TaxTMI 
TaxTMI 
2009 (3) TMI 909
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.... 2. Thus, though the subject matter is different, first writ petition preferred by Shri Lahiri has bearing on the second petition. There is some commonality of facts as well. In fact, promotion case is sequel to the departmental action. Because of this reason, though the two petitions were heard and reserved for judgment on different dates, albeit within a span of one week, we propose to pass one common judgment in order to avoid repletion of lengthy facts. However, in this common judgment, the two petitions are being considered separately. We first take up the case of departmental enquiry. 3. WP (C) No. 13640/2006 The petitioner joined the services in the Income-Tax department as an Income Tax Officer (ITO) in the year 1972. He got promotions from time to time and rose to the position of Commissioner of Income Tax (Appeals), to which post he was promoted on 31.1.1994. While discharging his duties as CIT (Appeals), he was hearing appeals from the orders of the assessing authorities, obviously a quasi-judicial function. At the relevant period with which we are concerned, he was functioning as CIT (Appeals) (Central-IV), Mumbai. In respect of certain appeals decided by hi....
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....thereagainst, if any. He submitted his representation dated 28.10.1999 taking various pleas, thereby questioning the findings arrived at by the Inquiry officer. The disciplinary authority, however, accepted the findings of the Inquiry Officer. Matter was referred to the Central Vigilance Commission (CVC) for second stage advice. The CVC sent its advice on 10.7.2001, as per which imposition of major penalty was opined. Decision was taken by the disciplinary authority to impose a major penalty subject to the advice of the Union Public Service Commission (UPSC). After receiving that advice dated 13.8.2004 from the UPSC, the disciplinary authority passed orders dated 7.10.2004 holding the petitioner guilty of misconduct and imposed the penalty of reduction by three stages in the time-scale of pay for a period of three years upon the petitioner, with further direction that he would not earn increments during this period and that will also have the effect of postponing his future increments of pay. 5. The petitioner challenged the aforesaid penalty order by approaching the Tribunal in the form of an application under Section 19 of the Administrative Tribunal Act, which was registered ....
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....titioner had ignored. Furthermore, even the UPSC had accepted that the petitioner had power to grant stay; there was no evidence to prove that the petitioner had granted stay for some consideration and only doubt was expressed about the intentions of the petitioner in passing the orders, as is clear from para 7.3 of the UPSC advice. 9. His submission was that on the basis of such apprehension alone, it could not be stated that the charge is proved. He also made detailed submissions justifying the circumstances in which the petitioner had to pass order staying the recovery of demand. In this behalf, his submission was that proper explanation was given by the petitioner in defending the said charge which was not even taken due note of by the disciplinary authority. 10. As per the allegations of the department, the petitioner had granted stay against coercive recovery proceedings by means of attachment of overdraft bank account resorted to by the Income Tax Officer in favour of M/s. GTC Industries on 12.9.1994, the same day when the application was moved by the assessee. It was also alleged that when the jurisdiction in the case being transferred to some other CIT (A) has been m....
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....disposed. 11. His explanation was that the stay was granted by the petitioner looking to the fact that the ITO had issued attachment of overdraft Bank account of assessee which resulted in total closure of business operation of the company dealing in perishable goods viz. cigarettes in utter violation of the principles of natural justice, guidelines and circulars issued by the Board as also the Ld. ITAT order and Bombay High Court order on the aspect. The Board Circular vests such a discretion in the petitioner to stay demand pending disposal of the Regular Appeal in appropriate cases and so any allegation to the contrary is misplaced, fallacious and incorrect. 12. In nutshell, submission of the petitioner in respect of this charge was that the petitioner did not act beyond his powers and dealt with the application for stay as he was empowered to decide the same. Further, while granting the stay, he kept in mind the relevant factors and the law on the point. Furthermore, even when he granted the stay on 12.9.1994, at the same time he also assured that the appeals are decided within time bound period and, therefore, fixed the final hearings from 15.9.1994 and decided the appea....
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....ay granted by Applicant vide order dated 12.09.1994 had been kept pending till 18.10.1994 when notice to the assessee for filing its response was fixed for 24.10.1994 is also not tenable. The petitioner while granting stay in favour of M/s. GTC Industries had directed day to day hearing of the appeal and the stay was to operate till 30.10.1994 (for 6 weeks) and he had made sure by that time the main appeal would be disposed of by him. Consequently, alleging contrary intentions by the respondents is highly untenable and unsustainable in the eyes of law. Further since the main appeal was disposed of on 20.10.1994, misc. application cannot be assumed to have been pending even after the disposal of the main appeal. The petitioner has stated that the contentions of issuance of the Circular on 18.10.1994 cannot be meant to be in the knowledge on 18.10.1994 or even prior to that time. The petitioner also refuted the contentions of the departmet that by passing the orders in the Appeals pertaining to M/s. GTC Industries the Applicant had caused loss to revenue. It is the settled position of law under the provisions of Section 220 of the Income Tax Act that the demand till it is confirme....
