Central Administrative Tribunal - Delhi
Ajit Kumar Singh vs Union Of India on 11 March, 2014
Central Administrative Tribunal Principal Bench: New Delhi OA No. 1000/2009 Reserved on: 18.11.2013 Pronounced on:11.03.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Ajit Kumar Singh, S/o Shri Gorakh Nath Singh, Presently posted as Addl. CIT, New Delhi R/o 15/5, E.P. Nagar, New Delhi-110008. Applicant. (By Advocate Sh.Sanjeev Sindhwani with Sh. Anshum Jain) Versus 1. Union of India through the Revenue Secretary, Department of Revenue, Ministry of Revenue, North Block, New Delhi-110001. 2. Sh. P.L. Roongta (RTD), Orchid White, 10th Road, Khar, Mumbai-400052. 3. Central Vigilance Commission through its Secretary, Satarkata Bhawan, Block A. GPO Complex, INA, New Delhi-110023. 4. Chairman, Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, North Block, New Delhi-110001. 5. C.V.O. & Director General of Income Tax (Vig.), Ist Floor, Dayal Singh Public Library Building, 1, Deen Dayal Upadhyay Marg, New Delhi-110002. ...Respondents (By Advocate: Shri R.V. Sinha with Sh. R.N. Singh) O R D E R Dr. B.K. Sinha, Member (A):
The instant Original Application has been remanded by the Honble High Court of Delhi vide the order dated 05.08.2013 with the following directives:-
31. Accordingly we remand the case to the Tribunal to adjudicate the sustainability of Articles II to V framed in terms of Memorandum dated October 20,2008.
32. One aspect which requires mention here is that the Tribunal has quashed the order dated February 27, 2009 whereby the respondent No.1 was transferred from Range 17 to ITAT. There is no finding/reasoning for granting such a relief. It is seen from the Original Application except one ground that the said order is motivated and against the settled principles of law no foundation has been laid for seeking quashing of the said order. The respondent NO.1 being a All India Service Officer has a liability to serve in any part of the country. The order of the Tribunal is liable to be set aside in that regard.
2. We have heard the learned counsels for the parties and have also carefully examined the pleadings of the parties as also the documents submitted by their respective counsels.
3. The Honble High Court of Delhi have already demarcated the boundaries within which this Tribunal is to go about its task. For the sake of better elucidation, the basic postulates upon which the instant examination is being carried out as per the directive of the Honble High Court, are hereunder:-
The examination is only to be confined to Articles of Charge No.II to V framed in terms of the Memorandum dated 20.10.2008.
It has been argued by the learned counsel for the respondents that the role of the Tribunal for which the instant remand has been made is within a very narrow focus. The Tribunal is only required to read the Articles of Charge and to decide that whether some charges are made out on the basis of which departmental proceedings could be held against the applicant. The Tribunal is not required to go into the merit of the charges or the facts on which they have been based. On the other hand, the learned counsel for the applicant has submitted that the case has to be decided under the terms of the remand. The Honble High Court of Delhi has itself looked into the Articles of Charges and has quashed the Article-I of these. It has remanded the remaining charges to be examined under the principles laid down by the Honble Supreme Court in the case of Union of India versus K.K. Dhawan [(1993) 2 SCC 56]. Without going further into the matter, we are of the opinion that the Tribunal is bound by the terms under which the case has been remanded to it for adjudication. It is not to move beyond the boundaries as have been laid down by the Honble High Court of Delhi. Further, it is precluded from considering issues other than what have been laid down by the Honble High Court.
There is a specific directive from the Honble High Court of Delhi to the Tribunal, which has already been quoted above, requiring it to consider the facts constituting Articles of Charge No.II to V relating to the correctness or legality of the assessment orders or it reflects the conduct of the respondent no.1 in discharge of his duties as an officer. Therefore, this Tribunal is conscious of the fact that a much wider jurisdiction has been vested upon this Tribunal to venture beyond what is normally available to it confined to mala fide, violation of statutes and/or infringement of rules of natural justice as has been defined in the case of S.R. Tiwari versus Union of India & Another versus R.K. Singh & Another [2013 STPL 448 SC]. In quashing of departmental proceedings at the chargesheet stage the focus narrows down to paragraph 6 of Union of India versus Upendra Singh [1994 (3) SCC 357].
