Kerala High Court
S.Sarath vs Union Of India on 18 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 18TH DAY OF MARCH 2022 / 27TH PHALGUNA, 1943
OP (CAT) NO. 21 OF 2022
AGAINST THE ORDER IN OA 13/2022 OF CENTRAL ADMINISTRATIVE
TRIBUNAL, DATED 16.03.2022, ERNAKULAM BENCH
PETITIONER/APPLICANT:
S.SARATH,
AGED 50 YEARS,
S/O.SASIDHARAN PILLAI, TAX RECOVERY OFFICER, O/O. THE
PRINCIPAL COMMISSIONER OF INCOME TAX-1, C.R.BUILDING,
I.S PRESS ROAD, COCHIN-18 & CHARGED OFFICER, PRESENTLY
RESIDING AT HOUSE NO.307,PTP NAGAR, THIRUVANANTHAPURAM-
695 038
BY ADV B.G.HARINDRANATH
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY SECRETARY TO GOVERNMENT,MINISTRY OF
FINANCE, DEPARTMENT OF REVENUE, CENTRAL BOARD OF DIRECT
TAXES, NEW DELHI-110 001
2 THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX,
KERALA, 1ST FLOOR, CENTRAL REVENUE BUILDING, I.S PRESS
ROAD, KOCHI-682 018
3 THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX,
INQUIRY AUTHORITY, FIRST FLOOR, CENTRAL REVENUE
BUILDING, I.S PRESS ROAD, KOCHI-682 018
SRI.S.MANU, ASGI
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 18.03.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (CAT) NO. 21 OF 2022
-2-
ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
=========================
O.P.(C.A.T.) No. 21 of 2022
(Arising out of impugned order dated 16.03.2022 in
M.A.No.207/2022 in O.A. No.13 of 2022, of the CAT, Ekm)
=========================
Dated this the 18th day of March, 2022
JUDGMENT
ALEXANDER THOMAS,J
The interim order rendered on 16.03.2022 in M.A.No.207/2022 filed
in O.A.No.13/2022, is under challenge in this O.P, filed under Articles 226
and 227 of the Constitution of India. The petitioner in the O.P is the sole
applicant in the M.A./O.A before the Tribunal, and the respondents herein
are the respondents in the M.A and O.A. before the Tribunal.
2. Heard Sri.B.G.Harindranath, learned counsel appering for the
petitioner in the O.A/applicant in the O.P and Sri. S.Manu, learned ASGI
appearing for the respondents in the O.P./respondents in M.A and O.A.
3. The prayers in the instant Ext.P2 O.A No.13/2022, filed before the
CAT, Ernakulam Bench, are as follows:
"i. To call for the records pursuant to Annexure A1
Memorandum No.F.No.C-14011/46/2018-V dated
30.10.2018 and set aside the same.
OP (CAT) NO. 21 OF 2022
ii. Such other reliefs that the Hon'ble Tribunal feed deem
fit in the circumstances of the case.
iii. Award cost of the Application."
4. The interim prayer in the above said O.A. are as follows:
"Stay all proceedings in furtherance of Annexure A-1
No.F.No.C-14011/46/2018-V dated 30.10.2018."
5. The Tribunal after hearing both sides, rendered the impugned
Ext.P1 interim order dated 16.03.2022, in M.A.No.207/2022 in
O.A.No.13/2022, which reads as follows:
"Both sides present.
We have heard on the question of interim relief.
Counsel for the respondents submits that the stay cannot
be granted since it is premature at this stage to come to a
finding regarding the prejudice caused to the applicant.
Counsel for the applicant submits that the witnesses and
documents are same and it may cause prejudice to the
applicant.
In view of the above facts and considering the balance of
convenience, we hereby direct the Disciplinary Authority
not to pass any order on the Disciplinary Proceedings till
an order is passed by this Tribunal. However, the
Disciplinary Authority can continue with the enquiry.
Reply statement has not been filed. Hence
M.A.No.208/2022 for early hearing is closed.
M.A.No.207/2022 to accept additional documents is
allowed.
Post the matter for completion of pleadings to
07.06.2022."
