TaxTMI 
TaxTMI 
2012 (4) TMI 439
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Respondent No.1 in service with all consequential benefits and to pay the costs of Rs 10,000/- to the Respondent No.1, in view of the long agonizing departmental enquiry to which he was subjected with regard to assessment orders passed by him in his quasi judicial capacity. 2. Brief facts to comprehend the disputes between the parties are that Respondent No.1 is a Group 'A' officer of 1977 batch of the Indian Revenue Service. He earned his promotions to the posts of Deputy Commissioner, Joint Commissioner, Additional Commissioner and then Commissioner, Income Tax, which undoubtedly implied that he had been assessed as a meritorious officer, suitable and fit for the said posts. The next promotion was to the post of Chief Commissioner or Director General of Income Tax. However, he was issued a preliminary show cause notice dated 7th November, 2000 seeking an explanation regarding alleged lapses/irregularities in eight cases, out of which six cases were completed by him as Deputy Commissioner (Assessment/Assessing Officer) and remaining two, were pertaining to the period when he was the Deputy Commissioner-in-charge of the Range. In response to the preliminary show cause n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tead the petitioners sought further extension by moving the High Court in WPC No. 11525/2006. Thereafter, the High Court allowed an extension till the first week of November, 2006. However, the petitioners still did not comply with the orders of the High Court and further extension was allowed by order dated 15th December, 2006 up to 28th February, 2007 by imposing a cost of Rs.5,000/- on the petitioners and again by order dated 2nd March, 2007 up to 15th April, 2007 subject to payment of cost of Rs.5,000/- to the Respondent No.1. 6. In the meantime, by letter dated 14th November, 2005 the Respondent No.1 again wrote to the Enquiry Officer stating that the complete records were not shown to him which was, in fact, allowed by the Enquiry Officer. He also requested for allowing Sh. Keshav Prasad, retired member, ITAT, Lucknow to be his defense assistant. The Enquiry officer in his proceedings dated 23th November, 2005 noted with concern the delay on the part of the disciplinary authority in the non-production of the complete records for the Respondent No.1's inspection. Again on 5th December, 2005, the Respondent No.1 informed the Enquiry Officer that all the relevant docum....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d again, instead of complying with the same, the petitioners again approached the High Court of Madhya Pradesh and by order dated 22nd April, 2008 the High Court of Madhya Pradesh granted a fifth and final extension to the petitioners up to 30th May, 2008 by imposing another amount of Rs.10,000/- as cost on the petitioners. 9. Meanwhile, the petitioners, however, already passed the penalty order No. F.No.C-14011/17/2003, dated 1st April, 2008 imposing the major penalty of compulsory retirement on the Respondent No.1, prior to the order passed by the Madhya Pradesh High Court on 22nd April, 2008. This fact was also not disclosed to the High Court of Madhya Pradesh. The cheque of Rs.10,000/- was enclosed with the penalty order, when the same was served upon the Respondent No.1 by registered post on 27th May, 2008. As per the Respondent No.1, the penalty order was merely a verbatim reproduction of the note of disagreement, without taking into consideration the reply and submissions made by the Respondent No.1 against the same. 10. Against penalty order and the note of disagreement dated 5th March, 2007 and charge sheet memo dated 28th April, 2003 the Respondent No.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ers had also contended that the permission to engage Sh. Keshav Prasad as defense assistant was rightly denied as on the date of hearing he was a legal practitioner, moreover the enquiry officer had very cogently mentioned in the daily order sheets dated 16th December, 2005 and 2nd January, 2006 that there was no need for any defense assistant as neither any prosecution witnesses were to be cross examined, nor any defense witnesses were to be examined as they were unable to attend the proceedings. 12. The Tribunal considered the pleas and contentions of both the parties and examined the documents on record. With regard to the plea that the orders of the High Court of Madhya Pradesh were not complied with on the ground that the costs directed to be given to the Respondent No.1, was given along with the order of penalty and not prior to the penalty order, the Tribunal observed that just because the costs were not paid before the penalty order was passed, it could not be held that it was in non-compliance of the orders of the High Court of Madhya Pradesh. 