Sukumar Mukhopadyay : Lateral Thinking (Part-ii)

Lateral Thinking (Part-ii)

In this article I am discussing some other examples of lateral thinking in the course of  my official work.

Letter of Authority
Once a gentleman came to meet me, when I was Collector of Customs.  He was political creature and  highly connected .  He wanted to know the position about a particular case.  I knew the case very well because it was a fraud case and I had devoted a considerable time  in supervising the investigation.  I had not intention of divulging the position of the case to him.  So I told him that I would tell him about the case provided he showed me the letter of authority given by the party to him.  I knew that I would not have the letter of authority because such people don’t believe in it.  They also do not want that there would be a documentary proof that he came and met the Collector of Customs in relation to a fraud case.  So when I asked for it he was taken aback.  He collected himself and said that he has been asked by the political boss and also that he is a lawyer.  The moment he said a “lawyer”, I immediately pointed out to him as a lawyer he should be knowing that under the provisions of the Customs Act, anything known about a person by the Customs Department cannot be divulged to another person who is not authorised by that person.  I wanted to show him the relevant provisions of the Customs Act.   He left in a huff.  As soon as he left I called for the file and took all actions to issue the show cause memo within a couple of days.  I knew he would come back with a letter of authority.  He did after a week.  I kept a copy of the show cause memo in my drawer.  As soon as he came, I took out the show cause memo and placed it on the table.  I said that as soon as the party replies to the show cause memo, I will decide the case immediately.  

He realised that  the game was over.
  Moral of the story: Issue show cause memo before any political heavy weight can interfere.
Rampur Central Excise
Destroying Tobacco in Rampur when probationers were there
I was posted in Rampur in 1964 in Central Excise.  After joining I noticed that there was a huge quantity of tobacco which had to be destroyed by throwing into the nearby river.  There was a huge pendency of such tobacco since all my predecessors had been avoiding this job.  I came to know that the real reason was that the officers were afraid of possible complaints that the tobacco had not been destroyed at all.  In other places such complaints had led to disciplinary action against the officers who did the destruction.  The destruction was supposed to be in the presence of witnesses.  If the witnesses were the passers-by, they would not be available to confirm that the destruction was in their presence. If they are other tobacco merchants, then also there is a problem that they may turn hostile in case we take action against them on some other grounds.  The problem of getting genuine and reliable witnesses was standing on the way of destruction of tobacco.  At that time I came to know that the two IRS probationers of 1965 batch were coming to get training at Rampur for two months.  I availed of this opportunity to destroy the tobacco with these probationers as witnesses.  Since they were the most independent and reliable, there would be no scope of complaints.  At the same time, of course, I took along with me several executive officers to ensure that the details of the procedure of destruction were gone through properly.  Thus I was able to clear the huge pendency in regard to destruction of tobacco. 
         Moral of the story:       Use probationers as witness.  