4. We have also considered the decisions of Honble High Court of Delhi in the cases of Arindam Lahiri versus Union of India & Others [WP(C) No.7054/2009 decided on 20.03.2009 (Page 40)] and Union of India versus Vineet Ohri [WP(C) No.7914/2009 decided on 10.07.2009]. In both these cases, the Honble High Court of Delhi had gone into the original records and such material as were available on record to see if any prima facie misconduct has been made out. However, it is re-affirmed here that since the Honble High Court has already prescribed the boundaries for our consideration, we need not enter the debate as to which extent this Tribunal can go as the same has been set at rest by the afore remand order. These orders would include the earlier investigation made within the department and such reports as be available on records. We are merely to abide by the interpretation of the earlier orders of the Honble High Court of Delhi in its remand order and that the mode of examination and the reasoning used by the Honble High Court while quashing the Article-I of the Charges serve as a guideline.
5. We also take into account the fact that the charges relate to a period when the applicant was functioning as quasi judicial authority. Here, surely there is some difference between quasi judicial authority and when a person functions in a purely administrative capacity. This distinction has been drawn by the Honble Supreme Court in several landmark decisions. In the case of Union of India and Another versus Cynamide India Ltd. And Another etc. [1987 (2) SCC 720], which was related to price fixation, the Honble Supreme Court has held as under:-
7. The third observation we wish to make is, price fixation is more in the nature of a legislative activity than any other. It is true that, with the proliferation of delegated legislation, there is a tendency for the line between legislation and administration to vanish into an illusion. Administrative, quasi judicial decisions tend to merge in legislative activity and, conversely, legislative activity tends to fade into and present an appearance of an administrative or quasi-judicial activity. Any attempt to draw a distinct line between legislative and administrative functions, it has been said, is 'difficult in theory and impossible in practice'. Though difficult, it is necessary that the line must sometimes be drawn as different legal rights and consequences may ensue. The distinction between the two has usually been expressed as 'one between the general and the particular'. 'A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases-, an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of policy'. 'Legislation is the process of formulating a general rule of conduct without reference to particular cases and usually operating in future; administration is the process of performing particular acts, of issuing particular orders or of making decisions which apply general rules to particular cases.' It has also been said "Rule making is normally directed toward the formulation of requirements having a general application to all members of a broadly identifiable class" while, "an adjudication, on the other hand, applies to specific individuals or situations". But, this is only a broad distinction, not necessarily always true. Administration and administrative adjudication may also be of general application and there may be legislation of particular application only. That is not ruled out. Again, adjudication determines past and present facts and declares rights and liabilities while legislation indicates the future course of action. Adjudication is determinative of the past and the present while legislation is indicative of the future. The object of the rule, the reach of its application, the rights and obligations arising out of it, its intended effect on past, present and future events, its form, the manner of its promulgation are some factors which may help in drawing the line between legislative '' and a non-legislative acts. A price fixation measure does not concern itself with the interests of an individual manufacturer or producer. It is generally in relation to a particular commodity or class of commodities or transactions. It is a direction of a general character, not directed against a particular situation. It is intended to operate in the future. It is conceived in the interests of the general consumer public. The right of the citizen to obtain essential articles at fair prices and the duty of the State to so provide them are transformed into the power of the State to fix prices and the obligation of the producer to charge no more than the price fixed. Viewed from whatever angle, the angle of general application. The prospectivity of its effect, the public interest served, and the rights and obligations flowing therefrom, there can be no question that price fixation is ordinarily a legislative activity. Price-fixation may occasionally assume an administrative or quasi-judicial character when it relates to acquisition or requisition of goods or property from individuals and it becomes necessary to fix the price separately in relation to such individuals. Such situations may arise when the owner of property or goods is compelled to sell his property or goods to the Government or its nominee and the price to be paid is directed by the legislature to be determined