Central Administrative Tribunal - Delhi
Shri B.B. Mohanty vs Union Of India on 31 March, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 1208/2013 Reserved On:20.02.2014 Pronounced on:31.03.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) Honble Shri UDAY KUMAR VERMA, MEMBER(A) Shri B.B. Mohanty S/o Shri Sudarsan Mohanty Aged about 61 years R/o Flat No.A/16, Brahma Apartments, Plot No.7, Sector-7, Dwarka, New Delhi-110075. ..Applicants By Advocate: Shri A.K. Behera. Versus 1. Union of India Through its Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi. 2. The Chairman Central Board of Direct Taxes, Ministry of Finance, Department of Revenue, North Block, New Delhi. ..Respondents By Advocate: Shri Rajeev Kumar. ORDER
Honble Mr. G. George Paracken, Member (J) In this Original Application, the Applicant has challenged the impugned Memorandum dated 21.12.2012 issued to him under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. He has also sought directions to the Respondents to release all his retirement dues with interest after quashing the aforesaid Memorandum and to impose exemplary cost on them for their alleged illegal act.
2. The brief facts of the case are that the Applicant is a 1978 Indian Revenue Service Officer. He was promoted as Director General, Income Tax (Investigations) and posted at Kolkata w.e.f. 16.08.2010. While he was working in the said capacity, the Respondents issued the impugned Memorandum dated 21.12.2012 proposing to initiate disciplinary proceedings against him. The Articles of Charges framed against him, the list of documents and the list of witnesses by whom the aforesaid Article of Charges are proposed to be sustained are as under:-
Articles of charge framed against Shri B B Mohanty, the then CIT (Central), Ludhiana Article I Shri B.B. Mohanty, while posted and functioning as Commissioner of Income Tax (Central), Ludhiana during the period from 20.06.2005 to 23.07.2009, passed orders u/s 264 of the Income Tax Act, 1961 and allowed undue relief by wrongly deleting the additions based on material available on record in a reckless manner without exercising due diligence in the following cases:-
1. M/s Laxmi Overseas Ltd. A. Y. 2004-05
2. M/s Laxmi Overseas Ltd. A.Y. 2005-06
3. M/s Hotel Subhash A. Y. 2004-05 to A. Y. 2007-08
4. M/s Duggal Exports A. Y. 2005-06 5 M/s. Swastik Trading Co. A. Y. 2000-01
6. Sh. Pardeep Kumar, Prop. M/s Vaid Jewellers A. Y. 2000-01 & 2002-03
7. Shri Subhash Chander A. Y. 2006-07 & 2007-08 Article-II Shri B.B. Mohanty, while posted and functioning as Commissioner of Income Tax (Central), Ludhiana, passed orders u/s 264 of the Income Tax Act, 1961 in the following cases, illegally cancelling the penalty notices u/s 271(1)(c) issued pursuant to detection of tax evasion following search/survey actions:
1. M/s Hotel Subhash A. Y. 2004-05 to 2007-08
2. Khosla Group of cases searched on 5.12.2007 A.Y. 2003-04 to 2005-06
3. Shri Subhash Chander A. Y. 2001-02 to. 2005-06
4. Shri Subhash Chander A. Y. 2006-07 & 2007-08 Article-III Shri B.B. Mohanty, while posted and functioning as Commissioner of Income Tax (Central), Ludhiana for the period from 20.06.2005 to 23.07.2009, passed orders u/s 264 of the Income Tax Act, 1961 in the following cases, wrongly cancelling the penalty orders passed u/s 271(1)(c) of the Act and wrongly overruling orders u/s 273A of his superior authority in respect of income determined on the basis of material seized in the course of search:-
1. Shri Tajinder Kumar A. Y. 1999-2000 to 2005-06
2. Sh. Amrit Kumar, Prop. M/s Prince Knitwear, Ludhiana A. Y. 1999-2000 to 2005-06
3. Sh. Sushil Kumar, Prop. M/s Superfine Electronic A. Y. 1999-2000 to 2005-06
4. Smt. anita Rani, Prop. M/s Mamta Textiles A. Y. 1999-2000 to 2005-06 Article-IV Shri B.B. Mohanty, while posted and functioning as Commissioner of Income Tax (Central), Ludhiana during the period from 20.05.2006 to 23.07.2009, passed orders u/s 264 of the Income Tax Act, 1961 in the following cases, where appeals filed before the CIT (Appeals)/Settlement Commission, were pending, thus contravening provisions of section 264(4)(c) of Income Tax Act, 1961:
1. M/s Sood Housing & Developers A. Y. 2005-06 & 2006-07
2. Sh. Rajinder Kumar alias R.K. A. Y. 2000-01 & 2006-07
3. M/s Duggal Exports Ltd. A. Y. 2005-06
4. M/s Duggal Exports Ltd. A. Y. 2003-04 & 2004-05
5. M/s Swastik Trading Co. A. Y. 2000-01 By his above acts, Shri B.B. Mohanty has failed to maintain absolute integrity and devotion to duty and exhibited conduct which is unbecoming of a Govt. Servant, thereby violating Rules 3(1)(i), 3(1)(ii) & 3(1)(iii) of CCS Conduct Rules, 1964.
List of documents (i) M/s Laxmi Overseas India Ltd. (A.Y. 2004-05) a. Folder pertaining to proceedings u/s 264 (p.1 to 101 to the correspondence side and 2 pages on the note-sheet side.
b. Statement of Shri N.K. Tripathi recorded on 25.10.2004 during the course of survey u/s 133A at the premises of Bhartiya Jeewan Dhara Educational & Charitable Trust c. Statement of Shri N.K. Tripathi recorded u/s 131 on 01.12.2006.
d. Affidavit of Shri N.K. Tripathi recorded u/s 131 on 01.12.2006.
e. Balance sheet of the assessee as on 31.03.2004.