OP (CAT) NO. 21 OF 2022
6. The petitioner herein, for convenience, is referred to as original
applicant/applicant. The applicant is essentially aggrieved by the
impugned Ext.P1 interim order to the extent the Tribunal had refused to
grant interim stay of the disciplinary enquiry proceedings initiated against
him in pursuance with memo of charges dated 30.10.2018, issued by the 1 st
respondent. Though the Tribunal has refused to grant interim stay of the
disciplinary enquiry proceedings, but has also ordered that the disciplinary
authorities shall not pass any orders in the disciplinary proceedings till the
final order is passed by the Tribunal in the present O.A, and that the
disciplinary authorities can continue the enquiry in the meanwhile.
7. The main contention raised by the learned counsel for the
petitioner herein is that, certain vital documents have not been made
available to the petitioner till day and further that, on the same set of
charges as in the impugned Annexure A1 memo of charges dated
30.10.2018 issued by the departmental authorities, criminal proceedings is
also pending at the instance of the investigation by the Central Bureau of
Investigation, whereby, after taking cognizance based on the final
report/charge sheet filed by the CBI investigating agency, the Special
OP (CAT) NO. 21 OF 2022
Court has framed the charges and the case is pending for completion of
pre-trial steps. Further that, the criminal trial has not started yet and the
undue hurry shown by the respondents to complete the disciplinary
enquiry well ahead of the commencement of the criminal trial proceedings
and that the petitioner herein is also an accused in the said criminal
proceedings, will be constrained to disclose the defense in the matter,
which will be known to the prosecution agency and which will thus
detrimentally affect his right of defense in the criminal proceedings now
pending before the criminal court. Hence it is argued that, going by the
well settled legal principles in regard, the disciplinary enquiry could be
deferred for the time being and can be recommenced, after evidence in the
criminal trial is over so that the petitioner who is also an accused will not
be prejudiced in the criminal proceedings and at the same time, the rights
and interest of both sides will be adequately protected. In that regard,
petitioner would place reliance on various decisions of the Apex Court,
which has laid down legal principles when dealt with cases of
simultaneous conduct of criminal proceedings as well as disciplinary
proceedings on the similar set of charges. In Capt. M Paul Antony vs.
Bharat Gold Mines Ltd [1993 (3) SCC 679], the Apex Court after
OP (CAT) NO. 21 OF 2022
analyzing various pleas on the subject, has laid down the following broad
principles, which reads as follows:
"(i) Departmental proceedings and proceedings in a
criminal case can proceed simultaneously as there is no
bar in their being conducted simultaneously, though
separately.
(ii) If the departmental proceedings and the criminal
case are based on identical and similar set of facts and
the charge in the criminal case against the delinquent
employee is of a grave nature which involves complicated
questions of law and fact, it would be desirable to stay
the departmental proceedings till the conclusion of the
criminal case.
(iii) Whether the nature of a charge in a criminal case is
grave and whether complicated questions of fact and law
are involved in that case, will depend upon the nature of
offence, the nature of the case launched against the
employee on the basis of evidence and material collected
against him during investigation or as reflected in the
charge sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot
be considered in isolation to stay the Departmental
proceedings but due regard has to be given to the fact
that the departmental proceedings cannot be unduly
delayed.
(v) If the criminal case does not proceed or its disposal
is being unduly delayed, the departmental proceedings,
even if they were stayed on account of the pendency of
the criminal case, can be resumed and proceeded with
so as to conclude them at an early date, so that if the
employee is found not guilty his honour may be
vindicated and in case he is found guilty, administration
may get rid of him at the earliest."
8. The learned counsel for the petitioner has also placed reliance on
OP (CAT) NO. 21 OF 2022
various other decisions of the Apex Court including that rendered in the
case in State Bank of India and Others vs. Neelam Nag and and
another 2016 (9) SCC 491, in which paragraph No.27 reads as follows:
"Accordingly, we exercise discretion in favour of
Respondent 1 of staying the ongoing disciplinary
proceedings until the closure of recording of evidence of
prosecution witnesses cited in the criminal trial, as
directed by the Division Bench of the High Court and do
not consider it fit to vacate that arrangement
straightaway. Instead, in our opinion, interests of
justice would be sufficiently served by directing the
criminal case pending against Respondent 1 to be
decided expeditiously but not later than one year from
the date of this order. The trial court shall take effective
steps to ensure that the witnesses are served, appear and
are examined on day-to-day basis. In case any
adjournment becomes inevitable, it should not be for
more than a fortnight, when necessary."