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....t of paper. Noticing in his appellate order the petitioner concluded in appellant‟s case before him that most of the sales were on credit for which the AO had vouched that the sale bill do not contain names and addresses of the parties to whom the sales had been made. Therefore, the additions made without confirming the transactions with the parties were also unwarranted. Similarly, in the case of M/s. Hindustan Transmission, the petitioner stated that in his appellate order he had stated the fact that the AO ought to have verified the contracts, statements, affidavits filed by the parties and Sh. Bothra. It was not open to the AO to simply brush them aside by saying that they were self serving and the AO should have pointed out fallacies and inconsistencies with facts. The petitioner further pointed out that the AO had not at all dealt with the explanation filed by the company vide their letters dt. 25.1.94 and 11.3.94. The petitioner found that there was no evidence to suggest that the company had allowed discount to the extent of 13.44% and the entire evidence relied upon by the AO related to the subsequent AY 1992-93. 17. On the basis of the aforesaid submissions, the ....
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....nce this was followed mechanically by the disciplinary authority, the order of the disciplinary authority stood vitiated because of this reason. (e) Stand of the petitioner was vindicated in view of the judgment dated 9.12.2005 passed by the CESTAT, Principal Bench, New Delhi in the case of GTC Industries v. Collector of Central Excise, Delhi , 2006 198 ELT 121. In that case, the demand raised by the excise authorities on similar/identical allegation of generation on premium on sale of cigarettes, flow back of money received by M/s. GTC Industries from the retailers/ whole-sale dealers/buyers and charging process over and above the printed price on the packets of cigarettes, which was also the basis of assessments in the case pending before the petitioner in the appeals for the same assessment years, had been negatived and the demand raised on such bases was quashed by the CESTAT. 18. Mr. Gangwani, learned counsel for the respondent, on the other hand submitted that the scope of judicial review in such cases was very limited. Though no direct evidence of oblique motives was available, from the attendant circumstances, which were quite apparent and would constitute "material", th....
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..... He further submitted that the disciplinary proceedings in the present case were lengthy and time consuming and it is not unusual for delay to take place in following the due procedure as laid down in the rules in the interest of natural justice and also to provide sufficient opportunity for defence. After a preliminary show cause was issued, the response to it has to be well considered before taking CVC advice in initiating disciplinary action, after which a charge sheet is to be prepared with care and issued. The reply received from the petitioner was processed to decide whether the enquiry is to be held and only then the IO and presenting officer were appointed. Later when the enquiry report was received it was required to be examined and CVC approached for second stage advice in the matter. A copy of the enquiry report was served along with CVC advice and the representation received analyzed. Once again the matter had to be referred to the UPSC for advice before final orders were passed imposing the penalty. Even the final orders to be passed by the disciplinary authority require intense application of mind and have to be detailed speaking order. In view of the above process, ....
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....on in exercise of quasi-judicial function is not immune from disciplinary proceedings. However, it is only the conduct of the officer in discharge of his duties and not correctness or legality of his decision which could be subject to disciplinary action. Various nuances explaining this legal principle can be found in the judgment of the Supreme Court in the case of Union of India & Ors v. K.K. Dhawan, 1993 (2) SCC 56, which has become a classic on this subject. The Supreme Court in that case held that when an officer in exercise of judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person, he is not acting as a Judge. There is a great reason and justice for holding in such cases that the disciplinary action could be taken. It is one of the cardinal principles of administration of justice that it must be free from bias of any kind. The observation of the Supreme Court in V.D. Trivedi v. Union of India, (1993) 2 SCC 55 that that "the action taken by the appellant was quasi-judicial and should not have formed the basis of disciplinary action" was made to buttress the ultimate conclusion that the charge framed against the delinquen....
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....d by the Inquiry Officer or, for that matter, the disciplinary authority. In K.K. Dhawan (supra), article of charge against the respondent ITO mentioned that nine assessments against various assessees were completed: (i) in an irregular manner, (ii) in undue haste, and (iii) apparently with a view to confer undue favour upon the assessees concerned. In case of the nine cases of the assessees the details relating to misconduct or misbehaviour were furnished. Therefore, it was charged that the respondent had violated the provisions of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of the Central Civil of 55 Services (Conduct) Rules, 1964. What is of relevance is not 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 reversion under the Act. But the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. 28. Some other judgments which may be useful for us while discussing the respective arguments in the present case may also be noted at this stage. 29. Ramesh Ch....
