TaxTMI 
TaxTMI 
2019 (6) TMI 1129
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....the following prelude for a proper disposal of the original petition:- While considering the question as to whether disciplinary proceedings can be abruptly terminated at the stage when the delinquent employee was only charge sheeted the decision of the Hon'ble Apex Court in Union of India v. Ashok Kacker ((1995) Suppl. 1 SCC 187) assumes relevance. That was a case where the respondent, on being charge sheeted, without replying to it and without waiting for the decision of the disciplinary authority thereon, rushed to the Central Administrative Tribunal seeking quashment of the charge-sheet. The Tribunal entertained it and ultimately quashed the charge sheet. While setting aside the order of the Tribunal and dismissing the Original Application filed before the Tribunal the Apex Court held that it was premature for an Administrative Tribunal to consider a challenge to the charge sheet where the employee rushed to the court immediately on receiving it and he should have made a reply to the charge sheet raising all the points available to him and invite the decision of the disciplinary authority thereon. 2. Before considering the merits of the challenge in this original petiti....
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....roceedings. Ultimately, the court is to balance these two diverse considerations." 3. A perusal of the decision in Radhakrishnan's case would reveal that the Apex Court carved out certain exceptions to the general position and held that interference is permissible to bring an end to disciplinary proceedings initiated after an inordinate delay or where there occurred inexplicable and inordinate delay in concluding it. Going by the decision, courts have to take into consideration all the relevant factors and to balance and weigh them to determine if it would be in the interest of clean and honest administration to terminate the disciplinary proceedings after long delay particularly, when the delay is abnormal and there is no explanation for the delay. In other words, going by the said decision, under normal circumstances, disciplinary proceedings should be allowed to take their course as per the relevant rules and it would not be possible to lay down any pre-determined principles applicable to all cases and in all situations where there occurred delay in initiating/concluding disciplinary proceedings. Evidently, the Apex Court held that whether on such grounds disciplinary proc....
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....s of the contentions advanced by the applicant/petitioner herein. Consequently, the O.A. was dismissed as per order dated 18.9.2018. The Tribunal held:- "To sum up, it is too early for this Tribunal to enter a finding on any of the aspects concerning the merit of the contentions advanced by the applicant. The plea raised by the applicant that Annexure A1 would indicate that the authority had already entered a finding and that the inquiry would be a farce, is unsound and unacceptable. It is only the charge that has been framed against the applicant to which he has to submit his written statement of defence. We could not find any illegality touching upon the jurisdiction or otherwise to interfere in the disciplinary action at this stage." As stated earlier, the petitioner filed the captioned original petition feeling aggrieved by the said order and seeking to set aside the said order of termination of disciplinary proceedings initiated under Annexure-A1 of Ext.P2. 5. We have heard the learned Senior Advocate Shri.Mohan Parasaran appearing for the petitioner and Sri.Dinesh R Shenoy, the learned counsel appearing for the respondents. 6. As stated earlier, the petitioner approa....
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....occurred inordinate delay in the matter of initiation of disciplinary proceedings and on that sole score Annexure-A1 is liable to be quashed. It is contended that proceedings pursuant to Annexure-A1, if permitted to continue, would amount to post decisional hearing and evidently, this contention is founded on paragraph 23 of Annexure-A1 (in Ext.P2), more particularly, the following recital therein:- "The whole sequence of events and the phone calls intercepted in the Data Bank establish the role of Shri.Shantam Bose in leaking confidential information in the case of Shri.Davinder Ahuja." Referring to the said recital, it is contended by learned Senior Counsel for the petitioner that it is indicative of the fact that the competent authority had already arrived at a conclusion on the guilt of the petitioner, the charge sheeted employee and therefore, it would vitiate Annexure-A1. It is also contended that in such circumstances no fair and impartial enquiry could be conducted based on Annexure- A1. In support of these contentions and on various other points urged he relied on various decisions of the Hon'ble Apex Court such as Khemchand v. Union of India (AIR 1958 SC 300), A.....
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....ering the explanation offered by the respondents for the delay and also the materials on record, the Tribunal evidently arrived at the conclusion that there occurred no undue or unexplained delay and the delay, if any, had occurred only due to the time taken for complying with the procedural formalities. In short, the Tribunal repelled the contentions made by the petitioner on the ground of inordinate delay in initiation of disciplinary proceedings. 9. In the aforesaid circumstances, while considering the aforesaid question it is only worthy to bear in mind paragraph 19 of the decision in Radhakrishnan's case (supra), extracted hereinbefore. The Apex Court held therein that in considering whether delay had vitiated disciplinary proceedings the court had to consider the nature of the charge, its complexity and on what account the delay had occurred. Regarding the nature of the charge, on going through Annexure-A1, we have no hesitation at all to hold that it is grave and serious, in fact, very grave and very serious, in nature. We will elaborate it. As can be seen from Annexure-A1 it pertains to incidents allegedly occurred when the petitioner was holding the post of Additiona....
