Dhirendra Chandra Debnath Vs. Union of India (Uoi) and anr. - Court Judgment

Excerpt:
1. in this o.a., the applicant has challenged the charge-sheet, enquiry proceedings, enquiry report dated 21.12.89 and the order of penalty dated 3/4.7.91. since during the pendency of the o.a. the appeal filed by the applicant to the authority concerned was rejected, the applicant had amended the o.a. to challenge the appellate order.2. brief facts of this case are that the applicant while working as tax assistant in the office of income tax, was served with a charge-sheet under rule 16 of ccs (cca) rules which for ready reference reads as under:- "the office of the income-tax officer, 'g' ward dist. 24 parganas is situated in 9th floor of the "bamboo villa" at 169, acharya jagdish chandra bose road, calcutta 14. the building, commonly known as "bamboo villa", aforesaid, is far away from the office of the income-tax officer, jute circle, calcutta, aforesaid, where shri dhirendra chandra debnath was posted at the material time. on 19.7.1984 (thursday) at about 5-15 p.m. i.e. after office hours, shri dhirendra chandra debnath entered into the room of the income-tax officer, 'g' ward, dist. 24 parganas at 9th floor of the bamboo villa" aforesaid and destroyed some papers of the income-tax assessment records of one narayan chandra nath (p.a. no. 8190/g/24 parganas) in absence of the said income-tax officer. unconfined reports suggest that the said narayan chandra nath is the father in law of shri dhirendra chandra debnath. he was, however, apprehended by some member of the staff of other offices of this department situated there and brought before the i.a.c. r-xxvi, who is building-in-charge of the aforesaid "bamboo villa" before whom shri debnath admitted his act aforesaid in a written statement. by his act aforesaid, shri dhirendra chandra debnath behaved in a manner unbecoming of a government servant thereby violating the requirement of rule 3 (i)(iii) of the central civil services (conduct) rules, 1964 (hereinafter referred to as the said rules, 1964)." the applicant denied the charges and gave his reply on 15.3.85. vide order dated 29/ 30.1.1987, the minor penalty charge-sheet was dropped and a major penalty charge-sheet under rule-14 was issued against the applicant which reads as under :- shri dhirendra chandra debnath, tax assistant during his posting as tax assistant, in the office of the income tax officer, jute circle, p-13, chowringhee square, calcutta, made unauthorised entry on 19.7.84 (towards the end of office hours) in the room of the income-tax officer, 24-parganas, 'g' ward, 167, acharya jagdish chandra bose road, calcutta, and availed himself of unauthorised access to the assessment records of his father-in-law, shri narayan chandra nath, 162/1, beliaghata main road, calcutta who was assessed under file no. pn-8190/cal. 24 pgs/g. shri dhirendra chandra debnath, tax assistant, thus, failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a government servant. he has clearly violated clauses (i), (ii) and (iii) of rule 3 of ccs (conduct) rules, 1964. during his unauthorised stay in the room of the income-tax officer, 24 parganas, g-ward on 19.7.84 shri dhirendra chandra debnath, tax assistant, with an intent to confer undue benefit upon an assessee, removed, tore and destroyed some of the papers that were placed in the assessment record, pertaining to the assessment years 1961 -62 & 1962-63, of his father-in-law, shri narayan chandra nath of 162/1, beliaghata main road, calcutta assessed against (p.a. no. pn/8190/cal/24/parganas/g)." shri dhirendra chandra debnath, tax-assistant has by'his act, exhibited lack of absolute integrity and devotion to duty and acted in a manner unbecoming of a government servant, within the meaning of rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of the ccs (conduct) rules, 1964." the applicant gave reply to the said charge-sheet on 9.2.1987 and asked for additional documents vide his representation dated 6.5.1987 for defending his case in an effective manner. however, the said representation was rejected vide orders dated 2.11.1987 and 9.11.1987 on the ground that documents asked for were not relevant. during the enquiry, the applicant requested for change of enquiry officer which was acceded to and the witnesses were allowed to be cross-examined. the briefs were submitted after the evidence was over and on the basis of materials came on record, the inquiry officer gave his findings holding therein that both the charges are proved against the applicant. copy of the findings was served on the applicant and vide order dated 3/4.7.1991 the pay of the applicant was reduced by two stages from 1800/- to 1790/- for a