Central Administrative Tribunal - Delhi
Sh. Baljit Singh Sondhi vs Union Of India on 12 February, 2009
Central Administrative Tribunal Principal Bench 1. OA No.2092/2007 2. OA No.520/2008 New Delhi, this the 12th day of February, 2009. Honble Mr. Shanker Raju, Member (J) Honble Dr. Veena Chotray, Member (A) OA No.2092/2007 Sh. Baljit Singh Sondhi, S/o Balbir Singh Sondhi, Commissioner of Income Tax II, P-7, Chowringhee Square, Kolkata 700 069, West Bengal Present Address:- C-47, First Floor, Nizamuddin East, New Delhi-110013. - Applicant. (By Advocagte : Shri K.C. Mittal) -Versus- 1. Union of India, Through the Secretary, Ministry of Finance, Department of Revenue, Government of India, North Block, New Delhi-110001. 2. Central Board of Direct Taxes, Ministry of Finance, Department of Revenue, Government of India, North Block, New Delhi-110001. - Respondents. (By Advocate : Shri V.P. Uppal) OA No.520/2008 Sh. Baljit Singh Sondhi, S/o Balbir Singh Sondhi, Commissioner of Income Tax II, P-7, Chowringhee Square, Kolkata 700 069, West Bengal Present Address:- C-47, First Floor, Nizamuddin East, New Delhi-110013. -Applicant (By Advocagte : Shri K.C. Mittal) Versus 1. Union of India, Through the Secretary, Ministry of Finance, Department of Revenue, Government of India, North Block, New Delhi-110001. 2. Central Board of Direct Taxes, Ministry of Finance, Department of Revenue, Government of India, North Block, New Delhi-110001. -Respondents. (By Advocate : Shri V.P. Uppal) O R D E R Mr. Shanker Raju, Honble Member (J):
As the relief prayed for in OA-2092/2007 is consequential to the outcome of OA-520/2008, these OAs are being disposed of through this common order.
2. In OA-820/2008, following reliefs have been prayed for:
a) Quash and set aside the order dated 25-04-2004 (Annexure A-1) initiating the disciplinary proceedings against the applicant.
b) Quash and set aside the Inquiry Report dated 30-11-2005 (Annxure A-2) to the extent of partly providing Articles of Charge III and IV and declare that the same are illegal and arbitrary.
c) Quash and set aside the order of disagreement dated 08-03-2007 (Annexure A-3) and declare the same as illegal and arbitrary.
d) Direct the Respondents to grant all consequential benefits as the consequence of the quashing of Office Memorandum dated 08-03-2007, 25-02-2004 and 30-11-2005 as prayed above.
e) Pass any such other order (s), which this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case be also passed in favour of the applicant.
3. Whereas in OA-2092/2007 opening of sealed cover regarding DPC held in 2006 for the post of Chief Commissioner of Income Tax and giving effect to it with all consequences is the relief prayed for.
4. Applicant who joined the Revenue Service in July 1974 was promoted as an Additional Commissioner of Income Tax and was posted at Calcutta from August 1997 to November 1997. In November, 1997 applicant was promoted as Commissioner of Income Tax, New Delhi and posted on appellate jurisdiction where he continued to perform quasi-judicial functions upto July 2002. From 1985 to 1997 the applicant during his tenure at Calcutta held the post of Additional Commissioner of several ranges and at a particular time was posted as Additional Commissioner Range-10, two charge-sheets issued to him have since been quashed by the Tribunal in OA-989/2003, decided on 14.11.2004 and also in OA-6/2006 by the Calcutta Bench on 27.7.2007. The DPC held for promotion to the post of Chief Commissioner of Income Tax on account of the chargesheet issued on 25.4.2004 the findings have been placed under sealed cover. A charge memorandum under Rule 14 of the CCS (CCA) Rules, 1965 was issued by the competent authority on 25.2.2004 on the allegations pertaining to the year 1996, alleging misuse of official position in issuing unlawful direction to an Inspector to conduct a sham enquiry in case of an assessee and also M/s Anand Bazar Patrika. It is also alleged that he colluded with M/s Distribution Media to conduct a sham enquiry and preparation of report to favour the assessee. It is further alleged against applicant that a report prepared by applicant on the basis of an enquiry was favorable to the assessee. Lastly, it is alleged that the applicant after an inordinate delay when he no longer held the charge of Range-10, he forwarded a copy of the report to the CIT WB-VIII, acting beyond jurisdiction. A detailed enquiry was conducted, whereby a disagreement has been arrived at with the finding of the enquiry officer (EO) in respect of articles I and II of the charge, whereas the same are held to be proved but simultaneously articles of charge III and IV when partly proved by the EO without taking a tentative view a disagreement has been arrived at, to fully prove the charge and without waiting for the representation of the applicant the matter was referred to the Central Vigilance Commission (CVC) for its 2nd stage advice and on being tendered on 24.11.2006 the representation of applicant was sought for, which when filed, the applicant has approached the Tribunal whereby on a reference and the view taken by the disciplinary authority (DA) in disagreement instead of being tentative is a pre-determined view to inflict a major penalty, notices were issued, as it is not disputed that no final order as yet was passed in the disciplinary proceedings.
