Sunday, July 14, 2013

chk Bom OA No.345/2012 on 03-04-2013

Bom  OA No.345/2012  on 03-04-2013  check -- perhaps DB



Dated this Wednesday, the 3rd day of April, 2013


Shri Rupak Bahadur,
Deputy Commissioner of Income Tax,
Residing at A-12, Sooraj Sadan,
3rd N.S.Road, Vile Parle (West),
Mumbai 400 056             ...  Applicant

(By Advocate Shri S.V.Marne)


1. Union of India
Through the Secretary,
Ministry of Finance,
Department of Revenue, North Block,
New Delhi – 110 001.

2. The Chairman,
The Central Board of Direct Taxes,
North Block, New Delhi- 110 001     ....Respondents

(By Advocate Shri V.S.Masurkar with Smt. H.P.Shah)


Per : Smt. Leena Mehendale, Member (A)

This Original Application filed on 14.06.2012, seeks to challenge charge-sheet for minor penalty on the ground of retirement and delay in issuing the charge-sheet.
2. The case of the applicant is that he was working as ACIT (Assistant Commissioner of Income Tax), in or around 2000 posted at Calcutta and his job charge included passing assessment orders including refund of Income Tax. In 2006, he received promotion as DCIT (Deputy Commissioner of Income Tax) and in 2008 he was also given Vigilance Clearance for the purpose of his passport.
3. The Respondents claim that by letter dated 23.01.2004, the CCIT (chief Commissioner of Income Tax) (CCA) Kolkata proposed to conduct Vigilance Inspection into the working of the applicant pertaining to  F.Y.2003-2004 on the basis of some complaint received by them. It seems from Annexure A-5 that the CBDT, who is Respondent No.2, referred the matter to CVC (Central Vigilance Commissioner) on 24.11.2011 who returned the files with the following remark (Page 16):-
“2. The proposal of CBDT has been examined and observed that though, no vigilance angle in the assessment orders passed by Sh. Bahadur, ACIT have been emerged in vigilance inspection, but it is a fact that the officer passed the assessment orders in as much as 24 cases in a routine, casual and stereo-typed manner, without conducting proper inquiries and also caused delay of five months in issuing refund orders in many cases. Since, most of the irregularities committed by the officer appear to be procedural in nature, therefore, the Commission would advise initiation of minor penalty proceedings against Sh. Rupak Bahadur, the then ACIT (now DCIT).”
This letter was issued by CVC on 22.02.2012 (Annexure A-5) on the basis of which a charge memo dated 21.05.2012 was issued to the applicant, which is impugned and filed as Annexure  A-1.
4. The applicant retired on 31.08.2012. Before that, being posted in Mumbai as Deputy Commissioner, he approached this Tribunal and interim order has been passed on 15.06.2012 restraining the respondents to pass any final order in the proposed departmental inquiry. The stay has been continued till final disposal.
5. Heard both the counsel. The learned counsel for the applicant challenges the charge-sheet on two grounds namely
delay and
Government of India instructions No. dated 28.02.1981 on the question of delay.
He would rely on three judgments.
1. M.V.Bijlani Vs. Union of India, (2006) 5 SCC 88, which lays down
“Departmental Enquiry - Delay in initiation of – Held, initiation of disciplinary proceedings after 6 years and continuance thereof for a period of 7 years prejudiced the delinquent officer – Constitution of India, Art.311.”

2. State of A.P. Vs. N.Radhakishan, (1998) 4 SCC 154, which lays down as:
“19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated, each case has to be examined on the facts and circumstance in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay.”

3. P.V.Madadevan Vs. MD, T.N. Housing Board, (2005) 6 SCC 636, which lays down as
“It is on the question of protracted disciplinary enquiry- Duty to avoid- Considering mental agony and sufferings caused to the employee concerned due to protracted enquiry, held, protraction should 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 government employees.”