13. The Tribunal, however, found merit in the contention that the disciplinary authorities dissenting note, dat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....reement note. The relevant portion revealing the rationale for this finding is as follows: "15. In the facts as fully detailed above, we are of the considered view that the applicant has been deprived of giving his comments/representation against the disagreement note, or in other words, the disciplinary authority has returned an incorrect finding that the applicant had submitted nothing with regard to the note of disagreement made by the disciplinary authority. The disciplinary authority in the facts and circumstances as fully detailed above, only considered the reply of the applicant wherein he had mentioned that because of non-compliance of the orders passed by the Tribunal and the High Court, the proceedings had abated. His main reply dated 5.4.2007 sent through covering letter dated 22.8.2007 was not considered at all. While trying to explain the observations of the disciplinary authority that the applicant did not bring anything new on record which had not been considered earlier and that there was nothing new in the representation of the applicant which could lead to change in the view formed earlier, it is interesting to note that the disciplinary authority while ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ngs. The Respondent No.1 had also filed the two OA bearing no. 769/2005 and 911/2006 where this plea was also allegedly taken. The Tribunal held that the orders of the Tribunal and High Court of Jabalpur have attained finality and the same cannot be allowed to be re-agitated, as it would render the said orders to be non-existent. The relevant portion of the Tribunal's judgment is as follows: "17.......... Insofar as, the plea of the applicant with regard to delay is concerned, the same can be divided in two parts, the first would be delay in initiation of proceedings, whereas the second would be delay in concluding the proceedings. Insofar as, the second part of the case is concerned, that, in view of various orders passed by the Tribunal and the High Court referred to above, has to be decided against the applicant. It may be recalled that the applicant filed OA No.769/2005 before the Tribunal at Jabalpur, which was disposed of on 19.10.2005 directing the Respondents to conclude the departmental enquiry within a period of six months. The Respondents thereafter obtained extension of time by three months through a miscellaneous application. They moved yet another misc. appl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gs. The two OAs of the applicant bearing Nos.769/2005 and 911/2006, it may appear from records of the case, were for quashing the chargesheet on the ground of delay caused in both initiation and conclusion of the proceedings. In the order dated 21.8.2007 in OA No.911/2006, it is clearly recorded that the applicant had approached the Tribunal so as to quash the disciplinary proceedings initiated against him for certain alleged omissions committed by him during the period 1995 to 1998. Whereas, it may be true that the only aspect gone into by the Tribunal or for that matter, even the High Court, was delay in finalising the proceedings, and the issue with regard to delayed initiation of proceedings was not gone into, but it appears that such a plea was raised by the applicant. The applicant has not placed on records copies of the two OAs filed by him in the Jabalpur Bench. Once, there was a plea raised by the Respondents that the matter with regard to delay has achieved finality in view of the orders passed by the Tribunal or the High Court at Jabalpur, the applicant ought to have placed on records his two OAs to show that the plea with regard to delayed initiation of proceedings was ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntioned that the Respondent No.1 had failed to correctly apply the provisions of Section 79 of the Income Tax Act, thereby conferring undue benefit to the assessee. The Tribunal held that the mere use of the language employed in the rule, like that the Respondent No.1 had failed to maintain absolute integrity and devotion to duty and exhibited conduct unbecoming of a government servant in total contravention of provisions of rules is not enough. It was further held that the core allegations ought to have been pointing towards definite acts of omission and commission which would show that the employee had not maintained absolute integrity and devotion to duty or exhibited conduct unbecoming of a government servant. It was categorically held that, except for Article-II of the charges framed against the Respondent No.1, none of the charges even remotely showed or imputed any culpable intention to the Respondent No.1 or that he had passed orders on extraneous considerations. Even with regard to Article -II, the Tribunal observed that the Enquiry officer had rightly held that the charge was not proved, since the difference in view of the assessing authority and the Respondent No.1 was o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (v) if he had acted in order to unduly favour a party; (vi) if he had been actuated by corrupt motive, however, small the bribe may be because Lord Coke said long ago though the bribe may be small yet the fault is great. 