to that of K.V. Ravindran. While working as Inspector of Customs at Customs House, Mangalore, he too is alleged to have conducted improper inspection and open examination of export cargo forwarded under shipping bill Nos. 204 to 215; 217 to219; 222 to 224; 228, 230, 234 and 236 all dated 24/25.1.1994 in that in the absence of specific direction the same were examined by him outside the customs notified area in contravention of existing rules and procedures and he failed to verify the authenticity and correctness of the declaration filed by the exporters.” The applicant according to the statement of Article of Charge framed against him, gave false inspection/examination report in respect of the above shipping bills examined by him and thus wilfully failed to safeguard the Government revenue and policy and is also alleged to have abetted or attempted to abet the exporters i.e. M/s. Exotic Fashions and M/s. Galaxy International, New Delhi in causing revenue loss and policy violation and thereby failed to maintain devotion to duty by acting in a manner unbecoming of a Government servant and accordingly contravened the provisions of Rule 3(i)(ii)(iii) of CCS (CCA) Rules, 1965. In the light of the investigation conducted by the DRI, Mangalore, it was found firstly, that the consignment was not examined by the applicant in the notified area of customs and thus he violated rules and procedures concerning to the examination of goods; and secondly, instead of proper examination of goods the (sic) and even without acknowledging the presence of actual consignment he is said to have furnished false examination report on the shipping bills. Accordingly, he was charged as above.
5. It would appear from the record that a common statement of imputation of misconduct or misbehaviour was issued in support of the identically worded Articles of Charge framed separately against S/Shri Sudhir M. Pai, Inspector of Customs, Rajeev G. Kakeri, Examiner of Customs, and K.V. Ravindran, Inspector of Customs, Custom House, Mangalore. The charges in substance were; firstly, that the examination was done outside the customs notified area; secondly, that the three officers gave false inspection/examination report; and thirdly, that they abetted or attempted to abet the exporters in causing revenue loss to the Government. Accordingly a common enquiry was conducted against the three officers aforestated. Shri V.H.S. Iyer, Assistant Commissioner, Customs Division, Karwar, who was appointed as Inquiry Officer as per order C. No. II/10A/1/94 A.3 dated 30.01.1996 submitted a common enquiry report (Annexure-A7). Of the three charged officers, only two have come up before the Tribunal.
6. The Inquiry Officer in his report came to the conclusion that the examination of the cargo in respect of the shipping bills entrusted to the applicant, M. Sudhir Pai was done outside the customs notified area whereas the examination done by the applicant K.V. Ravindran was done in the notified area. It was further held by the Inquiry Officer that K.V. Ravindran had inspected a lot of 12 packages containing polyester texturised yarn and measured two packages which agreed with the price list and Shri Venugopal, the Presenting Officer, vouched the open examination. It was held by the Inquiry Officer that the prosecution could not conclusively prove the charge of abetment or attempt to abet levelled against the applicants.
7. It would appear that the suspension order in relation to Shri K.V. Ravindran, came to be revoked vide order dated 16.8.1994 (Annexure-A3) and a common show cause notice dated 6.10.1998 (Annexure-A8) was issued to S/Shri M. Sudhir Pai and K.V. Ravindran by Shri S. Nandy, Additional Commissioner (P&V). The show cause notice reads as follows:
“Whereas S/Shri M. Sudhir Pai and K.V. Ravindran, Inspectors of Customs were charge sheeted on 29.11.94 under Rule 14 of the CCS (CCA) Rules, 1965.
And whereas on denial of charges an open Inquiry was conducted under Rule-18 (Common Proceedings) of the CCS (CCA) Rules, 1965.
And whereas the Inquiry Officer has held that the charges are not conclusively proved.
And whereas after considering the case records and the Presenting Officer’s brief. The Disciplinary Authority is of the opinion that the arguments given by the Inquiry Officer in his report are not proper in as much as the Inquiry Officer has pleaded that the inexperience of the Charged Officers’ cannot be overlooked in respect of one charge. Inexperience cannot be quoted as an excuse for gross negligence/dereliction of duty as the officers should have ensured the correct procedure to be followed before taking up the export examination of the DEEC Consignments. Further, the ‘Inquiry Officer has not convincingly commented on the other charges levelled against the said officers in the charge memorandum and the Presenting Officer’s Brief.