(ii) M/s Laxmi Overseas India Ltd. (A.Y. 2005-06) a. Folder pertaining to proceedings u/s 264 (P.1-101 on correspondence side and 2 pages (one sheet written both sides).
(iii) M/s Hotel Subhash (A.Y. 2004-05 to 2007-08) a. Folder relating to proceedings u/s 264 (p.1-33 on correspondence side and 2 note sheets).
b. Copies of Asstt. Orders for A.Y. 2004-05 to 2007-08.
(iv) M/s Duggal Exports Ltd. (A.Y. 2005-06) a. Folder relating to proceedings u/s 264 (p.1 to 30 on correspondence side)
(v) M/s Swastik Trading Co. (A.Y. 2000-01) a. Folder relating to proceedings u/s 264 (p.1-132 on correspondence side, 2 Note sheets) CIT (Appeals)s order dated 10.09.2010, dismissing the appeal as withdrawn.
b. Copy of corrigendum dated 5.3.2007 to order u/s passed in the case of M/s Paliwal Overseas Pvt. Ltd.
(vi) Shri Pradeep Kumar, Prop. Vaid Jewellers (A.Y. 2000-01 and 2002-03) a. Copy of assessment order u/s 143(3) read with S.153A(b) dated Nil of December, 2007 for A.Y. 2000-01.
b. Copy of statement of Shri Pradeep Kumar Vaid recorded during the course of search operations carried out on 10.01.2006.
c. Copy of assessment order u/s 143(3) for A.Y. 2002-03.
d. Copy of order u/s 264 dated 02.09.2008 for A.Y. 2000-01 and 2002-03.
(vii) Shri Subhash Chander (A.Y. 2006-07 and 2007-08) a. Folder relating to proceedings u/s 264 (p.1-152 on correspondence side, 2 note-sheets).
b. Folder relating to proceedings u/s 264 (p.1-83 on correspondence side and 3 pages on note- sheet side).
(viii) M/s Hotel Subhash (A.Y. 2004-05 to 2007-08) a. Same documents as listed in the list of documents under Article-1.
(ix) Khosla Group of cases searched on 05.12.2007.
a. Folder relating to proceedings u/s 264 (p.1-86 on correspondence side and 2 pages on Note-sheet side).
(x) Shri Subash Chander (A.Y. 2001-02, 2002-03, 2004-05, 2005-06) a. Folder pertaining to proceedings u/s 264 (p.1-83 on correspondence side 3 pages on note-sheet side).
(xia) Shri Tajinder Kumar, Prop. M/s Mamta Shawls (A.Y. 1999-2000 to 2005-06).
(xib) Shri Amrit Kumar, Prop. M/s Prince Knitwear (A.Y. 1999-2000 to 2005-06).
(xic) Shri Sushil Kumar, Prop. M/s super Fine Electronics (A.Y. 1999-2000 to 2005-06).
(xid) Smt. Anita Rani, Prop. M/s Mamta Textiles (1999-2000 to 2005-06).
a. Folder relating to proceedings u/s 264 (pages 1-52 on correspondence side, pages 1 and 2 on the note-sheet side).
b. Draft order u/s 273A sent by the CIT to the DGIT (Inv.).
c. CIT (Central), Ludhianas letter dated 12.09.2008.
d. DGIT(Inv.)s letter dated 19.09.2008, approving the CITs proposal for rejecting the petition u/s 273A.
(xii) M/s Sood Housing & Developers Ltd. (A.Y. 2006-07 and 2007-08) a. Folder relating to proceedings u/s 264 (p.1 to 56 on the correspondence side and pages 1-3 on the note-sheet side).
b. Folder relating to proceedings u/s 264 (p.1-55 on the correspondence side and pages 1 to 3 on the note-sheet side.
c. CIT (Appeals) order dated 09.04.2009, dismissing the appeal as withdrawal.
(xiii) Shri Rajinder Kumar, alias R.K. (A.Y. 2000-01 to 2006-07) a. Folder relating to proceedings u/s 264 (p.1-32 on correspondence side and 3 pages and on the note-sheet side).
b. CIT(Appeals)s order dated 21.04.2009, dismissing the appeal as withdrawn.
(xiv) M/s Duggal Exports (A.Y. 2003-04 & 2004-05) a. Order dated 20.09.2007 passed u/s 264 of the I.T. Act, 1961.
b. Supreme Courts decision in the case of CIT Vs. Hindustan Aeronautics Ltd. (243 ITR 808)(SC).
List of witnesses Nil.
3. Applicant challenged the aforesaid Memorandum on the grounds that the same is illegal, arbitrary and mala fide and it has been issued without jurisdiction. His further contention is that while issuing orders under Section 264 of I.T. Act, 1961, he was discharging his official duties as a quasi judicial authority and the allegations of illegality or irregularity cannot be made the subject matter of any disciplinary proceeding unless there is an allegation of corrupt motive. According to him, the disciplinary proceedings against a quasi judicial officer on the allegations relating to exercise of functions and duties is barred in law. In support of his said contention, he relied upon the judgment of the Apex Court in the cases of Union of India Vs. R.K. Desai 1993 (2) SCC 49 and Z.B. Nagarkar Vs. Union of India 1999 (7) SCC 409 followed by the Honble High Court of Delhi and of this Tribunal in the cases of Union of India Vs. Dolly Saxena 2001 (93) DLT 124 and S. Rajguru Vs. Union of India OA No.2815/2012 decided by the Principal Bench on 01.02.2013 respectively. 4. In the judgment in the case of R.K. Desai (supra), the Apex Court held that whether a decision taken by an officer in exercise of judicial/quasi-judicial function can form the basis of disciplinary proceeding against him, will depend upon the test whether decision lies within the scope of his official duties. In cases of a palpably erroneous decisions taken by virtue of his office, no disciplinary action would lie but if the decision was taken pursuant to corrupt or improper motive, disciplinary action would lie. Again, it would depend on facts and circumstances of each case. The relevant part of the said judgment reads as under:-
7. It seems difficult beyond dispute, and is not in fact disputed before us, that it is not as if an officer belonging to the central Civil Service is totally immune from disciplinary proceedings wherever he discharges quasijudicial or judicial functions. If in the discharge of such functions he takes any action pursuant to a corrupt motive or an improper motive to oblige someone or takes revenge on someone, in such a case it is not as if no disciplinary proceedings can be taken at all. On the contrary, merely because he gives a judicial or quasi-judicial decision which is erroneous or even palpably erroneous no disciplinary proceedings would lie. We may in this connection usefully refer to H.H.B. Gill v. R. where it was held as under:
"A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is ex- amining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office."