19. It was held that the above stated instances were not exhaustive, however, for a mere technical violation or merely because the order is wrong and the action is not falling under the above enumerated instances, the disciplinary action is not warranted. Thus each case is to be decided upon the facts and no absolute rule can be postulated. 20. Therefore, in view of the facts and circumstances and the judicial precedents, the Tribunal held that the department had miserably failed in its endeavor to prove the allegations of gross negligence against the Respondent No.1, and that the disciplinary authority appears to have pre-judged the issue, which is fortified by the fact that the dissenting note appears to be a final order holding the charges proved. In any case, if the dissenting note was tentative in nature, even then the principles of natural justice have been violated, as the pleas and contentions of the Respondent No.1 had not ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....licant may not be legally permitted at this stage to challenge the proceedings on the ground of unexplained delay, we have rejected his contention, but the fact remains that the applicant has been subjected to departmental enquiry with regard to absolutely stale matters. Further, the Respondents took as many as five years in completing the enquiry, and in the process sought number of extensions from the High Court, thus wasting valuable time, during which the applicant suffered cross-country transfers, naturally to his total disadvantage and inconvenience. Further, the applicant, it appears, is not likely to get any justice from the departmental authorities. The dissenting note and the final order, as mentioned above, are verbatim the same, but for the difference that in the final order, events subsequent to the dissenting note have been mentioned. The disciplinary authority, it appears, had pre-judged the issue, as would be further fortified from the fact that the dissenting note appears to be a final order holding the charges to be proved. As mentioned above, the dissenting note is not a tentative one. Further, even though while explaining in the written statement the observation....
X X X X Extracts X X X X
X X X X Extracts X X X X
....anarayana: 1999 (5) SCC 762. 23. As per the learned counsel for the petitioners, the decision of the Tribunal to not remand the matter to the Disciplinary Authority and instead to decide the issue on its own is contrary to the law laid down in the matter of Managing Director, ECIL, Hyderabad andOrs. v. B. Karunakaran: (1993) 4 SCC 727. According to him, the Tribunal should not have acted as the Appellate Authority but instead should have only exercised its powers within the limitation prescribed under judicial review. Therefore, the learned counsel contended that in case the Tribunal was of the view that the procedure prescribed by law had not been followed while dismissing the Respondent No.1 from the service or that the principles of natural justice had not been adhered to then instead of adjudicating the matter on its own, the Tribunal ought to have remanded the matter back to the Competent Authority. 24. The learned counsel further contended that the Tribunal had erred in holding that the alleged charges framed against the Respondent No.1 do not constitute misconduct being a part of the judicial functions of Respondent No. 1. The learned counsel also relied ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....v. Upender Singh, (1994) 3 SCC 357, paras 4, 6, 8 to 10. 26. It was further contended that merely because the Respondent No.1 had got promotions during the pendency of the disciplinary proceedings would not be a ground in itself to quash the charge memo or not proceed against him. In this regard, reliance had been placed on the judgment of Union of India vs. B. C. Chaturvedi, (1995) 6 SCC 750, para 8. 27. Per contra, the learned counsel for the Respondent No.1 has contended that the Tribunal has rightly concluded that the Respondent No.1 has been put through a long agonizing departmental inquiry pertaining to the matters when he was a Deputy Commissioner of the Income Tax and that too for the assessment of orders made by him in his quasi judicial capacity, which is why a cost of Rs.10,000/- was also awarded in favour of the Respondent No.1. According to the learned counsel, the present writ petition is not sustainable on the very ground that the order passed by the Disciplinary Authority is bad in law, in view of the inordinate delay, first in initiating the proceedings against Respondent No.1 and then in completing the inquiry. The Charge-sheet was served again....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or Respondent No.1 further asserted on the dissenting note of the Disciplinary Authority not being tentative in nature and the same clearly revealing a predetermined mind and a final disposition prior to giving the Respondent No.1 a fair opportunity of representing against it. Regardless, as per the learned counsel, the Disciplinary Authority did not even take into consideration the representation of Respondent No.1 against the disagreement note, and instead it merely reiterated its findings given in the disagreement note while passing the final order. This, according to the learned counsel, is a clear violation of the principles of natural justice and, therefore, it has been rightly quashed by the Tribunal. The judgments of Yoginath D. Bagde v. State of Maharashtra JT 1999 (7) SC 62, Punjab National Bank and Os vs. Kunj Bihari Misra, 1998 (7) SC 62 and Commissioner of Police v. Constable Pramod Kumar, W.P.