Central Administrative Tribunal - Lucknow
Rakesh Kumar Singh vs Income Tax Department on 9 April, 2024
CAT,Lucknow Bench OA No. 332/00304 of 2022 Rakesh Kumar Singh Vs. U.O.I. &Ors
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No.332/00304/2022
Order Reserved On: 27.02.2024
Order Pronounced On: 09.04.2024
Hon'ble Mr. Justice Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Rakesh Kumar Singh, aged about 45 years, Son of Late Ram
Bahadur Singh resident of C-40, Mayur Vihar, Faridi Nagar District-
Lucknow.
.....Applicant
By Advocate: Shireesh Kumar
VERSUS
1. Union of India,
Through the Secretary,
Ministry of Finance,
Department of Finance,
Government of India,
North Block, New Delhi- 110001.
2. The Principal Chief Commissioner of Income Tax U.P. (East),
Pratyaksh Kar Bhawan,
57-Ram Teerth Marg, Lucknow-226001.
3. The Additional Director General,
Direct Taxes, Regional Training Institute,
'Pragya' Vibhuti Khand, Gomti Nagar,
Lucknow.
.....Respondents
By Advocate: Prayagmati Gupta
ORDER
Per Hon'bleMr.Pankaj Kumar, Member-Administrative Page 1 of 14 CAT,Lucknow Bench OA No. 332/00304 of 2022 Rakesh Kumar Singh Vs. U.O.I. &Ors In this case relating to disciplinary proceedings and punishment, the applicant seeks the following reliefs:
"(i) To quash the punishment order dated 26.10.2021 and appellate order dated 25.05.2022 as contained in Annexure No. A-24 and A-26 respectively to this original application and declare the applicant entitled to all the consequential service benefits such as reinstatement in service, arrears of salary, pay fixation etc.
(ii) Any other order which is deemed just and proper in the nature and circumstances of the case be also passed in favour of the applicant in the interest of justice along with the cost of this original application."
2. The facts of the case are that the applicant joined as Lower Division Clerk (LDC) on 02.02.2001 under the respondents. While working as office superintendent, the applicant was suspended vide order dated 03.08.2019 and a charge sheet dated 01.10.2019 was issued for issuing bogus income tax refunds. An enquiry was conducted and enquiry report dated 25.11.2020 submitted which found the charges proved or partially proved. Supplementary enquiry reports were also submitted on 27.01.2021 and on 14.06.2021. Vide order dated 26.10.2021, the disciplinary authority removed the applicant from service and ordered recovery of Rs. 4,01,370/-. The appeal dated 24.11.2021 was rejected vide order dated 25.05.2022. Aggrieved, the applicant has preferred this OA.
3.1 The applicant states that article 1.1 of the charge alleges that the applicant, in connivance with Shri Arun Kumar Shrivastava (retired) the then Income Tax Officer (ITO) Ward 6(2), Shri Sanjeev Kumar, the then ITO Ward 6(1), Shri Anand Bajpai and Shri Anand Kanaujia daily wagers connived and entered into a criminal conspiracy by issuing false refunds. The applicant generated IT refunds of such persons who were not entitled to such refunds by resorting to manipulation of records in the computer system of IT Department. Article 1.2 alleged issue of bogus refunds causing revenue loss of Rs. 9,16,930/-. Article 1.3 alleged that the applicant contravened rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of Page 2 of 14 CAT,Lucknow Bench OA No. 332/00304 of 2022 Rakesh Kumar Singh Vs. U.O.I. &Ors the Central Civil Services (Conduct) Rules, 1964. 68 documents and 42 witnesses were cited as evidence, but the documents were not provided to the applicant. It is only after the applicant approached this Tribunal in OA No. 80 of 2020 that some documents were provided. 3.2 The inquiring authority submitted the enquiry report dated 25.11.2020and supplementary report dated 27.01.2021 holding charge 1.1 proved, charge 1.2 partially proved and charge 1.3 proved based on conjectures and surmises. It is contended that there is no provision in the Central Civil Services (Classification, Control & Appeal) Rules, 1965 [CCA (CCS) Rules, hereinafter]for any supplementary report. When the applicant submitted his objections on 23.02.2021 to these documents, the inquiring authority called upon the applicant for further enquiry vide notice dated 19.05.2021 and fixed the hearing on 27.05.2021. The applicant submitted his objections on 31.05.2021 and on 09.06.2021. Subsequently, a second supplementary report dated 14.06.2021, again without jurisdiction, was provided to him vide show cause notice dated 16.06.2021 clarifying the objections raised by the applicant. The punishment of removal from service was imposed upon the applicant vide order dated 26.06.2021 without application of mind. The applicant appealed on 24.11.2021 against the order dated 26.06.2021; the appeal was rejected vide order dated 25.05.2022.