Following this ruling in United Provinces v. Electricity Distributing Co. it was held in paragraph 21 as under:
"In the present case, it is equally clear that the appellant could not justify the acts in respect of which he was charged', i.e., acts of fraudulently misapplying money entrusted to his care as a public ser- vant, as acts done by him by virtue of his office that he held'."
9. Again in Satwant Singh v. State of Punjab it has been observed as under:
"IT appears to us to be clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribe, an offence punishable under Sec- tion 161 of the Indian Penal Code, is one of them and the offence of cheating or abetment thereof is another. We have no hesitation in saying that where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a public servant, the official status fur- nishing only the occasion or opportunity for the commission of the of- fences (vide Amrik Singh v. State of Pepsu. The act of cheating or abetment thereof has no reasonable connection with the discharge of official duty. The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty (vide Matajog Dobey v. H.C. Bhari).
10. Though, these cases relate to sanction under Section 197 of Criminal Procedure Code of 1898, yet the tests laid down as to what would constitute proper exercise of power by a public servant, could be discerned. These principles will constitute the tests for launching disciplinary proceedings as well.
11. The office may occasion the bribe. But it does not mean because the officer is exercising its quasi-judicial functions, he would not be amenable to judiciary proceedings.
5. In the judgment in Z.B. Nagarkars case (supra) two principal issues arose for the consideration of Honble Supreme Court: (1) whether levy of penalty under Rule 173-Q was obligatory and (2) whether there was enough background material for the Central Government to form a prima facie opinion to proceed against the officer on the charge of misconduct on his failure to levy penalty under Rule 173-Q. The brief factual background of the case was that the Appellant Zunjarrao Bhikaji Nagarkar was posted as Collector of Central Excise, Nagpur in the year 1995. [Collector is now called Commissioner]. He was served with a memorandum dated September 2, 1997 under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 informing him that the President proposes to hold an inquiry against him on the allegation that he favoured M/s. Hari Vishnu Packaging Ltd., Nagpur (assessee) by not imposing penalty on it under Rule 173-Q of the Central Excise Rules, 1944 when he passed an order in Original No. 20/95 dated March 2, 1995 holding that the assessee had clandestinely manufactured and cleared the excisable goods willfully and evaded the excise duty and had ordered confiscation of the goods. The appellant approached Mumbai Bench of this Tribunal challenging the proposed inquiry in OA No. 250 of 1998 on March 18, 1998. While admitting the application the Tribunal granted interim relief and stayed the disciplinary proceedings against the appellant and however, the OA was dismissed by order dated August 12, 1998 with the result the interim order stood vacated. Immediately thereafter the appellant filed a writ petition in the Bombay High Court, WP No. 4717 of 1998 which was dismissed in limine by a Bench of the High Court by order dated September 7, 1998 and the appellant assailed the same in Hon'ble Supreme Court in appeal by filing Special Leave Petition and while issuing notice on the petition interim stay was granted. Section 33 of the Act gives powers to Central Excise authorities to adjudicate. Under the said Section 'where by the rules made under the Act anything is liable to confiscation or any person is liable to a penalty, such confiscation or penalty may be adjudged without limit, by a Commissioner of Central Excise'. In exercise of powers conferred by Section 33 of the Act the appellant held adjudication proceedings against the assessee and two others. A show-cause notice was issued to the assessee on four grounds asking him to show-cause as to why central excise duty of Rs.4,81,950/- be not recovered from him under Rule 9(2) read with proviso to Section 11-A of the Act and why not 95,000 numbers and 25,500 numbers of HDPE bags seized in transit and from its factory premises be confiscated and why penalty be not imposed on it under Rule 173-Q of the Rules. After examining the evidence on record and hearing the assessee the appellant by his order in Original No. 20 of 1995 passed the order (i)confirming the excise duty of Rs.3,57,000/- on 25,500 Nos. of HDPE Woven sacks removed by Noticee-1 clandestinely under Rule 9(2) of the Central Excise Rules, 1994 read with proviso to Section 11-A of the CESA, 1944 (ii) confiscating 95,000 bags cleared clandestinely by Noticee-1 and seized on 16-1-1994 and as the goods had been released provisionally on execution of bond for the full value of the goods and cash security of Rs. 1 Lakh and as the goods were not available for confiscation, Rs. 10,000/-were appropriated in lieu of confiscation; and (iii) ordered confiscation of 'L' shaped 25,500 Nos. of HDPE woven sacks valued at Rs. 1, 27,500/- under Rule 173Q of C. Ex. Rules, 1944. by however, allowing the goods to be redeemed on payment of Rs. 10,000/- Under Section 35-B of the Act an appeal lies to the Customs, Excise and Gold (Control) Appellate Tribunal (Appellate Tribunal) against a decision or order passed by the Commissioner of Central Excise as an adjudicating authority. Powers have been conferred on the Central Board of Excise and Customs (Board) under Section 35-E of the Act to pass certain orders. By order dated February 26, 1996 made under Section 35-E of the Act Board directed the appellant to file appeal to the Appellate Tribunal to determine whether his order in Original No. 20/95 dated March 20, 1995 against the assessee was correct, legal and proper and whether the appellant ought to have imposed penalty. Accordingly appeal was filed before the Appellate Tribunal which, it was stated to be pending. In answer to these pleas raised by the appellant Mr. Harish Chandra, learned senior advocate for the Union of India submitted that there was sufficient material to proceed against the appellant and that the CAT and the High Court were right in not interfering in the disciplinary proceedings at the very threshold. He said the appellant would have the opportunity to defend himself in the proceedings which have been initiated against him. The appellant having failed in the CAT and High Court approached the Apex Court in the said civil appeal. The law laid by the Honble Apex Court in the said case is reproduced as under:-