according to the statutory guidelines laid down by it. In such situations the determination of price may acquire a quasi-judicial character. Otherwise, price fixation is generally a legislative activity. We also wish to clear a misapprehension which appears to prevail in certain circles that price fixation affects the manufacturer or producer primarily and therefore fairness requires that he be given an opportunity and that fair opportunity to the manufacturer or producer must be read into the procedure for price fixation. We do not agree with the basic premise that price fixation primarily affects manufacturers and producers. Those who are most vitally affected are the consumer public. It is for their protection that price fixation is resorted to and any increase in price affects them as seriously as any decrease does a manufacturer, if not more. In yet another case titled as State of Maharashtra & Others etc. etc. versus Saeed Sohail Sheikh etc. etc. [AIR 2013 (SC)168], the Honble Supreme Court has gone into this distinction and held as under:-
29. Prof. De Smith in his book on 'Judicial Review' (Thomson Sweet & Maxwell, 6th Edn. 2007) refers to the meaning given by Courts to the terms 'judicial', 'quasi-judicial', 'administrative', 'legislative' and 'ministerial' for administrative law purposes and found them to be inconsistent. According to the author 'ministerial' as a technical legal term has no single fixed meaning. It may describe any duty the discharge whereof requires no element of discretion or independent judgment. It may often be used more narrowly to describe the issue of a formal instruction, in consequence of a prior determination which may or may not be of a judicial character. Execution of any such instructions by an inferior officer sometimes called ministerial officer may also be treated as a ministerial function. It is sometimes loosely used to describe an act that is neither judicial nor legislative. In that sense the term is used interchangeably with 'executive' or 'administrative'. The tests which, according to Prof. De Smith delineate 'judicial functions', could be varied some of which may lead to the conclusion that certain functions discharged by the Courts are not judicial such as award of costs, award of sentence to prisoners, removal of trustees and arbitrators, grant of divorce to petitioners who are themselves guilty of adultery etc. We need not delve deep into all these aspects in the present case. We say so because pronouncements of this Court have over the past decades made a distinction between quasi-judicial function on the one hand and administrative or ministerial duties on the other which distinctions give a clear enough indication and insight into what constitutes ministerial function in contra- distinction to what would amount to judicial or quasi-judicial function.
30. In Province of Bombay v. Khusaldas Advani (AIR 1950 SC 222) this Court had an occasion to examine the difference between a quasi-judicial order and an administrative or ministerial order. Chief Justice Kania, in his opinion, quoted with approval an old Irish case on the issue in the following passage:
..the point for determination is whether the order in question is a quasi-judicial order or an administrative or ministerial order. In Regina (John M'Evoy) v. Dublin Corporation [1978] 2 L.R. Irish 371, 376, May C.J. in dealing with this point observed as follows:
It is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this connection, the term 'judicial' does not necessarily mean acts of a judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others. This definition was approved by Lord Atkinson in Frome United Breweries Co. v. Bath Justices [1926] A.C. 586, 602, as the best definition of a judicial act as distinguished from an administrative act.
31. In Khushaldas Advani's case (supra) the Court was examining whether the act in question was a ministerial/administrative act or a judicial/quasi-judicial one in the context of whether a writ of certiorari could be issued against an order under Section 3 of the Bombay Land Requisition Ordinance, 1947. The Court cited with approval the observation of L.J. Atkin in The King v. The Electricity Commissioner [1924] 1 K.B. 171 that laid down the following test:
Whenever anybody of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs. xxx xxx xxx
33. Justice Fazl Ali, in his concurring opinion in Khushaldas' case (supra) made the following observations as regards judicial and quasi- judicial orders:
16. Without going into the numerous cases cited before us, it may be safely laid down that an order will be a judicial or quasi- judicial order if it is made by a court or a judge, or by some person or authority who is legally bound or authorised to act as if he was a court or a judge. To act as a Court or a judge necessarily involves giving an opportunity to the party who is to be affected by an order to make a representation, making some kind of enquiry, hearing and weighing evidence, if any, and considering all the facts and circumstances bearing on the merits of the controversy before any decision affecting the rights of one or more parties is arrived at. The procedure to be followed may not be as elaborate as in a court of law and it may be very summary, but it must contain the essential elements of judicial procedure as indicated by me.