It was observed that such protraction should be avoided.
6. The learned counsel also argued that the Government of India instructions dated 28.02.1981 explains how minor penalty proceedings would not have any effect on pension and, therefore, the said Government of India instructions directs the Disciplinary Authority to take steps to ensure that minor penalty proceedings so instituted are finalized before retirement. Rule 9(2)(a) reads-
“if a  Departmental Proceedings is instituted while the Government Servant is in service, before his retirement, then the proceedings shall also continue after retirement and would be concluded by the Disciplinary Authority in the same manner as if the Government Servant has continued in service”.
7. The learned counsel argues that in view of the Government of India instructions quoted (supra) the incomplete proceedings against retired Government Servant must be dropped.
8. The learned counsel for the respondents has stated, by way of Reply Statement that the Original Application is premature and the enquiry of minor penalty should be allowed to proceed. He gives three grounds:
(i) Firstly, Rule 9(2)(a) of the Swamy's- CCS (Pension) Rules is very clear and allows the Disciplinary Authority to proceed with the enquiry. The Government of India instructions only point out that minor proceedings cannot have any effect on pension. However, the other minor punishment such as censor, recovery from DCRG are allowed. Therefore, the said Government of India instructions cannot be the reason for dropping the charge-sheet.

(ii) The second ground raised by the learned counsel is that after receiving the charge-sheet the first remedy available to the applicant is to answer the charge-sheet and state all his ground in the said Reply.  The applicant has not done it so far.

9. By way of third point, learned counsel for the respondents relies on the judgment in the case of Tamil Nadu Vs. K.N.Ramamurthy, 1997 SCC (L&S) 1749, where the Apex Court has held that (Page 18)
 “...the Tribunal has no jurisdiction to go into the correctness or truth of the charges. The Tribunal cannot also take over the functions of the disciplinary authority. The function of the Court/Tribunal is one of judicial review. The parameters of judicial review have been clearly laid down. The Tribunal or the court can interfere only if on the charges (read with imputations or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law.”
Then, he also quotes another judgment of Union of India & Another Vs. Ashok Kacker, 1995 SCC (L&S) 374, in which the Apex Court has held: (Page 19)                                                                                                                                                                                                                    
 “The Respondent has the full opportunity to reply to the Charge Sheet and to raise all the points available to him/her including those which are now urged on him/her behalf. This was no the stage at which the Tribunal ought to have entertained such an application for quashing the charge sheet and the appropriate course for the respondent to adopt is to file his/her reply to the charge sheet and invite the decision of the disciplinary authority thereon.”

10. We have heard the arguments of both the counsels and gone through all the records.  It is true that there is no bar on proceeding with the charge-sheet even after the retirement.  It is also admitted by the Respondents that any minor penalty will not have effect on the actual pension due to the Applicant.  Hence, the present enquiry which is for a minor charge would not have any impact on the pension.  However, it may result in recovery and if so, such a recovery from DCRG is allowed.  Hence, it is necessary to go into the merits of the case, and the merits of the charge-sheet.
11. The impugned charge-sheet is at Annexure A-1. It has only two charges. The first charge gives the list of 24 cases and it is charged that the applicant has passed assessment orders in respect of these, in a routine, casual and stereotyped manner. The Annexure  A-1 of the charge-sheet is not accompanied with any more details about the charges. We find that during this period the applicant has worked as ACIT (Kolkata). He may be passing a large number of assessment orders per month and may also have acquired enough experience in handling this type of cases. To say that the assessment orders was passed in a routine, casual and stereotyped order is a relative statement and it is vaque if not compared with the total number of assessment orders passed by the applicant and with the manner of disposal in another cases. If his total work load of passing assessment orders was only 24 during the whole year then the manner of disposal when compared with each other might indicate casualness or stereotyped. But the same is not stated or elaborated in the statement of imputations. On the other hand, if a person is disposing of 500 such cases in a year then it is possible that he may spend lesser time on some of them and more time on some other. Since no such details are available in the statement of imputations, no such comparison is available even to the applicant. In such situation the delay of 11 years in issuing the charge becomes quite significant.
12. Similarly, the second charge gives the list of 9 cases where it is charged that the applicant has issue refund years belatedly. Again this charge is for delay in 9 cases and nothing is known about his total work load. This charge no doubt shows the delay ranging from 12 to 15 months and in 2 cases the refund order is not yet issued. However, the charge does not state whether any loss has been incurred by the Government because of the delay in refund orders. It is again for this reason that the delay of more than 10 years in issuing the charge sheet for minor punishment where there is no vigilance angle does not appear justified.
13. In view of the above, the OA is allowed Annexure A-1 which is impugned charge-sheet dated 21.05.2012 is quashed. No order as to costs.

(Smt. Leena Mehendale)

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