TaxTMI 
TaxTMI 
2017 (9) TMI 1297
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....ng for grant of all consequential benefits. 2 Petitioner belongs to 1983 batch of Indian Revenue Service and is currently holding the post of Commissioner of Income Tax. Between the years 1994 and 1996, petitioner was posted as Deputy Commissioner of Income Tax, Special Range3 and Special Range1, Nasik. He passed several assessment orders relating to assessment years 1992-93 and 1993-94. The CIT randomly selected 100 cases wherein orders were passed by the petitioner for regular inspection. The cases taken up by the Commissioner of Income Tax for regular inspection are different from the cases taken up for vigilance inspection. On the basis of inspection in six cases, the Commissioner of Income Tax recorded adverse entries in the ACR of the petitioner for the year 1995-96 and awarded grading "inadequate". The adverse entries in the Confidential Records of the petitioner, during the year 1995-96 were communicated to him by the Chief Commissioner of Income Tax, Pune. 3 The petitioner made representation seeking expunction of adverse entries in the ACR and for upgradation of the same. The representation tendered by the petitioner was considered favourably and the competent authority....
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....mmissioner of IncomeTax, Chennai. The additional charge of the post of Commissioner of Income Tax (Appeals)X comprises, in addition to the regular charge as Commissioner Income Tax (Appeals),IV, Chennai, whereunder certain assigned appeals were entrusted in view of Notification bearing No.8 of 2005 dated 02.12.2005 by Chief Commissioner of Income Tax, Chennai. The Central Board of Direct Taxes wanted to create additional post of CIT, Delhi and as such, diverted the post of Commissioner of Income Tax (Appeals)X, Chennai to Delhi and redesignated it as CIT, DPER, Delhi, by an order dated 25.09.2006. 8 It is the contention of the petitioner that on diversion of the post of CIT (A)X, Chennai, Chief Commissioner of Income Tax, Chennai failed to pass order for transfer of cases from the petitioner. Initially the order was passed for transfer of only territorial cases relating to Chennai and later, by specific order, the Central charge cases pertaining to CIT (A)X, Chennai, were retained with the petitioner. In the year 2007, an assessee by name Mr.Rakesh Sarin had presented appeal raising challenge to the block assessment order. The assessee also presented writ petition before the learn....
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....iciencies in the order passed by him on 04.01.2007 while disposing of appeal presented by Mr.Rakesh Sarin. The petitioner presented reply to the charge sheet questioning its maintainability. The petitioner also objected to the charge sheet by presenting Original Application No.285 of 2014. The learned Tribunal, by an order dated 16.07.2015, was pleased to dismiss both the Original Applications presented by the petitioner objecting to two different Memorandums of Charge served upon him by the department. 10 The petitioner has objected to the Memorandums of Charge in both the matters mainly on the ground of delay in issuing the Memorandums of Charge. So far as first Memorandum of Charge, forming subject matter of Writ Petition No.10119 of 2015 is concerned, it refers to the assessment years 1992-93 and 1993-94, whereas, the charge sheet has been served in the year 2014 almost after twenty years from the date of passing of the assessment orders by the petitioner. In the years 1992-93 and 1993-94, the petitioner was functioning as Deputy Commissioner of Income Tax and thereafter in due course, he earned promotion as a Commissioner of Income Tax and while further promotion to the post ....
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....ssed by lower authorities, cannot be a matter of scrutiny in departmental proceedings. The correctness or otherwise of the decisions rendered by the petitioner in his capacity as CIT (Appeals) is liable to be gone into and corrected by the appellate forum. The decisions rendered by the petitioner while functioning in quasi judicial capacity cannot be analysed and commented upon in departmental proceedings and any error even if assuming it exists, cannot be taken as an act lacking maintenance of absolute integrity and devotion to duty or misconduct leading to a conclusion of contravention of provisions of Rule 3(1)(i), (ii) and (iii) of CCS (Conduct) Rules, 1964. 14 Perusal of the charges levelled against the petitioner in the second charge sheet indicates that the orders passed by the petitioner in the case of Mr.Rakesh Sarin itself is a matter of inquiry and articles of charge served on the petitioner assailing the correctness of the judgments delivered by the petitioner, are in fact liable to be assailed before the appellate forum. In article of Charge No.V, the petitioner has been called upon to explain as regards orders passed for block assessment period 199798, 2002-2003 and ....
