| SooperKanoon Citation | sooperkanoon.com/1104996 |
| Court | Mumbai Nagpur High Court |
| Decided On | Feb-13-2013 |
| Case Number | Writ Petition No. 1006 of 2004 |
| Judge | B.P. DHARMADHIKARI & PRASANNA B. VARALE |
| Appellant | Union of India, Ministry of Finance, Department of Revenue, Government of India and Others |
| Respondent | Shri Arun S/O Ramkrushna Pimpalwar, Assistant Commissioner of Income Tax and Another |
Oral Judgment: (B.P. Dharmadhikari, J.)
By this petition filed under Articles 226 and 227 of the Constitution of India, the Union of India, Chairman, CBDT and Commissioner of Income Tax assail the order passed by the Central Administrative Tribunal, Bench at Nagpur in Original Application No. 2075 of 2003 on 26th September, 2003. By the said order, the Central Administrative Tribunal has allowed the challenge raised by respondent No.1-employee and has quashed the charge memo dated 07.11.2000 on the ground that the same suffered from inexplicable delay and some of the charges therein were in relation to discharge of quasi-judicial functions by the said respondent. This Court had on 26th April, 2004 admitted the matter and stayed said judgment of the Central Administrative Tribunal. This Court also permitted the Departmental Enquiry to proceed further till the Enquiry Officer furnished his report. If the employee was found to be guilty, the petitioner-employer was asked to seek permission of this Court before proceeding further to impose punishment. The enquiry was directed to be completed within a period of six months. This order was stayed by the Hon'ble Apex Court on 23rd August, 2004 in SLP (Civil) 11812 of 2004. On 12th December, 2005, that SLP has been disposed of by continuing orders of the Hon'ble Apex Court and by requesting this Court to dispose of Writ Petition as expeditiously as possible.
2. The basic facts are not in dispute. Respondent No.1 joined the services of Income Tax Department as Upper Division Clerk in 1964 and in due course, in 1970, after passing the departmental examination, he was promoted as Income Tax Inspector. After next departmental qualifying examination in 1980, he was promoted as Income Tax Officer. On 08.11.1991, the petitioner came to be selected and promoted as Assistant Commissioner of Income Tax. On 28.03.1995, he was suspended pending investigation in a criminal offence and registration of Special Case No. 8 of 1995. On 09.04.2001, he has been acquitted from said Special Case. Disproportionate Assets Case MCA No. 6/2002 was withdrawn by CBI on 20th March, 2002. On 18.09.2002, his suspension was revoked and he was reinstated. By order dated 30th June, 2003. The Senior Scale (Grade of Deputy Commissioner of Income Tax) has been conferred upon him with effect from 01st December, 1995. According to respondent No.1, he has been retrospectively promoted thus as a Deputy Commissioner of Income Tax. On 03rd June, 2003, he filed OA No. 2075/2003 before the Central Administrative Tribunal for quashing of charge sheet issued on 07.11.2000. On 26.09.2003, that charge sheet has been set aside by CAT. Respondent No.1 had also filed OA No. 213 of 2003 before Central Administrative Tribunal for consideration of his entitlement to the post of Joint Commissioner of Income Tax. On 26.09.2003 itself, the Central Administrative Tribunal issued said direction also. On 29.12.2003, the Central Administrative Tribunal passed order on MP No. 2210/2003 and directed the petitioners to implement its order in OA No. 213/2003 by 05.02.2004. The respondent No.1 retired on superannuation on 31.12.2003. He claims that he has not been paid pension, gratuity and other retirement benefits.
3. The perusal of judgment delivered by Central Administrative Tribunal reveals that the charge sheet dated 07.11.2000 contained 14 articles of charges. Out of them, eleven pertain to period between 1985 and 1988. Out of these eleven, nine charges related to various orders passed by respondent No.1 as a quasi judicial authority. The remaining two pertain to his failure to inform higher authorities acquisition of immovable property in the name of his wife from an assessee whom he officially assessed and about investment in shares. The Central Administrative Tribunal has found that besides these eleven charges, other three charges were about minor administrative lapses such as failure to furnish information, remaining absent from headquarters during period of suspension etc.
4. It is in this backdrop, we have heard Shri Shyam Ahirkar, the learned Counsel for the petitioners and Shri M.M. Sudame, the learned Counsel for respondent No.1. Respondent No.2 is Central Administrative Tribunal itself.
5. Advocate Shri Ahirkar for the petitioners, has invited our attention, at the outset, to the additional affidavit filed on 21.4.2004 on behalf of the petitioners. The developments date-wise from 13.5.1988 up to 7.11.2000 are being relied upon to show that the petitioners were always taking the steps to proceed further with departmental enquiry and the progress made on each date indicates that there are no latches or mala fides, hence the delay has been properly explained. He has then taken us through the impugned judgment delivered by the Central Administrative Tribunal to submit that the Central Administrative Tribunal has not applied its mind to the relevant heads of charges to find out whether the alleged delay itself could have been sufficient to vitiate the departmental enquiry. To substantiate this contention, he has invited our attention to articles of charges particularly article no.1, article no.2, article no.9 and article no.10. The facts stated in those articles are taken from the record and show inconsistent approach of respondent no. 1. As the material available on record has been deliberately overlooked and ignored, learned counsel submits that benefit to assessee thereby is writ large, the Central Administrative Tribunal did not consider the charge sheet or these details, and, therefore, erred in applying the ratio of various judgment on the point. He has further contended that though some of the charges pertain to quasi-judicial exercise of powers by respondent no.1, that by itself, is not sufficient to grant him leniency from departmental enquiry. He again relies upon very same material to contend that refusal to use that material properly is nothing but dereliction of duties.