xxx xxx xxx xxx xxx xxx The mere fact that an executive authority has to decide something does not make the decision judicial. It is the manner in which the decision has to be arrived at which makes the difference and the real test is: Is there any duty to decide judicially?
6. We can safely infer from the above decisions of the Honble Supreme Court that the difference between administrative and quasi judicial orders rest on the fact as to how a case is decided. If the case were to be decided by observing the laws of natural justice giving the parties opportunity to be heard and making a decision in which the view point of both the parties have been noted and adjudicated upon with due reasons and the same is subject to an appeal it could be said to be a quasi judicial function. Where any of these ingredients are missing, the decision will be administrative. The very fact that a quasi judicial order is subject to appeal puts it on a superior pedestal to a purely administrative order which also may be subject to appeal but not in a judicial manner. Thus, where appellate authority is vested in an officer, it is desirable that the authority should be exercised rather than resorting to administrative inference in the decision stage.
7. We are of the considered opinion that where a quasi judicial function is to be solely guided by the orders of a superior authority that is not face to face with the parties and has not seen the records during the course of formation though permitted by the law courts, is not very desirable affair. Therefore, this Tribunal also confers the due respect to the quasi judicial nature of the proceedings. Thus, in light of these laid down principles and boundaries, we proceed to decide the defence of the applicant vis-`-vis Articles of charge II to V. It is also to be mentioned in this respect that the defence of the applicant has already been taken note of by the Honble High Court of Delhi in paragraph 27 of its order 05.08.2013. In this regard, we have gone into the original documents. File No.DGIT(V)/ WZ/CDM/115/02 Vol-I/I-SS contains the DO letter written by the respondent no.2 dated 17.04.2002 wherein he writes as under:-
I have also received complaints against the Officer and his handedness in the following cases:-
Mark Leasing & Finance Ltd.
Harisingh Padamsingh Champawat The chief point involved in the case of Mark Leasing & Finance Ltd. is that search was carried out in this case during the period after 1/7/1995 and before 1/1/1997 and thus the original Block Assessment was made with the approval of the C.I.T. The original assessment was set aside by the I.T.A.T. to be made de novo. This has now been completed by Shri A.K. Singh vide order dt. 4/3/2002; but it appears that the order has been ante-dated, as it has been received by the assessee by SPEED POST ON 28/3/2002. In fact the assessee had moved an application u/s. 144A before the Addl. C.I.T. Central Range-I, Ahmedabad dt. 8/3/02 seeking directions to the Assessing Officer on certain issues. However, before getting any directions from the Addl. C.I.T., the Assessing Officer ante-dated the assessment and has shown the order as having been passed on 4/3/2002. Another major irregularity is that when the original order as passed with the approval of the C.I.T., the reassessment order also ought to have been passed with the approval of the C.I.T., which is the requirement under the law. However, the record shows that no such approval of C.I.T. was taken. The order-sheet also shows that only one hearing took place before passing the order. This is the genesis of the Article of Charge No.II. This Article of Charge is spelt out in three parts, which reads as under:-
Article II:
That Shri Ajit Kumar Singh, while functioning as Deputy Commissioner of Income-tax, Central Circle 1(3), Ahmedbad committed irregularities as indicated below in the course of passing the reassessment orders for the relevant block period on 04.03.2002 in the case of M/s. Mark Leasing & Finance Ltd., Ahmedabad, and Shri Harising Padamsing Champavat, Ahmedabad
(i) Shri Ajit Kumar Singh, in flagrant violation of system and procedure, did not procure the approval of the Commissioner of Income Tax, as required under the statutory provisions of section 158 BG of the Income Tax Act, before passing the above orders.