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....l for more than one year was granted bail for cogent reasons, set out in the order passed by the appellant. In the bail order, the appellant stated that there was an allegation that the Magistrate who recorded the dying declaration was once upon a time a tenant in one of the houses owned by the complainant. Taking cognizance of this fact by the appellant in the order could not be said to be a totally unwarranted and a superfluous reasoning." 30. The Apex Court was also of the view that solely on the basis of the complaint, decision to initiate disciplinary proceedings should not have been taken by the High Court. It counseled that there should be strong grounds to suspect the officer‟s bona fides and that the order passed by a judicial officer is actuated by malice, bias or illegality. This action can be found in the following passage from the said judgment :- "11. We fail to understand as to how the High Court arrived at a decision to initiate disciplinary proceedings solely based on the complaint, the contents of which were not believed to be true by the High Court. If the High Court were to initiate disciplinary proceedings based on a judicial order, there should hav....
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....his process, it is held as under :- "(a) A wrong interpretation of law cannot be a ground for misconduct. It is a different matter altogether if it is deliberate and actuated by mala fides. Negligence in quasi-judicial adjudication is not carelessness, inadvertence or omission but a culpable negligence. (b) When penalty is not levied, the assessee certainly benefits but it cannot be said that by not levying penalty, the officer has favoured assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. Records in the present case do not show that the disciplinary authority had any information within its possession from where it could form an opinion that the appellant showed "favour" to the assessee by not imposing penalty. He may have exercised his jurisdiction wrongly but that wrong can be corrected in appeal. That cannot always form a basis for initiating disciplinary proceedings against an officer while he is acting as a quasi-judicial authority. It must be kept in mind that being a quasi-judicial authority, he is always subject to judicial supervision in appeal. (c) Initiation of disciplinary ....
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....e therefore does not correctly represent the law. Inasmuch as the impugned orders of the Tribunal and the High Court were passed on the law enunciated in Nagarkar case this appeal must be allowed. The impugned decisions are accordingly set aside and the order of punishment upheld. There will be no order as to costs." 33. However, interestingly in two subsequent judgments, there is a note of approval put by the Apex Court to the Nagarkar‟s case. These are:- (i) Ramesh Chander Singh v. High Court of Allahabad & Anr. (2007) 4 SCC 247 "12. This Court on several occasions has disapproved the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgments/orders passed by them are wrong. The appellate and revisional courts have been established and given powers to set aside such orders. The higher courts after hearing the appeal may modify or set aside erroneous judgments of the lower courts. While taking disciplinary action based on judicial orders, High Court must take extra care and caution. xx xx xx 17. In Zunjarrao Bhikaji Nagarkar v. Union of India (1999) 7 SCC 409, this Court held that wrong exercis....
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.... the penalty imposed upon the respondent therein who was charge sheeted in the course of discharge of his quasi-judicial duties. In that case the concerned officer took up the stand that as an Assessing Officer under the Central Excise Act, he was discharging a quasi-judicial function and that he had passed orders only after considering the relevant aspects of the case and also after referring to the binding precedents in that regard. He also stated that when that order came to be reversed by the appellate authority or by any other higher authority, no disciplinary action can be taken only on the ground of wrong interpretation of law. Even the appellate authority did not find that there was any mala fide intention on the part of the first respondent and, therefore, there was no negligence on his part. He had also relied upon the judgment of the Supreme Court in the case of Nagarkar (supra) to contend that the Government has no right to initiate disciplinary action on an information which is vague and indefinite and that suspension has no role to play in such matter. It was also contended that wrong interpretation of law cannot be a ground for misconduct. In the absence of any delib....
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.... merely because the orders passed by them were wrong." Applying the aforesaid test in the case at hand, the Madras High Court affirmed the view of the Tribunal in the following manner :- "16. If all these tests are cumulatively applied, the Tribunal in the present case had correctly found that there was no mala fide motive on the part of the first respondent in passing the order and that a Government servant cannot be punished for a wrong interpretation of law. In the light of the above discussion, we feel that the CAT has correctly understood the scope of judicial review and has set aside the order of recovery passed against the petitioner." 36. We are in agreement with the aforesaid view of the Madras High Court which has, in our respectful submission, correctly culled out the principle on the basis of all the aforesaid judgments in para 15 above. 37. With this, we proceed to discuss the present case in the light of the aforesaid principle. 38. ANALYSIS Re.: Article of Charge No.1 Reading of this charge would demonstrate that in the matter of grant of stay of demand to M/s. GTC Industries Ltd., allegation against the petitioner was that: (i) he entertained an....