period of two years without cumulative effect.3. being aggrieved, the applicant had filed an appeal to the chairman of central board of direct taxes on 9.8.1991 and reminders thereafter, but that has not been disposed of. therefore, he has filed the present o.a. which has been admitted for adjudication on 16.7.1992. it was during the pendency of the o.a. that the appellate order was passed rejecting the appeal vide order dated 23.11.1992 and with the leave of the court, the applicant amended the o.a. to challenge the appellate order as well. the applicant is challenging the aforesaid orders on the following grounds:- (i) he was denied the right to defend himself as sri biswanath chakraborty was not allowed to be cross-examined even though he was a vital witness as he was the complainant and was included in the list or witnesses. (ii) though two witnesses were mentioned but were never called at the time of enquiry and additional documents were also not provided. thus, the principles of natural justice is violated which vitiates the entire enquiry. (iii) once the minor charge-sheet was issued, the authorities could not have issued a major charge-sheet by dropping the earlier one and that too without giving any reason and after the applicant had filed his reply to the earlier charge-sheet. (iv) the assesses had paid the demand of rs. 12,899/- and he was infact given refund of rs. 955/- alongwith interest of rs. 608/-. therefore, the charges are totally unwarranted.4. the applicant's counsel has submitted that since the o.a. was admitted on 16.7.1992, the appeal would have abated under section 19 (4). therefore, the appellate order issued on 23.11.1992 without taking leave of the court is bad in law and not sustainable. apart from this, the applicant's counsel had taken another ground during the course of arguments. he submitted that the disciplinary authority had exercised the power by issuing the charge-sheet under rule 16 which could not have been enhanced by the appellate authority had no jurisdiction to do so at this stage. thus, the second charge-sheet is issued against the applicant beyond jurisdiction.5. the respondents have contested the claim of the applicant by stating that the appeal has been decided on 23.11.1992. the charge-sheet under rule 14 was initiated as the authorities felt that this was a case where proper enquiry was required to be held. therefore, the charge-sheet under rule 16 was dropped by the disciplinary authority i.e. the chief commissioner of income tax for issuing charge-sheet under rule 14. they have further explained that during the enquiry the applicant was accorded full opportunity to defend himself in as much as he was given the opportunity to produce his defence witnesses, cross-examine the prosecution witnesses and was also allowed to submit his written statement. on applicant's request, even the inquiry officer was changed and as far as the documents are concerned, they have stated that since those documents were neither relied upon nor were relevant, the request of the applicant was rightly rejected by the authorities.they have further stated that since the disciplinary authority has passed the orders on the basis of the materials available on record, no case is made out for interference by the tribunal and as the charge against the applicant is very serious one, it required to be dealt with an iron hand. they have further explained that oral enquiry was not considered necessary as the applicant confessed his misconduct or mis-deeds in a written statement recorded on the date of the incident i.e. 19th july, 1984. they have also stated that while framing the charge-sheet under rule 16, the statement of imputation was not accompanied with any list of document or list of witness. as far as the applicant's contention regarding the disciplinary authority or the appellate authority is concerned, it is stated that since the applicant had not made any averment in the o.a., this argument cannot be allowed to be sustained at this stage as the respondents cannot be taken by surprise and the applicant cannot be allowed to raise a point during argument which is not the part of pleadings. even otherwise, the counsel for the respondents submitted that pursuant to the order dated 29/30.1.1987 issued by the chief commissioner of income tax, the applicant had filed his reply addressed to the chief commissioner of income tax wherein no such objection was taken meaning thereby that he had accepted the chief commissioner of income tax to be his disciplinary authority and in fact he filed the appeal to the chairman, central board of direct taxes. the ld. counsel for the respondents further invited our attention to para (e) oh page-4 of