5. Learned counsel of applicant Shri K.C. Mittal challenged the chargesheet on the ground that at an interlocutory stage if the chargesheet and further proceedings taken up are contrary to law, the same can be interfered to impart justice to the litigant. It is also stated that the applicant against whom fictitious and baseless charge-sheets issued have since been quashed, the above chargesheet which was issued in 2004 on the allegations pertaining to the years 1993 to 1997 after an inordinate delay, causing prejudice to the applicant, cannot be sustained.
6. Learned counsel would also contend that articles of charge III and IV of the allegations are not even proved partly against the applicant, as there is no culpability and no misconduct committed by the applicant, as no over tact has been established and merely conjectures and surmises would not take the place of proof and the enquiry for the sake of enquiry is not sustainable.
7. Learned counsel would also contend that the sham enquiry, as alleged by the respondents is within the permissible jurisdiction of applicant and as when even the report being forwarded to the assessing authority, the assessment done was found apt in law and a challenge of CIT (Appeals) order before the Income Tax Appellate Tribunal since established that no illegality has been committed by the applicant, merely because he acted at the point of time the incident took place, holding applicant guilty even on disagreement is contrary to law, as mere negligence without any culpable damage, as no loss has been caused to the department, is with an oblique motive to stall the promotion of applicant, which was due since 2006, as juniors have already been promoted.
8. On the other hand, learned counsel of respondents Shri V.P. Uppal, vehemently opposed the contentions and stated that at an interlocutory stage chargesheet cannot be interfered with and as the applicant has participated in the enquiry, the ground of delay and the prejudice caused cannot be examined.
9. It is also stated that as per the trite law undue favour to a party and acting in a manner unbecoming of a government servant and the act actuated with corrupt motive, the enquiry cannot be interfered with at an interlocutory stage.
10. Learned counsel would also contend that correctness of a charge cannot be gone into by the Tribunal. It is also stated that a show cause notice has been issued to the applicant to which he has already responded to, but as no final decision has been arrived at only on surmises and presumption, the same cannot be interfered with, as the chargesheet is not contrary to law and the applicant shall wait for the outcome of the disciplinary proceedings, which would be the basis for opening the sealed cover. The learned counsel of respondents Shri V.P. Uppal has cited the following cases:
i) Union of India & Ors. v. K.K. Dhawan, 1993 (2) SCC 56.
ii) Union of India & Ors. v. Upendra Singh, 1994 (3) SCC 357.
iii) Bank of India v. Degala Suryanarayana, JT 1994 (4) SC 489.
iv) Govt. of Andhra Pradesh v. Appala Swamy, 2007 (3) SCALE 1.
v) Govt. of Tamil Nadu v. S. Vel Raj, 1997 (2) SCC 708.
vi) Bank of India v. T. Joga Ram, 2008 (2) SLJ 169.
vii) Union of India v. Dulichand, 2006 SCC (L&S) 1186.
viii) Union of India v. Kunnisetty Satyanarayana, 2006 (2) SCALE 262.
ix) District Forest Officer v. R. Rajamanickam and another, 2000 SCC (L&S) 1100.