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. Ram Singh Ex-Constable ((1992) 4 SCC 54) : (1992 AIR SCW 2595 : AIR 1992 SC 2188) interpreted "misconduct" not coming within the purview of mere error in judgment, carelessness or negligence in performance of the duty. In the case of K. K. Dhawan (1993 (2) SCC 56) : (1993 AIR SCW 1361 : AIR 1993 SC 1478 : 1993 Lab IC 1028), the allegation was of conferring undue favour upon the assessees. It was not a case of negligence as such. In Upendra Singh's case (1994 (3) SCC 357) : (1994 AIR SCW 2777), the charge was that he gave illegal and improper directions to the assessing officer in order to unduly favour the assessee. 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's case (1998 (7) SCC 310) : (1998 AIR SCW 2918 : AIR 1998 SC 3058 : 1998 Lab IC 3491) where the appellant was compulsorily retired this Court said that judicial scrutiny of an order imposing premature compulsory retirement is permissible if the order is arbitrary or mala fide or based on no evidence. Again in the case of Madan Mohan Choudhary (1999) 3 SCC 396 : (1999 AIR SCW 648 : AIR 1999 SC 1018), which was also a case of compulsory retirement this Court said that there should exist material on record to reasonably form an opinion that compulsory retirement of the officer was in public interest. In K. N. Ramamurthy's case (1997) 7 SCC 101 : (1997 AIR SCW 3677 : AIR 1997 SC 3571), it was certainly a case of culpable negligence. One of the charges was that the officer had failed to safeguard Government revenue. In Hindustan Steel Ltd.'s case (AIR 1970 SC 253), it was said that where proceedings are quasi judicial penalty will not ordinarily be imposed unless the party charged had acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest or acted in conscious disregard of its obligation. This Court has said that the penalty will not also be imposed merely because it is lawful so to do. In the present case, it is not that the appellant did not impose penalty because of any negligence on his part but be said it was not a case of imposition of penalty. We are, however, of the view that in a case like this which was being adjudicated upon by the appellant imposition of penalty was imperative. But then, there is nothing wrong or improper on the part of the appellant to form an opinion that imposition of penalty was not mandatory. We have noticed that Patna High Court while interpreting Section 325, I.P.C. held that imposition of penalty was not mandatory which again we have said is not a correct view to take. A wrong interpretation of law cannot be a ground for misconduct. Of course it is a different matter altogether if it is deliberate and actuated by mala fides.
41. When penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. Record in the present case does not show if the disciplinary authority had any information within its possession from where it could form an opinion that the appellant showed 'favour' to the assessee by not imposing the penalty. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form basis for initiating disciplinary proceedings for an officer while he is acting as 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 an 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 of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication where under quasi judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings.
44. Considering whole aspects of the matter, we are of the view that it was not a case for initiation of any disciplinary proceedings against the appellant. Charge of misconduct against him was not proper. It has to be quashed.
6. Relying upon the aforesaid judgments, the Honble High Court in the case of U.O.I Vs. Dolly Saxena 2001 (93) 124 held as under:-
1. :Short question involved is whether a Quasi Judicial Authority could be subjected to disciplinary proceedings under Service Conduct Rules (SCR) on a mere charge of alleged negligence and recklessness in passing an adjudicatory order.
2. Respondent a Collector of Customs and Central Excise at the relevant time, was to adjudicate the cases under Central Excise Act. She is charged to have dropped proceedings against the assessed M/s J.K.Synthesis accused of evasion of customs duty of 1.21 crores or so. a charge sheet dated 28.1.1999 was issued to her charging her with negligence and recklessness in discharge of duties and contravening Rule 3 of Conduct Rules, 1964. She made representations against this but failed. She then filed OA No.2199/99 claiming that she could not be subjected to disciplinary proceedings on a charge of misconduct while exercising her quasi judicial functions. Petitioner opposed this on the plea that charge sheet could not be questioned at the threshold and that disciplinary proceedings could be taken for her negligence in the discharge of her duty causing loss to public revenue.
3. Tribunal, on consideration of the matter, examined Articles of charges and found that these related to her alleged recklessness and negligence only and did not charge her of any other misconduct for showing favor to the assesses. It also went a step further and dabbled in touching the correctness of the charges. It accordingly quashed the charge sheet placing reliance on the Supreme Court Judgment in Nagarkar Vs. UOI (1997) 7 SCC 409 holding that mere charge of negligence was not enough to subject a judicial or quasi judicial Authority to disciplinary proceedings for passing a wrong adjudicatory order.
4. Petition challenges this on the ground that Tribunal was firstly incompetent to quash the charge-sheet and that its order ran counter to the law laid down by Apex Court in UOI & others Vs. K.K.Dhawan holding that a quasi judicial Authority could be subjected to disciplinary proceedings on a charge of negligence or reckless in the discharge of quasi judicial.
