AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2018 (9) TMI 2134
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsure that, in dispensing justice, he does not end up dispensing with justice. No less perilously would the shaking hand of the judge hold the justice-dispensing pen, than would the shaking hand of the surgeon wield the life-infusing scalpel. No less disastrous, either, would the outcome be, if, at the critical moment of pronouncing the verdict, or making the crucial incision, the decision-making mind were to waver, or the hand to tremble. 3. I am constrained to observe that, if proceedings such as these are allowed to be initiated and continued, we may as well do away with the requirement of dispensing justice without fear or favour, affection or ill will. It is cardinal, to the dispassionate administration of justice, that the judicial officer should be allowed to function without having, over his head as it were, the ominous shadow of the Damoclean sword. This case presents a classic example of how a judicial officer has been hounded for passing orders which, as the writ petition points out, and as I would also be highlighting in the course of this judgment, are eminently in accordance with the law laid down by this court, in its decisions, in case after case. 4. It is tri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ndency of these recovery proceedings, the third party objector tendered a compromise proposal to the PNB, in respect of both the recovery certificates, for a sum of Rs. 20 lakhs, for release of property and closure of the cases. This resulted in an affidavit, dated 15th July, 2016, being filed by the PNB before the DRT, in which it was stated that the Bank had compromised the matter as per rules. It was prayed that the compromise amount be allowed to be adjusted and the RC taken as satisfied. 11. Initially, the Recovery Officer ordered that the compromise be not given effect to, as the compromise amount, according to him, was too low. However, as was admitted by the Bank, in its affidavit filed before the petitioner, "after the Bank attempted, twice, to auction the property, but was unable to secure any bid, the Bank itself applied for permission to act upon the compromise, stating that it had been entered into according to banking norms." 12. In these circumstances, the petitioner, as PO of the DRT, confirmed the settlement/compromise and quashed the proceedings before the recovery officer. Accordingly, vide separate order of the same date, the appeal of the debtors was also....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urther noted that proclamation of sale had been issued on 24th July, 2015, by the Recovery Officer for the said RCs, requiring deposit of the earnest money of Rs. 85 lakhs, by the intending bidder. As such, the charge-sheet alleged that the orders, withdrawing the Recovery Certificates, were passed by the petitioner, on 15th July, 2016, unauthorizedly, without legal authority or justification. This, it was alleged, amounted to exceeding, by the petitioner, of his "vested judicial powers, showing his incapacity to function as a Presiding Officer in a befitting manner" and that he was "guilty of misbehaviour". 15. It is necessary, here, to reproduce certain passages of the affidavits, submitted by the Bank, at the time of applying for closure of the proceedings on the ground that they had been compromised, as also before the Chairman of the DRAT, in the suo motu proceedings initiated by him, thus: "14. I say that the third party objector tendered compromise proposal in R.C. No.118/2012 and R.C.No. 266/2006 of Rs.20 lakhs for release of the aforesaid property and closure of the aforesaid cases. 15. I say that the relevant point of time, Mr. S.L. Agarwal, Assistant....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or recovery of the amount of debt specified in the certificate." "26. Validity of certificate an amendment thereof. - (1) It shall not be open to the defendant to dispute before the Recovery Officer the correctness of the amount specified in the certificate, and no objection to the certificate on any other ground shall also be entertained by the Recovery Officer. (2) Notwithstanding the issue of a certificate to a Recovery Officer, the Presiding Officer shall have power to withdraw the certificate or correct any clerical or arithmetical mistake in the certificate by sending intimation to the Recovery Officer. (3) The Presiding Officer shall intimate to the Recovery Officer any order withdrawing or canceling a certificate or any correction made by him under sub-section (2)." "33. Protection of action taken in good faith No suit, prosecution or other legal proceeding shall lie against the Central Government or against 11[the Presiding Officer of a Tribunal or the Chairperson of an Appellate Tribunal] or against the Recovery Officer for anything which is in good faith done or intended to be done in pursuance of this Act or any rule....
X X X X Extracts X X X X
X X X X Extracts X X X X
....his court in Smt. Harpreet Kaur & Anr. v. M/s Fullerton India Creditcompany Ltd., 2018 (249) DLT 283. The said passages may profitably be reproduced, thus: "9. Even otherwise, as observed by a Division Bench of this Court in the said order dated 19.4.2010, extracted hereinabove, the parties to a proceedings are at a liberty; at any stage thereof, to arrive at an amicable settlement in relation to the subject matter of the dispute, and it does not lie in the mouth of the judicial authority to obstruct or impede the amicable settlement on a ground which is not sustainable in law. The learned DRAT, as observed in the said order dated 19.4.2010, is not some kind of Ombudsman/Auditor of the Bank; to scrutinize the settlement arrived at between the bank and the borrower, as it is not within the scope and ambit of its jurisdiction or function. It is reiterated that the learned DRAT cannot arrogate to itself the power to determine the value at which the Bank should settle its dues with the borrower, especially when it does not any involve public money." 20. The petitioner also draws attention to the fact that the order, dated 15th July, 2016 had been passed by him, based on an ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r v. U.O.I., (1999) 7 SCC 409, the Supreme Court, dealing with the said aspect observed as follows : "40. When we talk of negligence in a quasi-judicial adjudication, it is not negligence perceived as carelessness, inadvertence or omission but as culpable negligence. This is how this Court in State of Punjab v. Ex-Constable Ram Singh, (1992) 4 SCC 54 interpreted "misconduct" not coming within the purview of mere error in judgment, carelessness or negligence in performance of duty. In the case of K.K. Dhawan, (1993) 2 SCC 56 the allegation was of conferring undue favour upon the assessees. It was not a case of negligence as such. In Upendra Singh case, (1994) 3 SCC 357 the charge was that he gave illegal and improper directions to the assessing officer in order to unduly favour the assessee. The case of K.S. Swaminathan, (1996) 11 SCC 498 was not where the respondent was acting in any quasi-judicial capacity. This Court said that at the stage of framing of the charge the statement of facts and the charge-sheet supplied are required to be looked into by the court to see whether they support the charge of the alleged misconduct. In M.S. Bindra case, (1998) 7 SCC 310 where the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sed his jurisdiction. 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. 42. Initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty. 43. If every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi-judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he bribe may be because Lord Coke said long ago "though the bribe may be small, yet the fault is great"." 6. The Court, however, made it clear that ultimately the matter would have to depend upon the facts of a particular case. The present case would fall squarely within the fourth instance listed above." (Emphasis supplied) 29. Subsequently, however, another bench, of three Hon'ble judges, reiterated Nagarkar (supra), in Ramesh Chander Singh v. High Court of Allahabad, (2007) 4 SCC 247. The following passages, from the said judgment, crystallize the legal position: "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 have been strong grounds to suspect officer's bona fides and the order itself should have been actuated by malice, bias or illegality. The appellant officer was well within his right to grant bail to the accused in discharge of his judicial functions. Unlike provisions for granting bail....