6. To point out limited scope of judicial review in such matters, he has relied upon the judgment of Honble Apex Court in the case of Union of India and others .vs. Upendra Singh, reported at (1994) 3 SCC 357. The judgment of Honble Apex Court in the case of Union of India and others .vs. K.K. Dhawan, reported at AIR 1993 SC 1478 is also pressed into service to show how initiation of departmental enquiry against a quasi-judicial officer needs to be considered by courts of law. He has also relied upon the judgment of Honble Apex Court in the case of Union of India and others .vs. A. N. Saxena, reported at AIR 1992 SC 1233 for very same purpose. To explain how delay needs to be viewed, in such matters, he has taken support from the judgment of Honble Apex Court in the case of Food Corporation of India and another .vs. V.P. Bhatia, reported at (1998) 9 SCC 131 and recent judgment in the case of Union of India .vs. Ashok Kumar, reported at AIR 2010 SC 2735 to show the importance of theory of prejudice. He has also relied upon the judgment of Honble Apex Court in the case of Indian Oil Corporation Limited and another .vs. Ashok Kumar Arora, reported at (1997) 3 SCC 72 to point out scope of judicial review.
7. Advocate Sudame for respondent no.1 has submitted the chronology of events from affidavit-in-rejoinder filed by first respondent on 26.4.2004. According to him, respondent no.1 cannot be blamed for time taken by the petitioners in issuing charge sheet on 7.4.2004. He submits that the bifurcation of charge sheet by Central Administrative Tribunal depending upon nature of imputation cannot be faulted with. Charge Nos.1 to 9 about working of respondent no.1 as Income Tax Officer are for period prior to 1988 and hence charge sheet issued is stale. He has placed strong reliance upon the judgment of the Honble Apex Court in the case of Ramesh Chander Singh .vs. High Court of Allahabad and another, reported at (2007) 4 SCC 247 and in the case of Zunjarrao Bhikaji Nagarkar .vs. Union of India and others, reported at (1999) 7 SCC 409 to urge that mere mention of some facts or allegations of omission to do something or then of over looking relevant material is not sufficient to implicate the officer discharging quasi-judicial function. The charge sheet, in that event, must assert something more and in the impugned charge sheet the said assertion is absent. There is no assertion or allegation of any extraneous consideration and hence, Charge Nos.1 to 9 are legally not in existence.
8. Attention has been invited to reply dated 12.12.2000 filed by the petitioners to charge sheet denying all charges. The fact of delay, prejudice caused as no documents were available with respondent no.1 and subsequent promotions were all pointed out in that reply.
9. Learned counsel submits that the challenge before the Central Administrative Tribunal needs to be viewed in this background. The delay was not explained before the Central Administrative Tribunal at all and after specific orders of this court dated 7.4.2004 additional affidavit has been filed to place before it 53 events which, according to the petitioners, have taken place on relevant dates between 13.5.1988 up to 7.11.2000. As explanation was not furnished before the Central Administrative Tribunal, Central Administrative Tribunal could not and did not apply its mind to the same.
10. The petitioners was, in spite of the steps initiated against him, thereafter, promoted. Order dated 8.11.1991 promoted him as Assistant Commissioner of Income Tax from amongst thousands of officers on all India basis. The show cause notice was issued for the first time on 28.2.1995 and he was placed under suspension from 28.3.1995. The charge sheet for imposing major penalty was then issued on 7.11.2000. He then points out honourable acquittal of respondent no.1 in Special Case by Special Court at Jalgaon and withdrawal of disproportionate assets case by the Central Bureau Investigation from Designated Court at Nagpur. The revocation of suspension on 18.9.2002 and promotion given to him on 30.6.2003 respectively from 1.12.1995 is also pressed into service. Learned counsel submits that thus on one hand the petitioners claimed that they were deliberately prosecuting the matter further to punish the respondent no.1 departmentally and on the other, they gave him at least two promotions. The consideration of entitlement to third promotion was ordered by the Central Administrative Tribunal on 26.9.2003. He, therefore, submits that all these developments have been rightly appreciated by the Central Administrative Tribunal and there is no jurisdictional error or perversity.
11. Learned counsel points out that statutory provisions like Section 154 which permits rectification of errors, Section 246 about appeals and Section 263 which even permit cognizance to be taken in suomotu revision existing in Income Tax Act and it is not the case of the petitioners that same were even looked into. In absence of order in any such proceeding, issuance of charge sheet in quasi-judicial proceeding is, therefore, unsustainable. Learned counsel has further contended that apart from these statutory provisions, there are other internal measures like inspection, internal audit and at no point of time, the petitioners found respondent no.1 involved in malpractice during these exercises. Learned counsel submits that thus issuance of charge sheet almost after 12 years has been rightly commented upon by the Central Administrative Tribunal as belated. He has also relied upon the various judgments looked into by the Central Administrative Tribunal to point out how huge delay, in such circumstance, needs to be appreciated by this court.
12. About other charges, learned counsel heavily relies upon honourable acquittal of respondent no.1 by the Special Court, dropping of proceeding by Central Bureau Investigation and order of Designated Court, for that purpose, he contends that the other charges are about not responding to some administrative memos but then alleged failure is not by itself sufficient to constitute a major misconduct warranting a punishment or removal/dismissal from service. He points out that the charge has been leveled for not supplying data for filing the reply in seniority dispute then pending before the Central Administrative Tribunal, Banglore. Learned counsel submits that if respondent no.1 did not wish to defend himself in that matter, no cognizance thereof could have been taken by the petitioners departmentally. He has submitted that delay has not been explained even before this court and mentioning of dates by itself cannot be accepted as an explanation for that purpose. He relies upon the judgments in the case of State of Andhra Pradesh .vs. N. Radhakishan, reported at AIR 1998 SC 1833, M.V. Bijlani .vs. Union of India and others, reported at 2006 (5) SCC 88, P.V. Mahadevan .vs. MD. T. N. Housing Board, reported at (2005) 6 SCC 636 to substantiate his contention.
