Central Administrative Tribunal - Allahabad
Devendra Nath Mishra vs Central Board Of Direct Taxes on 2 May, 2023
O.A. No.501/2021
(Reserved on 26.4.2023)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Original Application No. 501/2021
Pronounced on 2nd day of May, 2023
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr.Sanjiv Kumar, Member (A)
Devendra Nath Mishra aged about 66 years retired as Principal
Chief Commissioner of Income Tax,C-17, Sector 47, Noida District
Gautam Budh Nagar, U.P. resident of Piperpuri Post Ino Tara
District- Ambedkar Nagar-224119.
. . . Applicant
By Adv: Shri Anil Kumar Srivastava and Sri Hari Shankar
Chaurasia
VERSUS
1.Union of India, Ministry of Finance, Department of
Revenue, New Delhi through its Secretary.
2. The Under Secretary to the Govt. of India, Ministry of
Finance, Department of Revenue (Central Board of
Direct Taxes), New Delhi.
3. The Central Board of Direct Taxes, Ministry of Finance,
North Block, New Delhi through its Chairman
4. The Director General of Income Tax (Vigilance) 2nd Floor,
Jawahar Lal Nehru Stadium, Lodhi Road, New Delhi-
110001.
..Respondents
By Adv: Sri M.K.Sharma
ORDER
By Hon'ble Mr. Justice Om Prakash-VII, Member (J) The present O.A has been filed by the applicant under section 19 of Administrative Tribunals Act, 1985 with the following:-
i) An order be passed quashing the impugned Sanction order dated 24.11.2020 passed by the respondent No. 2 as well as charge sheet dated 24.11.2020 (Annexure No. A-1 and A-2).
ii) Any other and further order may be passed as this Hon'ble Court may deem fit and proper, in the facts and circumstances of the case.
iii) The cost of the present O.A.may also be awarded in favour of the applicant as against the respondents.
2. The factual matrix of the case in brief is that applicant was an IRS Officer of 1985 batch and retired on 31.12.2016 as Principal Chief Commissioner of Income Tax, U.P.(East), Lucknow. The applicant exercised his quasi judicial functions very diligently and bonafidely under Section 263 and 264 of Income Tax Act, 1961 Page 1 of 10 O.A. No.501/2021 (hereinafter shall be denoted as IT Act). The applicant filed a detailed reply dated 17th February 2020 giving justification in respect of each and every order passed by him on which he had been asked to offer version but respondents without looking the version of the applicant and without pointing out any violation of law, issued charge sheet dated 24.11.2020, which is impugned in the present O.A.
3. Per contra, learned counsel for the respondents has filed counter reply stating therein that the applicant passed orders under Section 263 and 264 of Income Tax Act, 1961 in the capacity of Principal Commissioner of Income Tax-4/ Kolkatta and he retired on 31.12.2016. It is further stated that Section 263 meant to protect interest of revenue, rather applicant misused the same in the manner so as to allow de-facto relief to the assesses by the applicant. It is further submitted that the charge sheet was issued after considering reply of the applicant by the Disciplinary Authority, the Hon'ble Finance Minister. It is further stated that judicial review in the matter of disciplinary proceeding at the stage of issuing charge sheet is pre-mature.
4. Heard the learned counsel for the parties.
5. Learned counsel for the applicant argued that the impugned action of the respondents are highly unjust, unfair and the same is not permissible in law. It is further contended that Charge memo dated 24.11.2020 is bad in law as being without jurisdiction and without compliance of the statutory procedure as also explained in Central Vigilance Commission circular dated 6thJuly, 2006 in as much as CVO of the CBDT or the Chairman of the CBDT had no locus or jurisdiction to seek its advice and to proceed against the applicant whereas the CVO in the Ministry is relevant and jurisdictional CVO in the case of the applicant. Respondents with the malafide intention proceeded to issue the charge sheet without application of mind. Learned counsel for applicant also submitted that order passed by the applicant was quasi judicial which was within his duties but the respondents completely ignored the aforesaid fact and issued the impugned charge sheet after a lapse of 4 years of his retirement and impugned sanction order was issued in a very hurried manner, without seeing the entire record and ignoring that the order passed by the applicant was quasi judicial in nature. It is further submitted that case of the applicant is squarely covered with the order dated 24.12.2020 passed by this Hon'ble Tribunal in O.A. No. 466 of 2020 (Subachan Ram Vs. UOI Page 2 of 10 O.A. No.501/2021 and others decided on 24th December 2020 and order passed by Principal Bench in O.A. No. 201/2019 (Anuradha Mookerjee Vs. UOI and others) decided on 16th day of October, 2019. It is further argued that as per law laid down by Hon'ble Supreme Court in the case of B.V.Gopinath dated 5.9.2013, which has also been explained by the Hon'ble high Court of Delhi in case of Doctor Shahdeo Singhvide order dated 13.7.2016 that at both the stages i.e. (i) at the time of initiation of the disciplinary proceeding so as to obtain CVC's first advice and (ii) at the time of approval of the charge sheet approval of disciplinary authority i.e. the Finance Minister is required, whereas in the case of applicant, approval of the Finance Minister was not obtained for making reference to the CVC for his first stage advice. In addition to that, learned counsel for applicant has also relied on the following case laws:-
i) Union of India and others Vs. B.V. Gopinath (Civil Appeal No. 7761 of 2013 , arising out of SLP (C ) No. 6348 of 2011 decided on 5th September, 2013.
