Uoi Through Sh.S.S.N.Murthy, ... vs S.K.Srivastava
2011 Latest Caselaw 2285 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) No.7880/2010

%                      Date of Decision: 28.04.2011

UOI through Sh. S.S.N. Murthy, Chairman,                .... Petitioner
Central Board of Direct Taxes

                     Through Mr. R.V. Sinha, Advocate

                                Versus

S.K. Srivastava                                       .... Respondent

                     Through Mr. S.K. Gupta, Advocate for
                             respondent No. 1
                             Mr. Neeraj Choudhary , Advocate for
                             DOP&T


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.      Whether reporters of Local papers               YES
        may be allowed to see the judgment?
2.      To be referred to the reporter or not?          NO
3.      Whether the judgment should be                  NO
        reported in the Digest?

ANIL KUMAR, J.

*

1. The petitioner, UOI through Sh.S.S.N Murthy, Chairman,

Central board of Direct Taxes, has challenged the order dated 19th

November, 2010 passed in CP 476/2011 & MA 1813/2010 in OA

271/2010 titled as „S.K. Srivastava Vs. UOI & Ors.‟, whereby two

days time was granted to the petitioner to issue promotion as well as

posting orders of the respondent on the basis of option already given

by him, failing which, Chairman, Central Board of Direct Taxes was

directed to be present on the next date of hearing, 24th November,

2010.

2. To comprehend the disputes raised in the writ petition, the

following facts shall be relevant. The respondent had filed an

original application before the Central Administrative Tribunal,

praying, inter alia, that the petitioner should hold a review DPC and

promote the respondent to the rank of Commissioner, Income Tax

w.e.f. 28th August, 2007 as had been done by the petitioner in case of

juniors to the respondent or in the alternative to open the sealed

cover and to give effect to the recommendations of the DPC,

regarding the respondent held on 30th March, 2007 and to promote

the petitioner in terms of CBDT order No. 182/2009 dated 15th

December, 2009, which was passed promoting Sh. B.V. Gopinath to

the rank of Commissioner, Income Tax.

3. The original application of the petitioner being OA No.

271/2010 was allowed by order dated 12th May, 2010, directing the

petitioner to open the sealed cover pertaining to the respondent, "and

if no adversity is found against him up to the stage of sealed cover",

the recommendation of DPC be given effect to in the manner as

approved in law with all consequences from the date of promotion of

his juniors within a period of six weeks from the order dated 12th

May, 2010.

4. The order passed on 12th May, 2010 was modified by order

dated 17th May, 2010 pursuant to MA 1328/2010 holding that the

respondent be considered for promotion from the date when his

juniors were promoted, i.e., w.e.f. 28th August, 2007.

5. Consequent to the orders passed by the Tribunal, a status

report was filed disclosing that in compliance of the order/directions

of the Tribunal, the sealed cover containing recommendations of the

DPC regarding promotion to the grade of Commissioner of Income

Tax in respect of the respondent had been opened and had been

forwarded to DOP&T on 26th August, 2010 for obtaining the approval

of the ACC. It was further disclosed that the approval of the ACC

was awaited and in the circumstances, it was contended that the

petitioner has taken all requisite action at his end.

6. The respondent, however, contended that the order dated 12th

May, 2010 has not been complied with and he filed an application

dated 16th July, 2010, contending, inter alia, that though the

petitioner had sought additional time to comply with the directions of

the Tribunal dated 12th May, 2010 as amended by the orders dated

17th May, 2010 on the ground that inter-ministerial consultation was

required and that required time and consequent to that, time was

granted up to 9th August, 2010, however, the petitioner was making

incorrect and misleading statements as the DOP&T, which is the

final authority and nodal ministry of Govt. of India after examination

of the orders of the Tribunal had accepted those orders and had

advised CBDT/DOR to treat the respondent on duty since 8th

November, 2007 and to open the sealed cover and implement the

recommendations of DPC held on 30th March, 2007. The respondent

also asserted that DOP&T has not found any exceptions from the

National litigation policy of Govt. of India in these orders and has not

considered it necessary to contest the orders passed by the Tribunal

before the Superior Court and therefore, the matter has become final.

