Central Administrative Tribunal - Chandigarh
Tarsem Lal vs Union Of India (Uoi) And Anr. on 2 July, 2007
Equivalent citations: [2008]1STJ273(NULL)
ORDER Jasbir S. Dhaliwal, Member (J)
1. Applicant has retired as Commissioner of Income Tax on attaining the age of retirement on 30.6.2005. Just ten days before his retirement, he was served with a Memo of charge sheet, dated 20.6.2005 with the allegations that while being posted at Alwar during the year 2001 -02, he passed orders under Section 263 of the I.T Act, 1961 in six cases mentioned in the charge sheet, without examination/verification of the facts and issues placed before him, and dropped the proceedings with dishonest motive, resulting in conferment of undue benefit to the assesses at the cost of Govt. revenue. This act of the applicant has been described as gross negligence on his part. Respondent No. 2 is holding the inquiry proceedings against him. Through this application, applicant has prayed for quashing the charge sheet, A-1, as also the proceedings initiated against him and for direction to the respondents to release his retiral benefits, like gratuity, commutation value of pension etc. with interest @ 18% per annum.
2. Terming the charge sheet and the proceedings initiated against him a.s illegal and arbitrary, applicant has pleaded that he has acted and discharged his quasi-judicial functions in a bona fide manner for which he cannot be charge sheeted. Claims that though there is no error in the orders passed by him in his capacity as a quasi-judicial authority, but supposing if there be any, that could be corrected by way of an appeal before the higher authority and mistake of law or interpretation of law cannot be the basis for initiating disciplinary proceedings. In view of this position, as also the law laid down by the Hon'ble Supreme Court, in the case of Zunjarro Bhikaji Nagarkar v. Union of India and Ors. , the entire proceedings are vitiated. He has also invited this Tribunal to appreciate the merits of the decisions taken by him in exercise of quasi-judicial authority and has placed reliance for this on number of decisions such as Northern Bengal Jute Trade Co. Ltd. v. CIT (Cal); Sona Electronic Co. v. CIT ; Sreelekha Banerjee v. CIT ,Bhagwati Prasad Misra v. CIT (; Malabar Industrial Co. Ltd. v. CIT (2000) 243 ITR 83, 87 (SC) and CIT v. Gabriel India Ltd. .
3. Respondents have contested the O.A. by filing a written statement but it is not necessary to mention their defence, in view of the order we propose to pass in this case.
4. The learned Counsel for the parties have been heard.
5. In this case the applicant who was exercising quasi-judicial powers, has been charge sheeted vide Memorandum, Annexure A-1, which is under challenge. Learned Counsel for the applicant, at the very out set submitted that it is settled law that an order passed by an authority in exercise of quasi-judicial powers, cannot be made subject matter of charge sheeting the holder of that particular office. He has particularly relied upon case of Zunjarrao Bhikaji Nagarkar v. Union of India and Ors. (supra). In that case disciplinary proceedings were initiated against a person exercising quasi-judicial authority on the allegation that he did not impose penalty on the assessee. Hon'ble Supreme Court did not approve of such course of action. It was held that a disciplinary enquiry could not be initiated against a quasi-judicial authority on information which is vague or indefinite. It was held that suspicion has no role to play in such a matter. A reasonable basis must be there to proceed against a quasi-judicial authority. It was held that error in interpreting the law cannot be ground for misconduct unless it is deliberate and actuated by malafide. If every error of law would constitute misconduct, then it would be difficult to independently function for quasi-judicial officers. Moreover, the wrong committed could subject to appeal. It cannot always form a basis for initiating the disciplinary proceedings.
6. On the question as to whether a person working in quasi-judicial capacity can take as an absolute defence when a charge sheet is served on him with some facts making out misconduct, has been under judicial consideration for a fairly long time. In the case of Union of India and Ors. v. K.K. Dhawan , three Judges Bench had explained the law in this regard explicitly. Their Lordships of Apex Court held that disciplinary proceedings could be initiated against the Government servant concerned even with regard to exercise of quasi-judicial powers provided:
(i) The act or omission is such as to reflect on the reputation of the Government servant for his integrity or good faith or devotion to duty, or
(ii) There is prima facie material manifesting recklessness or misconduct in the discharge of the official duty, or
(iii) The officer had failed to act honestly or in good faith or had omitted to observe the prescribed conditions which are essential for the exercise of statutory power.