ii) Writ A No. 9789 of 2022 the Union of India and 4 others Vs. Krishna Agarawal, ASGI decided on 10.11.2022.
iii) O.A. No. 466 of 2020 (Subachan Ram Vs. UOI and others decided on 24th December, 2020 -CAT, Allahabad Bench
iv) O.A.No. 201/2019 (Anuradha Mookerjee Vs. UOI) decided on 16th October, 2019- CAT Principal Bench
6. Learned counsel for the respondents argued that total 121 orders under Section 263 and 38 orders under Section 264 of the Act were passed by the applicant. Out of total 149 cases were examined, the irregularities were observed in as many as 78 cases under Section 263 and 6 cases u/s 264 of IT Act. ADG (Vig.) EZ in the report summarized the major lapses in the orders passed by the applicant u/s 263 and 264 of the IT Act. Along with the charge sheet, statement of Article of Charges against the applicant was enclosed. It is further argued that charge sheet was issued after considering the reply of the applicant by disciplinary authority i.e. Hon'ble Finance Minister, It is further argued that applicant passed orders u/s 263 and 264 of IT Act, 1961 in the capacity of Principal Commissioner of Income Tax -4/ Kolkatta and he retired on 31.12.2016 and charge sheet was issued on 24.1.2020, Rule 9(2)of CCS (Pension) Rules, 1972 provides that "departmental proceeding, if not instituted while the Government servant was in service, whether before his retirement, or during his re- employment-(i) shall not be instituted save with the sanction of the Page 3 of 10 O.A. No.501/2021 President, (ii) shall not be in respect of any event which took place more than four years before such institution and (iii) shall be conducted by such authority and in such place as the President may direct in accordance with the procedure applicable to the departmental proceeding in which an order of dismissal from service could be made in relation to the Govt. servant during his service. It is further submitted that charge sheet was issued on 24.11.2020 allowing 10 days time to submit reply but till date, no reply has been filed by the applicant. As far as the plea taken by the applicant regarding obtaining commission's first stage advice, it is argued that approval of the Chairman, CBDT was obtained on 27.10.2020 for sending the matter to CVC for its first stage advice and after receiving the advice, the charge sheet was issued with due approval of Hon'ble Finance Minister, the Disciplinary Authority on 19.11.2020. Learned counsel for the respondents has relied upon the following case law:-
i) Krishna Prasad Verma (D) thr. LRS Vs. state of Bihar and others Civil Appeal No. 8950 of 2011 decided on 7th August, 2013.
7. We have considered the rival submissions and have gone through the entire record.
8. From perusal of record, it is evident that charge sheet dated 24.11.2020 has been issued to the applicant after his retirement on the ground that applicant while holding the charge of Principal CIT, Kolkatta illegally entertained and acted upon petitions u/s 263 of the Income Tax Act, 1961 from 78 assesses companies by deliberately misinterpreting the provision of section 263 of the aforesaid Act with an intent to provide wrongful gain to such assesses. Charges leveled against the applicant are as follows:-
Article -I That the said Sri Devendra Nath Mishra (Civil List No. 85052), while holding the charge of Principal CIT, Kolkatta illegally entertained and acted upon petitions u/s 263 of the Income Tax Act, 1961 from 78 assesses companies by deliberately misinterpreting the provision of section 263 of the aforesaid Act with an intent to provide wrongful gain to such assesses.
Article- II That Sri Devendra Nath Mishra, while holding the charge of Pr. CIT-4, Kolkatta, admitted an application u/s 264 of the Income Tax Act, 1961 from 6 assesses companies and deliberately passed an order u/s 264 of the Income Tax Act, 1961 with malafide intent.