Now therefore the Additional Commissioner (P&V) who is the Disciplinary Authority, in exercise of his powers under Rule 12 of the CCS (CCA) Rules, 1965, deems it expedient to reconsider the Inquiry Officer’s report and issue the Order-in-Original in the case,
S/Shri K. V. Ravindran and Sudhir Pai, Inspectors, are hereby directed to show cause as to why the said Inquiry Officer’s report should not be set aside and suitable penalty imposed.
S/Shri K.V. Ravindran and M. Sudhir Pai, Inspectors should file their submissions, if any, within 15 days of the receipt of this show cause notice (along with the Inquiry Officer’s report and Presenting Officer’s brief failing which it will be presumed that S/Shri K.V. Ravindran and M. Sudhir Pai, Inspectors have nothing to submit in this matter and the Order-in-original in the case will be issued without further notice to S/Shri K.V. Ravindran and M. Sudhir Pai.”
The applicants submitted their separate replies to the show cause notice. Though the show cause notice was issued by Shri S. Nandy, Addl. Commissioner (P&V), the matter came up before Shri K. Shyamsunder, Joint Commissioner of Customs Bangalore, for final decision in the disciplinary proceedings. Shri K. Shyamsunder, it may be pointed out, was, at the relevant time of incident, Assistant Collector of Customs and the DRI Inspection Note I–Export Circular No. 3/94 dated 1/3/94 (Annexure-A14) seems to have been issued reviewing the examination procedure in vogue in the Export branch “Pursuant to the serious case of DEEC fraud/misdeclaration, recently detected by DRI” pointing out therein that “the Asst. Collector incharge of Exports, Shri K. Shyamsunder and the then Superintendent incharge were applying procedure without assessing their relevance, or other effectiveness as checks against irregularities/discrepancies” and further that “The Superintendent (Exports) was mechanically endorsing examination orders with rubber seals which were made long back.” With a view to completing the chain of facts, it may be stated that opinion of the Central Vigilance Commission in the matter was sought for and the Commission vide their Office Memorandum dated 3.7.2000 (Annexure-A12) expressed their agreement with CBEC but advised that instead of ‘major penalty’ ‘stiff major penalty’ be imposed in respect of S/Shri K.V. Ravindran and Sudhir Pai, both Inspectors.
8. Shri K. Shyamsundar, Joint Commissioner, acting as Disciplinary Authority came to the following conclusions with respect to K.V. Ravindran:
(i) that he has examined the export cargo in the party's premises, outside the wharf area and there being no provision to examine the export cargo, outside the docks, the examination was against the Customs Act, Rules and procedure and the Inspector has not shown any diligence/care to know to what he was expected to do while examining the export cargo; (ii) that he has not given full and correct examination report detailing the absence of address of consignor and consignee on the packages and has not exercised due diligence and care, thereby enabled the exporter to defraud the Government revenue; (iii) that he has not at all examined the export cargo and failed to discharge his duties properly and also has given false/incorrect examination report; (iv) that he did not bother to know what has to he done in this case and really he has failed to secure the goods packed for export by sealing the packages and thus failed to show enough care to safeguard the Government revenue; and, (v) that by leaving the examined goods out side the wharf area, he has allowed the export to have his way and defraud the Government Revenue. In substance the Disciplinary Authority came to the view that K.V. Ravindran "had conducted improper inspection and open examination of export cargo covered under shipping bill Nos. 285 to 288 dated 29.1.1994, outside the Docks and Customs notified area in contravention of the existing rules and procedures;" and failed firstly, to verify the authenticity of the declaration filed by the exporters; secondly, to seal any of the packages after examination, and thereby he did not take enough care to safeguard Government revenue; and thirdly, to maintain devotion to duty and acted in the manner unbecoming of a Government servant.
9. Accordingly, the Disciplinary Authority set aside the report of the Inquiry Officer and imposed ‘stiff major penalty’ of removal from service with immediate effect vide order dated 9.7.2001 in exercise of the powers under Rule 12 of the CCS (CCA) Rules, 1965, Shri K.V. Ravindran filed appeal against the said order. The Appellate Authority by its order dated 25.1.2002 (Annexure-A18) held that the consignment had been examined outside the notified area and that the Inspector had given an impossible certificate that the goods matched the description in the invoice. The misconduct against the charged officer “has been proved except that he had knowingly failed to safeguard Government revenue.” The Appellate Authority however, held that “there were certain circumstances that justify and mitigate the misconduct of the charged officer as observed by the Inquiry Officer in his report.” The Superintendent (Export), according to the Appellate Authority was “the proper officer to ensure that the goods exported were the same as declared in the shipping bills” and after taking into consideration these mitigating circumstances, the Appellate Authority being in agreement with the Inquiry Officer and being of the view that the charged officer did not deserve the penalty of removal ordered that the pay of “K.V. Ravindran be reduced by two stages in the time scale of pay of Rs. 5500-9000 from Rs. 7,950/- to Rs. 7,600/- for a period of two years with effect from 9.7.2001” and further that “K.V. Ravindran will not earn increments of pay during the period of such reduction. But the reduction would not have the effect of postponing further increments which are due on expiry of the above said period of punishment.”