3.3 It is the contention of the applicant that out of 13 cases for which fake income tax refunds were entered as per the charge sheet, only one case at serial number 6 (Ankit Rajpal) was shown against the applicant. However, no RSA token was shown against this entry. Moreover, the RSA token cannot be shared with other officials as per the RSA policy.
3.4 The applicant was posted in Ward (2) and had no jurisdiction over Ward (1) to which the case at S. No. 6 (Ankit Rajpal) belonged. Page 3 of 14 CAT,Lucknow Bench OA No. 332/00304 of 2022 Rakesh Kumar Singh Vs. U.O.I. &Ors 3.5 Though it was alleged that the applicant has opened fake bank accounts, there was no evidence to support it.
3.6 It is further contended that no charge of criminal conspiracy or bogus refund was proved, but the applicant was singled out for major punishment while others were awarded minor punishment or were let off, thus discriminating against the applicant.
3.7 The applicant contends that in its order dated 25.05.2022, the appellate authority has referred to the involvement of the applicant in 200 fraudulent income tax refunds which was not the subject matter of the charge.
3.8 While arguing the case, the learned counsel for the applicant highlighted that the applicant was not authorized to issue IT refunds in the first place, a responsibility assigned to the Income Tax Officer. The charge did not contain details of fake bank accounts. There is no provision for sharing RSA token with other officials as opposed to the testimony of PW-5 (Yuvraj Singh) that he used to share his RSA token with subordinate officials. Annexure A-12 to the OA was not considered. All the documents and witnesses listed in support of the charges were not examined. No criminal conspiracy was established. The punishment was imposed for negligence and dereliction of duty while it was never a charge against the applicant. The inquiring authority submitted 2nd, 3rd and 4th inquiry report without authority and behind the back of the applicant, thus vitiating the process.
4.1 The respondents, on the other hand, state that all the documents and evidences demanded by the applicant were provided during the enquiry proceedings.
4.2 The appellate authority dealt with the aspect of supplementary reports observing that the applicant has contended that the IO was not Page 4 of 14 CAT,Lucknow Bench OA No. 332/00304 of 2022 Rakesh Kumar Singh Vs. U.O.I. &Ors empowered to submit the supplementary enquiry report in absence of any direction under rule 15 of CCS(CCA) Rules from the disciplinary authority. This contention is, however, not factually correct as the record shows that such directions had indeed been issued by the DA to the IO in terms of rule 15.
4.3 PW-5 (Yuvraj Singh) stated during the enquiry that due to excess workload he used to share his RSA token with the applicant and also stated that on the request of the applicant to give RSA Token to daily wage staff, he had shared it with daily wage staff too. It is undisputed that handling of IT returns from their receipt, processing, rectification and issue of refunds are the duties of Sr. TA. User ID of the applicant was mentioned in the fake refund to Ankit Rajpal which was not contradicted in the enquiry.
4.4 The enquiry report shows that the jurisdiction over PAN of Ankit Rajpal remained with ITO Ward (2) till 06.06.2016 and then it was transferred to Ward (1) on 07.06.2016. Thus, on 29.06.2015, the date of feeding of this return in the system, the PAN was with ITO Ward (2) where the applicant was posted.
