Central Administrative Tribunal - Lucknow
Atiq Ahmad vs Union Of India on 3 August, 2022
CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
ORIGINAL APPLICATION No.286/2019
Order Reserved On 07.03.2022
Order Pronounced on 03.08.2022
CORAM
Hon'ble Mr. Devendra Chaudhry, Member (A)
Hon'ble Mr. Swarup Kumar Mishra, Member (J)
Sh. Atiq Ahmad, Aged about 44 yearsS/o Sh. Aziz Ahmad,
Permanent resident of E-3543,Rajajipuram, Lucknow.
(Working as Addl. Commissioner of Income Tax, Range-21,
Delhi)
.....Applicant
By Advocate : Shri S. K. Gupta
Shri B. B. Tripathi
Shri Amit Verma
Versus
1. Union of India through Secretary,
Ministry of Finance,
Department of Revenue,
North Block, New Delhi.
2. Chairman,
Central Board of Direct Taxes,
Ministry of Finance,
Department of Revenue,
North Block, New Delhi
3. Pr.Chief Commissioner of Income Tax, (CCA),
Page 1 of 27
CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors
UP East Region,
AayakarBhjawan,
5,Ashok Marg, Lucknow
.....Respondents
By Advocate: Smt. Prayagmati Gupta
ORDER
Per Hon'ble Mr. Devendra Chaudhry, Member (A) The present Original Application has challenged the Charge Memorandum dated 01.03.20019 received through covering letter dated 12.03.2019. The Memorandum has been issued under Rule 14 of CCS (CCA) Rules, 1965.
2. Per applicant, the brief facts are that he belongs tothe 2002 batch of Indian Revenue Services (Income Tax) and was initially posted as Assistant Commissioner of Income Tax. With passage of time, he has been promoted and is now posted as Additional Commissioner of Income Tax, Range-21, New Delhi. Vide letter dated 11.05.2018, Annexure A-3, the applicant received a communication by which, the applicant was directed to explain as to why he issued certificates of Tax Deduction At Source(TDS) at Nil/lower rates in large numbers without any justification. That this constituted a misconduct. In regard to this allegation, it is asserted that this communication was with respect to his being posted as ACIT Page 2 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors Range -II, Lucknow posting long ago in 2007 and was after more than 11 years of the so called offence. The applicant replied to the said communication vide letter dated 25.05.2018 (Annexure A-4) submitting that lapse if any is only a technical lapse and there is financial no loss to the Government. That thereupon the applicant received the communication dated 01.03.2019 Charge Memorandum (CM) through thecovering letter of 12.03.2019 under Rule 14 of CCA Rules containing the alleged misconduct pertaining to the applicant in the year 2007. That in the CM, there is no explanation of the delay in its issueand the allegations to the applicant issued TDS certificate at Nil/lower rates has been made without any justification from the side of the respondents as to what should have been the rates chargeable otherwise qua the 675 certificates alleged to have been issued by him. It is asserted that there was no ulterior motive in theissue of the certificates and therefore the allegationis unjustifiable. Further that, in the list of documents enclosed which are CM, there is reference to a communication dated 26.03.2018 issued by Dr. Jain which in its contents refers to a letter dated 22.03.2018. However, a perusal of that letter dated 22.03.2018 (Annexure A-7) makes it clear that there is no whisper of anycomplaint against the applicant qua, the charges stated in the CM. Notwithstanding, the applicant submitted his reply to the CM vide his interim reply dated 15.03.2019, Annexure A-5. Page 3 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors 2.1 Apart from asserting the factual incongruity and unjustifiability of the CM, the Applicant has placed reliance on the case laws for fortifying his assertion that in the event of a stale and baseless charge memorandum, the same is liable to be set aside. The case laws are as follows:-
(i) M.V. Bijlani Vs. Union of India & Others(JT)2006 (4) SC 469 (Annexure-A-8);
(ii) Shri V. K. Puri Vs. Union of Indiajudgmentdated 8.8.2018 in OA. No. 839/2014 Annexure A-9 of the Principal Bench in which reliance is placed on the judgment of Bani Singh of Hon'ble High Court Supreme Court.
(iii) Union of India an Ors. Vs. Hari Singh and Ors.
(Civil Appeal No. 15041 of 2017 Judgment dated
10.07.2017, Annexure A-10
(iv) State of Madhya Pradesh Vs. Bani Singh and
Another 1990 (Supp) SCC-738(5.04.1990), Annexure-A-
11.
(v) Thann Singh Vs Union of India, AISLJXII-2003 (3) - 440- Annexure A-12.
2.2. The applicant has accordingly submitted that the CM is worthy of being set aside on the grounds of (a)being stale as there is a delay more than 12 years in the occurrence of the so Page 4 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors called offence and the issue of charge memorandum containing charges pertaining to the offence, (b) that the charges themselves are not prima facie substantiated in any way at all and (c) that the applicant has served with merit in all these years as his ACR/APR have been meeting the prescribed bench mark and no suspicion has been raised against the conduct of the applicant. Therefore, in the light of the various citations and facts and circumstances of the case, the Charge Memorandum is liable to be quashed. Hence the OA.