10. In the case of M. Sudhir Pai also the Disciplinary Authority recorded similar findings and conclusions in Paras 28 to 30 of its order dated 9.7.2001 and imposed “stiff major penalty” of removal from service. The Appellate Authority by its order dated 25.1.2002, (Annexure-A12 to O.A. 537/2002), however, held that the charged officer did not deserve the penalty of removal from service and disposed of his appeal in terms of the following order:
“In exercise of the powers conferred under Rule 27 of CCS (CCA) Rules, 1965, I hereby order that the pay of Shri M. Sudhir Pai be reduced by two stages in the time scale of pay of Rs. 5500-175-9000 from Rs. 6,550/- to Rs. 6,200/- for a period of two years with effect from 9.7.01. The Government servant will not earn increment of pay during the period of such reduction. The reduction will not have the effect of postponing the further increments which are due on expiry of the above said period of punishment.
(ii) Shri M. Sudhir Pai be reinstated in service. Order under F.R. 54 is being issued separately.”
11. We have heard Mr. C. Dinakar, learned Counsel appearing for the applicants and Mr. S. Chellaiah, learned Counsel for the department. It has been submitted by Sri Dinakar that the orders impugned herein are vitiated on grounds, firstly, that the Disciplinary Authority failed to record, in the show cause notice, the reasons for its disagreement with the report of the Inquiry Officer and failure to record reasons, it has been submitted by the Counsel, has resulted in denial of opportunity to the applicants to have their say in the matter; secondly, the higher officers in the hierarchy viz., the Assistant Collector of Customs and the Superintendent of Customs who failed to discharge their duties in the matter were not proceeded against even though the Additional Collector of Customs, Mangalore in his Inspection Note-1 Export Circular No. 3794 dated 1.3.1994 (Annexure-A14) had clearly indicated both these officers for “applying procedures without assessing their relevance, or their effectiveness as checks against irregularities7discrepancies.” This, proceeds the submission, resulted in hostile discrimination and violation of Article 14 of the Constitution; thirdly, Sri K. Shyamsundar, the then Assistant Collector incharge of Exports, who was indicated by the Additional Collector of Customs, Mangalore while issuing Export Circular No. 3794 dated 1.3.1994 (Annexure-A14) was disqualified to act as Disciplinary Authority inasmuch as delinquency is attributable to him also to some extent notwithstanding the fact that he later became the Additional Collector of Customs; fourthly, the Disciplinary Authority while imposing the punishment of removal acted on the dictates of the Central Vigilance Commission which had advised imposition of “stiff major penalty of removal from service” and in any case, proceeds the submission, a fair assessment could not be done by the Disciplinary Authority due to bias as also due to recommendation made by the Central Vigilance Commission; and fifthly, when the order of removal was found by the Appellate Authority to be unjustified, the Appellate Authority ought to have treated the period of suspension as period spent on duty. Mr. S. Chellaiah refuted the submissions made by the learned Counsel for the applicant and submitted that the Disciplinary Authority while issuing show cause notice was not required to give detailed reasons for its disagreement with the Inquiry Officer; the failure to take action against the Assistant Collector in charge of Customs and the Superintendent of Customs would not vitiate disciplinary proceedings against the applicants inasmuch as Article 14 cannot be invoked in order to perpetrate an illegality. It has further been submitted by Mr. Chellaiah that since Sri A. Shyamsunder was not proceeded against as a co-delinquent, he was competent to act as Disciplinary Authority in his capacity as Additional Collector incharge of Customs. As regards the relevancy of the advice given by the Central Vigilance-Commission, it has been submitted by Mr. Chellaiah that the Disciplinary Authority was not bound to accept the advice of the Central Vigilance Commission, and further that the Disciplinary Authority, in the instant case, recorded, its own findings and conclusions without being in any manner influenced by the recommendation made by the Central Vigilance Commission. It has further been submitted by the learned Counsel that the Appellate Authority while modifying the punishment order passed by the Disciplinary Authority was well within its power to direct that the period of suspension would not be treated as period spent on duty.