Page 4 of 10 O.A. No.501/20219. Thereafter, the matter was sent to the CVC for first stage advice with the approval of the Chairman, CBDT on 27.10.2020 and after receiving the advice, the charge sheet was issued to the applicant dated 24.11.2020 with due approval of Hon'ble Finance Minister, the Disciplinary Authority on 19.11.2020. Charge sheet was issued to the applicant after considering the reply submitted by the applicant by the disciplinary authority, i.e. Hon'ble Finance Minister and applicant was given 10 days time to submit reply to the charge sheet but instead of submitting reply, applicant approached this Tribunal for quashing the impugned charge sheet dated 24.11.2020. Learned counsel for the applicant has challenged the charge memo mainly on the grounds that charge sheet has been issued by the incompetent authority, first stage advice of CVO is taken with approval of the competent authority and Chairman of the CBDT had no locus or jurisdiction to seek advice. Charge sheet has been issued after a lapse of 4 years of his retirement and the same has been issued with malafide intention.
10. In the case of Subachan Ram Vs. UOI (supra), the charge leveled against the applicant is that the case was heard by the applicant on 26.7.2016 and the order was passed on 4.10.2016 i.e. after a delay of 55 days beyond 15 days from the date of last hearing. But in the instant case, the charge leveled against the applicant is not of delay but the charge is that while the applicant holding the charge of Principal CIT, Kolkatta illegally entertained and acted upon petitions u/s 263 of the Income Tax Act, 1961 from 78 assesses companies by deliberately misinterpreting the provision of section 263 of the aforesaid Act with an intent to provide wrongful gain to such assesses. Therefore, the case of Subachan (supra) will not help the applicant.
11. In the case of Anuradha Mookerjee Vs. UOI (supra), in para 19 of the judgment, CAT Principal Bench has observed that in the instant case, there is not even an allegation that the applicant resorted to any acts of dishonesty or wrongful gain. The whole edifice of the charge memo is built on the foundation of the so called hasty disposal of the appeal. Whereas the charge leveled against the applicant in the instant O.A. is that while the applicant holding the charge of Principal CIT, Kolkatta illegally entertained and acted upon petitions u/s 263 of the Income Tax Act, 1961 from 78 assesses companies by deliberately misinterpreting the provision of section 263 of the aforesaid Act with an intent to Page 5 of 10 O.A. No.501/2021 provide wrongful gain to such assesses. This case will not support the case of the applicant.
12. In the case of Union of India Vs. B.V. Gopinath (supra), the charge sheet has not been approved by the disciplinary authority whereas in the instant case the charge sheet was issued by the disciplinary authority, i.e. Hon'ble Finance Minister. Hence, this case will also not be applicable in the case of applicant.
13. In the case of the Union of India and 4 others Vs. Krishna Agarawal (supra), the second charge sheet was issued on the same inspection report on the basis of which first charge sheet was issued on 9.9.2020 and the same was quashed by the Tribunal in O.A. No. 466/2020 and Hon'ble High Court was of the opinion that issuing the second chare sheet on the same set of facts itself is malicious and that to at the verge of retirement. In the instant case first charge sheet is issued to the applicant on the ground that applicant misinterpreted the provision of section 263 of the aforesaid Act with an intent to provide wrongful gain to such assesses. Hence the same will not help the applicant.
14. In the case of Krishna Prasad Verma (D) through legal heirs Vs. State of Bihar (supra), Hon'ble Apex Court observed as under:-
". We would, however, like to make it clear that we are in no manner indicating that if a judicial officer passes a wrong order, then no action is to be taken. In case a judicial officer passes orders which are against settled legal norms but there is no allegation of any extraneous influences leading to the passing of such orders then the appropriate action which the High Court should take is to record such material on the administrative side and place it on the service record of the judicial officer concerned. These matters can be taken into consideration while considering career progression of the concerned judicial officer. Once note of the wrong order is taken and they form part of the service record these can be taken into consideration to deny selection grade, promotion etc., and in case there is a continuous flow of wrong or illegal orders then the proper action would be to compulsorily retire the judicial officer, in accordance with the Rules. We again reiterate that unless there are clear-cut allegations of misconduct, extraneous influences, gratification of any kind etc., disciplinary proceedings should not be initiated merely on the basis that a wrong order has been passed by the judicial officer or merely on the ground that the judicial order is incorrect.
17. In view of the above discussion, we allow the appeal, set aside the judgment of the High Court and quash all the orders passed against the delinquent officer. He is directed Page 6 of 10 O.A. No.501/2021 to be given all consequential benefits on or before 31.12.2019. The appeal is allowed with costs of Rs.25,000/-"
15. In the case of Union of India and others Vs. K.K. Dhawan (supra), Hon'ble Apex Court has held as under:-
In the case on hand, article of charge clearly mentions that the nine assessments covered by the article of charge were completed
(i) in an irregular manner,
(ii) in undue haste, and
(iii) apparently with a view to confer undue favour upon the assessees concerned. (Emphasis supplied) Therefore, the allegation of conferring undue favour is very much there unlike Civil Appeal No. 560/91. If that be so, certainly disciplinary action is warranted. This Court had occasion to examine the position. In Union of India & Ors. v. A.N. Saxena, [1992] 3 SCC 124 to which one of us (Mohan, J.) was a party, it was held as under :
"It was urged before us by learned counsel for the respondent that as the respondents was performing judicial or quasi-judicial functions in making the assessment orders in question even if his actions were wrong they could be corrected in an appeal or in revision and no disciplinary proceedings could be taken regarding such actions.