3. Per contra, the respondents vide their Counter Affidavit dated 22.07.2019 have submitted that the Charge Memorandum has been issued after due consideration. That the issue of Charge Memorandumrequires a large amount of inter office consultation including consultation with the Directorate of Vigilance and advisory bodies like CVC. Therefore, there has been no delay in the issue of the Charge Memorandum. That the applicant has issued 675 certificates of TDS with Nil/lower rates and hence, this is construes a misconduct. The CA has also cited the case of Writ Petition (CRL) No. 50/2012 in the matter of Niranjan Hemchandra Sashittal and another versus State of Maharashtra, in which the Hon'ble Apex Court vide order dated 15.03.2013 has emphasised upon the issue of quashing proceedings regarding corruption which should not be done in order to Page 5 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors promote good governance and collective faith in the institutions. That the Charge Memorandum has been issued by the competent authority after following due procedure of law and there is no legal infirmity in it. It is finally submitted that the Charge Memorandum is proper and the inquiry should be allowed to continue and there is no reason to quash the Charge Memorandum. Therefore, the OA is liable to be dismissed.
4. The applicant has filed rejoinder affidavit to which a supplementary CA has been filed by the respondents and thereafter, written arguments have been filed by both the parties. In all the pleadings, more or less, similar issues and points are raised and reiterated except for some additional citations.
5. Heard the detailed arguments at length by the learned counsels of both the parties and perused all the pleadings filed very carefully including written arguments, citations, supplementary affidavits and replies theretofore.
6. The key issue is whetherthe Charge Memorandum issued after almost 11 years of the actual misconduct and with alleged little justification sustainable and as per law.
7. As regards, the delay, it is a factthatthe incidence of misconduct contained in theCharge Memorandum is pertaining to year 2007 whereas the Charge Memorandum is issued vide Page 6 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors date 01/03/2019 and so the misconduct asserted by the Respondents is indeed 11 years old. The respondents have tried to explain this firstly by a general statement that the issuing of chargememorandum requires prolonged inter office consultation. Reliance in this regard has been placed on the letter of the ADGIT dated 04/01/2022 in which the chronology has been explained. Examination of the chronology reveals that in May 2007 there was some complaint against the Applicant which was sent to CCIT (CCA) Lucknow for report in August 2007 - that is after about three months and thereafter nothing was done for the next four years whereafter in January 2011 a reminder was sent. We notice immediately the four-year delay even for a preliminary report followed by a three-year gap in pursuit of the earlier four year gap - seven years gone - and then a reminder after two years. Is this the speed of inter-office consultation. If so, it is reasonably astounding and inexplicable for something which made the Respondents issue a Rule-14 Charge Memorandum in 2019. Quiet clearly this cannot be explained as delay due to inter- office consultation with independent agencies like the CVC as the Respondents have miserably averred. The applicant on the other hand in his RA,has attacked this some nine-year delay in shuttling of mere reminders by citing the CVC circular dated 18/01/2016 (Annexure RA-1), which is about timely completion of disciplinary proceedingsbut what we find here is Page 7 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors a monumental delay in the issue of the Charge Memorandum itself what to talk of the rest of the Disciplinary proceedings. The relevant portions are extracted below:
"The Commission has noted with serious concern that the administrative authorities are not adhering to the time schedules prescribed for completion of disciplinary proceedings. In a recent study conducted by the Commission, it has been noticed that while the average time taken by the administrative authorities in finalisation of disciplinary proceedings is more than 2 years, the maximum time taken in a particular case was eight (8) years and at least in 22% cases the inquiry took more than two years. The Commission vide its Circular No. 8 (1)(g)/99(3) dated 03.03.1999 and No. 000/VGL/18 dated 23.05.2000 has laid down the time limits for various stages of disciplinary proceedings right from the stage of investigation to finalisation of the disciplinary case. The time- limit for completion of departmental inquiry is six months from the date of appointment of the IO.
This Tribunal is inclined to agree to the assertion of the ld Respondents counsels that before applying circulars violation on employees, the departments and in this case the concerned Respondents should strive to apply the Circulars themselves first. Therefore, there is much to convince us and so we are inclined to agree with the applicant on this count that indeed there has been substantive delay. On the point of delay, the learned counsel for the applicant has relied on the following citations. The relevant extracts of the same reproduced below:
Citations:
(i) M.V. Bijlani Vs. Union of India & Others (JT) 2006 (4) SC 469 In this case, the appellant was working as a Junior Engineer at Jagadalpur in the year 1969-1970. He allegedly failed and/ or Page 8 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors neglected to maintain a register known as ACE-8 Register. After he had handed over charge to his successor Shri K.C. Sariya, on or about 11.04.1975, a disciplinary proceeding was initiated against him. The disciplinary proceedings remained pending for a period of seven years and in the judgement it is observed citing the matter of State of Madhya Pradesh v. Bani Singh and quoted as under:
"The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage."
......The appeal is, therefore, allowed. The consequence of the said order would have been to remit the matter back to the disciplinary authority. We, however, do not intend to do so as the charges relate to the year 1969-1970. The Appellant, due to pendency of these proceedings, has suffered a lot. He is, therefore, directed to be reinstated in service, if he has not reached the age of superannuation. However, keeping in view the fact that, he has not worked for a long time, we direct that he may only be paid 50% of the back wages. He is also entitled to costs of this appeal. Counsel's fee assessed at Rs.5000/-.
