Customs Act - Offences & Penal Provisions

Persons involved in smuggling and other modus operandi of imports and exports, in violation of prohibitions/ restrictions in vogue or with intent to evade duties or fraudulently claim export incentives are liable to serious penal action under the Customs Act. The offending goods can be confiscated and heavy fines and penalties imposed. There are also provisions for arrests and prosecution to deter them from smuggling and commercial frauds-which seriously affect the economy and even society at large when it comes to sensitive goods like drugs, arms and ammunition. The following paras briefly indicate the provisions in law for seizure, confiscation of goods, imposition of penalties by adjudication. Later paras indicate the arrests and prosecution provisions.

Seizure

2. An officer of Customs can seize any goods, if he has reason to believe that the same are liable to confiscation, under the Customs Act. The proper officer may also seize any document or things that may be relevant to any proceedings under the Custom Act. However, the person from whom these documents are seized is entitled to make copies of the same.

3. The person from whom the goods are seized is issued a show cause notice, usually within six months. However, the Commissioner of Customs, on sufficient cause being shown, can extend the time period for issue of Show cause notice, by a further six months.

4. In case the seized goods are perishable or hazardous in nature or is prone to depreciate in value over time or for reasons of constraints in space, the government can notify these goods and these goods can be disposed off before the conclusion of the proceedings eg. All electronic goods, Currency, Liquors, P&P medicine, Gold, Silver etc.

Confiscation

5. The word ‘confiscation’ implies appropriation consequential to seizure. The essence and the concept of confiscation is that after confiscation, the property of the confiscated goods vests with the Central Government.

6. The adjudicating authority makes the decision regarding confiscation of goods. The specific/ different categories of violations under which the import or export goods are liable to confiscation, are enumerated in Section 111 and 113 of the Customs Act. In general, the goods that are attempted to be smuggled into or out of the country, by route other than land routes or is attempted to be cleared by way of misdeclaration in quantity, description or value etc are liable to be confiscated. The import or exported goods are also liable to confiscation if there is an intention to evade Customs duty or to fraudulently avail the benefits available under various export promotion schemes, such as duty drawback, DEPB, 100% EOU etc.

Confiscation of Conveyances/ Packages & Their Contents

7. In additon to confiscation of Goods, the conveyances, i.e., vessels, aircrafts or vehicles, or animals that are used in the smuggling activities or in connection with fraudulent availment of drawback are liable to confiscation as per specific provisions in section 115 of the Customs Act. ( Tt is worth noting that the term " Smuggling", in Customs Act has vast connotations and it means " any act or omission which will render such goods liable for confiscation under section 111 or 113 of the Customs Act.)

8. In case the goods liable to confiscation are imported in a package, the package and its other contents, if any, are also liable to confiscation as per specific provisions in section 118 of the Customs Act.

Confiscation of goods used for concealing smuggled goods

9. The goods used for concealing smuggled goods are also liable to confiscation as per specific provisions in section 119 of the Customs Act.

Confiscation of smuggled goods notwithstanding any change in form, etc.

10. Smuggled goods may be confiscated even if its form has been changed. In case the smuggled goods with other goods in such a manner that the goods cannot be separated then the whole of goods are liable to be confiscated as per specific provisions in section 120 of the Customs Act.

Confiscation of sale proceeds of smuggled goods

11. There may be situations when the smuggled goods are sold off. In such a situation, the sale-proceeds thereof are also liable to confiscation as per specific provisions in section 121 of the Customs Act.

Penal Provisions under the Customs Act:

12. The word ‘penalty’ means punishment under the law, i.e., such punishment as is provided in penal laws. It also means the sum payable as a punishment for a default.

Penalties in respect of improper importation of goods

13. The person involved in omission or commission under the Customs Act, in relation to any goods which renders such goods liable to confiscation under section 111, or abets the same, or acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be liable to penalties as follows :-

(a) in the case of goods in respect of which any prohibition is in force under the Customs Act or any other law for the time being in force, to a penalty not exceeding the value of the goods or five thousand rupees, whichever is the greater;

(b) in the case of dutiable goods, other than prohibited goods, the person shall be liable to a penalty not exceeding the duty sought to be evaded on such goods or five thousand rupees, whichever is the greater;

(c) in the case of goods or baggage in respect of which misdeclaration of value has been done, to a penalty not exceeding the difference between the declared value and the value thereof or five thousand rupees, whichever is the greater

d) in the case of goods falling both under clauses (i) and (iii), to a penalty not exceeding the value of the goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest

e) in the case of goods falling both under clauses (ii) and (iii), to a penalty not exceeding the duty sought to be evaded on such goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest.Penalties in respect of improper exportation of goods

14. The person involved in commission or omission, in relation to any goods, which renders such goods liable to confiscation under section 113, or abets the same, shall be liable to penalties in different types of cases as follows:-

(i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding * the value of the goods or five thousand rupees, whichever is the greater;
(ii) in the case of dutiable goods, other than prohibited goods, to a penalty not exceeding the duty sought to be evaded on such goods or five thousand rupees, whichever is the greater;
(iii) in the case of goods under claim for drawback, to a penalty not exceeding the amount of drawback claimed or five thousand rupees, whichever is the greater.

Mandatory Penalty for Short-levy or Non-levy of duty in certain cases ( Section 114 A)

15. In cases of non-levy or short levy of duty or where the interest has not been charged or paid or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts, the person who is liable to pay the duty or interest, as the case may be, as determined under sub-section (2) of section 28 shall also be liable to pay a penalty equal to the duty or interest so determined. However, where such duty or interest, as the case may be, and the interest payable thereon, is paid within thirty days from the date of the communication of the order, the amount of penalty to be paid shall be reduced to 25% of the duty or interest.

