The Union Of India And 4 Others vs Subachan Ram And Another
2022 Latest Caselaw 16444 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgment Reserved on : 13.07.2022
 
Judgment Delivered on : 10.11.2022
 
Court No. - 45
 
Case :- WRIT - A No. - 9789 of 2022
 
Petitioner :- The Union Of India And 4 Others
 
Respondent :- Subachan Ram And Another
 
Counsel for Petitioner :- Krishna Agarawal,A.S.G.I.
 
Counsel for Respondent :- Anil Kumar Srivastava
 

 
Hon'ble Pritinker Diwaker,J.

Hon'ble Ashutosh Srivastava,J.

1. Heard learned Assistant Solicitor General of India assisted by Sri Krishna Agrawal, learned counsel for the petitioners and Sri Anil Kumar Srivastava, learned counsel for the Respondent No.1

2. The present writ petition has been filed for quashing of the judgment and order dated 09.03.2022 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad, whereby and wherein the Tribunal has allowed the Original Application filed by the Respondent No.1 and quashed the impugned order dated 14.12.2020 bearing No.C-14011/75/2020-V & LK and held that the applicant therein/Respondent No.2 would be entitled to all consequential benefits which arise out of the quashing of the above mentioned charge-sheet.

3. Learned Assistant Solicitor General of India submitted that the Tribunal failed to consider the fact that the charge-sheet was issued in view of the gravity of the violation of the Central Board of Direct Taxes Circular while passing the order in the capacity of the Commissioner (Appeals). The learned Senior counsel contended that the act of the Respondent No.1 in the capacity of the Commissioner (Appeals) even though in his quasi-judicial capacity, clearly falls within the meaning of misconduct as construed under Central Civil Services (Classification, Control and Appeal) Rules, 1965, and is covered by the judgment rendered by the Apex Court in the case of Union of India Vs. K. K. Dhawan, wherein the Apex Court has held that any act or conduct either in the judicial or quasi-judicial capacity, which is contrary to the established law or rules, could invite action under the relevant disciplinary rules and the person concerned would be liable for the disciplinary action. The learned Senior Counsel further submitted that the allegation against the Respondent No.1, as mentioned in the Article of charges are serious in nature causing financial loss to the Government. The Charge No.1 of the article of charge clearly establishes that the Respondent No.1 gave the tax remission to the party in litigation contrary to the CBDT Circular which expressly prohibited giving benefit of sales promotion to the pharmaceuticals companies and further points out that so far as second article of charge is concerned, the Respondent No.1 deliberately reduced number of shares below 10% held by one Anand Sagar in the Assessment Year 2011-12 by taking additional evidence. The learned Senior Counsel submitted that the Enquiry Officer was already appointed and the right course available with the Respondent No1. was to face the enquiry and absolve himself during the course of the proceedings.

4. The learned counsel for the Respondent No.1 contended that the Central Administrative Tribunal has passed a just and legal order. He further contended that the Respondent No.1 was earlier issued charge-sheet on the basis of the same inspection report which was quashed by the Tribunal in Original Application No.1466 of 2020 (Subachan Ram Vs. Union of India & Others) vide judgment and order dated 24.12.2020. Issuing second charge-sheet on the basis of the same inspection report on the verge of the retirement is clearly malicious.

5. Heard learned counsel for the parties and perused the record.

6. We find from the records that the Respondent No.1 was issued a charge memo on 09.09.2020 while serving as Principal Commissioner of Income Tax at Prayagraj, for committing misconduct as the then Commissioner of Income Tax (Appeal) - 4, Mumbai. The said charge-sheet was assailed before the Central Administrative Tribunal, Allahabad, and the Tribunal vide judgment and order dated 24.12.2020 quashed the said charge-sheet technically and allowed the original application filed by the Respondent No.1. Thereafter, before 15 days of his retirement i.e. 14.12.2020, the second charge-sheet was issued to the Respondent No.1 on the basis of the same vigilance inspection report on which the first charge-sheet was issued. The charge-sheet was assailed before the Tribunal, which allowed the original application and quashed the charge-sheet dated 14.12.2020, against which present writ petition has been filed.