DRI (Directorate of Revenue Intelligence)
Completed the indexing of the files of smugglers
In 1974 I joined as Deputy Director, Revenue Intelligence and I was in-charge of Intelligence.  From 1975 I was also in-charge of detention under COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Activities Act)  Act.  Making dossiers against smugglers was a substantial part of my job.  In order to make a dossier, we need the files relating to a smuggler. The file numbers are supposed to be collected from the index cards  which were kept in steel cupboards like in a library.  Unfortunately, the index cards were hopelessly outdated. The case files which contained the names of the smugglers were sent to the index room but they were simply kept in bundles and not attended to.  The names occurring in the files were supposed to be written on the index cards and the files returned to the section.  But due to usual lethargy and bad administration by the officer in-charge of the index room, the job was never done.  So we used to find immense difficulty in making a complete dossier against any smuggler.  Whenever I used to tell the officer in-charge to complete the files, he would keep the same stereotyped reply namely, “Sir, we need more staff”.   I went and sat in the index room and had a cup of tea with them for a couple of days and watched how they were doing the work.  I found that there was no specific allotment of work per clerk or inspector.  Nobody would know how many files have been done by one particular officer in a day.   Then the idea came to my mind that I would allot the work to each person.  So I met them count the number of files relating to each year.  After that I made six groups calling them A, B, C, D, E, F.   Each group consisted of  one inspector and one clerk.  The clerk was supposed to do the entry in the index card and the inspector was supposed to check it.  I divided all the files year-wise to these groups by making the work load roughly the same.  For example 1968, 1969 and 1970 were given to group A.   1971 and 1972 were given to group B and so on.  Then I made a big chart and wrote the names of the groups on the left side and the dates on the top.  Each day’s disposal had to be written in the square meant for each group.  That way I was able to compare the work done by group A with group B and group C, etc.  Every day I made a habit of going and having a cup of tea with them and casually watching the progress of the work.  I never had to rebuke any group because the sense of competitiveness had developed and the progress of the work was more than satisfactory.  Once in a while I used to take out an index card relating to a smuggler and see whether all the files were entered there or not.  The progress of work was much more impressive than what I could imagine.  Within two months the arrear became zero.  This means that whatever files were coming for indexing ,were going out the same day after indexing.  This enabled us to make dossiers completely up-to-date and we could say with authority that all cases relating to the smugglers had been taken into account. This also put the institution of collection of intelligence on a systematic footing.  It ended the era of those few officers who would only depend on their memory. 
 Moral of the story: Divide the work such that individual output can be measured.   
Calcutta Central Excise 
Way out of an Impasse created by  Kirloskar’s judgement
Some time in 1977 an order was passed by the High Court of Madhya Pradesh in the famous Kirloskar’s case which said that if at the time when the goods, were manufactured, they were fully exempted by an exemption notification, then at the time of clearance of the goods, even if the exemption had been removed, the goods will still be cleared at the full exemption rate, that is, at the rate of nil duty. This was hopelessly wrong.  Somehow the Board did not file an appeal, probably because it escaped attention.  This was obviously wrong decision of the High Court and other High Courts such as Bombay, Calcutta and Gujarat High Courts passed correct order that full exemption does not mean that the goods are not excisable.   There was no Supreme Court  judgement at that stage.  So there was an impasse in the sense that in one State one practice should prevail while in other States it would be different.  At this stage, I made a study of the whole situation and was groping for a way out.  Finally, I came across  a judgement of the Gujarat High Court which said that in the case of Central law, if there is a difference between some judgement and others of different High Courts, then the majority judgements would prevail and the officers can follow the principle laid down by the majority judgements and ignore the minority judgements.  So I wrote a note to the effect that we should follow all over India the principle laid down by the majority judgements given by the Bombay, Calcutta and Gujarat High Courts and ignore the Madhya Pradesh High Court judgement.  I sent it to the Chairman directly and he sponsored it as a point in the next Collectors’ conference.  My view was accepted and even accepted by the Law Ministry at the initiative of the Chairman.  Later on the same view has been upheld by the Supreme Court in the case of Wallace Flour Mills-1988(44)ELT T598(SC).
 Moral of the story: Look for judgments which help you.

Van is not a Car

In early eighties there was a ban on the use of foreign cars by officials of the Government of India.  So in the customs department we could not appropriate foreign cars, which had been confiscated and not redeemed by the importers.  They had to be necessarily sold and not appropriated for use by the officials of the department.  The logic of the Government was unexceptionable.  It did not want the officers to flaunt foreign cars.  However, it led to queer results.  As Collector of Customs, I had in our godown several Mercedes Benz vans, which were valued at several lakh of rupees because the brand Mercedes was precious.  However, nobody would like to buy a Mercedes van because a van doesn’t have snob value that a Mercedes car has.  So the successive auctions failed miserably to fetch the minimum price below which they could not be sold.  So we were faced with the piquant situation where neither could we sell them nor could we use them.   I wrote several times to the Ministry explaining the situation but the Ministry always quoted the ban on car, which were said to have been imposed at the instance of the then highest.  
I was looking for an opportunity to solve this impasse.   One day I had a bout of lateral thinking.  I went the Secretary (Revenue) who was indeed a very positive and innovative type, and told him that a ban on car should not be taken as a ban on van.  The intention of the ban on car was to prevent the ostentatious display of foreign cars by the officers.  Certainly the officers should not be seen moving around in imported cars.  That is not a good example at all.  At the same time no officer would move around in a foreign van to show off.  So the vans, though of Mercedes brand, would not be used by the officers except for specific official work.  The Secretary got convinced and agreed to not applying the ban on car as a ban on van.  Van is not a car, I argued, for the purpose of this ban.  He agreed that keeping the intention of the ban in mind, van is not a car. So we were allowed to appropriate the vans for official use. These vans were used for taking officers to conduct raids, searches, etc., which are purely official job and for which in any case we would have to buy more Indian cars.  
This underlines a very important principle of interpretation of words. Words should be understood in the proper context and not just on the basis of the text.  The interpretation should be purposive and not literal.  It should go beyond the meaning of the plain word used.  It should not be interpreted in such a way that it leads to absurd results. This simple principle has been a source of perpetual debate in the judicial parlance.  Reading all of them, the proper conclusion that emerges is that when there are two interpretations, one strictly literal and the other, though not so literal, serves the intention of the legislature, we have to choose the latter.
  Moral of the story:-Think of a solution in a practical manner.
….to be continued