5. There is no dispute with the proposition that Tribunal could not examine the truth or otherwise of the charges in a disciplinary proceedings and quash the charge sheet for that at the threshold. In the present case Tribunal has touched the correctness of charges at places which may not sustain but that does not have any crucial importance for the outcome of this matter which required to be decided on a harmonious reconciliation of two judgments of the Supreme Court in Dhawan's and Nagarkar's case. In the first case Apex Court formulated a list of cases, though not exhaustive where disciplinary proceedings could be taken against officers while exercising quasi judicial powers on the premise that such a situation involved the conduct of an officer in the discharge of his/her duties and not the error or illegally committed while exercising quasi judicial powers. The list of such cases includes:
(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 favor a party;
(vi) if he had been actuated by corrupt motive, however small the bribe may be.
6. In Nagarkar's case however the court crystalised it further to hold that charge of mere negligence in exercise of quasi judicial power would not constitute a misconduct to warrant a disciplinary action unless it was accompanied by a further charge of undue favor shown by the officer in dealing with the case. The Court noticed its judgment in Dhawan's case held:-
(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 & Ors. Vs. Ram Singh Ex-Constable ((1992) 4 SC 54) interpreted 'misconduct' not coming within the purview of mere error in judgment, carelessness or negligence in performance of the duty. In the case of K.K.Dhawan (1993) 2 SC 56, the allegation was of conferring undue favor upon the assesses. It was not a lapse of negligence as such. In Upender Singh's case ((1994 (3) 357), the charge was that the gave illegal and improper directions to the assessing officer in order to unduly favor the assessed. Case of K.S.Swaminathan , 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."
(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 of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi judicial authority something more has to be alleged than a mere mistake of law e.g. in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative ad judication whereunder quasi judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favor because of the constant threat of disciplinary proceedings."
7. It is true that in the list of cases given in Dhawan's case a charge of negligence could also sustain a charge sheet against the quasi judicial Authority but it was required to be read in the facts of that case where the further charge was that officer had shown undue favor in the matter. This is how it was distinguished by the court in Nagarkar's case laying down that there must be something more alleged than a mere negligence flowing from a mistake of law to sustain the charge sheet against the quasi judicial Authority.
8. We respectfully follow the ratio and reasoning of the Supreme Court Judgment to hold a mere charge of negligence or recklessness against an officer in passing an adjudicatory order in exercise of quasi judicial functions unaccompanied by any further charge of extraneous considerations or quid pro quo in passing such order would not constitute a misconduct under the relevant rules to justify disciplinary proceedings against the quasi judicial Authority. The reason and rationale for this is not far to seek and is adequately brought out in the judgment supra.
9. This petition accordingly fails and is dismissed.
Similarly, this Tribunal also in the case of S. Rajguru (supra) held as under:-
17. The above judgment of Honble Apex Court is fully applicable in the facts and circumstances of the present OA. Let us examine as to what has happened in case of the applicant. He has been CIT (Appeal) and decided more than 300 cases over a specified period of time and like his counterpart in the Central Excise he has passed the orders following the proper procedure. The decision arrived at by him may be a mistake in law or error in law but the same cannot be the basis for taking disciplinary action against him as the respondents/disciplinary authority have not pointed out any malafide, question of integrity/dishonesty and no nexus has been established between him and the decision the applicant has taken in those four cases. In the absence of any malafide intention and with no linkage of dishonest action of the applicant, the decision taken by him cannot be considered to be lack of devotion to duty, nor it can be called to be lack of integrity and unbecoming of a government servant. The quasi-judicial authority has to function independently, transparently and should not be biased either by the views of the Government or by the views of the affected parties. In order to ensure that the CIT (A) functions as an independent quasi-judicial authority he has to be free from the fear or favour impact/effect. If there is fear of suffering a disciplinary action in case his decision goes against the Government, no quasi-judicial authority can function independently, fairly and in a transparent manner. As the Honble Supreme Court has held in the judgment referred to above, the CIT (A)-a quasi judicial authority has to be protected against the fear of proceeding against the disciplinary cases on decision taken by him, unless the same can be attributed to be the result of malafide/arbitrary action and with certain dishonest motive. In the instant case, there is no iota of dishonest motive and question on the applicants integrity. The charge memo does not reveal that the decision taken by the applicant was based on certain malafide or arbitrary action. At best the Disciplinary Authority can attribute negligence against the applicant but even that negligence in discharging the quasi judicial functions cannot be treated as illegality and misconduct for which the applicant should face disciplinary action.
18. Now the question arises - whether a quasi judicial order if found to be wrong, can be the basis to treat the quasi judicial authoritys decision as misconduct? Let us examine what constitutes misconduct under CCS (Conduct) Rules.
19. The Hon'ble Supreme Court observed in the case of M. M. Malhotra Vs. Union of India [2005 -8-SCC-351] that the range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct. "It has, therefore, to be noted that the word "misconduct" is not capable of precise definition. But at the same time though incapable of precise definition, the word "misconduct" on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve."
20. In view of the well settled legal position, we are of the considered view that the applicant as CIT (A) functioned as quasi-judicial authority and discharged quasi-judicial functions. Further, in the absence of any alleged link of the applicant with malafide motive, arbitrary action and question of his integrity, we opine that he is not liable to disciplinary action.
21. Hon'ble Supreme Court made clear distinction between quasi judicial and administrative decisions in Dev Singh Vs. Registrar, Punjab and Haryana High Court[1987 -3-SCC-169] and held that only where the authorities are required to act judicially either by express provisions of the statute or by necessary implication that the decisions of such an authority would amount to a quasi judicial proceeding.. In the instant OA the applicant acted as per the expressed provisions of the statute as the CIT (Appeal). Hence his decision is quasi judicial decision.