(C) No. 2665 of 2002 decided on 15th September, 2002 have been relied on for substantiating this plea by the learned counsel for the Respondent No.1. 31. According to the learned counsel, the Tribunal had rightly observed that having a particular perception in assessmen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....heet, the Respondent No.1 had been given three promotions to the posts of Joint Commissioner, Additional Commissioner and Commissioner of Income tax; and that there is nothing on record to show that the Respondent No.1 acted in a manner which would reflect on his reputation for integrity or good faith or devotion to duty, no material to show recklessness or misconduct on his part in discharge of his duty, nothing to show that he acted in manner which was unbecoming of a Government servant or that the Respondent No.1 acted negligently in prescribing conditions or acted in manner to favour any of the assesses or that he had been actuated by corrupt motive. 34. A perusal of the order impugned by the petitioners clearly reveals that the Respondent No.1 has been subjected to a long period of proceedings in framing the charges against him which aspect had been considered in detail by the Tribunal. After considering all the pros and cons and in the interest of justice, the Tribunal decided not to remand the matter to the disciplinary authority which would have resulted in further protracted proceedings, ensuing in the gross violation of the Respondent No.1's rights. 35....
X X X X Extracts X X X X
X X X X Extracts X X X X
....i. This article alleged that Respondent No.1 while working as the Deputy Commissioner of Income Tax, Spl Range-1 Surat, during the period of 1995-96, completed the assessment in the case of Sh. A Sivan for A.Y. 1993-94, u/s 143(3) of the Income Tax Act, in a very casual manner. It was also alleged that he had made lump sum additions to the manufacturing account without conducting any worthwhile investigations as regards the purchases and sundry creditors and without examining the authenticity of the excise registers, and that Respondent No.1 also failed to initiate mandatory penalty proceedings u/s 271B of the IT Act. ii. The Enquiry Officer, after carefully examining the evidence on record, had concluded that the said charge had not been proved. As per the Enquiry Officer, the Respondent No.1 had sufficiently explained the reason for the lump sum addition made by him and also because the department had failed to produce any evidence showing that the other records, if verified, would have resulted in addition of some other higher amounts. With regard to the allegation that the charged officer had made the assessment in a casual manner, the Enquiry Officer had observed tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... not relied on any rule or regulation which were allegedly violated by the Respondent No.1 or which procedure for verification, while carrying out assessment had not been complied with. No facts or evidence and reasons have been relied on by the disciplinary authority to justify the charge, that the assessment had been carried out in casual manner. The fact that the CIT (A) had also not enhanced the addition during review assessment was though noted by the Disciplinary Authority, however the same was completely disregarded without any basis. vi. Any conduct does not become misconduct merely because it is stated to be misconduct. The Disciplinary Authority was itself unable to impute any specific facts, evidence or reasons for misconduct so as to require reconsideration. Therefore, there is nothing on the record which requires reconsideration for establishing charge of misconduct against the Respondent No.1, nor the matter is to be remanded to be reconsidered by the disciplinary authority. 38. Article II i. Article II alleged that Respondent No.1 had passed an assessment order under section 143(3) for A.Y. 1993-94 in the case of M/s Sidmak Laboratories ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....acets in detail was of the view that the only charge that could implicate the Respondent No.1 in the allegation of gross negligence, was regarding the non compliance of Section 79 of the IT Act. The Tribunal carefully examined the record to ascertain whether or not the assessee had been unduly benefitted by the actions of Respondent No.1 and whether he had any culpable intensions or passed the said order on extraneous considerations. The Tribunal observed that the order passed by the Respondent No.1 dated 30th November, 1995 was the subject matter of challenge by the assessee in the matter to the extent of additions of Rs.7,230/- made by Respondent No.1. The Appellate Authority after carefully considering the contentions of the assessee and the facts of the said matter, recorded a short order dated 14th August, 1997 wherein it was decided that the matter was to be restored to the file of the assessing officer to re-frame a fresh assessment order. On remanding the matter the assessing authority i.e. the successor of Respondent No.1 held that the provisions of Section 79 were applicable in the said matter which was a view contrary to the one taken by the Respondent No.1. The said ord....