9. As pointed out above, it is also urged by the learned counsel for
the petitioner that various vital and relevant documents which are relied
on by the disciplinary authority in the enquiry proceedings has been
withheld and not given to the petitioner. In that regard, the petitioner
would place reliance on the judgment of the Apex Court in T.Takano vs.
Securities and Exchange Board of India and Another 2022 SCC
OnLine SC 210, in which paragraph No.62 reads a follows:
"62. The conclusions are summarised below:
OP (CAT) NO. 21 OF 2022
(i) The appellant has a right to disclosure of the
material relevant to the proceedings initiated against
him. A deviation from the general rule of disclosure of
relevant information was made in Natwar Singh (supra)
based on the stage of the proceedings. It is sufficient to
disclose the materials relied on if it is for the purpose of
issuing a show cause notice for deciding whether to
initiate an inquiry. However, all information that is
relevant to the proceedings must be disclosed in
adjudication proceedings;
(ii) The Board under Regulation 10 considers the
investigation report submitted by the Investigating
Authority under Regulation 9, and if it is satisfied with
the allegations, it could issue punitive measures under
Regulations 11 and 12. Therefore, the investigation
report is not merely an internal document. In any
event, the language of Regulation 10 makes it clear that
the Board forms an opinion regarding the violation of
Regulations after considering the investigation report
prepared under Regulation 9;
(iii) The disclosure of material serves a three-fold
purpose of decreasing the error in the verdict,
protecting the fairness of the proceedings, and
enhancing the transparency of the investigatory bodies
and judicial institutions;
(iv) A focus on the institutional impact of suppression
of material prioritises the process as opposed to the
outcome. The direction of the Constitution Bench of
this Court in Karunakar (supra) that the non-disclosure
of relevant information would render the order of
punishment void only if the aggrieved person is able to
prove that prejudice has been caused to him due to non-
disclosure is founded both on the outcome and the
process;
(v) The right to disclosure is not absolute. The
disclosure of information may affect other third-party
interests and the stability and orderly functioning of the
securities market. The respondent should prima facie
establish that the disclosure of the report would affect
OP (CAT) NO. 21 OF 2022
third-party rights and the stability and orderly
functioning of the securities market. The onus then
shifts to the appellant to prove that the information is
necessary to defend his case appropriately; and
(vi) Where some portions of the enquiry report involve
information on third-parties or confidential
information on the securities market, the respondent
cannot for that reason assert a privilege against
disclosing any part of the report. The respondents can
withhold disclosure of those sections of the report
which deal with third-party personal information and
strategic information bearing upon the stable and
orderly functioning of the securities market."
10. The prayers in the O.A. is strongly opposed by the learned Asst.
SGI appearing for the respondents. After hearing both sides, we note that
though a copy of the final report/charge sheet filed by the investigating
agency in the criminal proceedings in question have been produced in the
O.A. as Annexure A5, the charges framed by the Special CBI Court
pursuant to the said final report, has not been produced as annexure or
document either in the O.A or in the O.P. We say so because it is brought
to our notice by the petitioner that, on the basis of Annexure A6, which is
the copy of the proceedings before the criminal court as on 22.02.2022,
the criminal case concerned (C.C. No.4/2018) on the file of the court of the
Special Judge (CBI), Thiruvananthapuram constituted under the
provisions of the Prevention of Corruption Act, would show that the case is
OP (CAT) NO. 21 OF 2022
posted for pre-trial steps and thereby it implies that, pursuant to the final
report/charge sheet filed by the CBI investigating agency, the criminal
court has not only taken cognizance of the offences concerned, but has also
framed the charges, and so the case is pending trial. Without going
through the charges framed by the criminal court and comparing with the
allegations in Annexure A1 memo of charges, we will not be in a position to
assess as to whether the allegations in both the criminal proceedings and
the departmental proceedings are on the same set of charges or
substantially similar charges. Hence, the Tribunal cannot be blamed for
not being in a position to apprise those aspects and without such appraisal
and appreciation, it would not be proper for this Court to venture into the
area of enquiry by applying the well settled legal principles in the matter,
to the factual aspects of the case. However, the Tribunal has guarded the
rights and interest of the petitioner by making it clear that the disciplinary
authorities shall not pass final orders in the disciplinary proceedings, but
the disciplinary enquiry may go on in the meanwhile. Petitioner may
produce copy of the charges framed by the criminal court without any
further delay, before the Tribunal. The Tribunal will apprise the factual
scenario and may examine as to whether the allegations in the criminal
OP (CAT) NO. 21 OF 2022
proceedings as well as in the departmental proceedings are on the same
set of allegations or substantially similar set of allegations and as to how
much prejudice would be caused to the applicant by permitting the
disciplinary proceedings to be finalized, before the commencement or even
finalization of criminal trial. However, we make it clear that, merely
because the disciplinary enquiry may go on in the meanwhile, that by itself
will not in any manner disentitle the Tribunal to independently adjudicate
on the merits of the contentions of the petitioner, as to whether the
commencement of the disciplinary proceedings at this stage, would
seriously prejudice him and as to the applicability of the dictum laid down
by the Apex Court and various High Courts on matters of this nature. In
other words, if the enquiry authorities proceed with the disciplinary
enquiry now, then they may do so, but that by itself will not entitle them to
content later before the Tribunal that the disciplinary enquiry has already
been conducted and therefore, the matter has become "fait accompli".