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....manner, it was concluded that the same creates "a serious doubt regarding his intentions in passing such an order". 39. No doubt, the petitioner passed the stay order in the application on the same day. He had, however, explained the urgency which was involved which, according to his wisdom, necessitated grant of stay, as according to him otherwise the functioning of the assessee would have come to a standstill. He had justified the order on the ground that the Income Tax Officer had initiated coercive proceedings against the assessee and attachment orders of the overdraft bank account were passed by him in contravention and violation of Board‟s circular. He had also kept in mind the orders passed by the Bombay High Court in CWP No. 1805/94 and 707/95. He, therefore, decided the application with bona fide intentions in discharge of his judicial duties. While granting stay of 12.9.1994, which was to remain operative till 30.10.1994, at the same time he also assured that the appeals are decided within time bound period and, therefore, fixed the judicial hearings from 15.9.1994 and ultimately decided these appeals before the deadline, i.e. on 20.10.1994. The petitioner, thus,....
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....ain assessees. Four assessees are specifically mentioned. At the outset, we may point out that instead of limiting the discussion to the appeals of the said four assessees, the authorities are influenced by the fact that out of total 85 appeals disposed of by the petitioner from June 1994 to October 1994, the department filed appeals in as many as 55 cases. Further fact noticed is that out of 15 appeals decided in the month of October 1994, 12 appeals have been decided during the short period from 17 to 21st October 1994. This is clear from the following comments contained in the report of the UPSC :- "7.1 The Commission note that the IO has held that both the Articles of charge are provide and the DA has agreed with him. The disciplinary proceedings against the CO were initiated on the basis of a comprehensive vigilance inspection of the work of the CO carried out by the Vigilance Wing of Central Board of Direct Taxes. According to the vigilance report, the CO was appointed as CIT(A), Central-IV, Mumbai on 28.4.1994. The jurisdiction of the CIT (A) Central-IV, Mumbai underwent change by virtue of order dated 18.10.94 of DGIT (Inv.), Mumbai. This order was effective from 24.10.9....
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....her as per his wisdom. Even if the orders are wrong in law, that would not become matter of misconduct. However, charge is that appeals were decided "by passing perverse and mala fide orders" inasmuch as material evidence on record was ignored and opportunity was not given to the Assessing Officer. 43. Insofar as the appeal of M/s. GTC Industries is concerned, the disciplinary authority found that no sufficient opportunity was given to the assessing authority to collect evidence as directed by the petitioner. The petitioner had fixed the appeal of M/s. GTC Industries for final hearing from 15.9.1994. On that date, he had requested the Assessing Officer to make available the correspondence that he had entered into with the various persons in the course of his inquiry to the assessee so as to enable the assessee to present his defence. The Assessing Officer was also directed to record the cross- examination of various parties as early as possible. The petitioner had also requested the Assessing Officer to forward transcripts of the cross-examination with one copy endorsed to the assessee as the case had to be decided before 31.10.1994. The Assessing Officer in his letter dated 19.....
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.... Nagarkar‟s case (supra), it cannot constitute a misconduct. 46. Upshot of the aforesaid discussion would be as under :- (a) Charge No.1, as levelled, cannot be said to be proved. As per the view taken by the disciplinary authority, the same is based on circumstances creating suspicion. It is accepted by the disciplinary authority that there is no direct evidence of mala fide intention. On the basis of alleged circumstances also, the disciplinary authority has pointed that it raises "strong suspicion regarding his intentions". We do not find any such circumstances which could establish his bad intentions. Even if we presume from the alleged circumstances that the petitioner acted recklessly, that is not the charge which is levelled. Moreover, had the matter been viewed from this angle, the disciplinary authority may not have taken such a serious view and imposed the impugned penalty, which is a major penalty. (b) Charge No.II, if at all, can be said to be proved qua M/s. GTC Industries Ltd. only and that also cannot be said to be of such a serious nature, having regard to our discussion above. In respect of other appeals decided by the petitioner, there is no evidence to s....