X X X X Extracts X X X X
X X X X Extracts X X X X
....error, however gross it may be, should not be attributed to improper motives. The Judges of the High Court have a responsibility to ensure judicial discipline and respect for the judiciary from all concerned. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary if the higher courts express lack of faith in the subordinate judiciary for some reason or the other. That amounts to destruction of judiciary from within. 15. In Kashi Nath Roy v. State of Bihar, (1996) 4 SCC 539, this Court observed under a similar circumstance that in our system appellate and revisional courts have been set up with the presupposition that the lower courts in some measure of cases can go wrong in decision-making in law and in fact. The higher courts have been established to correct errors. In cases where intolerable error is pointed out, it is functionally required to correct the error in an appropriate case and in a manner befitting maintaining dignity of the court and independence of the judiciary. The higher court should convey its message in the judgment to the officer concerned through a process of reasoning, essentially persuasiv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ut proper verification of the facts and examination of records. By his aforesaid act, Shri S. Rajguru failed to maintain devotion to duty and thereby contravened the provisions of Rule 3(1)(ii) of the CSS (Conduct) Rules, 1964. ARTICLE-II Shri S. Rajguru, while functioning as Commissioner of Income Tax (Appeals)-II, Kochi committed irregularity in the appeal order passed by him on 25.08.2005 in the case of M/s. Skyline Builders (AY 2002-03) by allowing the assessee's appeal in disregard of the provisions of section 145(3) of the I.T. Act, 1961. By his aforesaid act, Shri S. Rajguru failed to maintain devotion to duty and thereby contravened the provisions of Rule 3(1)(ii) of the CCS (Conduct) Rules, 1964. ARTICLE-III Shri S. Rajguru, while functioning as Commissioner of Income Tax (Appeals)-II, Kochi committed irregularity in the appeal order passed by him on 23.08.2005 in the case of Shri M.M. Rasheed (Block Period- 01.04.1989 to 17.09.1998) by deleting additions which had been made by the assessing officer without proper verification of the facts and examination of records. By his aforesaid act, Shri S. Rajguru fa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....st be read in the context of his conduct and not the correctness of the decisions rendered by him in a multi-tiered appellate structure. The conduct of an officer must be alleged to be one, which reflects recklessness or complete disregard for the function that he is performing. Mere erroneous decisions on account of a mistake of law or facts, cannot be the basis of commencing proceedings for misconduct. 26. The decision in the case of K.K. Dhawan (supra) cannot be read to mean that misconduct proceedings can be commenced, alleging lack of devotion of duty, in cases where the decisions rendered by quasi-judicial authority are alleged to be erroneous. There has to be something more than mere allegation of erroneous decisions to charge an employee for misconduct; the conduct of an employee must be alleged to be reckless or for motives. In absence of such imputations, a charge made solely on the basis of a decision rendered by a quasi-judicial authority would not be sustainable. 27. The decision in the case of Nagarkar (supra) and in K.K. Dhawan (supra) are not at variance in the above respect and a wrong or erroneous exercise of jurisdiction by a quasi-judicial auth....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed against the department, would be pernicious to the effectiveness of the role that is required to be performed by the CIT (Appeals). 31. We concur with the reasoning of the Tribunal that a quasijudicial authority is to act without fear and levelling charges which are based solely on the decisions rendered by the quasijudicial authority would certainly instill fear in the minds of the officers and, thus, cannot be permitted." (Emphasis supplied) 30. Though, thus, the swinging of the legal pendulum, between the Nagarkar and Duli Chand extremes, may, with the development of the law thereafter, be taken to have been stilled, I am additionally persuaded to rely on Ramesh Chander Singh (supra), in preference to other decisions cited hereinabove, for the reason that, unlike the situation which obtained in Duli Chand (supra), or even in Nagarkar (supra) and Rajguru (supra), the present case deals, not with an executive officer exercising quasi-judicial functions, such as a Commissioner of Income Tax or a Commissioner of Central Excise, but with a judicial officer, administering the law in a Tribunal which has all the trappings of a Court. The distinction is subtle, but unm....