Therefore, it is for the disciplinary authority to apply their mind to the
facts of this case and take a conscious and fair decision as to what would
eminently lie within their own interests. All what we would say now is that
the disciplinary authority may contemplate seriously as to what is on their
OP (CAT) NO. 21 OF 2022
own best interest and as to whether it is appropriate to defer the enquiry
proceedings now till the final verdict in the matter is rendered by the
Tribunal. We say so because we are sure that the respondents herein who
are top functionaries of Union Government as well as the Income Tax
Department, will contemplate and apply their mind and take an
appropriate call on the said aspects and if so required by them, after
obtaining any legal advise in the matter. These are all matters now at the
interlocutory stage which would also fall eminently within the province of
the respondents to contemplate and decide as to what lies best in their
own interest, taking note of the fact that the Tribunal will be rendering the
final verdict in the matter within a very short time.
11. The petitioner may submit any additional pleadings in the matter
including copy of the charges framed by the criminal court and any other
documents and may also make necessary submissions in any addition
pleadings as to the nature of the allegations raised in the criminal
proceedings as well as in the disciplinary proceedings and as to how
exactly he is prejudiced in the matter and also as to the applicability of the
well settled legal principles of the Apex Court in the facts and
circumstances of the case. The respondents may also file their response
OP (CAT) NO. 21 OF 2022
pleadings thereto without any further delay. From the pleadings in the
impugned Ext.P2 order it is seen that the Tribunal has already fixed the
final hearing of the matter on 07.06.2022. The respondents shall not be
permitted to make any request for adjournment. If the respondents make
any attempt to unduly prolong the matter, then the Tribunal may seriously
consider the grant of appropriate interim relief at that stage. The Tribunal
will make all endeavors to ensure early consideration and final disposal of
the main matter in the O.A No.207/2022, without any further delay, and if
there are no impediments, the Tribunal to the extent possible, may ensure
that the final hearing is conducted on 07.06.2022 itself and the final
verdict in the matter be rendered immediately thereafter.
12. As regards the supply of vital documents, the learned counsel for
the petitioner had alerted us on the previous occasion by taking our
attention to the contents of Annexure A7(1), more particularly, paragraph
No.3 thereon, given on page No.157 of the paper book, which reads as
follows:
"The CO (Charged Officer) submitted that, with
reference to the list of documents by which the articles
of charges are framed, certain documents provided are
only photocopies of certified documents. The PO
(Presenting Officer) is directed to provide the copies of
OP (CAT) NO. 21 OF 2022
entire set of documents originally certified, to the CO
on or before 14.03.2022."
13. The above said directions appears to have been given by the
enquiry officer to the Presenting Officer on 09.03.2022. Hence, when this
matter came up for consideration before us on the previous day on
17.03.2022, we had issued an order that the competent authority to the
respondents will furnish instructions as to whether the directions issued in
the above said paragraph No.3 of Annexure A7(1), whereby, the PO has
been directed to give the requisite certified copies of the documents to the
delinquent on or before 14.03.2022, has been complied with, and if not, to
ensure that the said directions are complied with immediately. Learned
Asst. SGI appearing for the respondents would point out that, now the
authorized Central Government Counsel at Thiruvananthapuram, where
the CBI Special Court is situated, has been instructed to apply for and
secure certified copies of the requisite documents from the said criminal
court, and after obtaining the certified copies, the same would be
immediately made available to the petitioner herein. The said undertaking
made on behalf of the enquiry officer and the PO is hereby recorded.