7. In the circumstances, it was contended that despite no

objection of any type raised by DOP&T, the respondent had not been

appointed to the post of Commissioner as the petitioner does not

have any respect for rule of law and has been deliberately refusing to

comply with the orders of the Tribunal. The respondent, therefore,

sought the presence of the chairman of CBDT in person before the

Tribunal.

8. The respondent also filed a contempt petition being CP No.

476/2011 contending, inter alia, that despite the orders passed by

the Tribunal and the sealed cover of the respondent being opened

and nothing adverse being found as against the respondent, the

recommendation of DPC held on 30th March, 2007 had not been

implemented and the respondent has not been appointed to the post

of Commissioner despite specific orders by the Tribunal.

9. The respondent contended that the petitioner, out of malice

and vendetta and in order to settle scores with him, especially as the

respondent had detected and reported the theft of public money and

public revenue in excess of Rs. 10,000 crores in the Vigilance Wing of

CBDT, is deliberately not complying with the orders of the Learned

Tribunal. The respondent also contended that even the process of

implementation of the order had not been initiated and the matter

had not been submitted even to ACC.

10. On the applications of the respondent before the Tribunal, it

was contended by the petitioner that the ACC approval to the

promotion of the respondent had been accorded and would be

processed and consequent thereto the Tribunal, by order dated 8th

November, 2010, directed that not only the promotion order be

passed, but the petitioner should issue the posting orders of the

respondent as well, failing which, the Tribunal directed that the

Chairman of CBDT shall appear before the Tribunal.

11. On 19th November, 2010, on behalf of the petitioner, a letter

dated 3rd November, 2010 was relied on, which was issued by DOPT

stipulating that the ACC had approved the proposal of the

Department of Revenue for accepting the DPC recommendation dated

30th March, 2007 for promotion of the respondent to the grade of CIT

for the year 2006-07 in compliance with the orders of the Tribunal.

It was, however, further contended that various complaints had been

received against the respondent in connection with his promotion,

which had been sent to the Department of Revenue for taking

appropriate action.

12. By the order dated 19th November, 2010, which is impugned in

the writ petition, the Tribunal noted that since DOP&T has already

approved the DPC recommendation for promotion of respondent to

the grade of CIT for the year 2006-07 in compliance with the

directions of the Tribunal and subsequent thereto the observations of

ACC had nothing to do with the promotion of the respondent, as the

subsequent observations are based on subsequent events. It was

noted that there are neither criminal cases against the respondent

nor any disciplinary proceedings have been initiated against him.

Therefore, the subsequent order passed by the petitioner dated 16th

November, 2010 seeking approval again from the DOPT was

misconceived and unwarranted and was a clear cut contempt of the

direction of the Tribunal and deliberate attempt to overreach the

orders of the Tribunal.

13. The Tribunal, in the circumstances, on the application for

contempt held that the Tribunal is not retaliating against the

petitioner but is trying to uphold the majesty of law and the prestige

of the Tribunal, and therefore, granted two days‟ time to the

petitioner to issue promotion as well as posting order in respect of

the respondent on the basis of option already given by the

respondent, failing which, it was directed that the Chairman of CBDT

shall appear before the Tribunal on 24th November, 2010.

14. Within the time again granted by the Tribunal, the petitioner

did not comply with the order but aggrieved by the said order, the

petitioner filed the present writ petition contending, inter alia, that

the order of DOP&T dated 3rd November, 2010 shows that while

conveying the approval of the ACC, it has also been observed that

ACC had directed the Department of Revenue to take appropriate

action on account of representation dated 16th August, 2010 received

in the office of Cabinet Secretary and to get the said representation

disposed of by the Department of Revenue. In the circumstances, it

was contended that it was appropriate to seek further advice in the

matter from DOP&T on the course of action to be taken on ACC

approval for promotion and in the circumstances, there are sufficient

reasons for exemption from appearance of Chairman of CBDT on 19th

November, 2010.

15. This Court considering the facts and circumstances, by order

dated 26th November, 2010 stayed till further orders, appearance of

the Chairman, CBDT before the Administrative Tribunal.