4.5 Anoop Verma, the middleman involved in opening of fake bank accounts, it was stated in the enquiry on 22.06.2020 that he saw the applicant and Anand Kanojia and Vipul outside the UPSRTC Branch of Central Bank of India and entering to meet Pankaj Mishra, Branch Manager. Further, Pankaj Mishra in his statement recorded by CBI on 07.09.2017 admitted that he knew Anoop Verma who used to visit the Bank since 2013, that he had faith in him and on faith, he opened the fictitious accounts without verifying the accounts forms and the photocopies with the original documents.
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CAT,Lucknow Bench OA No. 332/00304 of 2022 Rakesh Kumar Singh Vs. U.O.I. &Ors 4.6 The appellate authority considered the aspects of connivance and discrimination. It was mentioned that disciplinary proceedings have already been concluded/are in progress against the two ITOs posted in Ward (1)/(2). In the case of Shri Sanjeev Kumar, the then ITO, Ward 6(1), Lucknow, he has been held guilty and awarded punishment as per the charges proved in his case.
4.7 The inquiring authority, in her supplementary report dated 27.01.2021, stated that CIT (Admn & TPS) vide letter dated 13.01.2021 provided information in response to details called for in case of 100 assesses (200 entries) wherein the system could not capture data in 99 cases and out of remaining 101 cases, in 43 cases bogus returns were entered into the system by the applicant.
4.8 The disciplinary authority is the sole judge of facts. The Court/Tribunal in its power of review does not act as appellate authority to re-appreciate evidence and to arrive at its own independent findings on the evidence.
5. We have heard both the parties.
6.1 The parameters for judicial review of departmental proceedings have been captured comprehensively by Hon'ble Supreme Court in Union of India vs SubrataNath in Civil Appeal No. 7939-7940 of 2022 arising out of SLP (C) 11021-22 of 2022 in following terms:
"15. It is well settled that courts ought to refrain from interfering with findings of facts recorded in a departmental inquiry except in circumstances where such findings are patently perverse or grossly incompatible with the evidence on record, based on no evidence. However, if principles of natural justice have been violated or the statutory regulations have not been adhered to or there are malafides attributable to the Disciplinary Authority, then the courts can certainly interfere.
16. In the above context, following are the observations made by a three- Judge Bench of this Court in B.C. Chaturvedi (supra):
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and Page 6 of 14 CAT,Lucknow Bench OA No. 332/00304 of 2022 Rakesh Kumar Singh Vs. U.O.I. &Ors not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant.
Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
xxx
18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." Page 7 of 14 CAT,Lucknow Bench OA No. 332/00304 of 2022 Rakesh Kumar Singh Vs. U.O.I. &Ors
17. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya, a two Judge Bench of this Court held as below:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations."
18. In Chairman & Managing Director, V.S.P. and Others v. Goparaju Sri Prabhakara Hari Babu, a two Judge Bench of this Court referred to several precedents on the Doctrine of Proportionality of the order of punishment passed by the Disciplinary Authority and held that :
"21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved."
19. Laying down the broad parameters within which the High Court ought to exercise its powers under Article 226/227 of the Constitution of India and matters relating to disciplinary proceedings, a two Judge Bench of this Court in Union of India and Others v. P. Gunasekaran held thus :
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;Page 8 of 14
CAT,Lucknow Bench OA No. 332/00304 of 2022 Rakesh Kumar Singh Vs. U.O.I. &Ors
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
20. In Union of India and Others v. Ex. Constable Ram Karan, a two Judge Bench of this Court made the following pertinent observations :
"23. The well-ingrained principle of law is that it is the disciplinary authority, or the appellate authority in appeal, which is to decide the nature of punishment to be given to the delinquent employee. Keeping in view the seriousness of the misconduct committed by such an employee, it is not open for the courts to assume and usurp the function of the disciplinary authority.
24. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a call and it is not for the court to substitute its decision by prescribing the quantum of punishment. However, it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons."Page 9 of 14
CAT,Lucknow Bench OA No. 332/00304 of 2022 Rakesh Kumar Singh Vs. U.O.I. &Ors
21. A Constitution Bench of this Court in State of Orissa and Others (supra) held that if the order of dismissal is based on findings that establish the prima facie guilt of great delinquency of the respondent, then the High Court cannot direct reconsideration of the punishment imposed. Once the gravity of the misdemeanour is established and the inquiry conducted is found to be consistent with the prescribed rules and reasonable opportunity contemplated under the rules, has been afforded to the delinquent employee, then the punishment imposed is not open to judicial review by the Court. As long as there was some evidence to arrive at a conclusion that the Disciplinary Authority did, such an order becomes unassailable and the High Court ought to forebear from interfering. The above view has been expressed in Union of India v. Sardar Bahadur.
22. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor."
(emphasis supplied) 6.2 We have no doubt in our minds that the case before us involves a grave charge of making bogus refunds of Income Tax, putting revenues of the Government at risk. We are not impressed with the argument advanced by the learned counsel for the applicant that the applicant, not being the Income Tax Officer, had no authority to issue IT refunds nor his system used to make such refunds. It is revealed from the enquiry that the Tax Assistants are involved in receipt, processing, and verifying tax returns and issuing refunds and, therefore, bear responsibility for the rectitude and integrity of the process.
Page 10 of 14 CAT,Lucknow Bench OA No. 332/00304 of 2022 Rakesh Kumar Singh Vs. U.O.I. &Ors 6.3 One argument canvassed by the applicant is that no RSA token was mentioned in the records against one of the persons who was issued refund (Ankit Rajpal). It is noted that PW-5 testified that RSA token was shared with the applicant and others. User ID of the applicant was found in the record. Considering these factors, in our view, it is not a case of no evidence.
6.4 Another argument is that opening of fake bank accounts cannot be attributed to the applicant. Here, we note the testimony given by AnoopVerma and the statement recorded by Pankaj Mishra. Thus there is some evidence, in our opinion, without going into its adequacy, or otherwise.
6.5 With regard to the alleged irregularities in process by way of issuing supplementary reports by the enquiry officer, it is noted that rule 15 of CCS(CCA) Rules provides for further enquiry. There were two supplementary reports dated 27.01.2021 and 14.06.2021. Both the reports were provided to the applicant for making representation. On 19.05.2021, the enquiry officer asked the applicant to participate in further enquiry fixing the hearing on 27.05.2021 to consider fresh evidenceand re-fixed the hearing on 03.06.2021 (in form of web meeting) as the applicant expressed inability to attend physical hearing because of Covid pandemic. The letter dated 19.05.2021 mentioned the letter dated 31.03.2021 of the disciplinary authority. In view of these facts, we fail to discern any violation of statutory rules or principles of natural justice which may have caused prejudice to the applicant. 6.6 It is in regard to the reference to 200 bogus refund cases by the appellate authority, which were not included in the charge sheet, that we find the conduct of the appellate authority bothersome. This issue was raised by the applicant and was dealt with by the disciplinary authority in the following manner in the order dated 26.10.2021: Page 11 of 14
CAT,Lucknow Bench OA No. 332/00304 of 2022 Rakesh Kumar Singh Vs. U.O.I. &Ors "6.2.2 The above objection raised by CO was referred to Inquiry Officer under rule 15 of CCS (CCA) Rules, 1965. Inquiry Officer vide her supplementary report bearing F. No. CIT (OSD)/LKO/Vig./RKS/2020-21/311 dated 14.06.2021 has given following observations on above submission of CO:
"After careful examination of the objections raised by the CO, the undersigned has no option but to agree with the CO to the extent that these fresh evidences cannot be made part of the enquiry proceedings in this charge sheet at this stage. The article of charges framed in this charge sheet have already been covered during the course of inquiry, and proved and the report of which has already been submitted to the Disciplinary Authority on 25.11.2020.