(ii) Shri V. K. Puri Vs. Union of India judgment dated 8.8.2018 in OA. No. 839/2014 Annexure A-9 of the Principal Bench in which reliance is placed on the judgment of Bani Singh of Hon'ble High Court Supreme Court. The relevant portions are cited as hereunder:
"..The applicant joined the Indian Revenue Service(IRS) in the year 1976. Thereafter, he earned promotions to various positions. In 1993 he worked as Additional Commissioner, New Customs House, Mumbai. By virtue of the office held by him, he was vested with the powers of adjudication in quasi judicial Page 9 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors capacity. He had to deal with several cases and to pass orders. It appears that in the year 1998, a complaint 2 OA No.839/2014 was received by the department to the effect that the applicant decided certain matters contrary to the relevant provisions of law and thereby granted relief to the parties thereto. The concerned authority exercised powers of review and such orders are said to have been reviewed in the year 1999.
8. In the instant case, the allegations against the applicant pertain to the nature of the orders passed by him as an adjudicating authority. Assuming that the view taken by the applicant while adjudicating a dispute was not correct and the order passed by him was set aside by the appellate or reviewing authority, it hardly constitutes the basis for initiation of the disciplinary proceedings. It is a different matter if the allegation is that the result of the adjudication, albeit, strictly in accordance with law, was tainted with acts of fraud or illegal gratification. Such is not the case here.
9. Even as of now, the copy of complaint stated to have been received in the year 1998, has not been made available to the applicant. Added to that, in all fairness, the authority who passed the impugned order stated therein that in spite of best efforts, made by them, they were not able to trace the complainant. It was also mentioned that though the complaint was received in the year 1998, the first report of 6 OA No.839/2014 investigation came into existence in the year 2008. The relevant para thereof reads as under:- "......With regard to inordinate delay in issuing charge sheet to him, it is stated that the complaint against Shri V.K. Puri was received sometimes in January, 1998. The Directorate General of Vigilance, New Delhi vide letter No. V-521/6/98 dated 14.02.1998 referred the matter to Directorate General of Vigilance, West Zonal Unit, Mumbai for investigation. The Investigating Officer submitted his report on 09.07.2008. Though the reasons for delay in submitting the investigation report, are not indicated in the said report, it is revealed that certain orders in original passed by the Charged Officer where then pending in Appeal/Review. In one such case, the order in appeal was passed on 30.11.199. During the course of prima facie investigation, letters were issued by Directorate General of Vigilance, West Zonal Unit to the complainant for verification of the complainant at the address given by him and efforts were made to locate his address by visiting the area but the address mentioned by the complainant was found to be fictitious."
10. Further, even though the investigation report came in the year 2008, the charge memo was issued in the year 2012. This delay is not explained.
11. We are conscious of the fact that to the extent possible, the Courts and Tribunals must permit the disciplinary proceedings to continue and the verification 7 OA No.839/2014 of the correctness or otherwise of the charges can be undertaken only after the disciplinary authority passes an order. However, an employee cannot be subjected to the disciplinary proceedings on the basis of stale matters, that too, if the allegations are not serious in nature. Page 10 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors
12. In State of Madhya Pradesh Vs. Bani Singh and Anr. [1990 (Supp) SCC 738], the Supreme Court found fault with the disciplinary proceedings which were initiated with a delay of ten years. In the instant case, the delay is much more.
13. In Union of India &Anr. vs. Hari Singh in W.P.(C)No.4245/2013 dated 23.09.2013, a Division Bench of the Delhi High Court took note of the OM dated 23.05.2000 issued by the Central Vigilance Commission and held that the delay of eight years is fatal to the proceedings.
14. The respondents placed reliance upon the judgment of the Hon'ble Supreme Court in the matter of Union of Inia &Anr. v. Ashok Kacker, [1995 Sup (1) SCC 180] and two other judgments. However, they 8 OA No.839/2014 are the cases where the charges were of serious nature and the delay was not much. In the instant case, the charge itself is not of serious nature. Secondly, the proceedings were initiated nearly twenty years after the adjudication was undertaken by the applicant herein. Added to that, the charge memo was served just five days before the retirement of the applicant. 15. For the foregoing reasons, we allow the OA and set aside the charge memo dated 20.06.2012. There shall be no order as to costs...."
The Respondents in their reply have asserted that the Hari Singh matter is not relevant to the case. How? Has not been analysed. Hence any unreasoned stand cannot be held forth. Daresay this is a kind of dystopian view being taken by the Respondents.
(iii) Union of India an Ors. Vs. Hari Singh and Ors. (Civil Appeal No. 15041 of 2017 Judgment dated 10.07.2017: In this case of the Ministry of Finance, Department of Revenue, the Central board of Direct Taxes, The Director General of Income Tax (DIG), and the Chief Commissioner of Income Tax (CCI) and the Commissioner of Income Tax- II have filed the present petition challenging the order dated 27 th October, 2014 passed by the Central Administrative Tribunal (CAT), Principal Bench, New Delhi allowing OA No. 1304/2014 filed by Page 11 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors the Respondent and quashing the Memorandum dated 31st May, 2013. Here also a delay of about eight years was held as being fatal to the disciplinary proceedings.
(iv) State of Madhya Pradesh Vs. Bani Singh and Another 1990 (Supp) SCC-738(5.04.1990): In this matter the Hon Apex Court held as under:
"...2. O.A. No. 201 of 1986 is a petition filed by the respondent, Bani Singh, I.P.S. officer of the Madhya Pradesh cadre and a direct recruit of 1964 batch, under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
1. Quashing the adverse entries in the ACR for the year 1976-77 (Annexure B) and in the ACR for the year 1979-80 (Annexure F).