22. The issue arises whether the decision taken by the applicant in his quasi judicial capacity has been binding one or merely advisory, deliberative, investigatory or conciliatory in character. We note that decision taken by him was final and binding and the affected party was entitled to appeal before the ITAT against his orders and in fact in those four cases there were appeals to the ITAT. Hence in our opinion he discharged the duties mandated to him as quasi judicial authority. In this context we draw support from the judgment of the Honourable Apex Court in Automotive Tyre Manufacturers Association Vs. Designated Authority [2011-1-SCALE-149] where the Supreme Court outlined one of the ingredients and the attributes of a quasi-judicial authority holding that it must render a binding decision, and if its decision is merely advisory, deliberative, investigatory or conciliatory in character, which has to be confirmed by another authority before it becomes binding, then such a body is administrative in character. Thus, following the above dicta we are of the considered views that applicant's decision in all those cases being binding in nature he as CIT (Appeal) has exercised the powers of a quasi judicial authority.
23. The Hon'ble Apex Court in Siemens Engineering and Manufacturing Co. of India Ltd. Vs. Union of India [AIR1976 SC 1785] has held that where an authority makes an order in exercise of a quasi-judicial function it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. It must be noted that if courts of law were to be replaced by administrative authorities and tribunals it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. The rule requiring reasons to be given in support of an order is like the principle of audi alteram partem, a basic principle of natural justice which must adhere to the quasi-judicial process. It is seen from the pleadings in which charges find place that the applicant has followed the quasi judicial process. His ultimate views may not be upheld by the higher judicial fora but he cannot be faulted to have circumvented the prescribed quasi judicial decision making process. In this regard he passed the test that his decision followed the quasi judicial process.
24. The second issue relates to the grounds taken by the applicant on procedural infirmities. It is admitted fact that the initiation of disciplinary proceeding and issue of charge memo have been decided together by the competent authority in one process. The prescribed procedure envisages that the Disciplinary Authority has to decide as to whether any disciplinary action is called for on the alleged misconduct and once such a decision is taken by the Disciplinary Authority, the independent agency like CVC is consulted to seek its independent advice. Once the CVC agrees with the Disciplinary Authority, the charges are framed against the delinquent official and the same is again submitted to the competent authority for approval. The said procedure has been prescribed for proper application of mind by the Disciplinary Authority. The inputs that come between the first and second stage of decision making might guide the Disciplinary Authority to take an informed decision before the charge memo is issued. In the instant case, the decision of the disciplinary authority on both (i) the initiation of disciplinary proceeding and (ii) issue of charge memo against the applicant have been done in one go. There is no dispute about this fact. To the extent such a combined process has been adopted, there is a procedural infraction.
25. At this stage, it would be appropriate to note that initiation of disciplinary proceedings and issue of the charge memo has originated from a Secret Note given by the Reporting Officer raising certain doubts on the applicants integrity. There is a prescribed procedure to be adopted on such Secret Note to be taken on record in the Annual Confidential Report of the Government employee. Such a Note needs to be properly enquired into after which the Government servant is given an opportunity to defend himself and thereafter a proper decision is to be taken by the competent authority on such a Secret Note to be kept on ACR or not. A careful perusal of the pleadings does not disclose that any enquiry was conducted to find out the veracity and truthfulness of such Secret Note. Though the procedural lapse in this regard is of an innocuous nature, yet when the applicant gets prejudiced and affected by the issue of a charge memo on the basis of the said Secret note, non-adoption of proper procedure is definitely an infirmity. Therefore, we are of the firm view that not following the proper procedure by the competent authority in processing the Secret Note is an incurable procedural infirmity.
26. An associated issue that comes up for our consideration is that the applicant is a superannuated/retired official. The disciplinary action and issue of charge memo has been under the CCS (CCA) Rules and deemed to have been proceeded against him under the CCS (Pension) Rules. In case of Rule 9 of CCS (Pension) Rules a retired government officer can be proceeded against only on the grounds of grave misconduct or grave negligence or both. In the instant case, the respondents have not been in a position to demonstrate that the charges framed against the applicant involved grave misconduct or grave negligence. On this ground also, the charge memo is liable to be quashed.
27. In respect of the third issue that whether the delay has occurred in framing the charges and that can be the ground to quash the charge memo, we note that within the shortest possible period the charge memo has been issued. Thus, there is no delay in initiating disciplinary action and issue of charge memo. This ground so strongly advanced by the Senior Advocate for the applicant does not convince us at all. Hence, the said contention is rejected.
28. Considering the totality of facts and circumstances of the case and guided by the law laid by the Honble Supreme Court, we are of the considered opinion that the applicant discharged the quasi-judicial function in the position of a quasi-judicial authority i.e. CIT (A). His action or error in law or mistake in law cannot be attracted to proceed against him treating the same as misconduct. As stated within, the law laid by the Honble Supreme Court is extremely clear and binding. The quasi-judicial authorities are to function independently without fear or favour. The fear of facing disciplinary action in case the decision goes against the Government cannot be brought in the mind of such quasi-judicial authorities. We are, therefore, of the considered opinion that the applicants action being of quasi-judicial nature and having acted as a quasi-judicial authority, his decisions in those four cases, wherein no malafide, arbitrariness or question of integrity has been raised, cannot be treated as misconduct.
29. We are aware that the Tribunals power is limited to interfere at the stage of charge memo but when the charge memo has been issued against a quasi judicial authority discharging quasi judicial function, the Tribunal has power to interfere with such charge memo. The Tribunal cannot interfere only if there is ulterior motive, malafide intention and arbitrary action or allegation of dishonestly/corrupt motive in taking such decisions. In the absence of such ingredients, the Tribunal has the authority to quash the charge memo.
