2022 (5) TMI 374 - HC - Income Tax

Court sets aside Charge Memo against Income Tax Officer, emphasizing need for Finance Minister's approval.

P.D. Kanunjna Versus Central Board Of Direct Taxes

The Court set aside the Charge Memo issued by the Ministry of Finance against a Joint Commissioner of Income Tax, ruling that proper sanction from the ... Validity of order passed by the learned Central Administrative Tribunal, Principal Bench, New Delhi upholding the issuance of Charge Memo - issuance of Charge Memo to the Officers of Rank of Commissioner - petitioner submits that the order is erroneous in facts and in law because a fundamental error has been committed, in the issuance of the purported Charge Memo to the petitioner on 26.06.2018, apropos his duties as Deputy Commissioner of Income Tax, Central Circle 3, New Delhi - HELD THAT:- The rule governing issuance of Charge Memo to the Officers of Rank of Commissioner is spelt out in Office Order No. 205/2005 dated 19.07.2005, it states that “approval for issuing Charge Memo/sanction prosecution” lies with the Finance Minister. Apropos the authority to issue such Charge Memo, the respondent had so clarified through a RTI reply, that sanction was not granted by the Union Finance Minister. In the said reply, the respondent has admitted that Chairman, CBDT gave approval for initiating penalty proceedings against the petitioner. That being the position, the initiation of the proceedings against the petitioner is without due sanction, against the prescribed rules and would therefore be deemed as non est. The impugned order has noted that the Minister of State for Finance (MoSF) is not subordinate to the Union Minister of Finance. From Office Orders make it clear that where the Appointing and Disciplinary Authority is the President of India, only the Finance Minister would be the authority concerned before whom the matters concerning such officers would be placed. The petitioner is a Group- A officer in the rank of the Joint Commissioner, his Appointing and Disciplinary Authority is the President of India. Therefore, only the Finance Minister would have had the jurisdiction apropos issuance of any Charge Memo or other related proceedings against the said officer. A reference has been made in the impugned order to the dicta of Supreme Court in Union of India and Others vs. B.V. Gopinath [2013 (9) TMI 1219 - SUPREME COURT] However, the Government of India has itself clarified that the sole authority to issue Charge Memo or initiate any disciplinary proceedings against a Group – A Officer or an Officer whose appointing authority is the President of India, would lie with the Finance Minister. The issuance of the Charge Memo cannot be sustained and is accordingly, set aside as being without due sanction, against the rules and as non est. Issues:Challenge to order upholding Charge Memo issuance by Ministry of Finance without proper sanction.Analysis:The petitioner challenged an order upholding the issuance of a Charge Memo against him by the Ministry of Finance, Government of India. The petitioner argued that a fundamental error was made in the issuance of the Charge Memo as it referred to his previous designation as Deputy Commissioner, whereas at the time of issuance, he was a Joint Commissioner of Income Tax. The rule governing the issuance of Charge Memos to officers of the rank of Commissioner was cited, stating that approval for issuing Charge Memos lies with the Finance Minister. The respondent clarified through an RTI reply that no sanction was granted by the Union Finance Minister for the Charge Memo against the petitioner. The respondent admitted that the Chairman of CBDT approved penalty proceedings against the petitioner, which was deemed as non est since proper sanction was not obtained from the Finance Minister.The respondent presented an Office Order by the Ministry of Finance regarding the work allocated to the Minister of State in the Ministry of Finance. The order specified that matters concerning Group-A officers below the rank of Commissioner of Income Tax, including establishment and vigilance, would be disposed of at the level of the Minister of State. However, matters where the President of India is the Appointing and Disciplinary Authority should be submitted to the Finance Minister through the Minister of State. This clarified that for officers like the petitioner, whose Appointing and Disciplinary Authority is the President of India, only the Finance Minister would have jurisdiction over issuing Charge Memos or related proceedings.The Court noted that the petitioner, as a Group-A officer in the rank of Joint Commissioner, had the President of India as the Appointing and Disciplinary Authority. Therefore, only the Finance Minister had the authority to issue any Charge Memo or initiate disciplinary proceedings against the petitioner. The Court referenced a Supreme Court decision and the Government of India's clarification that the sole authority to initiate disciplinary proceedings against officers like the petitioner lies with the Finance Minister. Consequently, the Court set aside the Charge Memo as being without proper sanction, against the rules, and non est. The petition was allowed and disposed of accordingly.