2. Retrospective promotion in the selection Grade of the I.P.S. from 1978 when the juniors of his batch were promoted.
3. Promotion to the post of Super Time Scale, to the rank of D.I.G. with effect from 7.11.81 when his juniors of the batch were promoted, with consequential benefits including arrears of pay etc.
4. The appeal against the order dated 16.12.1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal.
5. In petition filed under Section 19 of the Administrative Tribunals Act the first relief related to the quashing of the adverse remarks for the years 1976- 77 and 1979-80. The Tribunal has sustained the adverse remarks for 1976-77 but quashed the adverse remarks for 1979-80. Adverse remarks for the year ending 31.3.1980 made by one Shri Rahim read as follows:
An officer of average ability who did not show any outstanding work. Appeared dissatisfied and casual about his work. Complaints of corruption and irregularities committed by him during his posting as commandant 14th Page 12 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors Bn. between 1975-77 are under enquiry in the vigilance cell of CID. The enquiry made so far indicates that there is truth in its last stages. Not considered fit for promotion.
This remark was quashed by the Tribunal but for the same year Sh. Khurana, the Inspector General, has made a remark which read as:
His performance during the period under review was colourless.
But this was not quashed by the Tribunal on the ground that this remark of the Inspector General is of a general nature.
6. The learned counsel for the appellant contended that the non-selection of the respondent for selection grade by the Screening Committee in 1980 should not have been interfered with by the Tribunal. We are unable to agree with this contention of the learned counsel. The Tribunal itself pointed out that the remarks of the Inspector General of Police, above quoted, is general observation of a reviewing officer and that could not have been taken int6 account. Generally, in relation to this the Tribunal pointed out that the Screening Committee seems to have been weighed in not selecting the respondent on the ground that there were some complaints about integrity and the decision will have to be deferred until the decision on such complaints.
The Tribunal pointed out that on these complaints not even a preliminary enquiry have been completed and that therefore they should not hayed weighed with the Screening Committee. This statement of the Tribunal cannot be said to be an incorrect approach. Normally, pendency or contemplated initiation of disciplinary proceedings against a candidate must be considered to have absolutely no impact upon, to his right to be considered. If the departmental enquiry had reached the stage of framing of charges after a prima facie case has been made out, the normal procedure followed as mentioned by the Tribunal was 'sealed cover' procedure but if the disciplinary proceedings had not reached that stage of framing of the charge after prima facie case is established the consideration for the promotion to a higher or selection grade cannot be withheld merely on the ground of pendency of such disciplinary proceedings. Deferring the consideration in the Screening Committee meeting held on 26.11.1980 on this ground was therefore unsupportable. In fact, even in respect of the adverse remarks which has been now quashed the respondent officer had made his own representation and the representation also was pending consideration at that time and it was disposed of only in December 1986. The remarks, therefore, should not be taken to have become final so as to enable the Committee to take that remark into consideration. The deferring of the consideration in the meeting held on 26.11.1980, therefore, could not be considered as valid.
7. However, the learned counsel for the appellant contended that even if the Tribunal was right in this view it should have remanded the matter for fresh consideration by the Screening Committee and the Tribunal itself should not have given the relief of retrospectively promoted him to the selection grade. In any case, the learned counsel contended that since the Tribunal itself has upheld the remarks for the year ending 31.3.1977 it should not have interfered with the decision of the Screening Committee deferring the claim of the respondent in the meetings held on 27.2.1979 and 3.3.1979. The learned counsel may be well- founded in the contention relating overlooking of the respondent's claim by the Screening Committee when it met in 1979 by reason of this adverse remark but on that ground we do not want to interfere with the order of the Administrative Tribunal because it had taken into an overall consideration of the entire facts and circumstances of the case in granting the relief.
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8. The learned counsel also contended that though Screening Committee met in 1979-80 the application under Section 19 of the Administrative Tribunals Act was filed only on 19.12.1986 and that therefore the application should have been dismissed on the ground of delay and laches. The Tribunal considered this question in detail and held that since the representation for the year 1980 was pending till 198G and there is an allegation that the respondent had been making representation to the Government in this regard and in fact one such representation was accepted and it is on that basis in spite of the fact that the facts and situations remained the same in the 1982 the respondent was selected for selection grade with effect from 4.3.1982. In those circumstances the Tribunal said that they were not willing to dismiss the application on ground of the laches and it has to be decided on merits. In these circumstances we are also unable to interfere with the order of the Tribunal.
9. The learned counsel for the appellant did not question the direction given by the Tribunal relating to consideration by the Special Screening Committee in respect of promotion to the post of Super Time Scale, in the rank of D.I.G. No other point also arises in this appeal. Accordingly, both the appeals are dismissed. However, there will be no order as to costs in both the appeals.
(v) Than Singh Vs Union of India, AISLJXII-2003 (3) -440:
In this matter the Hon' High Court of Delhi held as under:
"..2. The facts in brief are that on the date of his retirement i.e. 31 st May, 2013 a charge memorandum was served upon the Respondent alleging that while he was functioning as Income Tax Officer (ITO) W-5(1) in Firozabad, Uttar Pradesh, while computing the re-assessment proceedings for Assessment Year 2001-2002 he failed to appreciate the facts narrated by the Assessment Officer in the first assessment proceedings and the CIT (A) in the First Appellate Proceedings; that he failed to seek directions under Section 144A of the Income Tax Act, from the Additional JCIT-5, Firozabad and ignored the fact that the first assessment proceedings in the above case for the above Assessment Year were completed after obtaining directions under Section 144 A in the JCIT, Range-5, Firozabad. Accordingly, the Respondent was sought to be proceeded against for contravention of Rules 3 (1) (i), (ii) &
(iii) of the CCS (Conduct) Rules, 1964.