the reply wherein the chief commissioner of income tax has been shown as disciplinary authority and the applicant has not even controverted the same by filing a rejoinder. thus, according to the respondents counsel, there is no merit in the contentions of the applicant and the o.a. is liable to be dismissed.6. we have carefully examined the pleadings as well as the arguments advanced by the ld. counsel for both sides and shall be dealing with each of the submissions made before us.7. the applicants counsel has argued that since sri biswanath chakraborty was not examined, the applicant has been denied the right to cross examine him which amounts to violation of principle of natural justice. this argument was to be rejected because it is not necessary that all the listed witnesses must be examined as it is the discretion of the prosecution and if they feel that it is not necessary they can always drop the witnesses. since the aforesaid witness was neither examined nor any of his statement has been relied upon, it cannot be said that by not allowing the applicant to cross-examine such witness the principles of natural justice are violated. the principles of natural justice would have been violated if the respondents had relied upon the statement of the witness without offering the applicant an opportunity to cross examine the said witness. in fact a perusal of the findings by the inquiry officer at page 72 of the application clearly shows that the inquiry officer has relied on the statements given by the 3 prosecution witnesses namely sri sudip saha, sri ranjit roy and sri subarna halder holding that their deposition unmistakably leads to the conclusion that sri debnath entered the room of i.t.o. on 19.7.1984 towards the closing of working hours during the absence of i.t.o. and handled unauthorisedly the assessment records of late n.c. nath who was the father-in-law of the applicant. it is relevant to point out that all these 3 prosecutions witnesses were cross examined by the applicant's defence assistant. thus the argument of the ld. counsel for the applicant that by not permitting him to cross-examine sri biswanath chakraborty the respondents have violated the principles of natural justice is rejected. the second argument of the id. counsel for the applicant was that by not providing the additional documents the applicant was denied the right to defend him self effectively and in this way the respondents have once again violated the principles of natural justice. this argument has to be rejected because the authorities are well within their rights to reject the prayer of supplying him the additional documents if they hold that the documents asked for are not relevant. the applicant's counsel has not tried to demonstrate before us as to how the documents not supplied to him were relevant and gervane to the charge or how by not supplying him those document he has been prejudiced in any way. thus, the second argument is also rejected. the third argument of the ld. counsel for the applicant was that the authorities could not have issued the charge-sheet under rule 14 without giving any reason, is also not sustainable in law as the order dated 29/30.1.1987 shows that charge-sheet under rule 16 was dropped as it was felt necessary to hold a proper enquiry under 14. therefore, the reason is very much given in the order itself and it is stipulated under rule 16 (i)(b) that no order imposing on a government servant any of the penalties specified in clause (i) to (iv) shall be made except after holding an enquiry in the manner laid down in sub-rule 3 to 23 of rule 14 in every case in which the disciplinary authority is of the opinion that such enquiry is necessary. in this case, the disciplinary authority felt that it was a grave matter and a detailed enquiry was necessary to be held.therefore, he dropped the charge-sheet under rule 16 for issuing the charge-sheet under rule 14 of the ccs (cca) rules. since it is in consonance with the rule, the contention that charge-sheet under rule 14 could not have been issued, is rejected. in fact, the respondents have explained further that since the applicant had admitted the guilt in writing initially it was felt that there was no need to hold enquiry but when the applicant stated in his reply that the said statement was taken under duress and coercion, it became necessary to hold proper enquiry as it was a serious matter. even otherwise we find that by holding the proper enquiry no prejudice can be said to have been caused to the applicant as in the enquiry under rule 14 the applicant gets a better opportunity to defend himself by cross-examining the witnesses and producing his defence witness which opportunity was duly