12. We have given our anxious considerations to the submissions made across the bar. The first question to be considered is whether the show cause notice (Annexure-A8) contains reasons for disagreement with the report of the Inquiry Officer. In Punjab National Bank and Ors. v. Kunj Behari Misra, AIR 1998 SC 2713=1999(1) SLJ 271 (SC) it has been held, in no uncertain language, that when the Disciplinary Authority differs with the view of the Inquiry Officer and proposes to come to a different conclusion, it ought to afford an opportunity of hearing to the delinquent officer. In Ram Kishan v. Union of India, (1995) 6 SCC 157: (1995 AIR SCW 4027) a Divisional Bench of the Supreme Court has observed as follows:
“…. The purpose of the show cause notice in case of disagreement with the findings of the Inquiry Officer, is to enable the deliquent to show that the Disciplinary Authority is persuaded not to disagree with the conclusions reached by the Inquiry Officer for the reasons given in the inquiry report or he may offer additional reasons in support of the findings of the Inquiry Officer. In that situation, unless the Disciplinary Authority gives specific reasons in the show cause on the basis of which the findings of the Inquiry Officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the Disciplinary Authority to agree with the conclusions reached by the Inquiry Officer. In the absence of any ground or reason in the show cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the Disciplinary Authority cannot cure the defect.”
(Emphasis supplied)
The principle stated in the aforesaid cases has been reiterated by the Supreme Court in S.B.I. and Ors. v. Arvind K. Shukla, 2001 AIR SCW 2472. The question to be examined now is whether the show cause notice (Annexure-A8) contains reasons for disagreement with the findings of the inquiry Officer so as to enable the delinquents to persuade the Disciplinary Authority not to disagree with the conclusions reached by the Inquiry Officer for the reasons given in the inquiry report or to offer additional reasons in support of the findings given by the Inquiry Officer. The Disciplinary Authority in the show cause notice no doubt purports to give some reasons for its disagreement with the report of the Inquiry Officer. But, we are of the view that the so called reasons for disagreement as given in the show cause notice are fallacious. “Reasons,” according to Beg J. (with whom Mathew J. concurred) “are the links between the materials on which certain conclusions are based and the actual conclusions” (Union of India v. Mohan Lal Capoor (1974) 1 SCR 797 followed in Gurdial Singh v. State of Punjab, AIR 1979 SC 1622=1979 SLJ 299 (SC) Para 18. All that the Disciplinary Authority states in the show cause notice is firstly, that “inexperience” of the charged officer cannot be quoted as an excuse for gross negligence/deriliction of duty; and secondly, that the Inquiry Officer has not “convincingly” commented on the other charges levelled against the charged officers in the charge memorandum. These are simply conclusions. The Disciplinary Authority, does not appear to have directed itself to any material on record nor has it adverted to the conclusions arrived at by the Inquiry Officer in his report. The language in which the show cause notice is formulated is, in our opinion, far from being sufficient to enable the applicants to show to the Disciplinary Authority that the findings and conclusions of the Inquiry Officer were “convincing.” Further, it may be pointed out that the Inquiry Officer in his report attributed “inexperience” to Sri M. Sudhir Pai who happened to be a young officer and not to Sri K.V. Ravindran. The Disciplinary Authority seems to have acted mechanically and without application of mind to the inquiry report and proceeded as if the Inquiry Officer attributed “inexperience” to both the applicants in justification of his conclusion. Furthermore, the Inquiry Officer in his report has given his findings on all the charges and if, in the opinion of the Disciplinary Authority, the comments of the Inquiry Officer on all the charges were not convincing, the Disciplinary Authority ought to have tentatively recorded its reasons for its opinion. It was not enough to say that the Inquiry Officer has not “convincingly” commented on the other charges levelled against the said officers in the charge memorandum. In our view, the Disciplinary Authority in the instant case has failed to record tentative reasons in specific words for disagreement with the conclusions arrived at by the Inquiry Officer. Thus, the ultimate decision in the disciplinary proceeding has been, in our opinion, arrived at in breach of principles of natural justice and therefore, it cannot be sustained.