In our view, an argument that no disciplinary action can be taken in regard to actions taken or purported to be done in the course of judicial or quasi-judicial proceedings is not correct. It is true that when an officer is performing judicial or quasi-judicial functions disciplinary proceedings regarding any of his actions in the course of such proceedings should be taken only after great caution and a close scrutiny of his actions and only if the circumstances so warrant. The initiation of such proceedings, it is true, is likely to shake the confidence of the public in the officer concerned and also if lightly taken likely to undermine his independence. Hence, the need for extreme care and caution before initiation of disciplinary proceedings against an officer performing judicial or quasi-judicial functions in respect of his actions in the discharge or purported to discharge his functions. But it is not as if such action cannot be taken at all. Where the actions of such an officer indicate culpability, namely a desire to oblige himself or unduly favour one of the parties or an improper motive there is no reason why disciplinary action should not be taken."
This dictum fully supports the stand of the appellant. There is a great reason and justice for holding in such cases that the disciplinary action could be taken. It is one of the cardinal principles of administration of justice that it must be free from bias of any kind. Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the Page 7 of 10 O.A. No.501/2021 correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases
(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;
(ii)if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii)if he has acted in a manner which is unbecoming of a government servant;
(iv)if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(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."
The instances above catalogued are not exhaustive. However, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated.
In view of the foregoing discussion, the appeals will stand allowed. There will be no order as to costs. We make it clear that it is open to the respondent to put forth all defenses open to him in the departmental inquiry which will be considered on its merit."
16. In the instant case, the charge memo was issued under Rule 9 of the CCS (Pension) Rules. Obviously, with a view to ensure that the retired public servants are not subjected to indiscriminate disciplinary proceedings, the rule making authority has provided certain safeguards. As regards the initiation of disciplinary proceedings against retired public servants, Rule 9(2)(b) of the CCS(Pension) Rules reads as under:-
9(2)(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment, -
(i) shall not be instituted save with the sanction of the President, Page 8 of 10 O.A. No.501/2021
(ii) shall not be in respect of any event which took place more than four years before such institution, and
(iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.
10. Sub clauses (i) and (ii) become important in this behalf. The first requirement is that the sanction must be accorded by the President, for institution of proceedings. The second is that the proceedings shall not be in respect of any event, which took place more than four years before such institution. Therefore, it needs to be examined whether the plea advanced by the applicant can be accepted."
17. Perusal of sanction order dated 24.11.2020,it reveals that in exercise of the powers conferred on him by sub clause (i) of clause
(b) of sub rule (2) of Rule 9 of Central Civil Services (Pension) Rules, 1972, Hon'ble the President had accorded sanction to the departmental proceeding against the said Shri Devendra Nath Mishra, i.e. the applicant. The applicant was working as Principal Chief Commissioner of Income Tax at Kolkatta at the time of retirement i.e. on 31.12.2016 and charge sheet was issued to the applicant on 24.11.2020 i.e. before four years of such institution as prescribed in Rule 9(2)(b) of the CCS(Pension) Rules.
18. As far as plea of the applicant that the order passed by the applicant was quasi judicial which was within his duties but the respondents completely ignored the aforesaid fact and issued impugned charge sheet, it is mentioned that in para 8 of the judgment referred above in case of Krishna Prasad Verma Vs. State of Bihar and others (supra), Hon'ble Apex Court has observed as under:-
"8. No doubt, if any judicial officer conducts proceeding in a manner which would reflect on his reputation or integrity or thee is prima facia material to show rackless misconduct on his part while discharging his duties, the High Court would be entitled to initiate disciplinary cases but such material should be evident from the orders and should also be placed on record during the course of disciplinary proceedings."
Hence, this plea of the applicant is not acceptable.
19. From the forgoing discussions, it is clear that there is clear cut allegation of misconduct against the applicant for deliberately misinterpreting the provisions of Section 263 and 264 of Income Tax Act, 1961 with an intent to provide wrongful gain to such Page 9 of 10 O.A. No.501/2021 assesses. The charge sheet has been issued by the competent authority after considering the reply submitted by the applicant. We found no illegality, infirmity in the charge sheet. O.A. lacks merit and deserves to be dismissed.
20. Accordingly, O.A. is dismissed. All MAs pending in this O.A. also stand disposed off.
21. There shall be no order as to costs.
(Dr. Sanjiv Kumar) Justice Om Prakash- VII
Member (A) Member (J)
HLS/-
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