30. In this context, we place our reliance on the judgment of the Honble Apex Court in Union of India Vs. Kunisetty Satyanarayana [2006-12-SCC-28]. In the said case while allowing appeal the Honble Supreme Court considered the issue whether in writ petition quashing of charge sheet or show cause notice is a discretionary remedy and if so whether such discretion should not ordinarily be exercised by quashing a show cause notice or charge-sheet as the same does not infringe the right of anyone but held that in some very rare and exceptional cases the High Court can quash a charge sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. We reproduce below the pertinent paragraphs which would guide us in the instant OA:-
"13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
31. In view of the above authoritative and binding pronouncement of Honble Apex court and considering the facts of the present case and reasons given within, we are of the opinion that the impugned charge memo dated 26.04.2012 (Annexure A-1) is liable to be quashed. We order accordingly. Resultantly, the applicant would be entitled to all his retiral dues as admissible under the law.
32. In terms of our above orders and directions, the Original Application having merits is allowed. There is no order as to costs.
7. Further, according to the Applicant, the Charge Memo issued to him on 21.12.2012 is based on an allegation pertaining to the period 2004 and onwards. There has been inordinate and unexplained delay in issuing the charge sheet. At this remotest point of time, it is impossible to procure the defence material to effectively defend the charges resulting in deprivation of reasonable opportunity and prejudice. He has also submitted that the Respondents, by issuing the charge sheet just 9 days before his retirement have abused the process and caused injustice to him. It was designed to victimize him by withholding his retrial dues. He has also alleged that the Respondents with all unfairness, bias and mala fides, trying to rescurrect the matter on administrative side when they failed to get the orders passed by him on judicial side Applicant in quasi judicial capacity under Section 264 I.T. Act, 1961 quashed. Such a course of action, according to the Applicant is impermissible in law.
8. He has also stated that as per CVC order dated 31.01.2002, pseudonymous complaints, if not verifiable, have to be filed and no departmental action on the allegations contained in it is required to be taken. Even though the Respondents themselves have been following the aforesaid order, yet they initiated the disciplinary proceedings against him on the allegations contained in the pseudonymous complaint. Therefore, the memo issued to him is not only without jurisdiction but also contrary to law. Further, according to him, the advice of the CVC was obtained before a decision was taken to initiate disciplinary proceeding against him. It shows the predetermination and bias of the authorities rendering the charge memo illegal. He has also submitted that the charge memo was issued to him without the approval of the competent authority, i.e., Honble Minister of Finance thus rendering the same illegal.
9. Respondents have filed their reply. They have opposed the submissions made by the learned counsel for the Applicant. They have stated that contrary to what is mentioned by the Applicant, there is no provision in the Income Tax Act to file an appeal against an order under Section 264. In fact, there is a great responsibility on the officer invoking the provisions of the said section as there is no remedial action in the statute against an erroneous or mala fide order passed under Section 264. They have further stated that the Memorandum of Charges issued to the Applicant is not based on the pseudonymous complaint as contended. As far as the delay in issuing of charge sheet is concerned, it is attributed to the fact that thorough investigation was made before a charge sheet was issued to the Applicant so that no prejudice was caused to him and no decision was taken in haste. There is also, no time limit prescribed in the CCS (CCA) Rules, 1965 for issuing charge sheet to a Government servant when he was in service. Moreover, mere delay for the reasons outlined above, should not become the cause for the proceedings to be set aside. In this regard, they have relied upon judgment of the Apex Court in case of Secretary, Ministry of Defence and Others Vs. Prabhash Chandra Mirdha, Civil Appeal No.2333 of 2007 decided on May, 29, 2012 wherein it was held as under:-
13. Thus, the law on the issue can be summarized to the effect that charge sheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings.
10. They have also stated that the Applicant failed to prove any prejudice on account of the time which has been consumed in view of the facts and circumstances and bona fide administrative reasons. On the other hand, the Applicant is required to prove the prejudice, if any, on account of such time consumed before the Inquiry Officer at the threshold of the proceedings and not before this Tribunal. In fact the charge sheet was issued to the Applicant only after the Disciplinary Authority was prima facie satisfied about the charges and the enquiry was held after following due procedure.
11. They have also stated that the disciplinary proceedings have not reached any conclusion as yet. Hence, it is premature to file this OA against a charge sheet which was issued after following due procedure. They have also mentioned that the Honble Supreme Court recently in the case of Union of India Vs. Govind Manish in Civil Appeal No.1442 of 2011 (arising out of SLP ( C) No.11372 of 2010) has held as under:-
In our view, the Tribunal committed a jurisdictional error by entertaining and allowing the application filed by the respondent for quashing the chargesheet at the threshold. In the process, the Tribunal omitted to consider the law laid down by a three-Judge Bench of this Court in Chief of Army Staff v. Major Dharam Pal Kukrety (supra)...
In our view, the ratio of the judgment in V.K. Khanna's case could not have been invoked in the respondent's case because he had not challenged the initiation of enquiry on the ground that the Government of India did not have the jurisdiction to do so or that its action was tainted by mala fides. The Tribunal and the High Court were bound to follow the law laid down in Major Dharam Pal Kukrety's case and refrain from nullifying the enquiry proceedings.