7. The learned Senior Counsel, ASGI submits as under:-

(i) The Tribunal committed mistake in entertaining the original application though the same was not maintainable before the Central Administrative Tribunal, Allahabad.

(ii) The Tribunal failed to consider the ratio of the judgment of the Apex Court rendered in Union of India Vs. K. K. Dhawan reported in 1993 (2) SCC 56.

(iii) The Tribunal failed to appreciate the fact that charges leveled in the article of charges and therefore, it should have refrained from quashing the charge-sheet under judicial review.

(iv) Lastly, it is submitted that the respondent is charged for violation of Rules 3(i)(i), 3(i)(ii), 3(i)(iii), 3(i)(xviii) and 3(i)(xxi) of the Central Civil Services (Conduct) Rules, 1964. Therefore, if the conduct of the respondent could be brought within the scope of the Rules, immunity from the disciplinary action cannot be claimed.

8. In light of the above discussions, we proceed to examine the said contentions. So far as the Contention No.1, regarding maintainability of the original application is concerned, Rule-6 of the Central Administrative Tribunal (Procedure) Rules, 1987, provides for the place of filing of the original application.

"6. Place of filing applications.--

(1) An application shall ordinarily be filed by an applicant with the Registrar of the Bench within whose jurisdiction--

(i) the applicant is posted for the time being, or

(ii) the cause of action, wholly or in part, has arisen :

Provided that with the leave of the Chairman the application may be filed with the Registrar of the Principal Bench and subject to the orders under section 25, such application shall be heard and disposed of by the Bench which has jurisdiction over the matter.

(2) Notwithstanding anything contained in sub-rule (1) persons who have ceased to be in service by reason of retirement, dismissal or termination of service may at his option file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application. "

9. Rule 6 of Sub Rule 2, provides that person, who has ceased to be in service by reason of retirement may at his option file and application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application. In the instant case the Respondent No.1 is residing in District Ballia, State of U.P., within the jurisdiction of the Tribunal, and as such the contention that the original application is not maintainable, merits no consideration.

10. The second contention that the Tribunal did not consider the ratio as laid down in K.K. Dhawan's Case also merits no consideration in as much as the decision in K K. Dhawan (Supra) was taken note of by the Apex Court in the case of Zunjarrao Bhikaji Magarkar Vs. Union of India & others, decided on 06.08.1999, reported in 1997 (7) SCC 409 and the Apex Court observed as under:-

"In Union of India vs. K.K. Dhawan [(1993) 2 SCC 56) respondent was working as Income Tax Officer. A charge Memorandum was served on him that it was proposed to held an inquiry against him under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. In the statement of article of charge framed against him, it was alleged that he completed assessment of nine firms in "an irregular manner, in undue haste and apparently with a view to conferring undue favour upon the assesses concerned". An application filed by the respondent against the proposed action was allowed by the Central Administrative Tribunal and it was held that orders passed by the respondent as Income Tax Officer were quasi judicial and could not have formed the basis of disciplinary action. Charge Memorandum was, thus, set aside. The question before this Court was whether an authority enjoyed immunity from disciplinary proceedings with respect to matters decided by him in exercise of quasi judicial functions. After examining the early decisions of this Court in V.D. Trivedi vs. Union of India [(1993) 2 SCC 55]; Union of India vs. R.K. Desai [(1993) 2 SCC 49]; Union of India vs. A.N. Saxena [(1992) 3 SCC 124]and also in S. Govinda menon vs. Union of India [AIR 1967 SC 1274] this Court held as under :

"Certainly, therefore, the officer who exercises judicial or quasi judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act but we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases :

(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;

(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;

(iii)if he has acted in a manner which is unbecoming of a Government servant;

(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;

(v) if he had acted in order to unduly favour a party;

(vi) if he had been actuated by corrupt motive, however, small the bribe may be because Lord Coke said long ago "though the bribe may be small yet the fault is great".

The instances above catalogued are not exhaustive. however, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated."

11. Thus, it is not in dispute that the disciplinary proceedings cannot be initiated, however, for to ram an Officer with the label "doubtful integrity" as sought to be raised by the learned Assistant Solicitor General of India, as summed up in Point No.(iii) and (iv), there should be some evidence or material to reach at such a conclusion. In M. S. Bindra Vs. Union of India, reported in 1998 (7) SCC 310, the Apex Court has held as under:-

"The appellant was served with an order of compulsory retirement. His challenge to this order did not find favour with the Central Administrative Tribunal. On appeal to this Court it was observed that judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is rather arbitrary or mala fide or if it is based on no evidence. Then this Court observed as under :

"While viewing this case from the next angle for judicial scrutiny, i.e., want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such a conclusion. While evaluating the materials, the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim "nemo firut repente turpissimus" (no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of administrative law. The authorities should not keep their eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity", it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the lable "doubtful integrity".

12. Rule 3 (i) of the Central Civil Services (Conduct) Rules, 1964 states that every government servant shall at all time:-

(i) maintain absolute integrity;

(ii) maintain devotion to duty; and

(iii) do nothing which is unbecoming of a Government servant.

(iv) commit himself to and uphold the supremacy of the Constitution and democratic values;

(v) defend and uphold the sovereignty and integrity of India, the security of the State, public order, decency and morality;

(vi) maintain high ethical standards and honesty;

(vii) maintain political neutrality;

(viii) promote the principles of merit, fairness and impartiality in the discharge of duties;

(ix) maintain accountability and transparency;

(x) maintain responsiveness to the public, particularly to the weaker section;

(xi) maintain courtesy and good behaviour with the public;

(xii) take decisions solely in public interest and use or cause to use public resources efficiently, effectively and economically;

(xiii) declare any private interests relating to his public duties and take steps to resolve any conflicts in a way that protects the public interest;

(xiv) not place himself under any financial or other obligations to any individual or organisation which may influence him in the performance of his official duties;

(xv) not misuse his position as civil servant and not take decisions in order to derive financial or material benefits for himself, his family or his friends;

(xvi) make choices, take decisions and make recommendations on merit alone;

(xvii) act with fairness and impartiality and not discriminate against anyone, particularly the poor and the under-privileged sections of society;

(xviii) refrain from doing anything which is or may be contrary to any law, rules, regulations and established practices;

(xix) maintain discipline in the discharge of his duties and be liable to implement the lawful orders duly communicated to him;

(xx) maintain confidentiality in the performance of his official duties as required by any laws for the time being in force, particularly with regard to information, disclosure of which may prejudicially affect the sovereignty and integrity of India, the security of the State, strategic, scientific or economic interests of the State, friendly relation with foreign countries or lead to incitement of an offence or illegal or unlawful gain to any person;

(xxi) perform and discharge his duties with the highest degree of professionalism and dedication to the best of his abilities.

13. The substance of the charge is the acceptance of the additional evidence and judgments given by him while holding the charge in quasi-judicial nature and that too in the year 2016-17. The learned Senior Counsel is unable to point out the illegality in the finding recorded by the Administrative Tribunal under the impugned order and also do not dispute the fact that first charge-sheet was issued on 09.09.2020 and the same was quashed by the Tribunal in Original Application No.466 of 2020 and also does not dispute the fact that the decision arrived at by the Respondent No.1 while discharging his function as Commissioner of Income Tax (Appeal) - 4, Mumbai, were upheld by higher forum and also does not dispute the fact that the second charge-sheet was issued on the same inspection report on the basis of which first charge-sheet was issued.

14. We are of the opinion that issuing the second charge-sheet on the same set of facts, in itself is malicious and that too at the verge of retirement for an event which was four year old. Thus, we are not inclined to interfere in the judgment and order passed by the Tribunal allowing the original application, quashing the impugned charge-sheet and granting the Respondent No.1 all the consequential benefits. Accordingly, the writ petition fails and is, accordingly, dismissed.

15. No order as to costs.

 
Order Date :- 10.11.2022
 
pks
 

 

 
(Ashutosh Srivastava,J.)        (Pritinker Diwaker,J.)