11. We have carefully considered the rival contentions of the parties and perused the material on record.
12. A judicial review in a disciplinary proceeding though limited but has parameters. By the alleged act of misconduct if one is sought to be deprived of his livelihood, strict following of the procedure laid down under the rules is obligatory. A judicial review would lie if there is an error of law apparent on the face of record. If a statutory authority uses the power in a manner not provided under the rules or passes an order without application of mind, review would be maintainable. An error of fact also attracts the principle of judicial review. The aforesaid is the dicta ruled in Mathura Prasad v. Union of India, 2007 (1) SCC 437. As ruled by the Apex Court in Divisional Forest Officer v. M. Ramalinga Reddy, 2007 (9) SCC 286, where a show cause notice issued is passed without application of mind and is otherwise illegal it could be interfered with in a judicial review. Interference at an interlocutory stage of a disciplinary proceeding does not oust within its ambit an interference where either the order passed is without jurisdiction or is contrary to law. One of the pioneer decisions is in Upendra Singhs case (supra). In Degala Suryanarayana (supra) an interference with the departmental proceedings and the finding of fact is permissible when it is either a case of malafide or perversity, where there is no evidence in support, applying the test of a reasonable common prudent man. In Appala Swamy (supra) the delay in enquiry when one has participated causing no prejudice has been ruled otherwise. However, insofar as an officer charged in a disciplinary proceeding on account of discharge of quasi-judicial functions in Duli Chand (supra) the decision of a three-Judge Bench in K.K. Dhawan (supra) has been held to be the correct law, overruling the decision in Zunjarao Bhikaji Nagarkar v. Union of India & Ors., 1999 (7) SCC, 409 and the following parameters have been laid down for interference in judicial review at an interlocutory stage:
(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 a prima facie material to show recklessness or misconduct in discharge of his duty;
(iii) if he has acted in a manner 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.
13. However, in Kunnisetty (supra) an exception in judicial review for interference at an interlocutory stage is when the notice is without jurisdiction or for any other reason is wholly illegal.
14. Having backdrop of the aforesaid, though it is the prerogative of the DA to disagree with the EO and to come to a different conclusion, yet there is a laid down methodology under the rules, which as an obligation and condition precedent requires recording of tentative reasons, communication to the concerned a pre-decisional hearing and thereafter processing the case for final order. In Ranjit Singh v. Union of India, 2006 (4) SCC 153 and Punjab National Bank v. Kunj Bihari Mishra, 1998 (7) SCC 84 what has been held is that if an intention is shown by the DA to differ with the findings of the EO, the condition precedent is application of mind and a tentative view expressed, which when confronted on a show cause notice by the concerned, consideration of that reply would entail legally a final order. In the instant case one of the grounds raised is that the correct procedure has not been followed by the DA in disagreeing with the finding of the EO and a final view of the matter instead of a tentative conclusion since been drawn shows a pre-determination of mind on the part of the DA to punish the applicant, even without affording a reasonable opportunity, which shows that a final view of the matter has been taken and the penalty has already been decided and the so called opportunity to applicant is a mere formality. In the enquiry the EO has not established articles I and II of the charge and regarding articles III and IV without holding applicant guilty of any undue favour or collusion with the party a mere negligence per se on an administrative lapse has been observed. However, in the office memorandum dated 21.2.2007 the DA, exercising its jurisdiction of prerogative disagreed with the following observations:
2. On denial of the charges, an oral inquiry was instituted. The Inquiry Officer (IO) Shri J.K.Prasad CDI submitted his report dated 30.11.2005 holding Articles I and II of charge as not proved and Article III and IV as partly proved.
3. The Disciplinary Authority (DA) does not agree with the findings of the Inquiry Officer in respect of Articles I and II of the charge sheet to the extent and for the reasons discussed as under:
15. However, the DA has shown its intention to disagree with articles I and II of the charge but in the order, without giving any tentative view or an intention to disagree, the DA also disagreed with the partly proved charge in articles III and IV with the following conclusion:
6. Conclusion In view of the above discussions and for the reasons and to the extent discussed above the disciplinary authority does not agree with the IOs findings in relation to Articles I to IV of the charge sheet and is of the view that Articles I, II, III and IV stand fully proved
7. The matter was referred to the Central Vigilance Commission (CVC) alongwith the above views of the DA, recommending that th case warrants imposition of a suitable major penalty on the CO. The CVC in their stage advice conveyed under its OM dated 24.11.2006 has concurred with the CBDT and has advised imposition of a suitable major penalty on the CO. A copy of the CVCs advice is enclosed with this communication.