16. If the duty or interest determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the Court, then, the duty or interest as reduced or increased, as the case may be, shall be taken into account. Also, in a case where the duty or interest determined to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the Court, then, the benefit of reduced penalty shall be available if the amount of the duty or the interest so increased, along with the interest payable thereon, and 25% of the consequential increase in penalty have also been paid within thirty days of the communication of the order. Where any penalty has been levied under this section, no penalty shall be levied under section 112 or section 114.

Penalty for not Accounting for Goods ( Section 116)

17. If any goods loaded in a conveyance for importation into India, or any goods transhipped under the provisions of this Act or coastal goods carried in a conveyance, are not unloaded at their place of destination in India, or if the quantity unloaded is short of the quantity to be unloaded at that destination, and if the failure to unload or the deficiency is not accounted for to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs, the person-in-charge of the conveyance shall be liable to: -

(a) in the case of goods loaded in a conveyance for importation into India or goods transhipped under the provisions of this Act, to a penalty not exceeding twice the amount of duty that would have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had such goods been imported;
(b) in the case of coastal goods, to a penalty not exceeding twice the amount of export duty that would have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had such goods been exported.Penalties for contravention, etc., not expressly mentioned

18. Any person who contravenes any provision of this Act or abets any such contravention or who fails to comply with any provision of this Act with which it was his duty to comply, where no express penalty is elsewhere provided for such contravention or failure, shall be liable to a penalty not exceeding ten thousand rupees.Adjudication of confiscations and penalties

19. The Customs Act enjoins quasi-judicial proceedings to be followed before any penalties are imposed and any confiscation action etc. initiated against any offending goods. Apart from issuing proper show cause notice under section 124, the persons concerned are also required to be given opportunity of representation in writing and personal hearing in the matter. The proper adjudication authority is then to pass final order taking due note of all evidences brought on record. As per Section 122 of the Customs Act, adjudication powers have been given to different class of officers as follows:-

(a) without limit, by a Commissioner of Customs or a Joint Commissioner of Customs

(b) where the value of the goods liable to confiscation does not exceed fifty thousand rupees, by an Assistant Commissioner of Customs or Deputy Commissioner of Customs;

(c) where the value of the goods liable to confiscation does not exceed two thousand five hundred rupees, by a Gazetted Officer of Customs lower in rank than an Assistant Commissioner of Customs or Deputy Commissioner of Customs.

Generally, ‘mens rea’ is not required to be proof for the imposition of penalty under the provisions of the Customs Act. The amount of penalty depends on the gravity of the offence and is to act as the deterrent for future.20. Whenever the goods are confiscated by an adjudicating authority, if these are not prohibited goods, an option is to be given to the party as per Section 125 of the Customs Act, to pay a fine known as ‘redemption fine’ of quantum as the adjudicating authority deems fit, in lieu of the confiscation. Prohibited goods can be confiscated absolutely.

Arrest:

21. To tackle the menace of smuggling and other serious economic offences including commercial frauds effectively, apart from penal action in departmental adjudication, the Customs Act, also provides for criminal prosecution action. The persons involved can be arrested and prosecuted in a Court of Law. Prosecution action can also be taken for providing false documents/declarations to Customs and for obstructing Customs officers working intentionally.

22. Any person guilty of serious offence under Customs Act, which is punishable under section 135 of the said Act, can be arrested by a customs officer authorised in this behalf, as provided under section 104 (1) of the Act. Under the law, the person being arrested is entitled to be informed about the grounds for such arrest under the law. The said section also enjoins that provides that every person arrested under the Act has to be taken without unnecessary delay to the nearest Magistrate. Since the Customs Act doesn’t contain any provision regulating the manner in which a person arrested is to be dealt with by the Magistrate, therefore, the provisions of the Criminal Procedure Code which regulate this aspect would be applicable to the person arrested under the provisions of the Customs Act. The power to remand to judicial custody vests in the Magistrate by virtue of section 165 of the Cr.P.C.

23. Department has issued several instructions to ensure that powers of arrest by Customs officers are exercised with care at senior level and arrest should be resorted in sufficient grave nature of officers as per laid down guidelines.

Offences & Prosecution

The offences under the Customs Act can be broadly categorised in two categories – non-bailable or cognisable offences & bailable or non-cognisable offences

Non-bailable or cognisable offences

24. The offences punishable with imprisonment for a term of more than 3 years are covered in this category. As per section 135 (1) of the Customs Act if any person is involved, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods, or acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be punishable, in the case of an offence relating to any of the goods to which section 123 applies and the market price whereof exceeds one lakh of rupees, with imprisonment for a term which may extend to seven years and with fine.

25. If any person convicted of an offence under section 135(1) or of section 136 (1) (applicable to customs officers) of the Act is again convicted of an offence under the same sections, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine.

(ii) Bailable or non-cognisable offences

26. The offences punishable with imprisonment for a term of less than 3 years or only fine are covered in this category .The offences under this category are as follows:-

(a) If a person makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document in the transaction of any business relating to the customs, knowing or having reason to believe that such declaration, statement or document is false in any material particular, he shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both (section 132)

(b) If any person intentionally obstructs any officer of customs in the exercise of any powers conferred under this Act, such person shall be punishable with imprisonment for a term, which may extend to six months, or with fine, or with both (section 133).

(c) If any person resists or refuses to allow a radiologist to screen or to take X-ray picture of his body in accordance with an order made by a Magistrate under section 103, or resists or refuses to allow suitable action being taken on the advice and under the supervision of a registered medical practitioner for bringing out goods liable to confiscation secreted inside his body, as provided in section 103, he shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both (section 134).