availed off by the applicant. thus, in view of the latest judgments of the hon'ble apex court it cannot be said that by holding the enquiry under rule 14 any prejudice has been caused to him. therefore, we find no merit in the arguments advanced by the ld. counsel for the applicant on these points.8. it was the further contention of the learned counsel for the applicant that the assessee had paid the demand and was given refund alongwith interest and therefore, there was no justification to issue the charge-sheet to the applicant as ultimately no loss has been caused to the government. we find that the charge-sheet has been issued to the applicant not for causing any pecuniary loss to the government but for the misconduct in asmuch as he entered the room of the i.t.o.unauthorisedly and tampered with the assessment file of his own father-in-law which is rather a serious misconduct. it is seen from the file that the applicant in fact admitted his entry in the room of i.t.o. and destroyed the documents from the assessment file of his father-in-law. the only thing is he is trying to give a different colour to the incident as an after thought even though he already admitted in writing that he entered the room of i.t.o, and tore off the papers also. during the enquiry these facts have been fully corroborated by the prosecution evidence. therefore, it is hardly relevant as to whether the assessee was given refund or not. since the applicant acted in a manner which is totally unbecoming of a government servant and exhibited lack of absolute integrity and devotion to duty amounting to misconduct, the contention is rejected.9. according to the applicant, the appellate authority could not have issued the order dated 29/30.1.1987. but this argument has to be rejected on two grounds. the first ground is that on a perusal of the entire o. a. we did not find a single word regarding the questions as to who was his disciplinary authority and who was his appellate authority. in absence of any averment, we cannot adjudicate upon this issue as it has been held by the hon'ble supreme court in its several judgments that the tribunals cannot adjudicate upon any matter which is not the subject matter of the pleadings. the second ground is that we have seen that the respondents counsel has rightly pointed out that in their reply, the chief commissioner of income tax has been referred to as the disciplinary authority, of the applicant, but the applicant has not even bothered to file a rejoinder to controvert the same. on the contrary he had given a reply addressed to the chief commissioner of income tax without taking this objection after the order dated 29/30.1.1987 was issued to him and has filed an appeal also to the chairman of central board of direct taxes. therefore, the applicant had accepted the chief commissioner of income tax as his disciplinary authority and having done so, he is now estopped from raising this point. therefore, this contention is not sustainable in law and is rejected.10. the last contention of the applicant's counsel with regard to the appellate order is correct as the o.a. was admitted on 16.7.1992 while the appellate order was passed on 23.11.1992 without taking leave of the court. section 19(4) of the administrative tribunals act in chapter-iv reads as under:- "where an application has been admitted by a tribunal under sub-section (3), every proceeding under the relevant service rules as to redressal of grievances in relation to the subject matter of such application pending immediately before such admission shall abate and save as otherwise directed by the tribunal, no appeal or representation in relation to such matter shall the reafter be entertained under such rules." in view of the aforesaid act, the learned counsel for the applicant has rightly pointed out that the appeal would have abated once the o.a. was admitted and no order could have been passed by the respondents thereafter. we agree with the counsel for the applicant on this point.therefore, the appellate order is bad in law being violative of section 19(4) of a.t. act, 1985. accordingly the same is quashed and set aside.apart from this, the applicant's counsel has fairly conceded in the court that knowing the hon'ble supreme court's judgments in such matters, he cannot ask us to reappreciate the evidences or go in the quantum of penalty. therefore, no other point was urged by the applicant's counsel. since we have rejected the other contentions of the learned counsel for the applicant, the disciplinary authority's order dated 3/4.7.1991 is upheld. however, the appellate order is quashed and set aside.11. in view of the above, the o.a. is partly allowed with no order as to costs.