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....anted liberty by the learned Single Judge of the Madras High Court to decide the appeals and the petitioner, while availing the liberty, has dealt with the matter and decided the same. That itself cannot be treated as violation of the directions of the learned Single Judge of the Madras High Court. The petitioner was issued a minor penalty charge sheet alleging misconduct committed by him while functioning as Commissioner of Income Tax during the year 1994-95 and 1995-96 and at the same time, instant Memorandum of Charge came to be issued alleging misconduct while functioning as Commissioner of Income Tax, Chennai, during the year 2006-2007. Both the Memorandums of Charge issued to the petitioner while his promotion was within contemplation, according to the petitioner, were issued only to divest him of the benefits of the promotion. The Tribunal has not considered these aspects in proper perspective and has arrived at wrong conclusions. 16 It is the contention of the petitioner that so far as first charge sheet served on him relating to six cases of the year 1992-93 and 1993-94 is concerned, departmental proceedings cannot proceed and the petitioner cannot be charged belatedly af....
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....ibunal as well as the High Court failed to consider the aspect of delay of six years in initiating proceedings and refused to grant relief in favour of the petitioner. While dealing with the matter, the Supreme Court observed in paragraph 16 of the judgment, thus: "...... The Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven years and, thus, initiation of the departmental proceedings as also discontinuance thereof after such a long time evidently prejudiced the delinquent officer." 20 The Hon'ble Supreme Court, while deciding the matter of Bijlani, has also referred to its earlier decision in the matter of Bani Singh (supra). In the case of Bani Singh, challenge was raised in respect of initiation of departmental inquiry proceedings and issuance of charge sheet in the year 1987 in respect of certain incidence that took place in 1975-76. The Tribunal quashed the Memorandum of Charge and departmental proceedings on the ground of inordinate delay of 12 years in initiation of departmental enquiry with reference to an incidence that took place in 1975-76. The ....
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....e case of N. Radhakishan. While concluding, the Apex Court has observed that the appellant before the Hon'ble Supreme Court is entitled to succeed and he need not be put to sufferance for the mistake committed by the department in initiating disciplinary proceedings belatedly. In paragraph no.11 of the judgment, the Hon'ble Supreme Court has observed thus: 11 Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the ....
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....y proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately....
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....ening period, petitioner was awarded promotion to the post of Commissioner of Income Tax and continued in the said post since many years and is now due for promotion to the post of Principal Commissioner of Income Tax. The alleged irregularity in dealing with the cases while he was functioning as Deputy Commissioner of Income Tax did not cause bar in awarding him promotion. It is surprising as to how proceedings in respect of said lapse, which is tried to be excavated after gap of 20 years, can be permitted to continue. The initiation and pendency of the proceedings has a potential of causing irreparable damage to the future prospectus of the petitioner since he is within consideration zone for promotion to the post of Principal Commissioner of Income Tax. 27 The appeals arising out of block assessment notices issued to one Mr. Rakesh Sarin were decided by the petitioner. It is the contention of the department that the petitioner was not invested with the jurisdiction to decide the matters since he was divested of the charge. The petitioner was holding substantive charge of Commissioner of Income Tax (Appeals) - IV and was given additional charge of Commissioner of Income Tax (App....