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1 since the Respondent No.1 had merely passed an order in exercise of his quasi judicial functions and the petitioners too have been unsuccessful in imputing any mala fides or extraneous considerations on his part. In the facts and circumstances, this Court does not find any illegality or perversity in the reasoning of the Tribunal, nor the matter is such which requires re-consideration by the disciplinary authority, nor it is to be remanded in the circumstances. 39. Article III i. Article 3 alleged that the Respondent No.1 committed the following irregularities while completing the assessments under section 143(3) of the IT Act in the case of M/s United Phosphorous Ltd. for A.Y. 1994-93: (a) He failed to reduce various ineligible receipts from the profits of the business while entertaining the company's claim of deduction u/s 80HHC of the IT Act. (b) He erroneously held an amount of interest u/s 244 A of Rs.42, 82,152/- as deductible having been taxed in an earlier year, whereas only an amount of Rs.35, 52, 932/- should have been allowed as deductible for A.Y. 1994-95. (c) He failed to initiate penalty proceedings u/s 271(1)(c) of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tinent to note that the Disciplinary Authority has itself not imputed any mala fides, or gross negligence on the part of Respondent No.1. Also at the most there could have been irregularity in the manner of computing the interest under Section 244A of the IT Act by the Respondent No.1, however, this in itself does not amount to misconduct which is to be tried by way of a departmental proceeding. v. This Court is of the view that the petitioners have failed to substantiate the allegations made in the said charge and therefore, even prima facie the charge is not made out. If that be so the matter is not liable to be remanded and the petitioners have failed to show any illegality, irregularity or perversity in the decision of the Tribunal. Allegations do not show even prima facie any recklessness or misconduct in the discharge of his duties by the Respondent No.1 nor any negligence can be inferred in the facts and circumstances. Any corrupt motive or any undue favour to the assessee has not even been alleged. In the circumstances, if the Tribunal has not remanded the matter on account of other irregularities and illegalities committed by the petitioners, the order of the Tri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en taken into consideration. If that be so then how undue benefit had been conferred on the assessee or how the Respondent No.1 had relied on any extraneous material while taking the alleged decision. The fact that the irregularity, if any, amounted to "misconduct" is not apparent from the record and the allegations as has been noted and relied on by the Disciplinary Authority has not been made out even prima facie. Therefore, the departmental action taken against the Respondent no. 1 could not be justified on the said charge. v. In the circumstances, since no prime facie material was available with the Disciplinary Authority to show any recklessness or misconduct on the part of the Respondent No.1 in not considering the revised return, remanding the matter by the Tribunal would have been a futile exercise. In Union of India vs Duli Chand, (2006) 5 SCC 680 in para 9 the Supreme Court had held as under: 9. In our opinion, Nagarkar case was contrary to the view expressed in Union of India vs K.K. Dhawan, (1993) 2 SCC 56. The decision in K.K. Dhawan (supra) being that of a larger Bench would prevail. The decision in Nagarkar case therefore does not correctly repres....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the same to be Rs.80,58,590/-. iii. The Disciplinary Authority accepted that the assessee had given the details of the expenses, but went on to hold that despite abnormal increase in the said expenses, no explanation was obtained by the Respondent No.1 while examining the accounts and assessing the total income of the case under scrutiny, and that the five-fold increase in the supervision charges and almost 100% increase in other expenses in the current year compared to the accounts of the preceding year should have been enquired into assiduously by him and a reasonable conclusion for the same ought to have been drawn on the nature, reasonableness and genuineness of the expenditure incurred and claimed, and also that the Respondent No.1 had been grossly negligent in not putting across to the assessee any queries