13. Lastly, Shri Sudame points out superannuation of respondent no.1 on 31.12.2003 and non receipt of pension, gratuity or commutation benefit by him. In the light of observations made by the Honble Apex Court, he submits that respondent no.1 has also suffered severely because of departmental action against him, his suspension for almost 7 years and proceeding filed before the Special Court and before the CBI Court. He submits that though the respondent no.1 was promoted twice, vide judgment dated 26.9.2003 delivered in Original Application No. 213/2003, Central Administrative Tribunal has ordered sealed cover procedure and hence he could not get benefit of further promotion to the post of Joint Commissioner of Income Tax. Learned counsel, therefore, urges that respondent no.1 has suffered sufficiently and in this situation, this court should dismiss the writ petition as filed.
14. Before proceeding further with the facts of the present matter briefly, we would like to consider the law laid down on the point.
15. In the case of RameshChander Singh .vs. High Court of Allahabad and another (supra), the Honble Apex Court has considered the provisions of Article 235 of the Constitution of India and also the disciplinary proceedings against the judicial officers. In paragraph 11, the Honble Apex Court has found that the High Court could not have arrived at a decision to initiate disciplinary proceedings solely based on the complaint, the contents of which, were not believed to be true by the High Court. It is further observed that if the High Court was to initiate disciplinary proceedings based on a judicial order, there should have been strong grounds to suspect officers bona fides and the order itself should have been actuated by malice, bias or illegality. It is found that Judicial Officer was well within his right to grant bail to the accused in discharge of his judicial functions. In paragraph 12, Honble Apex Court has held that merely because the judgments/orders are wrong, the disciplinary proceeding cannot be initiated. There are appellate and revisional courts with powers to set aside such orders. While taking disciplinary action based on judicial orders, the High Court must take extra care and caution. With respect, we find that this judgment therefore does not lay down law that no disciplinary action is ever possible in quasi-judicial matters.
16. In ZunjarraoBhikaji Nagarkar .vs. Union of India and others (supra), the misconduct of failure to exercise quasi-judicial power properly or adjudication and wrong application or interpretation of law has been looked into by the Honble Apex Court. Paragraph 12 shows the contentions raised by the appellant in the matter. One of the contentions was the appellant erred in not imposing penalty but then there was no allegation of corrupt motive or of any familiarity with the party. The contention, in this backdrop, was charge sheet did not show any culpability and did not constitute misconduct. From paragraph 16 onwards, Honble Apex Court has made reference to various precedents and in paragraph 36, the Honble Apex Court noted that merely because penalty could have been imposed, it was obligatory for the officer to impose it and officer did not impose that penalty, it could not be said that a departmental proceeding needed to be initiated. In paragraph 40, Honble Apex Court states that negligence in a quasi-judicial adjudication is not a negligence perceived as carelessness, inadvertence or omission, but a culpable negligence. In paragraph 41, Honble Apex Court has observed that when penalty is not levied, the assessee definitely benefits. But then, it cannot be said that by not levying the penalty, the officer has favoured the assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. The Honble Apex Court then based on the material before it noted that the same did not show what disciplinary authority had within its possession to come to the conclusion that appellant had shown âfavourâ to the assessee by not imposing the penalty. In paragraph 43, the Honble Apex Court has concluded that every error of law cannot constitute a charge of misconduct. In such matters, to maintain any charge sheet against a quasi-judicial authority, something more has to be alleged than a mere mistake of law, e.g. in the nature of some extraneous consideration influencing the quasi-judicial order. The Honble Apex Court found that nothing of the sort was alleged in the impugned charge sheet and the charge sheet itself was rendered illegal.
17. In Union of India and others .vs. K.K. Dhawan (supra), the Honble Apex Court has pointed out some cases in which initiation of disciplinary proceedings against quasi-judicial officer is warranted. In paragraph 19, Honble Apex Court has laid down that disciplinary proceedings can be initiated against the government servant even with regard to exercise of quasi-judicial powers provided : (i) the act or omission is such as to reflect on the reputation of the government servant for his integrity or good faith or devotion to duty, or then (ii) there is prima facie material manifesting recklessness or misconduct in the discharge of official duty, or (iii) the officer had failed to act honestly or in good faith or had omitted to observe the prescribed conditions which are essential for the exercise of statutory power. In paragraph 28, the aspect has been further clarified and Honble Apex Court notes that where such quasi-judicial officer has acted in a manner as would reflect on his reputation or integrity or good faith or devotion to duty or he has acted in a manner which is unbecoming of a government servant or then he has acted in order to unduly favour a party or his action is actuated by correct motive, a departmental action against him is possible. Thus, scrutiny of facts in each case is essential before reaching any definite conclusion about need to proceed departmentally against such officer. One such error is not decisive but then whether number of such errors may also not be one of the relevant factors? Whether charges of quasi-judicial delinquency as leveled with other misconducts or entire nature or purport of chargesheet should not be considered together?
18. The law as settled on the point of delay in initiation of disciplinary proceedings now need to be briefly looked into. In a recent judgment in the case of Union of India .vs. Alok Kumar (supra), Honble Apex Court, in paragraph 61, has observed that the well established canons controlling the field of bias in service jurisprudence can reasonably extended to the element of prejudice. Prejudice de facto should not be based on a mere apprehension or even on a reasonable suspicion. The said element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of prejudice flowing from such default, which relates to statutory violations. A departmental inquiries cannot be set aside merely on the basis of apprehended prejudice.
19. In Food Corporation of India and another .vs. V.P. Bhatia (supra), in paragraph 4, Honble Apex Court has observed that though undue delay in initiation of disciplinary proceedings may cause prejudice to the employee concerned in defending himself and hence such proceedings should be initiated with promptitude and should be completed expeditiously. The question, as to whether, there is undue delay in initiation of disciplinary proceedings or it has been unnecessarily prolonged needs consideration in the light of the facts of the particular case. In paragraph 6, Honble Apex Court notices that the report of the Central Bureau of Investigation was received in 1988 and then charge sheet was served in September 1990. The same was for misconduct which came to light in April 1986. Thus, the charge sheet was served after about 4 years. In charge sheet, reliance was placed upon 69 documents and 44 witnesses. In this background, Honble Apex Court found that the High Court should not have quashed the charge-memos only on the ground of delay.