3. With the Articles of Charge, a list of four documents was appended which contained the original (first) Assessment Orders of the CIT (A) and ITAT as well as the re-assessment order. However, no witnesses to prove those charge, was cited in the charge memorandum.
13. In the present case, however, the Respondent has already superannuated in 2013 and no useful purpose will be served at this stage in permitting the Petitioner to start the de-novo inquiry. Consequently, there is no merit in this petition and is accordingly dismissed....."
As evident from the above citations, the Hon'ble Apex Court has come down very heavily on the issue of delay in the Page 14 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors charge sheet or conduct of disciplinary proceedings in general. If we add the citation of the Hon Apex Court in the very famous and well known matter of Prem Nath Bali v. Registrar, High Court, judgement dated 16/12/2015 CA: 958 of 2010, there are no arguments left to lampoon the Respondents for the huge delay. This assertion cannot be adequately countered by the citation of the respondents, viz that of Niranjan Hemchandra Sashittal and another versus State of Maharashtra, in which the Hon'ble Apex Court vide order dated 15.03.2013 has emphasised upon the issue of quashing proceedings regarding corruption which should not be done in order to promote good governance and collective faith in the institutions and is not specifically on delay and so to that extent, in the humble opinion of this Tribunal not the exact arrow to the parrot's eye as the Respondents would want it to be.
In the matter of State Of Andhra Pradesh vs N. Radhakishan on 7 April, 1998, a two judge bench comprising Hon' Sujata V. Manohar, D.P. Wadhwa J. it has been held as under:
"..Delay causes prejudice to the charged officer unless it can be shown that he is to or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse consideration.
The Tribunal rightly did not accept the explanations of the state as to why delay occurred. In fact there was hardly any explanation worth consideration. In the circumstances the Tribunal was justified in quashing the charge memo dated July 31, 1995 and directing the state to promote the respondent as per recommendation of the DPC ignoring memos dated October 27, 1995 and June 1, 1996. the Tribunal rightly did not quash these two later memos.Page 15 of 27
CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors Accordingly we do not find any merit in the appeal. It is dismissed with costs..."
The Respondents have cited that matter of Niranjan Hemchandra Sashittal and another versus State of Maharashtra in Writ Petition (CRL) No. 50 of 2012 wherein, the Hon'ble Supreme Court vide order dated 15.03.2013 has observed as under:-
"Be it noted, system of good governance is founded on collective faith in the intuitions. If corrosions are allowed to continue by given allowance to quash the proceedings in corruption cases solely because of delay without scrutinizing other relevant factors, a time may come when the unscrupulous people would foster and gamer the tendency to pave the path of anarchism.".
This citation is evidently regarding non-interference in Disciplinary proceedings on grounds of promoting good governanceand the deference which the Tribunals and the Courts need to show before quashing a Charge Sheet is fine, but we cannot have only one side of the coin. What is important to distinguish herein is that while the competent authorities have full power to take any disciplinary action against a misconduct, and the courts should be slow in intervening in Disciplinary proceedings, it does not the authorities concerned a free leash to take up issues of misconduct after over more than a decade because if a good governance requires addressing corruption it also requires addressing them timely. In any case, in the case law cited there was no issue of delay in the issue of charge sheet. Even for the sake of good governance it is common sense that a Page 16 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors problem not stitched in time is of no use when a taken up after a huge lapse -consuo tempore salvetnovem -stitch in time saves nine- a proverb popularized by no less a personality than Benjamin Franklin in his Poor Richard's Almanc, in 1732. This aspect of the conduct of proceedings has been given a go by to, by the respondents and therefore, we cannot agree to the explanation relied upon by the respondents for explaining the delay of 12 years. Therefore, this point is held against the respondents.
8. As regards the factual justifiability of the charge, it would be well to examine the Article-1 in the Charge Memorandum itself for which purpose it is extracted below:-
Article-1 :Charge Memorandum dated 01/03/2019:
"...Statement of Articles of Charge Framed against Sh. Atiq Ahmad, the then ACIT, Range-II, Lucknow, presently working as Sr. DR.ITAT-New Delhi Article-1 1.1 Sh. Atiq Ahmad (Civil code-02041), the then ACIT, Range-II, Lucknow in a reckless manner issued the certificates for deduction of tax at source at nil/ lower rates to large number of assesses without giving any valid reason/justification. He with ulterior motive, issued such certificates to a number of assesses, without having any jurisdiction over them.
1.2 He has issued 675 certificates for deduction of tax at source at nil/lower rates without jurisdiction. Whereas, in the notification dated 01.08.2001, the jurisdiction of Range-II, Lucknow as existing in 2007 is specified, it shows his ulterior motive. 1.3 By issuing certificates in aforesaid manner, he failed to protect the interest of the revenue. In order to camouflage his misconduct, he did not properly maintain the prescribed register, meant for keeping record of these certificates.