8. Shri B.S. Sondhi CIT is hereby allowed an opportunity to furnish his comments/representation, if any on the IOs report the Disciplinary Authoritys disagreement therewith and the CVCs advice dated 24.11.2006. the comments/representation should be furnished in writing, so as to reach the undersigned within 20 days of the receipt of above communication falling which it shall be presumed that the CO has nothing to state in the matter.
16. As we find that the import of the order on liberal construction is that the DA has disagreed only with articles I and II of the charge but has not decided to disagree with articles III and IV, yet its disagreement on articles III and IV of the charge is without making mind on application, as such this disagreement on articles III and IV without showing any intention specifically in the order is beyond its jurisdiction and cannot be countenanced in law.
17. Another aspect of the matter, which is to be examined, is that as per the laid down methodology under Rule 15 of the CCS (CCA) Rules, 1965, which empowers the DA to pass order as per CVCs circular letter dated 28.9.2000 but CVCs advice is to be sought at two stages, firstly on issuance of the chargesheet and secondly for second stage advice either on receipt of the reply to the chargesheet or on receipt of the enquiry report. From the perusal of disagreement Note, it appears that the enquiry report has not been sent by the DA to the CVC immediately on receipt from the EO, yet the disagreement arrived at without being commented upon by the applicant and without the representation being appended with it, what has been sent to CVC for tendering their 2nd stage advice, which ultimately was delivered on 24.11.2006, is sane reply on representation by the applicant. Accordingly, the CVC recommended for imposition of a suitable major penalty only on the basis of the enquiry report and the disagreement Note of the DA. This has prejudiced the applicant on deprivation of a reasonable opportunity, as though the advice of the CVC is not binding, yet has an influence over the DA after consultation with the Union Public Service Commission (UPSC) to impose a major penalty. The comments offered by the applicant have been left without consideration by the CVC. This tendering of advice may not be mandatory, but without the defence of the applicant to the disagreement Note, it cannot be acted upon in law.
18. A tentative view as per its plain grammatical meaning as per Oxford English Dictionary is a provisional view. However, when the DA in the instant case records its disagreement with an additional reasoning different from what has been arrived at by the enquiring authority the charges stood proved against the applicant. Moreover, a reference to the CVC advice to impose a suitable major penalty on the applicant, without his comments being considered, rather with a pre-determined mind, a final view of the matter has been arrived at. What is to be inferred legally from the above procedure is that no tentativeness is present in the order or a provisional view and an opportunity to explain has been accorded to the applicant just for useless formality as a post-decisional hearing. The Apex Court in Yoginath D. Bagde v. State of Maharashtra, (1997) 7 SCC 739 has deprecated this procedure in law. The contention that the applicant has already preferred a reply to the disagreement would not cure this illegality and the procedure, which is contrary to law.
19. Interference with the disciplinary proceedings at an interlocutory stage in judicial review cannot be limited to a chargesheet only. If any stage of the enquiry, the procedure adopted and the stage reached is found to be contrary to law without application of mind, it is permissible on interference to step in to correct the procedure to uphold the rule of law. Accordingly, the objection raised by the learned counsel of respondents that the enquiry in this case cannot be interfered with at the disagreement stage is misconceived and overruled.
20. Resultantly, for the foregoing reasons, without dwelling upon other legal grounds to challenge the chargesheet at an interlocutory stage these OAs are allowed. Impugned orders are set aside. Consequences in law ensued pursuant upon quashing of the orders in disciplinary proceedings should be bestowed upon the applicant, within a period of two months from the date of receipt of a copy of this order. However, the prescribed methodology in law is permissible to the respondents. No costs.
Let a copy of this order be placed in OA-520/2008 as well.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.