Judgment:
1. In this O.A., the applicant has challenged the charge-sheet, enquiry proceedings, enquiry report dated 21.12.89 and the order of penalty dated 3/4.7.91. Since during the pendency of the O.A. the appeal filed by the applicant to the authority concerned was rejected, the applicant had amended the O.A. to challenge the appellate order.

2. Brief facts of this case are that the applicant while working as Tax Assistant in the office of Income Tax, was served with a charge-sheet under Rule 16 of CCS (CCA) Rules which for ready reference reads as under:- "The office of the Income-Tax Officer, 'G' Ward Dist. 24 Parganas is situated in 9th Floor of the "Bamboo Villa" at 169, Acharya Jagdish Chandra Bose Road, Calcutta 14. The building, commonly known as "Bamboo Villa", aforesaid, is far away from the office of the Income-Tax Officer, Jute Circle, Calcutta, aforesaid, where Shri Dhirendra Chandra Debnath was posted at the material time.

On 19.7.1984 (Thursday) at about 5-15 p.m. i.e. after office hours, Shri Dhirendra Chandra Debnath entered into the room of the Income-Tax Officer, 'G' Ward, Dist. 24 Parganas at 9th floor of the Bamboo Villa" aforesaid and destroyed some papers of the Income-Tax Assessment Records of one Narayan Chandra Nath (P.A. No. 8190/G/24 Parganas) in absence of the said Income-Tax Officer. Unconfined reports suggest that the said Narayan Chandra Nath is the father in law of Shri Dhirendra Chandra Debnath. He was, however, apprehended by some member of the staff of other offices of this Department situated there and brought before the I.A.C. R-XXVI, who is Building-in-Charge of the aforesaid "Bamboo Villa" before whom Shri Debnath admitted his act aforesaid in a written statement.

By his act aforesaid, Shri Dhirendra Chandra Debnath behaved in a manner unbecoming of a Government Servant thereby violating the requirement of Rule 3 (I)(iii) of the Central Civil Services (Conduct) Rules, 1964 (hereinafter referred to as the said Rules, 1964)." The applicant denied the charges and gave his reply on 15.3.85. Vide order dated 29/ 30.1.1987, the minor penalty charge-sheet was dropped and a major penalty charge-sheet under Rule-14 was issued against the applicant which reads as under :- Shri Dhirendra Chandra Debnath, Tax Assistant during his posting as Tax Assistant, in the office of the Income Tax Officer, Jute Circle, P-13, Chowringhee Square, Calcutta, made unauthorised entry on 19.7.84 (towards the end of office hours) in the room of the Income-Tax Officer, 24-Parganas, 'G' Ward, 167, Acharya Jagdish Chandra Bose Road, Calcutta, and availed himself of unauthorised access to the assessment records of his father-in-law, Shri Narayan Chandra Nath, 162/1, Beliaghata Main Road, Calcutta who was assessed under file No. PN-8190/Cal. 24 Pgs/G. Shri Dhirendra Chandra Debnath, Tax Assistant, thus, failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant. He has clearly violated Clauses (i), (ii) and (iii) of Rule 3 of CCS (Conduct) Rules, 1964.

During his unauthorised stay in the room of the Income-Tax Officer, 24 Parganas, G-Ward on 19.7.84 Shri Dhirendra Chandra Debnath, Tax Assistant, with an intent to confer undue benefit upon an assessee, removed, tore and destroyed some of the papers that were placed in the assessment record, pertaining to the Assessment years 1961 -62 & 1962-63, of his father-in-law, Shri Narayan Chandra Nath of 162/1, Beliaghata Main Road, Calcutta assessed against (P.A. No. PN/8190/Cal/24/Parganas/G)." Shri Dhirendra Chandra Debnath, Tax-Assistant has by'his act, exhibited lack of absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant, within the meaning of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964." The applicant gave reply to the said charge-sheet on 9.2.1987 and asked for additional documents vide his representation dated 6.5.1987 for defending his case in an effective manner. However, the said representation was rejected vide orders dated 2.11.1987 and 9.11.1987 on the ground that documents asked for were not relevant. During the enquiry, the applicant requested for change of Enquiry Officer which was acceded to and the witnesses were allowed to be cross-examined. The briefs were submitted after the evidence was over and on the basis of materials came on record, the Inquiry Officer gave his findings holding therein that both the charges are proved against the applicant. Copy of the findings was served on the applicant and vide order dated 3/4.7.1991 the pay of the applicant was reduced by two stages from 1800/- to 1790/- for a period of two years without cumulative effect.