12. We have heard the learned counsel for the Applicant Shri A.K. Behera and the learned counsel for the Respondents Shri Rajeev Kumar. In our considered view, the impugned Memorandum of charges issued to the Applicant is quite arbitrary, without having jurisdiction and without proper application of mind. The charge against him is that he passed orders under Section 264 of the Income Tax Act, 1961 in a reckless manner and without exercising due diligence. There is no doubt that if decisions taken by a quasi judicial authority are in pursuance to corrupt or improper motive, disciplinary proceedings can be initiated against him and if charges levelled again him are proved, he is liable to be punished. Therefore, the applicability of the judgments/orders in R.K. Desais case (supra), Nagarkars case (supra), Dolly Saxenas case (supra) and S. Rajgurus case (supra) relied upon by the learned counsel for the Applicant is a matter for detailed consideration which, in our considered view, is not necessary in this case. But an important aspect of this is that the alleged misconduct was committed by the Applicant while he was posted in Ludhiana during the period from 20.06.2005 to 23.07.2009. Some of the orders passed by the Applicant relates to Assessment Years 1999-2000, 2000-01, 2001-02, 2002-03, 2003-04 and 2004-05. Most of the incidents relate to the period up to 2005-06 and few of them pertains to the assessment years 2006-07 and 2007-08. But the Articles of Charges have been issued after considerable delay ranging from 4 to 8 years. At this remotest point of time, it is quite difficult for the Applicant to procure material and witnesses for his defence. It has been held repeatedly by the Honble Apex Court in a catena of decisions that delay in initiating and/or concluding disciplinary proceedings against a Government servant causes prejudice to the charged officer unless it can be shown that the delay is attributable to the delinquent officials. It has been further held that delinquent employee has a right that the disciplinary proceedings against him be concluded expeditiously and he is not made to undergo mental agony and also monetary loss without any fault on his part in delaying the proceedings. Reference is invited to State of Andhra Pradesh Vs. N. Radhakishan 1998 (3) SLJ 162 (SC), State of Madhay Pradesh Vs. Bani Singh and Another 1990 Supp. SCC 738, P.V. Mahadevan Vs. M.D. Tamil Nadu Housing Board, 2005 (2) SCSLJ 186. The Honble High court of Delhi in its recent judgment decided on 23.09.2013 in W.P. (C ) No.4245/2013 Union of India and Another Vs. Hari Singh held that unexplained and unreasonable delay would cause prejudice to the delinquent employee. Such delay also manifests the lack of seriousness on the part of the Disciplinary Authority. The relevant part of the said judgment reads as under:-
25. It is therefore trite that delay which is unexplained and unreasonable would cause prejudice to the delinquent employee. Such delay clearly manifests the lack of seriousness on the part of the disciplinary authority in pursuing the charges against the employee. In the event of any employee deviating from path of honesty, efficiency and diligence, action should expeditiously be taken as per prescribed procedure. The Supreme Court has laid down the principles holding that unexplained and unreasonable delay per se results in prejudice to the charged officer except when the employer can show that the employee was responsible for delay or is otherwise able to explain the delay. While evaluating the impact of the delay, the court must consider the nature of the charge, its complexity and for what reason the delay has occurred.
Further, it is seen that the Respondents have relied upon statements made by one Shri N.K. Tripathi on 25.10.2004, 01.12.2006 and the statement made by Shri Pradeep Kumar Vaid on 10.01.2006. None of them have been listed as prosecution witnesses. Rather, there is not a single witness to prove the charges. It is in said circumstances that the prejudice caused to the Applicant due to delay in initiating the disciplinary proceedings has to be considered. The fact of the matter is that the Disciplinary Authority could not find a single witness to sustain the charge at the belated state. In Rajbir Singh Gill Vs. State of Punjab and Another 1999 (7) SLR 422, the Honble Punjab and Haryana High Court observed as follows:-
In peculiar circumstances detailed above, we have no hesitation, whatsoever, to hold that the initiation of the departmental proceedings in the instant case after the lapse of a period of 11 years was clearly arbitrary, specially in the light of the fact that the alleged incident came to the knowledge and notice of the authorities immediately on its occurrence. We are also of the opinion that holding of a departmental enquiry at such a belated stage would deprive the petitioner of a reasonable opportunity to defend himself, as with the passage of time, he would have certainly forgotten various vital issue connected with the aforesaid incident (emphasis supplied).
14. Blatant violations of the statutory provisions by the Disciplinary Authority is also very much manifest. In terms of Rule 14 (3) of the CCS (CCA) Rule, 1965, it is a mandatory requirement that the statement of imputations of misconduct and misbehaviour in support of each Articles of Charge shall contain a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained. The said rule reads as under:-
14(3) Where it is proposed to hold an inquiry against a Government servant under this rule and rule 15, the disciplinary authority shall draw up or cause to be drawn up-
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or confession made by the Government servant;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
However, in this case, the Disciplinary Authority has given a list containing a number of documents including the statements of some persons already recorded by which the Articles of Charge are proposed to be sustained but there is not a single witness to prove those documents. Unless there are witnesses to prove the charge, mere listing of documents is of no use. As held by the Apex Court in Modula India v. Kamakshya Singh Deo (1988) 4 SCC 619, in a disciplinary proceedings documents are the tools for the delinquent-employee for cross-examining the witnesses who deposed against him. The relevant part of the said judgment reads as under:-
It is well settled proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross examination. The mere statement of plaintiffs witness cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross examination..
Again, the Apex Court in its judgment in Roop Singh Negi Vs. Punjab National Bank 2009 (2) SCC 570 held that mere production of documents is not enough but their contents have to be proved by examining the witnesses. The relevant part of the said judgment reads as under:-
..The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof..
15. In view of the above position, this OA is allowed and the impugned Memorandum of Charges dated 21.12.2012 is quashed and set aside. As the Applicant has already retired from service on 31.12.2012, the Respondents shall immediately disburse his remaining retiral dues with interest at GPF rate within a period of 2 months from the date of receipt of a copy of this order.
16. There shall be no order as to costs.
(UDAY KUMAR VARMA) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh