- (1.)THIS appeal is preferred by the Union of India, appellant No. 5, and some of its Officers, appellants nos. 1-4 serving in Calcutta Customs against a judgment and order of Mr. Justice P. K. Banerjee dated 27th April, 1971, quashing the enquiry report and order of dismissal of the appellant in a disciplinary proceeding.
(2.)THE respondent who was a preventive officer Grade II at the material time in Calcutta Customs was suspended on 29th June, 1968. Thereafter on 16th December, 1968, he was charge-sheeted as follows :
"shri M. H. Haque, P. O. Gr. If (under suspension), committed an act of gross misconduct and. thereby failed to maintain absolute integrity and devotion to duty in contravention of Rule 3 (I) of Central Civil Service (Conduct) Rules, 1964 in that or 28. 6. 68 on which date he had been posted as Assistant Sectional Officer K. G. D. (I), he aided and abetted in the attempt at smuggling certain articles, (as detailed in the annexure (II) belonging to Sri C. I. Rodrigues, Chief Steward of the M. V. Bamora which was lying berthed on that date of 4 K. G. D,"
The allegations in support of the charge in substance were that on 28th June, 1969 at about 4-30 p. m. the respondent M. H. Haque went to board 'm. V. Bamora' and met one Rodrigues, Chief Steward of the ship and at his request Haque with a steward's friend A. Andrade in a taxi attempted to pass out few cosmetics, ladies apparel etc. without payment of duty but at the gate the taxi was stopped by a Police Head Constable and on search a bag containing these goods was detected and the articles were found inside the bag and seized by the Police Officers. The brief-case of Haque was also opened and several Indian currency notes of various denominations with some coins and few Cadbury's Nut Milk Chocolates and one article prescribed as Flicent (Air Fuots) set (4 ozs.) of Australian make, one Dot Pen and a small diary found inside were also seized.
(3.)EVENTUALLY, an enquiry proceeding was started and after the evidence was closed in the enquiry proceeding on the direction of the Enquiry Officer written brief containing the arguments was filed by the respondent with copy to the other side. The 'presenting 'officer' also filed a written brief containing the arguments of the prosecution but without any copy to the respondent. The Enquiry Officer, however, submitted a report with a finding that the respondent's "connivance of act of aiding and abetting the smuggling of various articles found in the canvas bag and Haque's own brief-case or listed in annexure II to the charge-sheet" was clearly established but not with regard to the currency notes. The Enquiry Officer also found that there was over whelming evidence against Haque to establish that he failed to maintain (I) absolute integrity, (II) the devotion to duty and (III) did certain act which was unbecoming of a Government servant in terms of Rule 3 (1) of the Central Civil Service (Conduct) Rules 1964. But at the same time the Enquiry Officer mentioned certain facts about the efficiency and integrity of the respondent from his past records which were considered to be a mitigating factor in judging the gravity of his offence. The disciplinary authority, however, on agreeing with the finding of the Enquiry Officer issued a show cause notice at the second stage with a proposed punishment of dismissal upon the respondent and on consideration of his explanation dismissed him from his service. On appeal by the respondent the Collector of Customs thought that the smuggling of goods in any separate proceeding under the Customs Act or whether an attempt to pass foreign goods without payment of duty or coverage by an I. T. C. Licence from a vessel is smuggling or not hardly any finding was necessary and in any event such a finding was implied in the report of the Enquiry Officer and accordingly, he dismissed the appeal on the view that the penalty of dismissal from the service was not excessive.