Subsequently, the application for impleading UOI, through the

Department of Personnel and Training, North Block, New Delhi as

respondent, was filed and allowed by order dated 14th December,

2010 and notice was issued to DOP&T to appear through a senior

officer on 6th January, 2011.

16. On the Department of Personnel and Training, North Block,

New Delhi being impleaded as a party, a short affidavit dated 17th

February, 2011 was filed contending, inter-alia that the proposal of

the respondent was processed and the sealed cover was opened and

the proposal was submitted for consideration and order of ACC on

12th October, 2010 was passed. The ACC had approved the proposal

and had also brought to the notice of the Department the

representation against the respondent. The DOP&T categorically

disclosed that it had been clarified by DOP&T to the Department of

Revenue that the promotion of the respondent under consideration

could not be withheld on account of the grounds mentioned in the

department‟s file under reference and the order of the Tribunal must

be implemented.

17. In view of the categorical stand by DOP&T, the petitioner is

liable to implement the order passed by the Tribunal. Consequently,

on 17th February, 2011, 28th February, 2011, 7th March, 2011, 24th

March, 2011 and 5th April, 2011, time was sought by the petitioner

to take appropriate steps so that the order of the Tribunal could be

complied with forthwith.

18. Today, the learned counsel appearing on behalf of the

petitioner, Mr. Sinha, says that he does not have any instructions

whether the orders passed by the Tribunal have been implemented

or not in respect of the respondent for his promotion in terms of the

option already given by him.

19. The Tribunal gave sufficient time to the petitioner to comply

with the orders passed by the Tribunal. Even on 19th November,

2010, more time was granted to comply with the order, failing which,

the presence of Chairman, CBDT was directed. Since November,

2010, the petitioner has been able to delay the implementation of the

orders of the Tribunal on one pretext or the other. The stand of the

Department of Revenue and the Chairman CBDT has also not been

approved even by DOP&T, which is apparent from the affidavit filed

by DOP&T dated 17th February, 2011 categorically stipulating that

the promotion of the respondent cannot be withheld on account of

the ground mentioned by the petitioner.

20. In the circumstances, on account of consistent and deliberate

failure of the petitioner to comply with the orders of the Tribunal, if

the Tribunal has directed the presence of an official, the order cannot

be termed to be illegal or unsustainable or suffering from any

perversity so as to entail any interference by this Court in exercise of

its jurisdiction under Article 226 of the Constitution of India.

21. The Supreme Court in Civil Appeal No. 5600/2006 titled as

R.S. Singh Vs. U.P.Malaria Nirikshak Sangh & Ors. had held that if

the orders of the High Court are not complied with, it shall first see

whether the order can be complied with without summoning any

official and for that purpose it can ask the Advocate General,

Additional Advocate General or Chief Standing Counsel to

communicate to the concerned official that there are the orders

which are to be complied with. Ordinarily, this would suffice,

however, in extreme cases if the order has not been complied with

and if the orders are not implemented deliberately on one excuse or

the other or if the orders of the Court are ignored in a spirit of

defiance, it may summon the official to explain why the order has not

been complied with. In the present case, the orders of the Tribunal

has not been complied with deliberately and willfully. Even before

this Court time was taken repeatedly to comply with the orders and

it appears that even this Court has been misled as today the Learned

counsel for the petitioner states that he does not have any

instructions about compliance of the order of the Tribunal or

whether the order of the Tribunal would be complied with or not.

22. In the circumstances, it is apparent that the Tribunal was

justified in the peculiar facts and circumstances to direct the

personal presence of Chairman, CBDT. Consequently, this Court

does not find any illegality or any perversity in the impugned order

dated 19th November, 2010, which would require any interference by

this Court in exercise of its jurisdiction under Article 226 of the

Constitution of India. The writ petition is, therefore, dismissed.

Parties are left to bear their own costs.

23. The Tribunal shall proceed against the petitioner in CP

No.476/2010 in OA 271/2010 in accordance with law. Parties shall

appear before the Tribunal.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

APRIL 28, 2011.

„rs‟