1.4 By his aforesaid misconducts, Sh. Atiq Ahmad (Civil code-02041), the then ACIT, Range-II, Lucknow failed to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a Government servant, thereby contravened the provisions of Rules 3(I)(i), 3(I)(ii) and 3(I)(iii) of the CCS (Conduct) Rules, 1964.Page 17 of 27
CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors Now, if we examine the 'Statement of Imputation' - Annexure-II to the Charge Memorandum, it is found that it is only about the issue of erroneous certificates qua the Range jurisdiction of the Applicant. There is no where mention of any shred of evidence or assertion regarding the less rates alleged to be charged by the Applicant. Therefore, firstly the para 1.1. and 1.2 of the 'Statement of Articles of Charge' stand unsubstantiated in the Imputation statement enclosed therein. Even otherwise there is precious little by way of arguments or pleadings which would help this Tribunal to deliver some finding on the truancy of the Applicant with respect to levying less tax rates. This therefore flies in the face of the assertion by the respondents that the applicant has issued 685 certificates of the TDS with Nil/lower rates. As against this, the ld applicant counsel has asserted that there has been no misconduct because there is no rate other than that levied by the charged officer for TDS purposes and so there is no loss to the Government. The respondents have not cited any lost to the Government either it is not quantified anywhere. Therefore, how the charge becomes a misconduct is not clear per the Charge Memorandum. We are inclined to hold that the charge cannot be justified for a mere asking and it is arbitrariness of a reasonably high level. The Hon'ble Apex Court in a number of citations has pronounced as much. Thus in the matter of Anant R Kulkarni vs Page 18 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors Y.P.Education Society &Ors on 26 April, 2013cited by the Applicant it is held as under:
"...10........Evidence adduced should not be perfunctory, even if the delinquent does not take the defence of, or make a protest with against that the charges are vague, that does not save the enquiry from being vitiated, for the reason that there must be fair-play in action, particularly in respect of an order involving adverse or penal consequences. What is required to be examined is whether the delinquent knew the nature of accusation. The charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges.
(Vide: State of Andhra Pradesh &Ors. v. S. Sree Rama Rao, AIR 1963 SC 1723; Sawai Singh v. State of Rajasthan, AIR 1986 SC 995; ; Union of India &Ors. v. Gyan Chand Chattar, (2009) 12 SCC 78; and Anil Gilurker v. Bilaspur Raipur KshetriaGramin Bank &Anr., (2011) 14 SCC 379).
25. In the instant case, there is no allegation of misappropriation/embezzlement or any charge which may cast a doubt upon the integrity of the appellant, or further, anything which may indicate even the slightest moral turpitude on the part of the appellant. The charges relate to accounts and to the discharge of his functions as the Headmaster of the school. The appellant has provided satisfactory explanation for each of the allegations levelled against him. Moreover, he has retired in the year 2002. The question of holding any fresh enquiry on such vague charges is therefore, unwarranted and uncalled for.
26. The Education Officer (Secondary), Zilla Parishad, Solapur, had filed an affidavit before the High Court, wherein it was stated that a dispute had arisen between the trustees, and in view thereof, an enquiry was initiated against the appellant. The respondents terminated the services of the appellant and many other employees, as a large number of cases had been filed against the Management Committee without impleading the State of Maharashtra, though the same was a necessary party, as the school was a government-aided school. Rules 36 and 37 of the Rules 1981, which prescribe the procedure of holding an enquiry have been violated. The charges levelled against the appellant were entirely vague, irrelevant and unspecific. As per statutory rules, the appellant was not allowed to be represented by another employee. Thus, the procedure prescribed under Rule 57(1) of the Rules 1981 stood violated. No chargesheet containing the statement of allegations was ever served. A summary of the proceedings, alongwith the statements of witnesses, as is required under Rule 37(4) of the Rules 1981, was never forwarded to the appellant. He was not given an opportunity to explain himself, and no charge was proved with the aid of any documentary evidence. There existed no charge against the appellant regarding his integrity, embezzlement or mis- appropriation. Therefore, the question of mis-appropriation of Rs.4,900/- in respect of a telephone bill remained entirely irrelevant. Furthermore, the same was not a charge of mis-appropriation. The learned Single Judge has also agreed with the same. The Division Bench though also in agreement, has given liberty to the respondents to hold a fresh enquiry.
28. In light of the facts and circumstances of the case, none of the charges are specific and precise. The charges have not been accompanied by any statement of allegations, or any details thereof. It is not therefore permissible, Page 19 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors for the respondents to hold an enquiry on such charges. Moreover, it is a settled legal proposition that a departmental enquiry can be quashed on the ground of delay provided the charges are not very grave..."
Thus we are inclined to hold that para1.1 and partly - 1.2 in the Charge Memorandum are quite unsubstantiated and therefore cannot hold their field. Thus this point is held against the Respondents.
9. As regards, the charge that the TDS certificates have been issued outside the jurisdictional Range of the applicant, it is important to examine the same for which purpose the relevant portions are extracted below:
Statement of Imputation:
"...Statement of Imputation of Misconduct or Misbehaviour in support of the Articles of Charge framed against Sh. Atiq Ahmad, the then ACIT, Range-II, Lucknow, presently working as Sr. DR.ITAT-New Delhi.