13. As regards the second point as to whether failure to take action against the Assistant Collector of Customs and the Superintendent of Customs led to violation Article 14 of the Constitution, we are of the view that albeit selective disciplinary action against only some of the officers while leaving out others to whom the delinquency may be attributable would certainly be arbitrary and violative of Article 14 of the Constitution, but before condemning the impugned action as discriminatory and violative of Article 14 on the basis that the Disciplinary Authority failed to take any action against the Assistant Collector incharge of Customs and the Superintendent of Customs to whom delinquency is sought to be attributed, it has to be determined that they were similarly circumstanced. We are of the view that so far as the applicants are concerned, they being the Inspectors of Customs were required to perform the ground work of inspection and examination and give a certificate that the goods conform to the description mentioned in the shipping bills and invoice. But, so far as the Assistant Collector of Customs and the Superintendent of Customs are concerned, their job is of supervisory nature. Shipping bills in question do contain the signatures of the Superintendent of Customs besides the signatures of the applicants (on the respective shipping bills) but the Assistant Collector of Customs does not appear to have performed his part of duly as per Appraisal Order No. 131/91 APPG (Annexure-A15) according to which shipping bills for export of goods under GEEC Scheme upto a value of Rs. 1,00,000/- are required to be approved by the Appraiser while shipping bills of value exceeding one lakh ought to be “finally approved by the Assistant Collector.” It is also true that the Assistant Collector, in the instant case, did not do his job, but for that reason alone it would not be possible to hold that the disciplinary action against the applicants was discriminatory and violalive of Article 14 of the Constitution. Relying on the decision of the Hon’ble Supreme Court in K. Sukhendra Reddy v. State of A.P. and Anr., (1999) 6 SCC 257, Mr. C. Dinakar, learned Counsel appearing for the applicants submitted that the Disciplinary Authority in the instant case resorted to “selective” disciplinary action against the Inspectors while letting the supervisory staff go scot free which is violative of the fundamental right guaranteed under Article 14 of the Constitution. In Sukhendra Reddy’s case (supra), a member of IAS was initially suspended in contemplation of disciplinary proceedings against him. But, the initial order came to be substituted by a subsequent order on the premise that “no disciplinary proceedings” under All India Services (Discipline and Appeal) Rules, 1969 were contemplated against a member of service. But, in view of the fact that prima facie involvement and complicity of the member of service in a criminal case came to light during the course of investigation by the CID, the Government thought it proper to place the member of service under suspension in exercise of power conferred on it under Rule 3(3) of the All India Service (Discipline and Appeal) Rules, 1969 instead of Rule 3(1) thereof. Their Lordships of the Hon’ble Supreme Court were of the view that since the matter was pending investigation which could not be completed even though 21/2 years had elapsed and disciplinary proceedings were also not contemplated, it would not be proper to keep a member of service under suspension for an indefinite period “particularly in a situation where many more senior officers may ultimately be found involved.” It was under these circumstances that the Hon’ble Supreme Court was pleased to observe; “The Government cannot be permitted to resort to selective suspension. It cannot be permitted to place an officer under suspension just to exhibit and feign that action against the officers, irrespective of their high status in the service hierarchy, would be taken.”
In Chandigarh Administration and Anr. v. Jagjit Singh and Anr., (1995) 1 SCC 745, it has been observed that “illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent/authority to repeat the illegality or to pass another unwarranted order.” The plea of discrimination in such matter, it has been held therein, would not be attracted. The nature of misdemeanor, on the part of the supervisory staff being different, the plea of hostile treatment or discrimination sought to be raised here in relying on the constitutional guarantee enshrined in Article 14 of the Constitution, in our opinion is not available to the applicants and the submission made by the learned Counsel in this behalf has no merit.
14. The next submission made by the learned Counsel for the applicants is that Shri K. Shyamsundar who was then the Assistant Collector in charge of exports was disqualified to act as Disciplinary Authority in view of the fact that while acting as Assistant Collector of Exports, he had failed to perform his duty as assigned to him vide Appraisal Order No. 131/1991 (Annexure-A15) which provides that in respect of shipping bills for export of goods with a value exceeding Rs. 1/-lakh “shall be finally approved by the Assistant Collector.” A plea in this regard appears to have been raised by the applicants before the Inquiry Officer. That being so, the applicants could reasonably apprehend that a fair assessment of merits of the case would not be possible of the hands of Sri K. Shyamsundar, who later became Additional Collector incharge of Customs and acted as Disciplinary Authority. There is no denying the fact that justice should not only be done but it must also appear to have been done. Though it is not a case of pecuniary bias, but nonetheless in the fact situation of the case when lapse in performance of duty leading to loss of Government revenue was attributed to the said officer, he may not have been impartially well disposed towards the applicants and, therefore, he ought not to have acted as Disciplinary Authority. It is certainly a case where the applicants could be said to have reasonable suspicion that a fair assessment of merits of the case would not be possible at the hands of the said officer in view of the imputation of misconduct levelled against him by the applicants. On this ground also, the decision taken by Sri K. Shyamsundar is unsustainable in law.