(d) In all offences under the Customs Act other than those mentioned under ‘non-bailable or cognisable offences’ above, the punishment for imprisonment may extend to a term of three years, or with fine, or with both. However, in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than one year {section 135 (i)}.

(e) If a person makes preparation to export any goods in contravention of the provisions of this Act, and from the circumstances of the case it may be reasonably inferred that if not prevented by circumstances independent of his will, he is determined to carry out his intention to commit the offence, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both (section 135A).

(f) The officers of Customs also cannot escape serious action including prosecution action, if they are found abusing their powers or are shown to be colluding/conniving with tax evaders. In the following cases, prosecution proceeding against a customs officer may be initiated under section 136 of the Customs Act:-

(i) In cases of connivance in the act or thing whereby any duty of customs leviable on any goods, or any prohibition for the time being in force under this Act or any other law for the time being in force with respect to any goods is or may be evaded, a customs officer shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

(ii) In cases of vexatious search, i.e., where any person is searched for goods liable to confiscation or any document relating thereto, without having reason to believe that he has such goods or document secreted about his person, a customs officer may be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both; or

(iii) If a customs officer arrests any person without having reason to believe that he has been guilty of an offence punishable under section 135, he may be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both; or

(iv) If a customs officer searches or authorises any other officer of customs to search any place without having reason to believe that any goods, documents or things of the nature referred to in section 105 are secreted in that place, he may be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

(v) If any officer of customs, except in the discharge in good faith of his duty as such officer or in compliance with any requisition made under any law for the time being in force, discloses any particulars learnt by him in his official capacity in respect of any goods, he may be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Presumption of culpable mental state

27. As per section 138A of the Customs Act, in prosecution proceedings under the said Act for an offence under the said Act, the culpable (guilty conscience or mens rea) on the part of the accused person shall be presumed and it will be for the accused to proof that he had no deliberation with respect of alleged offence. When the presumption of culpable mental state is drawn under this provision, that presumption includes intention, motive, knowledge, belief as well as reason to belief. The presumption could be deemed as rebutted only if the proof is beyond reasonable doubt not merely when its existence is established by a preponderance of probability.

Prosecution:

28. No prosecution proceedings can be launched in a Court of Law against any person under Customs Act, and no cognizance of any offence under sections 132 to 135 of the Customs Act, 1962 can be taken by any Court, except with the previous sanction of concerned Commissioner of Customs. Based upon the results of investigations and evidence brought on record, Commissioners of Customs apply their mind before sanctioning prosecution- after being satisfied that there are sufficient reasons justifying prosecution. Criminal complaint is thereafter filed in appropriate Court of law and followed up with a view to get expeditious orders / conviction.

Registration of Polical Party before Election Commission of India

An application for registration is to be submitted to the Secretary, Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi-110001 in the Performa prescribed by the Commission. The Performa is available on request by post or across the counter from the office of the Commission. The application should be neatly typed on the party’s letter head, if any, and it should be sent by registered post or presented personally to the Secretary to the Election Commission within thirty days following the date of formation of the party.2. The application must be accompanied by the following documents/information:-(i) A demand draft for Rs. 10,000/- (Rupees Ten Thousand Only) on account of processing fee drawn in favour of Under Secretary, Election Commission of India, New Delhi. The processing fee is non-refundable.(ii) A neatly typed/printed copy of the memorandum/rules and regulations/Constitution of the Party containing a specific provision as required under sub-section (5) of Section 29A of the Representation of the People Act, 1951 in the exact terms, which reads "---------------(name of the party) shall bear true faith and allegiance to the constitution of India as by law established, and to the principles of socialism, secularism and democracy and would uphold the sovereignty, unity and integrity of India". The above mandatory provision must be included in the text of party constitution/rules and regulations/memorandum itself as one of the Articles/clauses.(iii) The copy of the party Constitution should be duly authenticated on each page by the General Secretary/President/Chairman of the Party and the seal of the signatory should be affixed thereon.(iv) There should be a specific provision in the Constitution/rules and regulations/memorandum of the party regarding organizational elections at different levels and the periodicity of such elections and terms of office of the office-bearers of the party.(v) The procedure to be adopted in the case of merger/dissolution should be specifically provided in the Constitution/rules and regulations/memorandum.(vi) Certified extracts from the latest electoral rolls in respect of at least 100 members of the party (including all office-bearers/members of main decision-making organs like Executive Committee/Executive Council) to show that they are registered electors.(vii) An affidavit duty signed by the President/General Secretary of the party and sworn before a First Class Magistrate/Oath Commissioner)/ Notary Public to the effect that no member of the party is a member of any other political party registered with the Commission.(viii) Individual affidavits from at least 100 members of the party to the effect that the said member is a registered elector and that he is not a member of any other political party registered with the Commission duly sworn before a First Class Magistrate/Oath Commissioner)/Notary Public. These affidavits shall be in addition to the furnishing of certified extracts of electoral rolls in respect of the 100 members of the applicant party mentioned at (vi) above.(ix) Particulars of Bank accounts in the name of the party.3. The application along with all the required documents mentioned above must be reach the Secretary to the Commission within 30 days following the date of formation of the party.4. Any application made after the said period will be time-barred.

List of Registers under Factories Act

List of Registers to be maintained:

Register of Compensatory Holidays in Form No.9
Register of Adult Workers in Form No.12
Register of Adolescent Workers in Form No.14
Register of Leave with wages in Form No.15
Muster Roll in Form No.25
Register of Accidents in Form No.26
Register of Dangerous Occurrences in Form No.26 A
Register of exemptions in Form No.28
Register of particulars of rooms in the factory in Form No.29
Inspection register in Form 28, 29 & 7 The above are the general registers to be maintained. There are other registers under the Rules to be maintained depending upon the factory.