as regards the abnormal increase in the expenses compared to the preceding year. iv. The Tribunal observed that inspite of the categorical finding of the Enquiry Officer that the Respondent No.1 had made the necessary inquiries by relying on the order sheet of the Respondent No.1 wherein the query regarding the increase had been posed to the assessee, an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....apital gain. (b) he blindly accepted the valuation and revised valuation under Rule ID of the WT Act, with regard to equity shares of United Phosphorous Ltd., without obtaining the certified balance sheet of the company on the nearest date available to the valuation date. (c) he unquestioningly accepted the unsecured loans of Rs.1,95,29,500/- without causing any enquiry as regard Permanent Account Numbers of the loan givers and their creditworthiness. (d) he failed to correctly reverse interest of Rs.1,07,856/- allowed U/s 244A of the IT Act in an earlier intimation u/s 143(1)(a) in the same case, while determining the taxes payable in terms of his order u/s 143(3) of the IT Act. ii. Regarding allegation (a) contained in Article VI, the Enquiry Officer observed that based on the evidence on record, it did not appear to be case of forward sale or speculation loss as alleged by the department and, therefore, he held this part of the charge as not proved. With respect to allegation (b) regarding blind acceptance of valuation of equity shares, the Enquiry Officer observed that both the department and the Respondent No.1 had not produced any speci....
X X X X Extracts X X X X
X X X X Extracts X X X X
....there was any prima facie material that the Respondent No.1 had acted recklessly or negligently. v. Consequently, there is no illegality or any irregularity in the order of the Tribunal not to remand the matter in this regard to the Disciplinary Authority so as to require any interference by this court in exercise of its Writ jurisdiction. It also cannot be held, in the circumstances, that the Tribunal has exercised its appellate jurisdiction in the facts and circumstances. 43. Article VII i. Article VII alleged that Respondent No.1 had issued inappropriate and irregular directions u/s 144A of the IT Act to the ACIT Circle 2(2), Surat, in the case of M/s. Vijay Fabrics for A.Y. 1995-96, in as much as his directions to allow amendment to the statements of the partner, given in course of survey u/s 133A in this case, from an original "lakh metres" to "lakh rupees", was not actuated by any verification and was also not borne out from the facts of this case. ii. The Enquiry Officer examined the said order passed by Respondent No.1 and found it to be reasoned and detailed order. Therefore, the allegation that orders were issued without verification was h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the said charge, it was alleged that Respondent No.1 had exhibited gross negligence and total disregard of the statutory provisions, by conferring undue benefit to the assessee. The Tribunal also held that by merely using the language employed in the charges framed, that the Respondent No.1 had "failed to maintain absolute integrity and devotion to duty and exhibited conduct unbecoming of a government servant in total contravention of the provisions of the rules" is not enough. According to the Tribunal, the core allegation ought to have been pointing towards definite acts of omission and commission which would show that the employee did not maintain absolute integrity and devotion to duty or exhibited conduct unbecoming of a government servant. Therefore, the Tribunal held that barring Article II and Article V (a), none of the other Articles remotely showed that the Respondent No.1 had any culpable intentions or had passed an order on extraneous considerations. The Tribunal further held that in view of the charges framed against the Respondent No.1 it is clear that even the department had not attributed extraneous considerations to Respondent No.1 in passing the various orders. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the instant case, it cannot be inferred that for a mere technical violation or merely because the order is wrong the disciplinary action was not warranted. The Tribunal also referred to the judgment of Zunjarrao Bhikaji Nagarkar v. Union of India and Ors. (1999) 7 SCC 409 wherein it was held that in the said case there was nothing to show that the Disciplinary Authority had any information within its possession from which it could form an opinion that the Respondent No.1 had showed any favour to the assessee by not imposing the penalty. He may have exercised his jurisdiction wrongly, however, that wrong could have been corrected in appeal as well, therefore, this reason alone would not form the basis for initiating the disciplinary proceedings against an officer while he is acting as a quasi judicial authority, since he is always subject to judicial supervision in appeal. It was also held that if every error of law is to be treated as a charge of misconduct, then it would impinge upon the independent functioning of quasi judicial officers. 