15. So far as the submission that the decision to impose penalty of removal was taken at the behest of the Central Vigilance Commission is concerned, suffice it to say that the Central Vigilance Commission is supposed to give its advice in a matter like the one on hand but, it cannot be gainsaid that the advice given by the Central Vigilance Commission is not binding on the Disciplinary Authority and there is nothing on record to show that the punishment of removal from service was passed by the Disciplinary Authority merely on the advice given by the Central Vigilance Commission. On the contrary, the Disciplinary Authority purports to have adverted itself to the materials on record and come to a conclusion, though contrary to the one recorded by the Inquiry Officer, that the charges levelled against the applicants were well established. We refrain from expressing any opinion as to correctness of the conclusions of the Disciplinary Authority on merits of the case, for, in our opinion, the matter has to be remitted to the Disciplinary Authority in view of our conclusion on the first question that the show cause notice was not validly formulated.
16. The Central Vigilance Commission vide office memorandum dated 26th September, 2001 has made it clear that the CVC plays only an advisory role in vigilance matter in view of the DOPT Resolution No. 371/20/99-AVD. III dated 4.4.1999 and the Disciplinary Authorities are free to consider the advice of the Commission and to pass any reasonable order reflecting their application of mind. The fact that the CVC is not a statutory body in view of the fact that the Central Vigilance Commission Ordinance, 1999 under which it was originally constituted has lapsed is of no avail in view of DOPT Resolution dated 4th April, 1999 wherein it was resolved that the Central Vigilance Commissioner would continue to hold office as such on the same terms and conditions of their appointment as on the date of the Resolution.
17. As regards the last submission made by the learned Counsel for the applicants that when the order of removal was found by the Appellate Authority to be unjustified, it ought to have treated the period of suspension as period spent on duty, we are of the view that the Appellate Authority would be well within its jurisdiction to pass any order including an order with regard to the treatment of the period of suspension in a manner different from that of the Disciplinary Authority and the mere fact that the order of removal was not found by the Appellate Authority to be justified, would not be an impediment to the power of the Appellate Authority to award any other punishment deemed fit and proper in the circumstance of the case.
18. Lastly it may be examined as to whether the infirmity in the show cause notice could be cured by invoking the doctrine of merger of the order passed by the Disciplinary Authority into the one passed by the Appellate Authority. We are of the considered view that initial infirmity in the show cause notice cannot be cured by invoking the doctrine of merger notwithstanding the fact that the applicants did have the opportunity to convince the Appellate Authority that there was no valid basis for the Disciplinary Authority to disagree with the findings and conclusions arrived at by the Inquiry Officer. Breach of natural justice at the initial stage, it may be observed, is closely akin to jurisdictional error and makes a decision void and hearing at the appellate stage would not cure the defect. The final order passed by the Disciplinary Authority being void having been passed in breach of natural justice, the question of its merger in the appellate order docs not arise. However, we need to dilate on this issue as no such argument was advanced on behalf of the respondents.
19. In the result, the original applications succeed and are allowed. The impugned show cause notice as also the impugned orders passed by the Disciplinary Authority and the Appellate Authority (being Annexures-A8, A13, A18 and A19 in O.A. No. 484/ 2002 and Annexures A5, A7, A12 and A13 in O.A. No. 537/2002) are hereby quashed. The Disciplinary Authority other than Shri K. Shyamsundar, shall go through the inquiry report and in the event of its disagreement with the report of the Inquiry Officer it shall tentatively record its reasons for disagreement with the show cause notice and thereafter proceed in the matter in accordance with law. The Disciplinary Authority, we hope and trust, shall also examine the gravity of lapse on the part of the concerned Superintendent of Customs and the then Assistant Collector of Customs in discharge of their duties in relation to the related shipping bills and take appropriate action in the matter in accordance with law.
20. Parties are directed to bear their own costs.