3. Being aggrieved, the applicant had filed an appeal to the Chairman of Central Board of Direct Taxes on 9.8.1991 and reminders thereafter, but that has not been disposed of. Therefore, he has filed the present O.A. which has been admitted for adjudication on 16.7.1992. It was during the pendency of the O.A. that the appellate order was passed rejecting the appeal vide order dated 23.11.1992 and with the leave of the Court, the applicant amended the O.A. to challenge the appellate order as well. The applicant is challenging the aforesaid orders on the following grounds:- (i) He was denied the right to defend himself as Sri Biswanath Chakraborty was not allowed to be cross-examined even though he was a vital witness as he was the complainant and was included in the list or witnesses.

(ii) Though two witnesses were mentioned but were never called at the time of enquiry and additional documents were also not provided.

Thus, the principles of natural justice is violated which vitiates the entire enquiry.

(iii) Once the minor charge-sheet was issued, the authorities could not have issued a major charge-sheet by dropping the earlier one and that too without giving any reason and after the applicant had filed his reply to the earlier charge-sheet.

(iv) The assesses had paid the demand of Rs. 12,899/- and he was infact given refund of Rs. 955/- alongwith interest of Rs. 608/-.

Therefore, the charges are totally unwarranted.

4. The applicant's Counsel has submitted that since the O.A. was admitted on 16.7.1992, the appeal would have abated under Section 19 (4). Therefore, the appellate order issued on 23.11.1992 without taking leave of the Court is bad in law and not sustainable. Apart from this, the applicant's Counsel had taken another ground during the course of arguments. He submitted that the Disciplinary Authority had exercised the power by issuing the charge-sheet under Rule 16 which could not have been enhanced by the Appellate Authority had no jurisdiction to do so at this stage. Thus, the second charge-sheet is issued against the applicant beyond jurisdiction.

5. The respondents have contested the claim of the applicant by stating that the appeal has been decided on 23.11.1992. The charge-sheet under Rule 14 was initiated as the authorities felt that this was a case where proper enquiry was required to be held. Therefore, the charge-sheet under Rule 16 was dropped by the Disciplinary Authority i.e. the Chief Commissioner of Income Tax for issuing charge-sheet under Rule 14. They have further explained that during the enquiry the applicant was accorded full opportunity to defend himself in as much as he was given the opportunity to produce his defence witnesses, cross-examine the prosecution witnesses and was also allowed to submit his written statement. On applicant's request, even the Inquiry Officer was changed and as far as the documents are concerned, they have stated that since those documents were neither relied upon nor were relevant, the request of the applicant was rightly rejected by the authorities.

They have further stated that since the disciplinary authority has passed the orders on the basis of the materials available on record, no case is made out for interference by the Tribunal and as the charge against the applicant is very serious one, it required to be dealt with an iron hand. They have further explained that oral enquiry was not considered necessary as the applicant confessed his misconduct or mis-deeds in a written statement recorded on the date of the incident i.e. 19th July, 1984. They have also stated that while framing the charge-sheet under Rule 16, the statement of imputation was not accompanied with any list of document or list of witness. As far as the applicant's contention regarding the disciplinary authority or the appellate authority is concerned, it is stated that since the applicant had not made any averment in the O.A., this argument cannot be allowed to be sustained at this stage as the respondents cannot be taken by surprise and the applicant cannot be allowed to raise a point during argument which is not the part of pleadings. Even otherwise, the Counsel for the respondents submitted that pursuant to the order dated 29/30.1.1987 issued by the Chief Commissioner of Income Tax, the applicant had filed his reply addressed to the Chief Commissioner of Income Tax wherein no such objection was taken meaning thereby that he had accepted the Chief Commissioner of Income Tax to be his disciplinary authority and in fact he filed the appeal to the Chairman, Central Board of Direct Taxes. The ld. Counsel for the respondents further invited our attention to Para (e) oh page-4 of the reply wherein the Chief Commissioner of Income Tax has been shown as disciplinary authority and the applicant has not even controverted the same by filing a rejoinder. Thus, according to the respondents Counsel, there is no merit in the contentions of the applicant and the O.A. is liable to be dismissed.