20. In M.V. Bijlani .vs. Union of India and others (supra), the Honble Apex Court has in paragraph 19 expressed surprise over the fact that disciplinary proceeding was initiated five years after the appellant handed over charge and when charge sheet was issued, appellant was not possessing of any documents and enquiry officer took a period of seven years to complete the enquiry. The Appellate Authority, thereafter, took seven years more to dispose of the appeal. While deciding the appeal that Authority did not go into the question, as to whether, the procedures laid down for holding the disciplinary proceedings has been followed or not. The enquiry officer was charged with bias and unfair conduct. A large number of irregularities in the departmental proceeding were assailed in appeal. The Honble Apex Court noted that, in this situation, the appeal, as filed before it, needed to be allowed because of its conclusions. The Honble Apex Court noted that normal course would have been to remit it back to the disciplinary authority, but as misconduct related to 1969-1970, and the appellant before it had suffered a lot because of pendency of the matter, such remand was not necessary and it directed reinstatement of the appellant in service with 50% of backwages.
21. In P.V. Mahadevan .vs. MD. T.N. Housing Board (supra), the Honble Apex Court has considered the case where appellant had urged that charge memo was issued with mala fide intention in relation to 10 years old the incident, in paragraph 11, Honble Apex Court noted that it would be prejudicial to the appellant to permit such departmental proceedings to go on. Keeping a higher government officer under charges of corruption and disputed integrity would cause unbearable mental agony and distress to him. The protracted disciplinary enquiry needed to be avoided not only in his interests but in the public interests and to inspire confidence in the light of other government employees. The Honble Apex Court observed that it was necessary to draw the curtain and to put an end to the enquiry. His mental agony and sufferings because of such enquiry have been taken into account for said purpose.
22. In judgment in the case State of Andhra Pradesh .vs. N. Radhakishan (supra) in paragraph 19, Honble Apex Court has observed that it is not possible to lay down any predetermined principles that in all situations where there is delay, the disciplinary proceedings are to be terminated. All cases must be examined on the facts and circumstances therein. The Honble Apex Court has explained that the essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. Normally disciplinary proceedings may be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. The Honble Apex Court has concluded that Court has to balance these two diverse consideration.
23. Having considered the law on the point of delay and also on the point of initiation of disciplinary proceeding against officer discharging judicial or quasi-judicial powers, we have now to look into the contention of the learned counsel for the petitioners about the limited scope of judicial power available to this Court. While considering the cases mentioned supra, the ingredients in which the Court can intervene when charge sheet is against quasi-judicial officer or enquiry is initiated belatedly are already looked into by us. However, as there is an effort to independently point out fetters on the powers of this Court, we are required to undertake evaluate this..
24. In Union of India and others .vs. Upendra Singh (supra), the Honble Apex Court has, in paragraph 13, found that the officer discharging judicial or quasi-judicial duties are amenable to departmental enquiry, as regards his conduct in discharging of his duties. Judgment reported in the case of Union of India and others .vs. A. N. Saxena, (1992) 3 SCC 124 and Union of India and others .vs. K.K. Dhawan, (1993) 2 SCC 56 looked into by the Central Administrative Tribunal in impugned order also found consideration and mention by Honble Apex Court in this judgment. In paragraph 6, however, Honble Apex Court has observed that the tribunal or court can interfere only if on perusal of the charges framed along with imputation or particulars of the charges, no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to law. The Honble Apex Court has stated that when charge sheet is questioned, the tribunal or Court has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact and is intended to ensure that the individual receives fair treatment.
25. In Indian Oil Corporation Limited and another .vs. Ashok Kumar Arora (supra), in paragraph 20, the Honble Apex Court has laid down that High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court or authority. The High Court can interfere where inquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity; or findings of Enquiry Officer are perverse or then punishment is totally disproportionate.
26. Before us, the respondent no.1âemployee has not sought any review of articles of charges as framed on facts. He approached the Central Administrative Tribunal with very limited grievance even before facts could crystallize. His first contention is for misconduct between 1982 to 1985 or then 1985 to 198, the charge sheet has been issued for the first time on 7.11.2000. Thus, according to him, it is belated. The second contention before the Central Administrative Tribunal was, nine major charges in charge sheet are about exercise of quasi-judicial powers by him and in absence of necessary assertions showing any undue favour or extraneous consideration, the charges did not constitute the misconduct. It is apparent that, therefore, the Central Administrative Tribunal was expected and required to appreciate the material supplied to him along with the charge sheet. As such, the challenge was to the process of issuance of charge sheet on the ground of delay and also on the ground that there was non-application of mind. It cannot be said that the above judgments which define the scope of judicial review prohibited respondent no.1 from raising such contentions. The order delivered by the Central Administrative Tribunal in his favour is now impugned before this Court. It is, therefore, apparent that the scrutiny by this court is also limited thereby. Hence, the contention of learned counsel for the petitioners that the Central Administrative Tribunal has transgressed the limits of judicial review is misconceived.
27. As in all situations where there is delay, it cannot be said that the disciplinary proceedings are to be terminated and all cases must be examined on the âfacts and circumstancesâ therein, this Court has to find out whether the Central Administrative Tribunal has looked into the facts and circumstances of the case so as to enable it to record a finding that the delay or then issuance of charge sheet, after about 12 years, has in any way caused a prejudice to respondent no.1. It has to also find out whether there is reasonable explanation for such delay.
28. This court has on 7.4.2004 passed the following order in the matter:
âHaving regard to the nature of the controversy in the present case, we are of view that it would be necessary that the petitioner should file an additional affidavit explaining the time period that has elapsed prior to the issuance of the charge sheet on 7th November, 2000.