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....ng with the appeal proceeding. It was, however, an error on the part of petitioner to record in the order that the Madras High Court directed him to decide the appeal without waiting for decision in the appeal. However, entertaining such an erroneous impression to treat the "liberty" granted by the High Court as a "direction" cannot be a matter of departmental proceedings against the petitioner. Assuming for sake of argument, that the petitioner has erroneously used the word "direction" instead of "liberty", it is merely an erroneous understanding which may reflect on the judicial capabilities or incorrect use of English language. However, it cannot be construed as violation of the interim order passed by the Madras High Court. The orders passed by the petitioner, in his quasijudicial capacity, without there being attribution of mala fide or corrupt motive, cannot be a matter of enquiry. 30 Learned Counsel appearing for the RespondentUnion of India, relying upon the decisions of the Hon'ble Supreme Court in the matter of Union of India and another Vs. Kunisetty Satyanarayana, reported in (2006) 12 SCC 28, contended that firstly writ jurisdiction is a discretionary jurisdiction....
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....d that he could be removed from service by an order of the Central Government, but it was contended that I.A.S. Officers are governed by statutory rules, that 'any act or omission' referred to in Rule 4(i) relates only to an act or omission of an officer when serving under the Government, and that serving under the Government means subject to the administrative control of the Government and disciplinary proceedings cannot, therefore, be instituted against the appellant in respect of an act or omission committed by him in the course of his employment as Commissioner. e are unable to accept the preposition contended for by the appellant as correct. Rule 4(i) does not impose any limitation or qualification as to the nature of the act or omission in respect of which disciplinary proceedings can be instituted. Rule 4(1)(b) merely says that the appropriate Government competent to institute disciplinary proceedings against a member of the Service would be the Government under whom such member was serving at the time of commission of such act or omission. It doe snot say that the act or omission must have been committed in the discharge of his duty or in the course of his employmen....
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....dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant." It is further observed thus : "We next proceed to examine the contention of the appellant that the Commissioner was exercising a quasijudicial function in sanctioning the leases under the Act and his orders, therefore, could not be questioned except in accordance with the provisions of the Act. The proposition put forward was that quasijudicial orders, unless vacated under the provisions of the Act, are final and binding and cannot be questioned by the executive Government through disciplinary proceedings. It was argued that an appeal is provided under S. 29(4) of the Act against the order of the Commissioner granting sanction to a lease and that it is open to any party aggrieved to file such an appeal and question the legality or correctness of the order of the Commissioner and....
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....honestly or in god faith or that he omitted to observe the prescribed conditions which are essential for the exercise of the statutory power. We see no reason why the Government cannot do so for the purpose of showing that the Commissioner acted in utter disregard of the conditions prescribed for the exercise of his power or that he was guilty of misconduct or gross negligence. We are accordingly of the opinion that the appellant has been unable to make good his argument on this aspect of the case." 33 Relying upon the aforesaid judgment in Govinda Menon's case, the Hon'ble Supreme Court, in the matter of K.K. Dhawan, concluded that an officer performing quasijudicial functions could be proceeded departmentally, provided : i) the act or omission is such as to reflect on the reputation of the Government servant for his integrity or good faith or devotion to duty, or ii) there is prima facie material manifesting recklessness or misconduct in the discharge of the official duty, or iii) the officer had failed to act honestly or in good faith or had omitted to observe the prescribed conditions which are essential for the exercise of statutory power. 34 In the instant ma....
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.... Bijlani, Bani Singh, P.V. Mahadevan and N. Radhakishan, needs to be considered. Inordinate delay in initiating disciplinary proceedings causes prejudice to the petitioner more specially when the track record of the petitioner is clean and he is placed in the zone of consideration for the promotional post of Principal Commissioner of Income Tax. 37 Learned Counsel for the respondents, relying upon the judgment of the Supreme Court in the matter of Secretary, Ministry of Defence Vs. Prabhash Chandra Mirdha, (2012) 11 SCC 565, contends that the proceedings are not liable to be quashed on the grounds that those are initiated at a belated stage or could not be concluded in a reasonable period, unless the delay creates prejudice to the delinquent officer. It was further observed that the gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings. 38 In the instant matter, as has been discussed above, delay in proceeding against the petitioner caused serious prejudice to him since the matter has been opened up at the stage when the petitioner has come within the zone of consideration for promotion to the higher post. Looking to the ....