For Article-1
1. It is noticed that while working as ACIT, Range-II, Lucknow, Sh. Atiq Ahmad had issued in the year 2007 as many as 2,071 certificates u/s 195 allowing deduction of TDS at nil/ lower rates, out of 2071 certificates as per the report of Pr. CCIT, Lucknow, only 70 cases were pertaining to the jurisdiction of Sh. Atiq Ahmad, ACIT, Range-II, Lucknow and in 675 cases (copy enclosed as Annexure-1) certificates were issued without jurisdiction. Jurisdiction in remaining 1326 cases could not be ascertained due to incomplete addresses available with LIC/Department. Also, the register kept by him for this purpose only the name of the person and their LIC agency code is written without any detail regarding their address/PAN/date of application/reason for issue of this certificate. Further, on some of the pages of the register even the name of agency code are not legible.
2. It was alleged that Sh. Atiq Ahmad not only issued such certificates in large number but also to assesses not lying in the jurisdiction of Range-II, Lucknow. In this regard, in the complaint, the names of 6 assesses were provided, to whom these certificates were issued by him even though they did not fall under his jurisdiction as ACIT, Range-II, Lucknow.
3. In the notification dated 01.08.2001, the jurisdiction of Range-II, Lucknow as existing in 2007 is specified. As per this notification, in Page 20 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors 2007, the Range-II, Lucknow was having jurisdiction over non- corporate cases lying in 13 municipal wards of Lucknow (out of 21 municipal wards listed in the notification) i.e. (i) Sadatganj, (ii) Kashmiri Mohalla, (iii) Asharfabad, (iv) Chowk, (v) Nawabganj, (vi) Daulatganj, (vii) Raja Bazar, (viii) Yahiaganj, (ix) Narhi, (x) Hazratganj, (xi) Nazarbagh, (xii) Hussainganj, (xiii) Murlinagar. Further, when the register containing the name and agency code was sent to LIC, they were able to provide (in 47 pages) their PAN and address in almost all the cases except in the cases mentioned on 2 pages in which error/mismatch was reported by them.
4. A perusal of the aforesaid 6 cases discussed in para 2 above reveals the following position:-
5. It is thus observed that out of the aforesaid 6 cases as many as in 4 cases, these certificates were issued by Sh. Atiq Ahmad even when they did not pertain to his jurisdiction as ACIT, Range-2, Lucknow in 2007. Similarly, in the entire list as submitted by LIC in 47 pages, prima facie, many cases are found to be outside his jurisdiction but still certificates were issued by him. The issue of such certificates gives undue benefit to assesse as TDS at nil/ lower rate is allowed to be deducted in their cases, which adversely effects the budget collection for the current year. In the prescribed register, no reason/justification for issue of these certificates is mentioned. In fact apart from the name and agency code, no other detail is mentioned in the register. It reflects the casual manner in which this important and sensitive work was handled. Further, the issue of such certificates in large numbers even in cases not pertaining to his jurisdiction raises a doubt regarding his intention...."
Evidently, as stated in the Imputation statement in the year 2007 as many as 2071 certificates were issued by the Applicant under section 195 of the Income Tax Act. What is stated in the subsequent line is that out of 2071 certificates, only 70 pertained to the jurisdiction of the Applicant and then it goes on to say that in 675 cases certificates were issued without jurisdiction. Now when we try to add up only 70 issue per jurisdiction but 675 outside jurisdiction, the figure does not add up to 2071. So what about the rest? What is written is however that in 1326 cases jurisdiction could not be verified. So how did the Respondents arrive at the conclusion that only Page 21 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors 70 certificates out of 2071 were within jurisdiction?. No answer in the rest of Imputation statement. Conclusion - charge is vague. Period. The imputation statement then goes on to discuss specific cases of a miserly six erroneous certificates and makes the monumental finding as stated in para 5 of the imputation statement that as many as 04 cases the certificates were outside jurisdiction. So while the imputation statement started of with the huge figure of only 70 certificates being issued per jurisdiction, it has now whittled it down to only four. The balance stand substantiated. It is important that before alleging any charge, the correctness and the truthfulness has to be justified by relying upon appropriate evidence. On this count, we find that the same is lavishly lacking. Therefore, how is this Tribunal to agree to the Respondents assertion that there has been a large number of issue of certificates outside the Range of the charged officer and even if for a moment we do ride with the Respondents that some certificates were issued beyond Range jurisdiction, the key element in such certificates would also be the pecuniary loss to the government. This aspect is still not clarified and so stands unjustified or asserted by any convincing evidence. More so if the loss was worth a Disciplinary proceedings under Rule 14 of the CCS Rules, then why have the Respondents not able to find the proverbial elephant in the room. It all sounds a lot of fluff and candy which is difficult to accept in the evidence driven universe Page 22 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors of the judiciary. It could be staple diet in Tax administration but is certainly not kosher with the courts.We can only reiterate the directions of the Hon Apex Court in the matter of Anant R Kulkarni vs Y.P.Education Society &Ors on 26 April, 2013cited by the Applicant, wherein it is held as under:
"...10........Evidence adduced should not be perfunctory, even if the delinquent does not take the defence of, or make a protest with against that the charges are vague, that does not save the enquiry from being vitiated, for the reason that there must be fair-play in action, particularly in respect of an order involving adverse or penal consequences. What is required to be examined is whether the delinquent knew the nature of accusation. The charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges.
(Vide: Sawai Singh v. State of Rajasthan, AIR 1986 SC 995; U.P.S.R.T.C. &Ors. v. Ram Chandra Yadav, AIR 2000 SC 3596; Union of India &Ors. v. Gyan Chand Chattar, (2009) 12 SCC 78; and Anil Gilurker v. Bilaspur Raipur KshetriaGramin Bank &Anr., (2011) 14 SCC 379).