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.... had been leaked to Shri.Davinder Ahuja, the assessee who was intercepted on 26.9.2009 and thereupon, Davinder Ahuja had been threatening him with dire consequences for providing information about his off-shore accounts to the investigation wing and further that at that point of time the source of leakage was not known. When that be so, it is evident that the genesis of the present proceedings is the leakage of information regarding the identity of the informant to the assessee concerned and also the action in unauthorised sharing of the contents of informant's letter dated 30.4.2010 with Shri.Davinder Ahuja, the assessee, through Shri.Mohit Kapoor, a retired IRS officer. It is pertinent to note at this juncture that at the initial stage the source of leakage was absolutely unknown. Taking into account the serious nature of the imputation as mentioned hereinbefore, hurried steps were not resorted to and in fact, such steps could not have been initiated when the source itself was unknown as they could be initiated only on finding involvement of any of the officers of the department in that matter. The fact that the identity of the informant was leaked itself is sufficient to spo....
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....West Zone submitted his report vide letter dated 7.11.2013. ix. After examining the report of the DIT(Vig.), West Zone, Chairman, CBDT has given approval on 15/12/2014 to refer the matter to CVC for first state advice. x. The CVC after examining the issue, vide its OM No.014/TTX/049/274955 dated 10/2/2015 had advised for initiation of major penalty against Shri Shantam Bose, CIT. xi. The advice of the CVC was examined by DA, who after considering the entire fact on record, has given approval for initiation of major penalty proceedings against Shri Shantam Bose, CIT and also approved the draft charge sheet dated 8/4/2015. xii. Charge sheet dated 17/4/2015 was issued to Shri Shantam Bose." 12. We have already taken note of the fact that the source of leakage of information regarding the identity of the informant was unknown at the initial stage and considering the nature of the complaint we do not think it proper to put blame on the department for having proceeded with the matter carefully and cautiously. The identity of the informant from the officials of the department in the higher level if leaked to public it will certainly dissuade persons from passing on informati....
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.... contention is founded on certain recitals in paragraph 23, as extracted hereinbefore. But, for the fitness of things, at the risk of the petitioner, we are referring to the relevant recitals and they read thus:- "The whole sequence of events and the phone calls intercepted in the Data Bank establish the role of Shri.Shantam Bose in leaking confidential information in the case of Shri.Davinder Ahuja. By the above acts, Shri.Shantam Bose, the then Addl. Director of Incometax (Inv.), Mumbai thus failed to maintain absolute integrity and showed lack of devotion to duty and exhibited conduct unbecoming of a Government Servant thereby contravening the provisions of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964." Relying on the decision in Hans Raj Gupta v. State of Punjab (1992 (1) SLR 146 (P&H)), it is contended by the learned Senior Counsel that the proposed enquiry would be a farce owing to the above specific finding of guilt against the petitioner in Annexure-A1 articles of charge. 14. A perusal of the impugned order would reveal that the above contention was considered in detail by the Tribunal. On such scanning, virtually, the Tribunal arrived at the....
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....d, in accordance with law, before considering how many of them are relevant and admissible for the purpose of the enquiry and the evidence of witnesses are also to be appreciated. In such circumstances, the use of such words in the articles of charge can only be taken as nothing but an imputation which is sought to be proved against the petitioner in the disciplinary proceedings and at any rate, as held by the Tribunal, merely because the imputation was unhappily worded as above, cannot be a reason to hold that already a conclusion was arrived at by the authority regarding the guilt of the petitioner. So long as they are not vague, the imputation therein could be a subject matter for the enquiry. The very purpose of a detailed enquiry is to find out the correctness or otherwise of such imputations raised based on the preliminary enquiry, with the participation of the delinquent officer in accordance with the prescribed procedures. Whether all the materials collected during the preliminary enquiry are admissible and acceptable for the purpose of proving the alleged misconduct can only be decided in the final enquiry. In such circumstances, taking note of the objectionable part of th....
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....mmitted the offending acts levelled against him. Certainly, as observed by the Tribunal, they are matters of enquiry. However, we are clear in our mind that such serious allegations are not only matters worthy to be enquired into but are matters which could not go unenquired with all seriousness, for the maintenance of clear and honest administration. Recurrence of such incidents would certainly malign the credibility of the department and they could be curbed only by finding out the verity of the allegations in disciplinary proceedings conducted in accordance with law and by handing over comeuppance, in case they are proved against the charge sheeted officer. 16. After the initiation of proceedings the petitioner was promoted to the post of Commissioner of Income-tax (Appeals) as per order dated 12.1.2012. According to him, the factum of his promotion to higher post is indicative of the fact that the official respondents are not considering the charges levelled against him as grave enough to warrant imposition of a penalty of withholding of promotion, even in case they are proved. In fact, a contention on the aforesaid lines is taken up in paragraph 13 of the Original Petition. ....
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....tempt on the part of the petitioner to assail the sustainability of the charges on merits, to certain extent. According to the petitioner, the charges contained only ill-founded allegations. We have no hesitation to hold that the Tribunal had very rightly held that it would be too early, in other words premature, to go into such aspects and essentially, the hollowness or otherwise of the allegations could be found out only in appropriately conducted disciplinary proceedings. At any rate, based on the said fact the petitioner cannot claim for quashment of Annexure-A1 memorandum of charges. 18. The question whether Annexure-A1 charge sheet is to be quashed or not was considered by the Tribunal with reference to a catena of decisions, as can be seen from the impugned order. According to us, the Tribunal has rightly referred to the decision of the Apex Court in State of Orissa & Anr. v. Sangram Keshari Misra & Anr. ((2010) 13 SCC 311) to decide on that issue. The Apex Court held therein that normally, a charge sheet could not be quashed prior to the conclusion of the enquiry on the ground that facts stated in the charge are erroneous. Correctness or truthfulness of the charge is a ma....