CIVIL JURISDICTION

LIMITATIONS IN THE CATEGORY OF THE CASES PERTAINS TO CIVIL APPELLATE JURISDICTION

CATEGORY
ART. /RULE/ SECTION

LIMITATION

TIME FROM WHICH PERIOD BEGINS TO RUN

1] FIRST APPEAL (CPC)
Art.116 (a) of Limitation Act, 1963
90 Days
The date of the decree or order.
R.15(2) of Bombay City Civil Court Act, 1948
30 Days
The date of the decree or order.
a. Land Acquisition Act.
Art. 116 of Limitation Act.
90 Days
The date of the decree or order.
b. Employees State Insurance Act.
Sec. 82 (3) ESI Act.
60 Days
From the date of order
c. Railway Claims Tribunal Act.
Sec. 23 (3) of RCT Act.
90 Days
From the date of order
d. Motor Vehicles Act.
Sec. 173(1) of MV Act.
90 Days
From the date of order
e. Workmen's Compensation Act.
Sec. 30 (20 Workmen's Compensation Act. Sec.30(3) Section 5 of the Limitation Act is applicable
60 Days
From the date of order
f. The Copy Right Act.
Sec. 72(2) The Copy Right Act
3 Months
From the date of order
g. Securities & Exchange Board of India Act.
Sec. 15z of SEBI Act
60 Days, If prevented by sufficient cause to file within 60 days further period not exceeding 60 days.
From the date of communication of the decision or order to him.
h. Maharashtra 8 Electricity & Regulatory Commission Act.
Sec. 27 of MERC Act.
60 Days
----
i. Foreign Exchange Regulation Act.
Sec. 35 of FERA
60 days, If sufficient cause shown for further 60 days.
-----
j. Family Court Appeals Act.
Sec. 19 (3) of Family Courts Appeal Act.
30 Days.
From the date of judgment or order
k. Cross objection in Appeal
Order (41) of CPC R.22
30 Days.
Within one month from the date of service notice on him or his pleader of the day fixed par hearing of appeal or within such further time as the appellate court may allow.

2] SECOND APPEAL (CPC)
Art.116 of Limitation Act.
90 Days.
The date of the decree or order.


3] LETTERS PATENT APPEAL
Bombay High Court (A.S.) Rules Provisions of L.P.A. and Order 41 of CPC (117 Art.)
30 Days.
From the date of order.

4] APPEAL FROM ORDER
----
District - 90 Days.
Bombay - 30 Days.
From the date of order.From the date of order.


5] CIVIL REVISION APPLICATION(CPC)
Art. 131 of Limitation Act.
90 Days.
The date of the decree or order or sentence sought to be revised.





6] APPLICATIONS
a. Application for setting aside Registrar's order
Revision of orders of Reg & Addl. Reg by motion u/ Chapter II,Rule 7
Bombay High Court (A.S) Rules Chapter XII Rule-2

Chapter II Rule - 7
7 Days.

15 Days.
From the date of order complained of
From the date of order
complained of
b. For bringing L.Rs. on record
Art. 120
90 Days.
The date of death of the plaintiff , appellant , defendant or respondent , as the case may be.
c. For setting aside abatement
Art. 121
60 Days.
The date of abatement.
d. For leave to appeal as a pauper(a) to the High Court
Art.130
60 Days.
The date of decree appealed from.
e. To the High Court for a certificate of fitness of appeal to the Supreme Court clause 1 of Art. 132, 133 etc.
Art, 132 of Limitation Act
60 Days.
The date of the decree , order or sentence.
f. Application for restoration of appeal, application Review, Revision dismissed for default, want of prosecution.
Art. 123 of Limitation Act.
30 Days.
The date of the decree or where the summons or notice was not duly served, when the aplicant had knowledge of the decree.
g. Appeal under Sec. 35G(2) of Central Excise Act.
35G(2)(a)
180 Days.
From the date on which order appealed against is received by commissioner or party order.
h. The Customs Act Appeal u/s. 130 (2)
130(2) (a)
180 Days.
From the date on which the order appealed against is received by commissioner of customs or the other party

7] REVIEW
Art. 124
30 Days.
The date of the decree or order.

8] CONTEMPT PETITION
Sec. 20
1 Year
From the date on which the contempt ------- to have been committed.
9] CONTEMPT APPEAL
Sec. 19(4) (a)
30 Days.
-----

10] WRIT PETITIONS
Art. 226, 227 etc
No limitation but to be filed as early as possible.
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What is a Chargesheet?

What is Charge Sheet?

The concept of charge sheet is derived from criminal law. Under the criminal procedure code the Magistrate frames the charges. In case of investigations made by the police, in terms of Sec.173 of Code of Criminal Procedure the officer in-charge of the police station shall forward a report in the form prescribed to the Magistrate empowered to take cognisance of the offence. The magistrate can discharge the accused person, if on consideration of the document, the charge is deemed groundless. Otherwise the magistrate is to frame the charge. In disciplinary inquiries in public and private employment the disciplinary authority frames such a charge, if he thinks fit to do so.

Basic Ingredients of a Valid Charge Sheet

The charge sheet pin-points the lapses of the employee. It is a document of indictment. The employee is called upon to explain properly or else the charges are deemed proved. But then the employee is not going to oblige and accept the charges. Issuing a charge sheet therefore calls upon the inherent obligation to prove the facts mentioned therein. It is easier to make allegations, but not so to substantiate the same, unless sufficient homework is done and proper care is taken in the expression of the allegations. It is possible to prove the charges, if the facts are correctly mentioned and supporting material by way of proof is readily made available. The employee could have in fact committed lapses bordering serious misconduct, and there could be material in support of the same. But it needs special skill to understand the exact lapses of the employee and state the same in precise terms, as is seen in the material placed as evidence. An objectivity of the mind, free from malice and bias towards the charged officer is needed to draft a proper charge sheet.