6. We have carefully examined the pleadings as well as the arguments advanced by the ld. Counsel for both sides and shall be dealing with each of the submissions made before us.

7. The applicants Counsel has argued that since Sri Biswanath Chakraborty was not examined, the applicant has been denied the right to cross examine him which amounts to violation of principle of natural justice. This argument was to be rejected because it is not necessary that all the listed witnesses must be examined as it is the discretion of the prosecution and if they feel that it is not necessary they can always drop the witnesses. Since the aforesaid witness was neither examined nor any of his statement has been relied upon, it cannot be said that by not allowing the applicant to cross-examine such witness the principles of natural justice are violated. The principles of natural justice would have been violated if the respondents had relied upon the statement of the witness without offering the applicant an opportunity to cross examine the said witness. In fact a perusal of the findings by the Inquiry Officer at page 72 of the application clearly shows that the Inquiry Officer has relied on the statements given by the 3 prosecution witnesses namely Sri Sudip Saha, Sri Ranjit Roy and Sri Subarna Halder holding that their deposition unmistakably leads to the conclusion that Sri Debnath entered the room of I.T.O. on 19.7.1984 towards the closing of working hours during the absence of I.T.O. and handled unauthorisedly the assessment records of late N.C. Nath who was the father-in-law of the applicant. It is relevant to point out that all these 3 prosecutions witnesses were cross examined by the applicant's Defence Assistant. Thus the argument of the ld. Counsel for the applicant that by not permitting him to cross-examine Sri Biswanath Chakraborty the respondents have violated the principles of natural justice is rejected. The second argument of the Id. Counsel for the applicant was that by not providing the additional documents the applicant was denied the right to defend him self effectively and in this way the respondents have once again violated the principles of natural justice. This argument has to be rejected because the authorities are well within their rights to reject the prayer of supplying him the additional documents if they hold that the documents asked for are not relevant. The applicant's Counsel has not tried to demonstrate before us as to how the documents not supplied to him were relevant and gervane to the charge or how by not supplying him those document he has been prejudiced in any way. Thus, the second argument is also rejected. The third argument of the ld. Counsel for the applicant was that the authorities could not have issued the charge-sheet under Rule 14 without giving any reason, is also not sustainable in law as the order dated 29/30.1.1987 shows that charge-sheet under Rule 16 was dropped as it was felt necessary to hold a proper enquiry under 14. Therefore, the reason is very much given in the order itself and it is stipulated under Rule 16 (I)(b) that no order imposing on a Government servant any of the penalties specified in Clause (i) to (iv) shall be made except after holding an enquiry in the manner laid down in Sub-Rule 3 to 23 of Rule 14 in every case in which the Disciplinary Authority is of the opinion that such enquiry is necessary. In this case, the Disciplinary Authority felt that it was a grave matter and a detailed enquiry was necessary to be held.Therefore, he dropped the charge-sheet under Rule 16 for issuing the charge-sheet under Rule 14 of the CCS (CCA) Rules. Since it is in consonance with the rule, the contention that charge-sheet under Rule 14 could not have been issued, is rejected. In fact, the respondents have explained further that since the applicant had admitted the guilt in writing initially it was felt that there was no need to hold enquiry but when the applicant stated in his reply that the said statement was taken under duress and coercion, it became necessary to hold proper enquiry as it was a serious matter. Even otherwise we find that by holding the proper enquiry no prejudice can be said to have been caused to the applicant as in the enquiry under Rule 14 the applicant gets a better opportunity to defend himself by cross-examining the witnesses and producing his defence witness which opportunity was duly availed off by the applicant. Thus, in view of the latest judgments of the Hon'ble Apex Court it cannot be said that by holding the enquiry under Rule 14 any prejudice has been caused to him. Therefore, we find no merit in the arguments advanced by the ld. Counsel for the applicant on these points.

