Varshaty Das vs The Union Of India And 7 Ors
2021 Latest Caselaw 2145 Gua

                                                                      Page No.# 1/8

GAHC010080002021




                        THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/2877/2021

         VARSHATY DAS
         D/O- LT. A.C.DAS, R/O- H.NO. 5A SAMPRITI PATH, OPP. GEETANAGAR P.S.,
         GHY-21, DIST.- KAMRUP (M), ASSAM



         VERSUS

         THE UNION OF INDIA AND 7 ORS.
         REP. BY THE SECY. TO THE GOVT. OF INDIA, DEPTT. OF PERSONNEL AND
         TRAINING, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND
         PENSION, NORTH BLOCK, NEW DELHI- 110001

         2:THE UNION PUBLIC SERVICE COMMISSION
          REP. BY ITS CHAIRMAN
          DHOLPUR HOUSE
          SHAHJAHAN ROAD
          NEW DELHI- 110069

         3:THE STATE OF ASSAM
          REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
          DISPUR
          GHY-06

         4:THE PRINCIPAL SECRETARY
         TO THE GOVT. OF ASSAM
          FINANCE DEPTT.
          DISPUR
          GHY-06

         5:THE PRINCIPAL SECRETARY
         TO THE GOVT. OF ASSAM
          FINANCE (TAXATION) DEPTT.
          DISPUR
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           GHY-06

           6:THE COMM. AND SECY.
           TO THE GOVT. OF ASSAM
            FINANCE (TAXATION) DEPTT.
            DISPUR
            GHY-06

           7:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
            PERSONNEL (A) DEPTT.
            DISPUR
            GHY-06

           8:THE COMMISSIONER OF TAXES
           ASSAM
            KAR BHAWAN
            DISPUR
            GHY-0

                                        BEFORE
             Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI


      Advocates for the petitioner:     Shri K.N. Choudhury, Senior Advocate, Shri S.K.
                                        Hazarika, Advocate.


      Advocates for respondents :       1. Ms. S. Barua, C.G.C.,

2. Shri B. Chakravarty, Advocate, UPSC,

3. Shri B. Gogoi, SC, Finance (Taxation) and

4. Ms. A. Talukdar, G.A., Assam.

      Date(s) of hearing            :        10.09.2021.
      Date of judgment              :        10.09.2021.


                                JUDGMENT & ORDER

1. Heard Shri K.N. Choudhury, learned Senior Counsel for the petitioner assisted by Shri S.K. Hazarika, learned counsel. Ms. S. Barua, learned counsel is present for the Page No.# 3/8

respondent no. 1- The Union of India whereas Shri B. Chakravarty, learned counsel has represented the respondent no. 2- The Union Public Service Commission. The respondent nos. 3, 4, 5, 6 & 8 of the State are represented by Shri B. Gogoi, learned Standing Counsel, Finance (Taxation) Department and Ms. A. Talukdar, the learned State Counsel for respondent no. 7.

2. The petitioner has put to challenge the action of the Department in initiating a disciplinary proceeding against her by issuing a Show Cause Notice dated 03.04.2021. The primary ground of challenge is that such initiation is based on an anonymous complaint which is not permissible under the law. The petitioner has also alleged that the aforesaid anonymous complaint has been lodged not only to harass the petitioner but also to cause impediment in her career progress.

3. Before dealing with the issue which falls for determination, it would be convenient to place on record the basic facts of the case in brief.

4. The petitioner is presently working as a Deputy Commissioner of Taxes at Guwahati. She has served for a long span from the year 1993 when she had joined the Department as a Superintendent of Taxes and has been promoted from time to time and vide a notification dated 31.10.2019, she has been posted to the present post.

5. The petitioner, who is eligible for consideration for conferment into the Indian Administrative Service in terms of Regulation III of the Indian Administrative Service (appointment by promotion) Regulation 1995, was considered by a duly constituted committee and was found to be eligible. As a requirement for such conferment, an Integrity Certificate is one of the criterion. When the process was at the stage of finality, it appears that an anonymous complaint was lodged by one Shri P. Sharma on 20.01.2021.

6. In the said complaint, allegations have been made primarily with regard to 3(three) promotions which were alleged to be done without following the Rules. The names of the beneficiaries were also stated in the letter which are Shri Kamal Sarmah, Shri Tamal Bose and Shri Tapan Kr. Baishya. It has been alleged that the aforesaid beneficiaries were Page No.# 4/8

given promotion dehors the Rules.

7. As indicated above, no details or antecedents whatsoever has been divulged in the letter regarding the author. This Court has further noticed that copy has also been marked to the Hon'ble Chief Minister and the Chief Secretary of the State. It may be noted that though the letter is dated 20.01.2021, the allegations concerning the promotion is of the period 2018-19. It appears that based on the said complaint, a Show Cause Notice dated 03.04.2021 has been issued to the petitioner along with a statement of allegations.

8. The petitioner has replied to the said Show Cause Notice on 09.04.2021 whereby it has been stated that all the allegations pertaining to the promotion of the 3(three) incumbents were incorrect and the promotion were done by following the prevailing norms in the Department.

9. Shri Choudhury, the learned Senior Counsel has submitted that the fact of initiation of the Disciplinary Proceeding vide the impugned Show Cause Notice dated 03.04.2021 is not permissible in law in view of the Office Memorandum dated 08.10.2018 issued by the Government of India, Ministry of Personnel, etc. By the said Office Memorandum, guidelines have been laid down for handling complaints in the Ministries / Departments.