In the matter of Sawai Singh v. State of Rajasthan, AIR 1986 SC 995 on the issue of vague charges concerning termination of services it was held that -
"...Quite apart from that fact, it appears to us that the charges were vague and it was difficult to meet the charges Fairly by any accused. Evidence adduced was perfunctory and did not at all bring home the guilt of the accused.
It has been observed by this Court in Suresh Cbandra Chakrabarty v. State of West Bengal [1971] 3 S.C.R. 1 that charges involving consequences of termination of service must be specific, though a departmental enquiry is not like a criminal trial as was noted by this Court in the case of State of Andhra Pradesh v. S. Sree Rama Rao [1964] 3 S.C.R. 25 and as such there is no such rule that an offence is not established unless it is proved beyond doubt. But a departmental enquiry entailing consequences like loss of job which now-a- days means loss of livelihood, there must be fair play in action, in respect of an order involving adverse or penal consequences against an employee, there must be investigations to the charges consistent with the requirement of the Page 23 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors situation in accordance with the principles of natural justice in so far as these are applicable in a particular situation."
The Hon Apex Court in the matter of Union Of India &Ors vs Gyan Chand Chattar on 28 May, 2009, in a two judge Bench comprising Hon Justices,Hon'Mukundakam Sharma J. and Hon' B.S. Chauhan, J. held as under:
"..29. In view of the above, law can be summarized that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjunctures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct..."
The Hon Apex Court in the matter of Anil Gilurker vs Bilaspur Raipur KshetriaGramin ... on 15 September, 2011 in a Bench comprising Hon' R.V. Raveendran J., Hon' A.K. Patnaik J. held as under:
"...7. A plain reading of the charges and the statement of imputations reproduced above would show that only vague allegations were made against the appellant that he had sanctioned loans to a large number of brick manufacturing units by committing irregularities, but did not disburse the entire loan amount to the borrowers and while a portion of the loan amount was deposited in the account of the borrowers, the balance was misappropriated by him and others. The details of the loan accounts or the names of the borrowers have not been mentioned in the charges. The amounts of loan which were sanctioned and the amounts which were actually disbursed to the borrowers and the amounts alleged to have been misappropriated by the appellant have not been mentioned.
8. We also find that along with the charge-sheet dated 31.01.1989 no statement of imputations giving the particulars of the loan accounts or the names of the borrowers, the amounts of loans sanctioned, disbursed and misappropriated were furnished to the appellant, and yet the disciplinary Page 24 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors authority has called upon the appellant to submit his written defence statement in reply to the charges. We fail to appreciate how the appellant could have submitted his written statement in defence in respect of the charges and how a fair enquiry could be held unless he was furnished with the particulars of the loan accounts or the names of the borrowers, the amounts of loan sanctioned, the amounts actually disbursed and the amounts misappropriated were also furnished in the charge-sheet.
9. As has been held by this Court in Surath Chandra Chakrabarty v. State of West Bengal (supra):
"5. .....The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has also to be stated. This rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him....."
10. This position of law has been reiterated in the recent case of Union of India &Ors. v. Gyan Chand Chattar (supra) and in Para 35 of the judgment as reported in the SCC, this Court has observed that the law can be summarized that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice and the charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges...."
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Therefore, it is the clear finding of this Tribunal, fortified as it were by the above citations of the Hon Apex Court that while we do not find that such type of charges worthy of a Rule-14 Disciplinary proceedings we also hold that the charges are hardly convincing and backed up, howsoever small by any solid evidence. Conjuring magic is best left to the magicians. The executive needs to be more on solid ground than floating on water with high rapids down the mountain slope.Therefore, perforce we find it difficult to hold the charge of large number of certificates being issued by the Applicant outside his Page 25 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors jurisdiction with any bit of conviction and so this point is also liable to be held against the Respondents.
10. As regards, the issue of evidence ofDr. Neel Jainthe assertion made by the applicant have not been denied or countered by the respondents any of the submissions. Therefore, the evidence made by the respondents on this count tends to becomes on reliable.
11. On the basis of above analysis heretofore, it seems that factually and legally, the respondents are on a vague ground and so the Tribunal is inclined to agree to the assertion of the ld applicant counsel that the Charge Memorandum is baseless and worthy of being quashed. As evident the citations support the fact that any substantive delay in the issue ofcharge memorandum and makes it stale liable to be quashed and proceeded upon. The counter citations by the respondents are with respect to deference the court needs to show with respect to the charge sheet. This Tribunal is not being miserly in thisbut is equally duty bound to render justice where unjustifiability reigns supreme. As analysed above, we are laboriously straining to find any reliable shred of evidence or some thread of misconduct warranting a proceedings per the Charge Memorandum which would nail the applicant. Page 26 of 27 CAT, Lucknow OA No. 286/2019 Atiq Ahmad vs Union of India &Ors However, we fail to do so after all the diligence at our command.
12. Therefore, per the detailed analysis, the charges levelled by the Charge Memorandum against the applicant cannot be held forth. Hence the Charge Memorandum dated 01/03/2019 (Annexure A-1) is liable to be quashed and is quashed. The O.A. is allowed accordingly. No costs.
(Swarup Kumar Mishra) (Devendra Chaudhry)
Member (J) Member (A)
vidya
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