8. It was the further contention of the learned Counsel for the applicant that the assessee had paid the demand and was given refund alongwith interest and therefore, there was no justification to issue the charge-sheet to the applicant as ultimately no loss has been caused to the Government. We find that the charge-sheet has been issued to the applicant not for causing any pecuniary loss to the Government but for the misconduct in asmuch as he entered the room of the I.T.O.unauthorisedly and tampered with the assessment file of his own father-in-law which is rather a serious misconduct. It is seen from the file that the applicant in fact admitted his entry in the room of I.T.O. and destroyed the documents from the assessment file of his father-in-law. The only thing is he is trying to give a different colour to the incident as an after thought even though he already admitted in writing that he entered the room of I.T.O, and tore off the papers also. During the enquiry these facts have been fully corroborated by the prosecution evidence. Therefore, it is hardly relevant as to whether the assessee was given refund or not. Since the applicant acted in a manner which is totally unbecoming of a Government servant and exhibited lack of absolute integrity and devotion to duty amounting to misconduct, the contention is rejected.

9. According to the applicant, the Appellate Authority could not have issued the order dated 29/30.1.1987. But this argument has to be rejected on two grounds. The first ground is that on a perusal of the entire O. A. we did not find a single word regarding the questions as to who was his disciplinary authority and who was his Appellate Authority. In absence of any averment, we cannot adjudicate upon this issue as it has been held by the Hon'ble Supreme Court in its several judgments that the Tribunals cannot adjudicate upon any matter which is not the subject matter of the pleadings. The second ground is that we have seen that the respondents Counsel has rightly pointed out that in their reply, the Chief Commissioner of Income Tax has been referred to as the Disciplinary Authority, of the applicant, but the applicant has not even bothered to file a rejoinder to controvert the same. On the contrary he had given a reply addressed to the Chief Commissioner of Income Tax without taking this objection after the order dated 29/30.1.1987 was issued to him and has filed an appeal also to the Chairman of Central Board of Direct Taxes. Therefore, the applicant had accepted the Chief Commissioner of Income Tax as his Disciplinary Authority and having done so, he is now estopped from raising this point. Therefore, this contention is not sustainable in law and is rejected.

10. The last contention of the applicant's Counsel with regard to the appellate order is correct as the O.A. was admitted on 16.7.1992 while the appellate order was passed on 23.11.1992 without taking leave of the Court. Section 19(4) of the Administrative Tribunals Act in Chapter-IV reads as under:- "Where an application has been admitted by a Tribunal under Sub-section (3), every proceeding under the relevant service rules as to redressal of grievances in relation to the subject matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall the reafter be entertained under such rules." In view of the aforesaid Act, the learned Counsel for the applicant has rightly pointed out that the appeal would have abated once the O.A. was admitted and no order could have been passed by the respondents thereafter. We agree with the Counsel for the applicant on this point.

Therefore, the appellate order is bad in law being violative of Section 19(4) of A.T. Act, 1985. Accordingly the same is quashed and set aside.

Apart from this, the applicant's Counsel has fairly conceded in the Court that knowing the Hon'ble Supreme Court's judgments in such matters, he cannot ask us to reappreciate the evidences or go in the quantum of penalty. Therefore, no other point was urged by the applicant's Counsel. Since we have rejected the other contentions of the learned Counsel for the applicant, the disciplinary authority's order dated 3/4.7.1991 is upheld. However, the appellate order is quashed and set aside.

11. In view of the above, the O.A. is partly allowed with no order as to costs.