Consequentially, it is also directed that both the Presenting Officer and the
OP (CAT) NO. 21 OF 2022
Enquiry Officer shall meticulously comply with the said undertaking to
ensure that the requisite certified copies are secured without any further
delay and the same is made available to the petitioner and its receipt may
also be obtained in that regard.
14. The learned counsel for the petitioner has also invited our
attention to the contents of Annexure A7(5) letter dated 21.02.2022,
issued by the 3rd respondent enquiry officer addressed to the petitioner,
wherein, he was given time to submit his statement or defense on or before
15.02.2022. It is pointed out that, since the petitioner was not provided
with certified documents which are withheld by the other side, he was not
in a position to furnish the statement of defense within the time limit. The
petitioner has reiterated that the withholding of the documents by the
respondents to him, has disabled him to furnish the statement of defense
as can be seen from Annexure A7 (6) letter dated 11.02.2022, sent by him
to the 3rd respondent enquiry officer in reply to Annexue A7(7) letter dated
22.01.2022, issued to the petitioner by the 3rd respondent enquiry officer.
We need not get into those areas except to say that the enquiry officer may
consider granting reasonable time to the petitioner to furnish his
statement of defense after securing necessary documents. These are all
OP (CAT) NO. 21 OF 2022
matters essentially within the domain of the disciplinary authority and the
enquiry officer and they may also bear in mind that it may be better in
their own long term interest that such documents if relevant and relied on
by them against the delinquent should be given to the delinquent and
otherwise the delinquent can later raise contentions of denial of
reasonable opportunity guaranteed to him in terms of Article 311(2) of the
Constitution of India. We hope and trust that such issues would be
resolved by the disciplinary authority and the enquiry authority so that
the rights and interests of both sides are resolved satisfactorily. No other
orders and directions are called for.
With these observations and directions, the above O.P (CAT) would
stand disposed of.
Sd/-
ALEXANDER THOMAS
JUDGE
Sd/-
VIJU ABRAHAM
JUDGE
uu/21.03.2022
OP (CAT) NO. 21 OF 2022
APPENDIX OF OP (CAT) 21/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER IN MA
NO.180/207/2022 IN OA NO.180/0013/2022
DATED 16.03.2022
Exhibit P2 TRUE COPY OF THE ORIGINAL APPLICATION
NO.180/0013/2022 ALONG WITH ANNEXURES
ANNEXURE-A1 A COPY OF THE MEMORANDUM
NO.F.NO.14011/46/2018-V DATED 30.10.2018
ISSUED TO THE APPLICANT BY THE 1ST
RESPONDENT, WITH COPY OF THE ARTICLES OF
CHARGE FRAMED AGAINST THE APPLICANT AND
COPY OF THE STATEMENT OF HT IMPUTATION OF
MISCONDUCT OR MISBEHAVIOR IN SUPPORT OF THE
ARTICLES OF CHARGE
ANNEXURE-A2 A COPY OF THE REPRESENTATION SUBMITTED BY
THE APPLICANT ON 02.03.2021
ANNEXURE-3 DAILY ORDER-SHEET OF THE INQUIRY OFFICER
DATED 02.03.2021
ANNEXURE-4 A COPY OF THE CIRCULAR F NO.C-14010/3/2011-
ADV DATED 24TH FEBRUARY 2011
Exhibit P3 TRUE COPY OF THE REPLY STATEMENT FILED BY
THE RESPONDENTS
Exhibit P4 TRUE COPY OF THE MISCELLANEOUS APPLICATION
ALONG WITH ANNEXURES
ANNEXURE-A5 THE TRUE COPY OF THE FINAL REPORT FILED BY
THE POLICE IN FIR NO.RC
17(A0/2015/CBI/ACB/KOCHI DATED 14.10.2015
ANNEXURE-A6 A TRUE COPY OF THE PROCEEDINGS SHEET IN CC
NO.4/2018 ON THE FILE OF COURT OF SPECIAL
JUDGE FOR CBI CASES,
THIRUVANANTHAPURAM ,DATED 22.02.2022
ANNEXURE-A7 A TRUE COPY OF THE ORDER DATED 9.3.2022
ANNEXURE-A8 A TRUE COPY OF THE LIST OF WITNESSES
FURNISHED BY THE DISCIPLINARY AUTHORITY