Issue of fraudulent refunds in these 200 cases was not the part of the charge sheet issued to the CO. During the course of inquiry proceedings, it has come to the knowledge of the Inquiring Authority that fraudulent refunds were also issued in these 200 cases. The Inquiring Authority has tried her best to obtain the details (letters written on 15.09.2020, 29.10.2020 and 11.11.2020 coupled with oral requests) in respect of these 200 cases and enquiry was delayed for almost 3 months due to this, but details in these cases were not provided by Tax administration. Moreover, Pr. CCIT was chasing and monitoring the progress of inquiry and writing letters to expedite the inquiry in this case. Since these cases were not part of the original charge sheet and only incidental to the inquiry, the inquiry report was completed and report submitted based on the available evidence."
Hence, the issue of alleged bogus refund of 200 assessees has been dealt with s recommended by Inquiry Officer and taken into consideration while finalizing this order."
...
8.1 CO raised objection regarding attribution of 200 fraudulent refunds against him by Inquiry Officer in her first supplementary report dated 27.01.2021. In her supplementary report dated 14.06.2021, IO herself accepted view of the CO on this issue (as mentioned in Para 6.2 of this order). Hence, objection of CO has properly been dealt with on this point in light of principle of natural justice."
(emphasis supplied) In our view, the matter of 200 alleged bogus refunds, which was not part of the charge sheet, was appropriately addressed by the enquiry officer and the disciplinary authority by deciding to keep these alleged additional bogus refunds out of the scope of the ongoing disciplinary proceedings. In contrast to this, the appellate authority, in its order dated 25.05.2022 rejecting the applicant's appeal, took the following stand:
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CAT,Lucknow Bench OA No. 332/00304 of 2022 Rakesh Kumar Singh Vs. U.O.I. &Ors "6.5 On perusal of order of DA dated 03.06.2020 in the case of Sanjeev Kumar the then ITO Ward 6(1) Lucknow, it was found that he was involved in 11 cases only incurring revenue loss of Rs. 7,62,270/- but Shri Rakesh Kumar Singh was found involved in issue of 200 fraudulent refunds also worth Rs. 3.2 crores, though not part of present charge sheet. In these cases, user IDs have been captured in 100 cases and out of the 100 cases, user ID of charged official has been captured and RSA token of charged official has been used in feeding 43 fake returns leading to issue of fraudulent refunds.
Since these details are system generated, they are absolute authentic proof of connivance and involvement of charged official in issuing fake refunds. Mere availability of these electronic records is sufficient to proof beyond doubt and reinforce article of charge 1.1 (connivance and criminal conspiracy by issuing false refunds). Further, in the matter of Sanjeev Kumar, ITO the charge of connivance could not be proved but in the impugned case charges of connivance, criminal conspiracy and manipulation of electronic records were proved."
(emphasis supplied) By considering the 200 alleged fraudulent refunds and tracing the applicant's involvement in 43 of such refunds, which did not form part of the charges against the applicant and were not enquired into in terms of the CCS (CCA) Rules, the appellate authority, in our view, has disabled itself from reaching a fair conclusion and has also allowed itself to be influenced by considerations extraneous to the charge sheet. Thus we find that the order dated 25.05.2022 falls foul of the parameters set forth in P Gunasekaran (supra) in the aforementioned terms and is bad in law.
7.1 In view of the above facts and circumstances, the order dated 25.05.2022 of the appellate authority is quashed and set aside. It shall be open to the appellate authority to reconsider the case and pass an order in conformity with the law within a period of three months from the date of receipt of certified copy of this order. This OA is disposed of in aforementioned terms.
Page 13 of 14 CAT,Lucknow Bench OA No. 332/00304 of 2022 Rakesh Kumar Singh Vs. U.O.I. &Ors 7.2 Pending MAs, if any, are also disposed of.
7.3 The Parties shall bear their own costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member (A) Member (J)
vidya
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