Affidavit in reply be filed on or before 16th April, 2004 with an advance copy to the First Respondent affidavit in rejoinder, if any, be filed on or before 23rd April, 2004. Place the petition for admission on 26th April, 2004.â
29. Because of said order, after seeking one extension, the petitioners filed additional affidavit after procuring date-wise details from the Directorate General of Income Tax (Vigilance), Delhi. Those details mention 53 dates and the business transacted in the establishment of the petitioners on those dates for convenience. We reproduce the same below:
| 1. | 13.05.1988 | Complaint received against the respondent no.1, then the ITO, regarding purchase of agricultural land and deposit in Bank A/c. and the then D.C. Range sent letter on 13.05.88 to C.I.T. Vidarbha, Nagpur stating that this is a case of acquisition of assets disproportionate to the known sources of income of the officer. |
| 2. | 17.05.1988 | The case was referred to the C.B.I. |
| 3. | 19.02.1990 | CCIT, Pune, intimated to DIT (V) on 19.2.90 that the C.B.I. vide their letter No.1/CR/85/D/88/C357 dated 15.1.90 had reported that it would be difficult to make out a successful case of disproportionate assets against the officer i.e. the Respondent no.1. |
| 4. | 28.08.1990 | DIT (V) wrote a latter to CCIT, Pune, intimating that it is fit case of vigilance inspection and asked to report by 15.9.90. |
| 5. | 11.10.1990 | DIT (Vig.) sent reminder requesting to send the report as desired in letter dated 28.8.90. |
| 6. | 24.10.1990 | CCIT, Pune, wrote D.O. letter to CIT, Nagpur, requesting to send the report as desired by DIT. |
| 7. | 06.11.1990 | CCIT, Pune, sent a reminder to CIT, Nagpur, requesting to send the report early. |
| 8. | 19.11.1990 | CIT, Nagpur sent a letter to DIT (Vig) about the progress in the case of the respondent no.1. |
| 9. | 07.12.1990 | DIT (Vig) sent a D.O. letter to CCIT, Pune about early completion of Vigilance enquiries and sendthe report. |
| 10. | 20.02.1991 | CCIT, Pune sent a letter to DIT (Vig) that the inspection of the work done by the Respondent no. 1 at Akola in awaited from CIT, Nagpur. |
| 11. | 05.03.1991 | Inspection report in 25 cases decided by the Respondent No.1, the then ITO, between June, 1985 to May, 1988 sent by CCIT, Pune on 05.03.1991. |
| 12. | 03.04.1991 | DIT (Vig) requested to CCIT, Pune to obtain the comments of the Respondent No.1 on the point which had emerged as a result of inspection of his work and also comment of the Inspecting Authority. |
| 13. | 13.09.1991 | DIT (Vig) requested to CCIT, Pune to expedite action on the point mentioned in the letter and also collect the original records of these points against the respondent no.1, therefore, draft charge sheet may kindly be prepared and this should be sent to this office along with necessary original record. |
| 14. | 07.01.1992 | DIT (Vig.) sent a reminder to CCIT, Pune for report. |
| 15. | 23.04.1992 | CCIT, Pune, sent interim report dated 13.03.92. |
| 16. | 29.04.1992 | DIT (Vig) sent reminder to CCIT, Pune, to send the final report at earliest. |
| 17. | 11.05.1992 | CCIT, Pune, sent status report. |
| 18. | 05.08.1992 | DIT (Vig) sent a DO letter to CCIT, Pune, to send desired report on priority basis. |
| 19. | 15.09.1992 | DDIT (Vig), Mumbai, intimated that the officer i.e. Respondent No.1 was requested to give his comments in respect of the cases taken up for vigilance inspection. He has given his comments only in three cases out of 25 cases. |
| 20. | 02.03.1993 | DIT (Vig.) sent reminder to CCIT, Pune, requesting to expedite the report. |
| 21. | 21.09.1993 | DIT (Vig.) sent reminder to CCIT, Pune, to expedite the report as desired. |
| 22. | 06.10.1993 | Comments of the officer i.e. Respondent No.1 and comments of CIT received. |
| 23. | 19.10.1993 | CCIT, Pune sent comments of the officer dated 13.10.93 i.e. the respondent no.1. |
| 24. | 17.11.1993 | DIT (Vig) requested to CCIT, Pune, to give his comment on the various lapses committed by the Respondent No.1 and also status report in respect of his wife. |
| 25. | 18.07.1994 | CCIT, Punes comments on the respondent no.1s reply received. |
| 26. | 22.12.1994 | CCIT, Pune was requested to issue a formal show cause notice to the respondent no.1 on specific lapses out of the inspection report and also in regard violation of CCS Conduct Rules. |
| 27. | 31.01.1995 | DIT (Vig.) sent reminder to CCIT, Pune. |
| 28. | 08.03.1995 | DIT (Vig.) again sent reminder to CCIT, Pune, for report. |
| 29. | 23.03.1995 | DIT (Vig.) requested CCIT, Pune, to send a copy of preliminary show cause notice issued to the respondent no.1 on 28.02.95. |
| 30. | 31.03.1995 | CIT, Nashik intimated that the respondent no.1 was arrested. |
| 31. | 07.04.1995 | DIT (Vig) requested CIT, Nashik to send a copy of FIR. |
| 32. | 07.04.1995 | CCIT, Pune sent a copy of preliminary show cause notice issued to the respondent no.1. |
| 33. | 03.05.1995 | CCIT, Pune, sent a copy of letter written to CIT, Nashik, to ask the officer i.e. the respondent no.1 to submit reply to the show cause by 15.5.95. |
| 34. | 31.05.1995 | CCIT, Pune, intimated that the officer had not submitted the reply to the show cause notice and referred the matter to the DIT (Vig.) for necessary action. |
| 35. | 31.08.1995 | DIT (Vig.) again asked CCIT, Pune, whether any reply of the officer to the show cause has been received. |
| 36. | 18.09.1995 | CIT, Pune, intimated that the officer has not yet submitted his reply to the show cause notice. |
| 37. | 20.10.1997 | DIT (Vig) again wrote a letter to CCIT, Pune, to confirm whether the officer has submitted the reply to the show cause notice dated 28.02.95. |
| 38. | 18.11.1997 | DIT (Vig.) sent reminder to CCIT, Pune. |
| 39. | 05.10.1998 | DIT (Vig.) sent a DO letter also referring earlier letters requesting to expedite the matter on top priority basis. |
| 40. | 17.11.1998 | CCIT, Pune, sent a copy of the letter issued to CIT, Nagpur requesting to send a draft charge sheet. |
| 41. | 28.01.1999 | DIT (Vig.) again sent a DO reminder to CCIT, Pune. |
| 42. | 05.02.1999 | CCIT, Pune, intimated that the draft charge sheet would be sent as soon as received from CIT, Nagpur. |
| 43. | 30.03.1999 | CCIT, Pune, sent a copy of the letter written to CIT, Nagpur about the draft charge sheet. |
| 44. | 02.07.1999 | Member (P) wrote a DO letter to CCIT, Pune, to expedite the matter early. |
| 45. | 14.07.1999 | CCIT, Pune, intimated that the draft charge sheet would be sent by 31.07.99. |
| 46. | 18.08.1999 | DIT (Vig.) again sent reminder to CCIT, Pune, for report. |
| 47. | 24.08.1999 | CCIT, Pune, sent the draft charge sheet and also confirmed that no reply has been filed by the officer to the preliminary show cause notice. |
| 48. | 30.12.1999 | Draft charge sheet analysis. |
| 49. | 06.01.2000 | Chairmans approval received to refer the matter to CVC for its advise. |
| 50. | 11.01.2000 | File sent to CVC for their advise. |
| 51. | 19.04.2000 | CVCs advise received. |
| 52. | 19.07.2000 | FMs approval received to initiate disciplinary proceedings for imposition of major penalty. |
| 53. | 07.11.2000 | Charge sheet against the respondent no.1 for major penalty issued. |
31. Respondent no.1 then mentions that on 28.2.1995 show cause notice was issued to him and he was suspended on 28.3.1995 pending investigation in respect of criminal offence leading to Special Case No.8 of 1995. His chronology then mentions issuance of charge sheet dated 7.11.2000. The events at Sr. No.20 onwards till Sr. No.52 disclosed and relied upon by the petitioners are not pointed out by him. It is obvious that respondent no.1, who is assailing belated issuance of charge sheet is not concerned with office correspondence going in between various authorities in the matter. These events show that Director of Income Tax (Vigilance) was sending various reminders to the Chief Commissioner of Income Tax, Pune on the subject. There is a gap about 5½ months between event nos.19 and 20 and about 6½ months between event nos. 20 and 21. Event no.22 dated 06.10.1993 shows that comments of the respondent no.1 and comments of Commissioner of Income Tax were received on that date. There is a time gap of about 8 months between event nos.24 and 25 and a time gap of about 3 months in between event nos.34 and 35. Again period of about 3 months has gone between event nos.43 and 44. Period of about 4 months has gone between event nos.47 and 48, three months between event nos.51 and 52 and period of about 3½ months between event nos.52 and 53. The Chief Commissioner of Income Tax was requested to issue formal show cause notice to respondent no.1 on 22.12.1994 and then Director of Income Tax (Vigilance) sent reminders to the Chief Commissioner of Income Tax in this respect on 31.1.1995 and 8.3.1995. On 23.3.1995, Director of Income Tax (Vigilance) sought copy of preliminary show cause notice issued to the respondent no.1 on 28.2.1995. On 7.4.1995, Chief Commissioner of Income Tax, Pune forwarded copy of preliminary show cause notice and then it appears that respondent no.1 did not submit any reply to preliminary show cause notice till 18.11.1997. Event from Sr. Nos. 32 up to 38 support this position. On 5.10.1998, Director of Income Tax (Vigilance) sent D.O. letter requesting expeditious action on top priority basis. On 17.11.1998 a draft charge sheet was then sought from the Commissioner of Income Tax, Nagpur. The Chief Commissioner of Income Tax, Pune on 14.7.1999 informed the Director of Income Tax (Vigilance) that the draft charge sheet would be sent by 31.7.1999. The said draft charge sheet ultimately has been sent on 24.8.1999. It was analysed on 30.12.1999. The Chairman granted his approval to refer the same to CVC for its advise. File was sent to CVC on 11.1.2000 and advise was received on 19.4.2000. On 19.7.2000, Finance Ministrys approval was received to initiate disciplinary proceedings for imposition of major penalty. On 7.11.2000 charge sheet against the respondent no.1 for major penalty came to be issued.
32. Advocate Shri Sudame for respondent no.1 has urged that all these details produced before this court are not sufficient to explain the delay and in any case were not made available to the Central Administrative Tribunal. The said list of events is supported by responsible affidavit and at least at this stage, the events are not in dispute. The details ought to have been produced by the present petitioners before the Central Administrative Tribunal but then their omissions or failure in that regard cannot preclude this Court from looking into the same. The events looked into clearly show that since 1988 there was a constant move to proceed further departmentally against respondent no.1. The efforts made by the Director of Income Tax (Vigilance), reminders sent by them, time taken by other departments/establishments to comply, all indicate the constant efforts to proceed further with disciplinary proceedings in the matter. It appears that some offices of the petitioners were not moving with desired speed. But then, it cannot be said that the file was lying idle or neglected and suddenly it was picked up one day and a charge sheet came to be issued. Why reminders were required to be issued time and again, why time of 3 or 4 months or more was required to achieve some compliance is not very relevant before this Court. It is not the case of the respondent no.1 that any particular officer or superior later developed or already had a personal grudge against him and hence with oblique motive, after so many years, a stale misconduct was made use of and a charge sheet came to be issued. In matters looked into by us above, these facts are not on record. However, when misconduct was of 1986 and report of Central Bureau of Investigation in relation thereto was received in 1988, initiation of departmental enquiry in 1990 i.e. after about 4 years, has been upheld by the Honble Apex Court by setting aside the judgment of the Apex Court in Food Corporation of India and another .vs. V.P. Bhatia (supra).
33. The synopsis filed by the respondent no.1 also shows some developments after commencement of the departmental enquiry. Those developments are from 7.11.2000 till his retirement on 31.12.2003. He has also given some dates and business transacted in departmental enquiry on those dates. He has approached the Central Administrative Tribunal on 3.6.2003. These developments after 7.11.2000 are not very relevant for the present challenge. Undue protraction of the departmental enquiry is not the bone of contention raised by the respondent no.1. Central Administrative Tribunal has also not recorded any such findings. Hence, it is not necessary to refer to the same. However, note needs to be taken of the fact that after charge sheet was served on 7.11.2000, respondent no.1 filed reply on 12.12.2000 and then participated in departmental enquiry, without any protest. On 9.1.2003 he attended enquiry and sought permission to inspect the documents. He claims that on 23.4.2003 documents were handed over to him in two parts. On 29.4.2003/9.5.2003 his request to appoint one Shri Mani, (Retired Joint Commissioner of Income Tax and the Practicing Advocate) as his next friend to assist him in departmental enquiry, was rejected. On 27.5.2003 the Presenting Officer could not remain present in departmental enquiry and on 3.6.2003 he filed Original Application No. 2075 of 2003 for quashing the charge sheet. Thus, Original Application has been filed after about 2½ years of the beginning of the departmental enquiry. In spite of this, on 10.6.2003 he gave the name of one V.P. Chhallani, as his defence assistance. Thus, charge-sheet issued on 7.11.2000 is acquiesced in and has not been questioned at the earliest possible opportunity and the Central Administrative Tribunal was approached after more than 2 ½ years.
34. It also needs to be noted that Special Case No. 8 of 1995 remained pending till 9.4.2001. Though Central Bureau Investigation had initially expressed doubts about success in demonstrating disproportionate assets as required by law, the said case also remained pending till 20.3.2002. In this background, issuance of charge-sheet on 7.4.2000 by itself is not sufficient to vitiate disciplinary proceedings.
35. As the Tribunal has not looked into details of each charge, we find it proper only to note few glaring instances in imputations of chargesheet. The perusal of Article No.(I) of the Articles of charges and particularly the statement of imputations pertaining thereto shows that respondent No.1 had completed assessment of M/s. Vishal Builders, Akola for accounting year 1987-88 and then noticed that one flat reflected as stock in trade at the beginning of year, was sold for Rs.1,30,000/-. Similar flat was sold earlier for Rs.1,65,000/-. Accordingly, respondent No.1 confronted assessee with these facts and sought his explanation as to why this difference in cost should not be added to the Balance-Sheet as income. The assessee surrendered the amount of Rs.35,000/- and respondent No.1 then completed assessment proceedings. As a part thereof, proceedings under Section 271(1)(c) for imposing penalty were also initiated. The said penalty proceedings were dropped on 29.3.1988 and charge-sheet states that this was done without assigning any reason and merely due to explanation dated 25.3.1988 submitted by the assessee. The dropping of proceedings was also not entered in Dropped Cases Register. The assssees explanation dated 25.3.1988 states that flat sold earlier for Rs.1,65,000/- had the additional amenities like kitchen platform, better quality of tiles. , The same type of explanation was available on the records as per assessees letters dated 15.10.1987 and 11.3.1988. And in the face of these letters itself, decision to initiate penalty proceedings was taken by respondent no.1. Thus the explanation dated 25.3.1988 did not bring any new material on record and still respondent No.1 took a âUturnâ and dropped the proceedings. He chose not to record any reasons for this a âUturnâ and also avoided to bring it on record by entering it in dropped cases register. The charge-sheet, therefore, alleges that in view of this conduct, respondent No.1 failed to maintain integrity and devotion to duty as also displayed conduct unbecoming of Government Servant thereby violating Rules 3(1) (i), 3(1) (iii) of the CCS (Conduct) Rules, 1964. Prima facie, at this stage, We can not accept that these assertions, if proved to be correct, are insufficient in law to drive home the guilt.
36. Article No.(II) is in relation to two different assessees viz. M/s. Girdhar Hosiery and M/s. Girdhar Handloom House. The imputations in para-2.1 are about M/s. Girdhar Hosiery, which shows a survey operation by respondent No.1 and finding of stock worth Rs.7,19,791/. One more Stock-Book was found in which value of closing stock was shown as Rs.8,66,352/-. The assessee had declared income of Rs.90,806/- and after survey, a revised return was filed disclosing income of Rs. 2,00,000/-. About the stocks worth Rs.8,66,352/-, the assessee took a stand that the said figure of stock included stock of two others concerns viz. M/s. Girdhar Handlooms and Shri Pokarmal Mulchand. It is mentioned in imputation of charges that firm M/s. Girdhar Handlooms followed the accounting year as the year ending on 31st March and hence, its stock could not have been included in the stocks of assessee, which followed the period from Diwali to Diwali for accounting purposes. It is in this background, that imputations then show efforts made by the respondent no. 1 to reconcile this position and the closing stocks. The said exercise is then mentioned and effort is made to demonstrate how ultimately it did not tally with stock of Rs.5,00,360/-. It is mentioned that respondent No.1 constructed the new trading account by taking stock at Rs.8,66,352/-, which showed gross profit at Rs. 6,44,630/- and net profit at Rs.4,59,909/-. The assessee then through his Advocate submitted a proposal suggesting to offer for taxation Rs. 1,00,000/- more for said Assessment Year. It is mentioned that accordingly, a revised Return of Income for Assessment Year-1986-87 declaring an income of Rs.2,00,000/- was filed on 26.3.1987 allegedly under the amnesty scheme. Besides this, for Assessment Year-1987-88, he also filed a return declaring an income of Rs.1,40,000/- on 4.5.1987. In respect of other concern viz. Girdhar Handlooms House again there are similar narrations. There was also a survey operation under Section 133A of the Income Tax Act, 1961 (for short âthe said Actâ), was carried out on 6.3.1987. Ultimately, it shows two stock registers impounded by respondent No.1 revealed total closing of stock of Rs.21,92,014/-, but in the revised trading account enclosed alongwith revised return, the value of closing stock was taken at Rs.6,19,053/-. No reasons necessitating this change had been given.
37. In Article No.(III) pertaining to M/s. M/s. Atul Sales Corporation, Akola, it is alleged that genuineness of the firm was not looked into while granting registration to it. The firm came into existence on 1.1.1986 for carrying on business of liaison for its principal M/s. Jain Enterprises and closed its books of accounts on Diwali-1986 and ultimately was dissolved on 23.10.1987. It consisted of three partners and two of them were ladies. Charge-sheet notices that these two young ladies had no experience of the business or any knowledge of the firms activities. This new firm earned commission from its principal and gross commission thus earned was shown at Rs.6,04,509/- within a short period of 10 months. It is mentioned that M/s. Jain Enterprises had already procured huge supply orders from the Government agencies and it had entered into rate contract much prior to 1.1.1986 i.e. prior to creation of firm M/s. Atul Sales Corporation. Appointment of said new firm as an agent for procuring supply orders is found to be made on 10.12.1985. The partnership deed of M/s. Atul Sales Corporation was drawn only on 31.3.1986. But before that, it had earned commission of Rs.10,000/- and Rs.80,000/- on 25.1.1986 and 10.2.1986. The imputations mention that even these facts apparent on record were not properly appreciated and partners were not examined.
38. Similarly, Article No.(IX) is about accepting gross profit at very less rate as compared to previous years in case of assesssee M/s. Dhorbhai Desaibhai Patel and Co. and under assessment has been alleged. 39. Article No.(X) is about purchase of two open plots admeasuring 252 square meters each by respondent No.1 from assessee M/s. Rashmi Sales Corporation. The said assessee is alleged to be in jurisdiction of respondent No.1 ie his return and accounts were being scrutinized by respondent no. 1.
40. It is clear that at this stage, we are not expected to go into the correctness or otherwise of the charges leveled. One has to only find out whether assertions reveal a misconduct, as the imputations are against quasi judicial officer. Question is whether those imputations also show something more as expected by the Honble Apex Court in its judgment in the case of ZunjarraoBhikaji Nagarkar vs. Union of India and others cited supra. For that purpose, we have to presume that imputations show correct facts. Dropping of penalty proceedings by taking a âUturnâ without recording any reasons and only because of a later explanation, which is not different than earlier explanations can be said to be a circumstance, which may show some delinquency. A judicial officer or quasi judicial officer takes a decision on the basis of âsatisfactionâ on strength of material available on record and will not change it, unless there is change in the circumstances. This âdroppingâ is not even mentioned in dropped cases register. In Article No.(II) particularly in case of M/s. Girdhar Handloom House, the efforts made prima facie do not show a clean approach. As asserted, there is no effort to logically end the scrutiny. Purchase of plots from the assessee also reveals a conduct, which is unbecoming on the part of quasi judicial officer. Overlooking the facts, apparent in case of M/s. Atul Sales Corporation, Akola, may show turning a nelsons eye to effort of assessee to adjust profits as commission paid to otherwise non-existent firm. Though at this stage, we cannot conclusively observe anything on facts or about any incident, taking over all view of the charges as leveled, we are not in a position to accept that the material in chargesheet is insufficient to proceed against a quasi judicial officer.
41. The contention that the department had remedies like Sections 154, 246 and Section 267 of the said Act for the alleged default or acts or omission of commission by respondent No.1 is not very relevant at this stage. The internal mechanisms of audit and inspection is also not decisive for present purposes.
42. Perusal of impugned order delivered by the Central
Administrative Tribunal reveals that it has generally sub divided charge-sheet depending upon nature of charges, noted various cheques and measures available to petitioners and then has looked into various judgments to hold that initiation of enquiry is itself grossly belated. As we have already noted above, relevant developments, which are pointed out to us by the petitioners, were not pressed into service by them before the Central Administrative Tribunal. Order of the Central Administrative Tribunal, does not reveal that it has even prima facie considered the material available on record to support the charges as framed. The question whether in this situation the delay itself would have been sufficient to vitiate the departmental enquiry has not been properly examined by it. Our perusal of the charge-sheet reveals that the charges are basically drawn on the strength of documents and records of various assessment cases. If those records are available, there should not be any question of prejudice being caused to respondent No.1 for such delay. As all relevant aspects as required by various judgments of the Hoble Apex Court, have not been looked into by the Central Administrative Tribunal, we find its order unsustainable. The respondent No.1 was aware of the complaints pending against him, its handing over to Central Bureau Investigation and from 1992 onwards his explanation was being called in relation to various matters. He also faced prosecution in disproportionate assets matter at the hands of Central Bureau Investigation. He also at the same time could earn various promotions and though he remained under suspension, that suspension was ultimately recalled.
43. In this situation, we are not inclined to accept the submissions that respondent No.1 has already suffered sufficiently due to time lost or due to long pendency and hence, proceedings need to be dropped. Facts tend to show that he department permitted him to gain during all this period and delay or long pendency never operated to his prejudice. We are also find that petitioners have furnished a reasonable explanation for issuing charge-sheet on 7.11.2000. Public interest and interest of the administration itself demands that the disciplinary proceedings against the respondent no. must be continued and completed at the earliest.
44. Accordingly, we quash and set aside the judgment of the Central Administrative Tribunal dated 26.9.2003 and dismiss Original Application No.2075 of 2003.
45. Writ Petition is thus allowed. Rule is made absolute accordingly.
There shall be no order as to costs.