48. The learned counsel for the petitioners had contended that the judgment of Ramesh Chander Singh v. High Court of Allahabad, 2007 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Supreme Court in Nagarkar's case (supra) shall hold the field, which has been followed in Ramesh Chander Singh (supra), particularly, when the said judgment (Ramesh Chander Singh) is by a coordinate Bench and later in point of time than that of Duli Chand (supra), and that the Tribunal should hold that it is culpable negligence which can be subject matter of departmental enquiry when it may relate to allegations that may pertain to functions of an officer, which functions are discharged by him in his judicial or quasi judicial capacity. On the other hand, the counsel representing the petitioners would, however, insisted that the judgment of the Supreme Court in Duli Chand (supra) would hold the field, particularly when in the decision of Ramesh Chander Singh (supra) the decision in Duli Chand (supra) has not been considered. Ultimately the Tribunal concluded that even though it would not be difficult to determine this controversy, on the basis of judicial precedents covering the issue, however, it would refrain from doing so since it did not feel the necessity to do so in the present case. It further held that on the facts it is evident that the present case may not be one where t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....negligence against the Respondent No.1, the Disciplinary Authority while issuing dissenting note, disagreeing with the Enquiry Officer had held that the charges had been proved and the dissenting note was not at all a tentative note. While awarding punishment, the Disciplinary Authority did not take into consideration the representation made by the Respondent No.1. The Disciplinary Authority had received the representation of the Respondent No.1 against the dissenting note dated 5.3.2007, but it chose not to make even a reference of the same. The principles of natural justice had been violated, as the pleas and contentions of the Respondent No.1 had not been taken into consideration by the Disciplinary Authority. The Tribunal was also of the view that the punishment of compulsory retirement is grossly disproportionate to the allegations of negligence, as there is no specific finding that the Respondent No.1 had acted on extraneous considerations. 55. The learned counsel for the petitioners has not been able to demonstrate that the dissenting note was tentative. When the punishment is already prescribed as against the charged officer in the disagreement note, then it is cl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Enquiry Authority, which had initially found a report in favour of the charged officer. The main intention is to allow a proper and reasonable opportunity of hearing to the charged officer in consonance with the principles of natural justice and most importantly to render a last opportunity to the charged officer to persuade the Disciplinary Authority on the basis of the findings of the Enquiry Report. The reasons for disagreement should be tentative in nature. Whether or not a disagreement note is tentative might not necessarily be established by explicitly featuring the word "tentative" while drafting the same. The same should be reflective in the language and the content of the disagreement note. The reasons for the disagreement should not be vaguely and loosely worded but instead they should be precise and effectively assist the charged officer in comprehending the apprehension of the Disciplinary Authority, which in turn enables the charged officer to defend himself properly. 57. If a conclusion is already arrived at prior to giving the opportunity to represent against the disagreement note, then the entire preceding thereafter, would be rendered futile and would be ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....indset of the Disciplinary Authority, who had already decided that the Respondent No.1 was guilty of the charges framed against him. It is also evident that the opportunity of being heard given to Respondent No.1 was merely a procedural formality. The consultation with the CVC for the imposition of the punishment prior to hearing of the representation of Respondent No.1 is also a substantial clue about the mind of the Disciplinary Authority who had undoubtedly already formed its conclusion on the guilt of Respondent No.1 with regard to the charges framed against him. The learned counsel for the petitioners is unable to point out any single factor or reason which would show that the dissenting note was tentative nor has been able to show why the representation of the Respondent No.1 was not considered by the Disciplinary Authority before imposing the disproportionate punishment of compulsory retirement in the facts and circumstances. 61. The Tribunal on perusing the record also observed that there was no manner of doubt that the Disciplinary Authority while recording its disagreement note had predetermined the issues without taking into consideration the representation mad....