Some more decisions and aspects have also been mentioned in this judgment expressing the view that even though an act merely performed by the officer within jurisdiction, in quasi-judicial (or even purely judicial) capacity, if it has been done with dishonest intention to give some benefit to a particular party for or without personal motive, still it would be covered under the term misconduct for which not only charge sheet can be served but departmental proceedings can be initiated and continued. The matter came up for consideration before the Apex Court once again in the case of Governor of Tamil Nadu v. K.N. Ramamurthy 1998( 1) SLJ 63 (SC). In this case the officer was working as a Deputy Commercial Tax Officer and had passed certain orders regarding assessment of liability of tax. He was charge sheeted with charges that (a) he failed to check the accounts deeply and thoroughly while making final assessment and (b) failed to analyse the facts involved in each and every case (c) failed to safeguard the Government revenue to a huge, extent of Rs. 44,850 and (d) failed to subject the (sic). The Hon'ble Supreme Court held the Tribunal exercised powers of judicial review only and cannot interfere in the findings then no flaw in procedure was there. Para 28 of the judgment in the case of K.K. Dhawan (supra) was also taken into consideration wherein Their Lordships have observed "Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge". Court is not to consider the correctness or legality of the decision of that officer but is concerned with the conduct in discharge of his duties as an officer. It held that disciplinary action can be taken in cases:
(i) where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;
(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii) if he has acted in a manner which is unbecoming of a Government servant;
(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party;
(vi) if he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago' though the bribe may be small, yet the fault is great'.
The Court held that these examples are not exhaustive. It further explained that availability of a remedy of challenging orders of such an officer in appeal or further in revision is not a reason for not taking disciplinary action.
7.The Hon'ble Supreme Court examined the ratio of judgment in the case of Zunjarrao Bhikaji Nagarkar (supra) in Civil Appeal No. 168/2006 decided on 21.4.2006, Union of India and Ors. v. Duli Chand 2006 LLJ Vol. III, Page 1069. Their Lordships have held that Z.B. Nagarkar's case (supra), was contrary to the view expressed in the Union of India and Ors. v. K.K. Dhawan (supra). The decision in K.K. Dhawan's case (supra) being that of Larger Bench, would prevail. The decision in Z.B. Nagarkar's case, therefore, does not correctly represent the law. Thus, the orders of the Tribunal and that of High Court based on the law enunciated in the Z.B. Nagarkar's case, were set aside.
8. The view expressed in Zunjarrao Bhikaji Nagarkar's case that an error of judgment in quasi-judicial order is not misconduct and thus a person is not liable to disciplinary action on that conduct, has been held to be not correctly representing the law in view of decision by the Larger Bench in the case of K.K. Dhawan (supra). In this case the allegation against the applicant is that he passed orders Under Section 263 of the I.T. Act, 1961 in six cases without proper examination/verification of the facts and issues placed before him in the proposals under Section 263 of the I.T. Act, 1961. He dropped the proceedings Under Section 263, with dishonest motive, in the cases mentioned therein instead of setting aside the cases for re-examination by the Assessing Officer, resulting in conferment of undue benefit to the assessee at the cost of revenue and thus displayed gross negligence. In our view the applicant cannot be successful in posing a challenge to the charge sheet on the ground that his act cannot be questioned as he had acted in bonafide discharge of quasi-judicial powers. As held above, he can be charge sheeted even in performance of quasi-judicial powers, in the circumstances explained above, there being no absolute bar for doing so.
9. It was urged that the charges are vague and do not make out any case against the applicant and as such the proceedings are required to be stopped at this stage itself. This aspect has been dealt with by the Hon'ble Supreme Court in Deputy Inspector General of Police v. K.S. Swaminathan 1997(1) SCT 373. It was held that if the charge memo is totally vague and does not disclose any misconduct for which the charges have been framed, the Tribunal or the Court would not be justified at that stage to go into whether charges are true and could be gone into. For it would be a matter on producing of the evidence for consideration at the inquiry by the Inquiry Officer. In Union of India and Anr. v. Ashok Kacker 1995 SCC (L&S) 374, Their Lordships of Apex Court have held that "In our opinion this was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge sheet and the appropriate course for the respondent to adopt is to file a reply to the charge sheet and invite a decision of the Disciplinary Authority thereon". Considering the law on the subject we are not inclined to interfere in the challenge to the charge sheet.
10. However, we find that the applicant has already retired on 30.6.2005. As such the proceedings initiated against him are required to be completed within a fixed time frame.
11. This O.A. is, thus, disposed of with direction to the respondents to complete the enquiry initiated against the applicant and bring it to a logical conclusion, as expeditiously as possible and preferably within a period of six months from the date of receipt of copy of this order. It is hoped that applicant shall also co-operate in the enquiry. No costs.