The charges should be specific and should not be expressed in generic or vague terms. Suspicions, assumptions or surmises expressed cannot constitute grounds for awarding punishment to the employee. What is needed is categorical statements. There is to be material information. Taken together, these material facts should convey an act/acts of misbehaviour and these have to be conclusively established through documents or witnesses. The documentation of the charge sheet, has, therefore, to be expressed as the initiator or pre-enquiry presentation of the allegations and thus to serve as the prime or basic record in a disciplinary case. There has to be an inherent harmony between the allegations expressed and the supporting material produced.

Charge of misconduct should not be vague. If it is so, it can be said rules of natural justice have not been followed. If the charge sheet is vague there is no reasonable opportunity to show cause. The charge sheet must be specific and must set out all the necessary particulars, irrespective of the fact, whether in view of the previous preliminary inquiry the delinquent officer knows about the charges.

What is meant by vague? Vague can be considered as the antonym of the word 'definite'. If the ground is incapable of being understood or defined with sufficient clarity, it can be called vague.
Whether Vagueness of the Charge will vitiate the Inquiry?

The government servants have got protection under Article 311 of the Constitution of India and their services can only be terminated after giving them reasonable opportunity to show cause. The reasonable opportunity implies that the charge sheet should not be vague. If the services of an employee are terminated in disregard to provisions of Article 311 then the dismissal is wholly void and the enquiry is vitiated.

Even when the employee have got no constitutional protection, the vagueness in the expression of the charge may prejudice the employee and disable him from properly understanding the implications and submitting his defence. If this happens the enquiry is vitiated.
There can be no hasty action. The competent authority should first order an investigation and call for the facts and then only he must issue a charge sheet. But if he were to issue a charge sheet, even before a regular investigation was done, one will find it difficult to draft a charge sheet setting forth precisely the lapses of the officer.

Drafting of Charge Sheet - Constituents of Charge

1. Time and place of the misconduct. Time and place are sometimes constituent of the charge itself.(e.g. riotous behaviour within the office premises and during office hours). Even when the time and place do not constitute an essential part of the charge, still they should be mentioned, so that the incident may be specific and concerned employee may be able to meet the case.

2. Each incident constituting misconduct should be stated as a separate charge.

3. The specific name of the misconduct should be mentioned. This is done by referring to the specific provision of the Code of Conduct Regulation, that has been violated.

4. In case of habitual committal of the misconduct is made, the word 'habitual' should be mentioned. The past record showing the habit should also be given.

5. When the time of the incident involving the misconduct is material and is given, the employer should always mentioned the word 'about' or 'around' i.e. 'about 2.00 pm' or 'around 2.00 PM'. Even if it is proved that the employee did not commit the misconduct at 2.00 PM, and it had taken place at 2.10 or 2.15, the use of the word will save the situation. On account of the difficulty of being very precise the charge is technically defective if either of the words mentioned is not used.

6. Charge sheet should contain facts instead of mere inference or judgement from facts. Mere use of words like "insolence" or "unsatisfactory work", "negligence", "misbehaviour or indiscipline" cannot constitute a misconduct, unless supported by information about material incidents corroborating the words used.

7. The time allowed for submission of reply by the delinquent officer and a statement that if no reply is received within that time, it will be presumed that the delinquent officer has nothing to reply and that he has admitted the charges and further action on the charge sheet will follow accordingly. However despite this statement, if no reply is received, an oral inquiry should be conducted, after expiry of time allowed for the reply.

The Central Vigilance Commission has stressed the importance of documentation of the charge sheets in precise and clear terms and has also pin-pointed the omissions in this important formality observed frequently. The contents of their circular letter No.3(v)/99/8 Dated the 5th October,1999 is appended hereunder for an understanding of the importance of this prime formality.

Defective Framing of Charge Sheet - Adverse Effects
(Observations of CVC about Inadequate skill in Drafting Charge Sheets)

Inadequate skill in drafting the charge sheet is one of the reasons that help the charged officials to get away with lapses/misconduct committed by them. Many cases fail before the Courts of Law just because of the defective framing of charge sheets. It has been observed by the Commission that the charge sheets are sometimes framed in a very general way and the existing practice with regard to framing of charges and imputations vary widely.
1. Sometimes the charge itself is framed in a very general way, only pointing out that the official concerned has acted in an unbecoming manner or has shown lack of devotion to duty or has acted without integrity. The real issues, in such circumstances, are to be found in the statement of imputations. It has also been observed by the Commission that the organisations/Ministries etc. while framing the charge sheets list serious irregularities/charges in the imputations but do not mention the same in the articles of charge.

2. Many a times the charges are not framed in accordance with the advice given by the Commission, thereby diluting the central issues.

3. Rule 14(3)(i) of the CCS (CCA) Rules stipulates " the substance of the imputations of misconduct or misbehaviour into distinct articles of charge" should be drawn up by the Disciplinary Authority whenever it is proposed to hold an enquiry against a Government servant. This would mean that no charge could be proper or complete without including therein elements of the main content of the allegations/imputations. Therefore, the spirit of all Conduct, Discipline & Appeal Rules imply that there should be a specific finding on each allegation made against the officer. At the end, the Inquiry Officer must then apply his mind to come to a conclusion as to whether the charge as a whole has been proved wholly, partially or not at all.

4. It has to be understood that the statement of imputations/ allegations annexed are supplementary/supportive material to the charge sheet; they are details of facts/evidence to support the charges made, and should contain names of witnesses/documents in support of the charges. That is, the statement of imputations is to make the basis of the charge, allegation-wise, precise and specific and should include details of what exactly each witness/document is going to prove regarding every charge.

5. Each charge should also have a separate statement of imputations of misbehaviour/misconduct. The common failing of listing out one long statement of misconduct/misbehaviour ought to be avoided.

The Commission has also issued instructions earlier that are reproduced in Para 14.1 to 14.3 of Chapter X of Vigilance Manual Part I stipulating that the articles of charge should be framed with great care. Broad guidelines as to how the articles of charge should be framed have also been indicated therein. Similarly, the common mistakes that have been noticed by the Commission in framing the charge sheet have also been incorporated in Para 12.1.3 of the special Chapter on Vigilance Management in Banks and Para 20.1.3 in the Special Chapter in PSEs. These are reproduced below:-

"Special care has to be taken while drafting a charge-sheet. A charge of lack of devotion to duty or integrity or unbecoming conduct should be clearly spelt out and summarised in the Articles of charge. It should be remembered that ultimately the Inquiry Officer would be required to give his specific findings only on the Articles as they appear in the charge-sheet. The Courts have struck down charge-sheets on account of the charges framed being general or vague (S.K. Raheman Vs. State of Orissa 60 CLT 419.) If the charge is that the employee acted out of an ulterior motive that motive must be specified (Uttar Pradesh Vs. Salig Ram AIR 1960 All 543).
Equally importantly, while drawing a charge sheet, special care should be taken in the use of language to ensure that the guilt of the charged official is not pre-judged or pronounced upon in categorical terms in advance.

(Meena Jahan Vs. Deputy Director, Tourism 1974 2SLR 466 Cal).
However, the statement merely of a hypothetical or tentative conclusion of guilt in the charge, will not vitiate the charge sheet

(Dinabandhu Rath Vs. State of Orissa AIR 1960 Orissa 26 cf. Also Powari Tea Estate Vs. Barkataki (M.K.) 1965 Lab LJ 102)".

Notwithstanding the extant instructions/guidelines many organisations continue to make avoidable mistakes while framing the charge sheets. Therefore, it is reiterated that the extant instructions on the subject as stated in the aforesaid paragraphs may be followed carefully while drafting the charge sheet, in order to avoid subsequent difficulties. The CVOs of the organisations/Ministries etc. should ensure that these instructions are implemented scrupulously.

In addition as already summarised above, an IO is required to give his finding in respect of each article of charge and reasons thereof. As the articles of charge are definite and distinct substance of the statement of imputations of misconduct or misbehaviour, the findings on each articles of charge have to be inter alia based on statement of imputations. Therefore, the Inquiry Officers are required to record their findings in respect of each allegation framed in support of an article of charge in order to ensure that inquiry reports do not suffer due to deficiencies.
[Source Circular instructions No.18 of CVC bearing office No. 3(v)/99/8 dated 5th October, 1999 on the subject "Drafting of charge- sheet"]

Drawing List of Lapses from the Report of Investigation

Various lapses of the delinquent officer listed in the Report of the Investigation should be grouped category-wise and they should then be graded according to their severity. Discretion should be exercised whether to include minor lapses, along with more serious one, as it puts a severe load on the inquiry proceedings, by way of producing several dozens of documents and witnesses from both sides. When there are a number of lapses of the same category, it may be sufficient to make a general statement and give only a few salient cases as examples, instead of reproducing all such individual instances. If there are large number of minor lapses, it may be advisable to issue a separate charge sheet under minor penalty procedure, so that the core items of irregularities are only included in a compact charge sheet issued for major penalty, for which alone oral inquiry is to be conducted.

It is advisable not to group different types of lapses in a single charge sheet, i.e. lapses with vigilance angle, administrative misconduct and technical or procedural lapses (including negligence).

Similarly it is wrong to issue a consolidated charge sheet covering the entire tenure of an officer spread over 3 to 5 years at a branch. Does it mean that the watchdog was asleep for all three years or more, and wake up only leisurely, for a one-time vigilant action, and trying to clear all the old arrears, on a wholesale turnover stretching half-a-decade?

Other Frequently Observed Deficiencies in Issuing Charge Sheets

Age-old lapses should not crop up at the time of the retirement of the officer, for a last minute encounter. These is in bad taste, and reflects the Disciplinary Authority, himself not adhering to discipline. When there is inordinate delay in taking action, it leads to the logical surmise that the management has condoned the misconduct, and dropped the case already.

Charge sheet should not be issued without holding the supporting evidence on hand. It is violative of the provisions of the DA Regulation. After issuing the charge sheet, the presenting officer should not be asked to gather evidence, but to present the evidence already gathered. It is not the function of the presenting officer to search for and locate evidence, which would imply that the charge sheet was issued originally without supporting evidence.

For one and the same set of transactions different officers should not be charge sheeted separately at different occasions, but such charge sheets should be drafted and issued as a single exercise, to be covered by one single common proceeding.

The Branch Manager is responsible for the work and integrity of subordinate officers reporting to him at the branch. Primary responsibility for the lapses of the group, may stick to the Branch Manager. But however in respect of more serious lapses, the Branch Manager should not be singled out, and charge sheeted exclusively. When there is a role for a second/junior officer, he also must be made accountable.

In fact from the study of the wording and expression of statements in a charge sheet, it can be conclusively drawn out, if the charge sheet represents a bona fide disciplinary action initiated, or an exercise in personal vindictiveness.

Posted by Narain Reddy in

www.firstappeal.com

The salient features of the Indian Constitution are of two types. There are some features that are unique to this Constitution; no previous constitution possessed them, while there are others which, though not peculiar, are still important characteristics.

UNIQUE FEATURES

Framed by the People of India:

This Constitution has been framed by the representatives of the people of India through a Constituent Assembly during 1946-1949. Prior to it, the British Parliament enacted all the constitutions. The Constituent Assembly, however, was elected indirectly by the Provincial Legislative Assemblies that were themselves elected on a restricted franchise. The representatives of the princely states were the nominees of their rulers. In spite of it, the Constituent Assembly could be called a representative body because the then ruling party at the Centre had decided to give representation to all sections of society as well as to all shades of opinion.

Derived from Various Sources: It is a unique document that was derived from various sources. Our constitution makers were inspired to draft the provisions regarding Fundamental Rights and Supreme Court from the U.S.A, Directive Principles of State Policy from Ireland, Emergency from Germany, Distribution of legislative powers from Canada, and Parliamentary Institutions from the United Kingdom. Besides, they borrowed extensively from the Government of India Act, 1935.

Sovereignty of the People: The Constitution declares the people of India to be the supreme authority. Prior to it, the supreme authority lay in the British Parliament. Even the Indian Independence Act, 1947 through which India got independence recognized the supremacy of the British Parliament. The term Sovereignty implies that the people of India are not subordinate to any other external agency. The membership of the Commonwealth of Nations, sometimes, is misinterpreted as a limitation on the sovereignty of the people of India. This, however, is not correct. The Commonwealth has now undergone a sea-change. It is now purely a voluntary association of independent sovereign States.

Republican Polity: The Constitution provides for the republican form of polity in India. Prior to it, the British king was the Head of the State who owed his office to the laws of inheritance. It is note-worthy that in Ancient India there existed republican governments in a number of parts for about one thousand years. But in modern times there was not a single territory where republican form of government prevailed.

Secular Polity: This Constitution provides for a secular polity in India. Though the term secular has not been defined in the Constitution anywhere, the substance of secularism can be deduced from various provisions of the Constitution. It has been used in the sense of absence of discrimination on grounds of religion and equal respect for all religions. Prior to it, the Government of India Act, 1935 had provided for a separate department of Ecclesiastical Affairs.

Fundamentals Rights and Duties: The Constitution provides for Fundamental Rights and Fundamental Duties of the citizens of India. No previous constitution provided for them. The leaders of the Indian National Movement always demanded for the inclusion of Fundamental Rights in the Constitution of India. The Constitution initially did not provide for Fundamental Duties. This provision was inserted in the Constitution through the Constitution (Forty Second Amendment) Act, 1976.

Directive Principles of State Policy: The Constitution provides for the Directive Principles of State Policy. No previous constitution had such a provision. Though the Instrument of Instructions attached to the Government of India Act, 1935, appears to be analogous to the Directives, the aims and objects of the two are very different. It is to be noted that the leaders of the Indian National Movement had made various promises regarding the Fundamental Rights that the citizens of free India would enjoy. But when India got independence in 1947, the leaders realised that they did not possess sufficient means to grant those rights, particularly economic and social rights, immediately. But at the same time they did not want to go back upon their promises. They, therefore, decided to put the Fundamental Rights into two categories: (i) those that were granted immediately and (ii) those that would be granted in future if and when they were capable to do so. The first were included in Chapter Ill entitled Fundamental Rights and the second were included in Chapter IV entitled Directive Principles of State Policy. The rights included in Chapter IV are nonenforceable through courts of law but they are the fundamental principles of governance which ‘the State’ (i.e. the Government and Parliament of India; the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of Government of India) is required to take cognisance of.

Judicial Review: The Constitution provides for the judicial review of the Acts of Legislatures (of both, the Union and States) as well as of the activities of the executives (Union and State). Prior to it, there was no such provision. This provision keeps the legislative and the executive branches of governments under restraint and they cannot exercise their authority arbitrarily.

Universal Adult Franchise: It provides for the universal adult franchise. Prior to it all the constitutions provided for restricted franchise. According to the Government of India Act, 1935, which granted the largest amount of franchise, only 14% of the people had a right to vote. It is noteworthy that most of the western democracies had taken a number of decades to grant such a right to their citizens. It is really a very revolutionary step taken by the Constituent Assembly to grant universal adult franchise by a stroke of pen.

Recognition of Hindi as an Official Language: The Constitution recognises Hindi as the official language of the Indian Union. Prior to it, English was the only official language of India. Besides Hindi, the Constitution also recognises seventeen other Indian languages as regional languages.

Unique Blend of Rigidity and Flexibility: The Constitution provides for an amending procedure. Prior to it, there was no provision for an amendment of the prevalent constitution. The British Parliament alone was entitled to do it. The procedure for an amendment is a unique blend of rigidity and flexibility.Some provisions of the Constitution can be amended by simple majority of the two Houses of Parliament, though technically they are not treated as amendments in the constitution, others require absolute majority of the total strength of the two Houses of Parliament and two-thirds majority of the members present and voting and still others require an additional support by half of the States’ legislatures. For instance, a change in the name or territory of a State can be made through an ordinary law enacted by the two Houses of Parliament; whenever there is a change proposed in the federal character of the Constitution, absolute majority of the total strength of the two Houses of Parliament and two-thirds majority of the members present and voting and also ratification by at least half the State Legislatures is required; in all other matters a resolution passed by an absolute majority of the two Houses of Parliament and two-thirds majority of the members present and voting is sufficient for any change in the Constitution.

Jurisdiction of CLB

A. Eastern Region, Company Law Board, 9, Old Post Office Street, Kolkata:States of Arunachal Pradesh, Assam, Bihar, Manipur, Meghalaya, Nagaland, Orissa, Sikkim, Tripura, West Bengal and Union Territories of Andaman and Nicobar Island and Mizoram.

B. Northern Region, Company Law Board, 5th Floor, ‘A’ Wing,Shastri Bhawan, Dr. Rajendra Prasad Road, New Delhi-110001:States of Haryana, Himachal Pradesh, Jammu & Kashmir, Punjab, Rajasthan, Uttar Pradesh and Union Territories of Delhi and Chandigarh

C. Southern Region/Addl. Principal Bench Company Law Board, Shastri Bhawan, Block-1, 26, Haddows Road, Chennai:States of Andhra Pradesh, Karnataka, Kerala, Tamil Nadu and Union Territories of Pondecherry and Lakshadweep Island.

D. Western Region. Company Law Board, NTC House, N.M. Marg Ballard Estate, Mumbai:States of Goa, Gujrat, Madhya Pradesh, Maharashtra and [Union Territories of Dadra and Nagar Haveli and Damman and Diu]

Procedure of filing an application for non-payment of matured deposits

1) Form No. 4 prescribed under the Company Law Board Regulations, 1991 is to be filed in duplicate alongwith photocopy of Fixed Deposit Receipt issued by the company with the Company Law Board Benches at New Delhi/Mumbai / Chenna/Kolkata. 2) A demand draft of Rs. 50/- duly drawn in favour of “The Pay & Accounts Officer, Department of Company Affairs” payable at New Delhi/Mumbai / Kolkata / Chennai as the case may be attached with the above said form No. 4.3) Separate Form No. 4 along with demand draft of Rs. 50/- is to be filed by each depositors.4) If a depositor has more than one deposit in his/her name in one company only one form No. 4 is required.5) Jurisdiction of Bench is according to the situation of the registered office of the company and cases will be entertained by Regional Bench in respect of company whose registered office is situate

Format of Adoption Deed

THIS DEED of adoption made on this _______________ day of ______________ between Sh._________ ,s/o ____________________,r/o ________________ (hereinafter called "the adoptive father") of one part
AND
Sh. __________________s/o______________________r/o ___________________, (hereinafter called "the natural father") of the other part.
WHEREAS
1. The adoptive father has no issue, male or female, and having regard to his circumstances, he has no expectation of having any issue.
2. The adoptive father and his wife want to adopt a child as their son/daughter.
3. The natural father has three children, all sons.
4. The adoptive father, with the consent of his wife, has approached the natural father for giving in adoption one of his sons named _______(name of the child).
5. The natural father has, with the consent of his wife, consented to his said son being given in adoption.
6. The ceremony of giving and taking in adoption has been duly performed along with other religious ceremonies customary with the parties on the day of ____________.
7. The parties considered it expedient and necessary that a proper deed of adoption be executed as an authentic record of adoption.
NOW THIS DEED WITNESSESETH AS FOLLOWS:
1. Declaration of Adoption
The parties hereto do hereby declare that the adoptive father has duly adopted the said child as his son from the day of _________ i.e. the day on which ceremony of giving and taking in adoption has been duly performed along with other religious ceremonies customary with the parties.
2. Legal rights and liabilities of adopted son
The said son has been transferred to the family of adoptive father and shall have, from the date of adoption, all the legal rights and liabilities of an adopted son.
3. Maintenance, etc. of adopted son
The adoptive father shall be liable for the maintenance, education and other expenses of the adopted son and shall bear all such expenses in accordance with his status.
IN WITNESS WHEREOF, the parties hereunto have signed this deed this ______________day of _________.
WITNESS:1. _________________
THE ADOPTIVE FATHER
2. ____________________
THE NATURAL FATHER

Notice on dishonour of cheque

To, To, Sh.(Name & Address) ________________ Sub:- Notice under Section 138 of the Negotiable Instruments Act for Cheque Dishonoured due to insufficient funds. Dear Sir,Under instructions and authority from our client M/s. ________ having their office at _________, we serve upon you the following notice of demand under Section 138 of the Negotiable Instruments Act. 1. That your business concern M/s _______ had purchased from my client goods (Name and brief description of goods) vide their invoice bearing no. ___ dated ________ for Rs._______2. On delivery of goods above mentioned, you issued a cheque bearing no. ____ dated _________ for Rs._______drawn on ____ Bank.3. That when the aforesaid cheque was presented by our client M/s. ____ to your Bankers i.e. ________ the same was returned unpaid by the Bank with the remarks/reasons "Insufficient Funds". This fact was brought to your notice by our client vide letter dated_______. 4. That in reply to our client’s letter, you sent a letter dated ____ requesting him to deposit the cheque again with banker and assured him that they will be cleared this time. 5. My client again presented your above mentioned cheque with its bankers, this time again cheque was returned un-paid by the bank due to insufficient funds. 6. That thereafter inspite of many telephonic reminders and personal visits by the representative of our client to your office, you failed to make the payment due to our client. 7. That on account of the above facts, you are liable to be prosecuted under section 138 of the Negotiable Instrument Act, 1881 as amended upto date under which you are liable to be punished with imprisonment which may extend to one year or with fine which may extend to twice the amount of cheque or with both. 8. Under the circumstances, we call upon you to make the payment of Rs. _____ being the principal amount of the aforesaid cheque along with interest @ ____ % per annum till the time of actual payment within a period of 15 (fifteen) days from the date of receipt of this notice, failing which we will be bound to take further necessary action under the provisions of Negotiable Instrument Act, 1881 against you in the competent court of law at your risk and cost. This is without prejudice to all other legal rights and remedies available to our client for the above-stated purpose.Kindly take notice.