10. The Office Memorandum categorically directs that anonymous and pseudonymous complaints should not be taken into consideration and no action is required to be taken and such complaints are required to be simplified. The Office Memorandum further clarifies that no such action is to be taken irrespective of the nature of the allegations. It is submitted that though the petitioner has submitted her reply to the Show Cause Notice, that by itself would not amount to any kind of estoppel and cause any hindrance in application of the aforesaid Office Memorandum dated 08.04.2018.

11. On merits, the Senior Counsel for the petitioner submits that not only the allegations are incorrect, no action of the petitioner can be faulted with as her actions were Page No.# 5/8

all in consonance with the prevailing norms and such promotions were given to many other beneficiaries without any complaints.

12. Further, another important point for consideration, as submitted by the learned Senior Counsel is that no action, whatsoever has been initiated against the 3(three) beneficiaries and if at all there was any truth in the allegation, their promotion should have been questioning which has not been done which indicates that such promotions do not suffer from any infirmity, meaning thereby that the action of the petitioner cannot be held to be misconduct from any angle.

13. Attention of this Court has also been drawn to a letter dated 22.04.2021 which has been annexed to the affidavit-in-reply. The said letter which has been issued by the Commissioner of Taxes, Assam in clear terms has stated that the allegations against the petitioner appears to be an issue of minor administrative lapse which is without any intention of causing any illegal action. It is also stated that many Subordinate Officers have made the same error in judgment. The said officer also puts on record that even on earlier occasions the same person, Shri P. Sharma have made complaint against the petitioner which indicates that the complaints are lodged only with a view to harass her and cause hurdles in her service career.

14. The learned Senior Counsel accordingly prays for interference by this Court by holding that the Disciplinary Proceeding is bad in law and should accordingly be set aside.

15. On the other hand, Shri B. Gogoi, the learned Standing Counsel, Finance (Taxation) Department submits that irrespective of the anonymous complaint, the petitioner having replied to the Show Cause Notice, the Department should be permitted to proceed with the same and depending on the outcome of the proceedings, the Department will decide regarding the question regarding issuance of the Integrity Certificate to the petitioner.

16. The Standing Counsel however candidly submits that there is no doubt regarding the applicability of the Office Memorandum dated 08.10.2018 of the Government of India to Page No.# 6/8

the State of Assam and in this regard, he has placed before this Court a written instructions dated 09.09.2021 which has been issued on a specific query raised by this Court on the last date of hearing regarding applicability of the said Office Memorandum in the State of Assam.

17. The learned State Counsel appearing for the other respondents endorses the submission of Shri Gogoi, the learned Standing Counsel.

18. In his reply, the learned Senior Counsel for the petitioner has also placed reliance on a Circular No. 12/09/20 dated 24.09.2020 issued by the Central Vigilance Commission, it appears that the said Circulation was issued in continuation with action on anonymous / pseudonymous complaints.

19. It has been stated that the Commission has observed instances wherein some Departments / Organizations are taking cognizance of anonymous complaints, despite strict guidelines issued by the DoPT's and the CVC and such non-compliance / violation of the guidelines has been viewed seriously.

Accordingly, it has been reiterated that all CVOs / Administrative Authorities should ensure strict compliance of the instructions holding the field.

20. I have considered the rival submissions of the learned counsel and the materials before this Court have been carefully examined.

21. It is an admitted fact that the impugned Disciplinary Proceeding initiated vide a Show Cause Notice dated 03.04.2021 is based on the anonymous complaint dated 20.01.2021. Though the Show Cause Notice does not specifically mention the anonymous complaint dated 20.01.2021, the allegations made therein are in connection with the promotions to the 3(three) beneficiaries which is the subject matter of the anonymous complaint lodged by one Shri P. Sharma and there is no manner of doubt that it is the anonymous complaint which is basis of the Show Cause Notice.

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22. At this juncture, the learned Senior Counsel has also drawn the attention of this Court to the affidavit-in-opposition, of the respondents filed in this case where in paragraphs 10 and 15, it has been admitted that the Show Cause Notice is indeed based on the anonymous complaint dated 20.01.2021 and this aspect is also not disputed by Shri Gogoi, the learned Standing Counsel.

23. The applicability of the Office Memorandum dated 08.10.2018 of the Government of India, Ministry of Personnel etc. in the State of Assam not being disputed and rather categorically admitted vide a written instruction dated 09.09.2021, there remains no other option than to come to a conclusion that the initiation of the Disciplinary Proceedings vide the Show Cause Notice dated 03.04.2021 is bad in law in view of the clear guidelines laid down in the Office Memorandum dated 08.10.2018. The mere fact that the petitioner has submitted a reply to the Show Cause Notice could not be a hurdle for this Court to interfere in the proceeding in view of the clear mandate laid down by the Office Memorandum of the Government of India. Further the CVC Circulation No. 12/09/20 fortifes the aforesaid position.

24. It appears that the Office Memorandum has been issued to prevent harassment which may be faced by competent and eligible officers in their service career and with this purpose the same have been issued and that purpose and object should not be allowed to be frustrated in a case of this present nature where the allegations, per se also appears to be mere error of the judgment, as has been held by the Commissioner of Taxation and Services in the Communication dated 22.04.2021.

25. In view of the above, this Court is of the opinion that the Disciplinary Proceeding initiated vide the Show Cause Notice dated 03.04.2021 is liable to be interfered with and the same is accordingly set aside.

26. Consequently, it is made clear that there would be no bar for issuance of the Integrity Certificate on the ground of pendency of the Disciplinary Proceeding.

27. The Writ Petition is accordingly disposed of.

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28. A copy of the letter dated 09.09.2021 along with the CVC Circulation No. 12/09/20 dated 24.09.2020 are made part of the records.

JUDGE

Comparing Assistant