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.... an application under Section 19 of the Administrative Tribunals Act. This application has been allowed by the Tribunal vide its judgment dated 20.10.2008 directing that he be given promotion with effect from the date when the punishment period got over. The Department was directed to do the needful within three months of receipt of the certified copy of the order. However, the petitioners perceived the said direction has not legally valid and, therefore, feeling aggrieved by that, present writ petition is filed. 50. As noted above, the respondent herein was appointed as Income Tax Officer (ITO) on the basis of Civil Services Examination in the year 1972. He got promotions from time to time and raised to the rank of Commissioner of Income Tax. During the period 1995-97, he acted as Commissioner of Income Tax (Appeals), Mumbai. At that time, memorandum of charge dated 21/24.11.95 was issued against him by the petitioners herein, followed by charge memo dated 28.2.1997 under Rule 14 of the CCS (CCA) Rules, 1965 for major penalty proceedings. A departmental inquiry was held, which culminated in the report dated 29.4.1999 submitted by the Inquiry Officer holding the charges as prove....
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.... 2007. This time, however, the respondent was declared „unfit‟ for promotion. 53. The penalty order passed against the respondent herein has already been set aside by us in WP (C) No. 13640/2006. This penalty was the only reason, even as per the petitioners herein, to deny the promotion to the respondent to the post of Chief Commissioner of Income Tax. Even if fresh penalty order is passed, that would be much lesser. Further, the charge which remains is miniscule of the charges originally levelled against the petitioner. Had this position been before the Appointing Authority, the respondent would have been promoted. Interestingly, even when this penalty was taken into consideration, the respondent was recommended for promotion. Therefore, this writ petition warrants to be dismissed on this ground alone. However, notwithstanding the above, we still proceed to examine the judgment of the Tribunal on the presumption that penalty was rightly imposed. 54. The submission of learned counsel for the petitioner was that the exercise undertaken by the DPC on 25.11.2005 and finding the respondent fit for promotion is only recommendatory in nature. Competent authority is the ....
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....ition has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha and Ors. (1974) 3 SCC 220; Miss Neelima Shangla v. State of Haryana and Ors. (1986) 4 SCC 268 and Jitendra Kumar and Ors. v. State of Punjab and Ors. (1985) 1 SCC 122. (ii) Union of India & Ors. v. K.V. Jankiraman & Ors. (1991) 4 SCC 109 "28. The Tribunal has also struck down the following portion in the second sub-paragraph after Clause (iii) of paragraph 3 which reads as follows: "If any penalty is imposed on the officer as a result of the disciplinary proceedings or if he is found guilty in the court proceedings against him, the findings in the sealed cover/covers shall not be acted upon" and has directed that if the proceedings result in a penalty, the person concerned should be considered for promotion in a Review DPC as on the original date in the light of the results of the sealed cover as also the imposition of penalty, and his claim for promotion cannot be deferred for the subsequent DPCs as provided in the instructions. It may be pointed out that the said sub-paragraph directs that "the officer's case for promotio....
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....selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that ii does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consi....
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....ched the matter on the principle that judicial review is not available in such a matter. The Jharkhand High Court also rightly pointed out that mere inclusion of a candidate's name in the selection list gave him no right, and if there was no right, there could be no occasion to maintain a writ petition for enforcement of a non-existing right." 56. Mr. Sandeep Sethi, learned senior counsel appearing for the respondent, stoutly contested the arguments advanced by learned counsel for the petitioner. His submission was that, when read in proper perspective, the reason for denying the respondent his promotion was only the aforesaid penalty, which was still operative at that time and, therefore, there was no fault in the directions given by the Tribunal to make the promotion effective on the expiry of the penalty period i.e. w.e.f. 7.10.2007. He also referred to the communication dated 23.12.2005 from the office of the Chief Commissioner of Income tax, Bangalore addressed to the respondent, as per which the respondent was asked to intimate his choice of posting "consequent on promotion to the cadre of CCIT by 28.12.2005, since the same has to be communicated to the Board." As per this....
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....an officer suitable for promotion, such an officer can be promoted only after the currency of the penalty. Learned counsel also took support from the reasons given by the Tribunal while allowing the OA of the respondent. 59. We have considered these submissions. We are of the opinion that it is a case where in exercise of our extraordinary jurisdiction under Article 226 of the Constitution of India, we should not interfere with the direction given by the Tribunal in the impugned judgment. From the minutes of the DPC meeting held on 25.11.2005, it is clear that the DPC had found the respondent fit for promotion even after taking into consideration the penalty imposed upon the respondent herein. The note of the Cabinet Secretary, which was prepared for ACC, has to be read in this backdrop. The Tribunal is right that it is only because the period of penalty had not been over the recommendation was that the respondent should not be promoted at that stage. Matter would have been different if after taking into consideration the said penalty, the DPC would have held the respondent to be "unfit" for promotion inasmuch as it is within the jurisdiction of the DPC to check the overall reco....