(ii) He did not make enquiry in terms of direction issued by the Income Tax Appellate Tribunal in its order dated 08.10.1999 before passing the above orders.
(iii) Though the orders were passed much later by him, Shri Ajit Kumar Singh indicated the date of order in both the cases as 04.03.2002 with a view to subverting the common petition made by the above named two assessees before the Addl. Commissioner of Income Tax on 08.03.2002 solicitation issuance of directions to Shri Ajit Kumar Singh.
By his aforesaid acts, Shri Ajit Kumar Singh failed to maintain integrity and devotion to duty and exhibited conduct unbecoming of a Government servant in violation of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS Conduct Rules, 1964. In the first part, the applicant is being charged with flagrant violation of system and procedure as he had not procured the approval of the Commissioner of Income Tax as required under the statutory provision of Section 158 BG of the Income Tax Act, which provides as under:-
158BG. Authority competent to make the block assessment. -The order of assessment for the block period shall be passed by an Assessing Officer not below the rank of an Assistant Commissioner or Deputy Commissioner or an Assistant Director or Deputy Director, as the case may be:
Provided that no such order shall be passed without the previous approval of
(a) the Commissioner or Director, as the case may be, in respect of search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A, after the 30th day of June, 1995 but before the 1st day of January, 1997;
(b) the Joint Commissioner or the Joint Director, as the case may be, in respect of search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A, on or after the 1st day of January, 1997.] Section 158 is a part of Chapter XIVA of the Income Tax Act which provides special provision for filing repetitive appeals.
8. The defence of the applicant in this regard, as contained in page no. 894-895 in F.No.DGIT(V)WZ/ COM/115/02 Vol.IV, is that the approval of the CIT as per Section 158BG was already obtained in these cases, in the course of the original assessment proceedings vide CITs letters dated 28.09.1996 and 28.01.1997. The applicant stated that in the remand proceedings, which was set aside by the ITAT, there was neither the requirement of law nor the practice of seeking approval for the second time, more so when the same additions were being made which were being made during the original assessment proceedings and no addition had been omitted. The applicant submits emphatically that in an assessment order on remand, where the order was in pursuance of the directions of the I.T.A.T., the approval of the CIT, an authority inferior to the I.T.A.T., is not a binding legal requirement. The applicant further submits that his predecessor one SJ Trivedi had also not sought the approval of the CIT in the set aside proceedings while framing the set aside block assessments in other cases of the same Champawat group to which M/s. Leasing and Hari Singh Champawat belong. He has also cited the case of one Dr S N Harshe in which the assessing officer had not taken the approval of CIT in the set aside proceedings as an example of a continuing practice. It is the case of the applicant that the matter had been remanded by the I.T.A.T. on the limited issue of the verification of Share Capital and admittedly there was no practice of seeking second time approval of the CIT in the remand proceedings. This has been admitted by the respondents in their investigation report [page 393 para 10.2.3 and page no.397 para 11 (iii)]. Moreover, this assessment order had been defended by the Department before the ITAT by appointing one Jagdeo, an officer of the rank of CIT (page 184). The findings of the DIT(Vig.) West contained in her report dated 16.05.2007 (at pages 1065-1070/C), have been defined in F.No.DGIT(V)/ WZ/CON-166/02-Vol.I/I-SS at page 79/N). The report of the DIT(Vig.) specifically states that the additions made by the applicant in his reassessment order dated 28.03.3002 were deleted by CIT (A). However, the Department did not accept the order of CIT (A) and filed an appeal in the ITAT, supporting the applicants stand on both the points. This appeal was authorized by CIT, Central-I, Ahmedabad, as per his order sheet noting dated 07.01.2003 (at pages 1087-1092/c). The Department continued the proceedings initiated by the applicant under Section 158 BD in the case of one Nitin P. Shah wherein the assessments of the assessee for earlier years were also reopened as per findings given by the applicant. However, the Honble High Court of Gujarat stayed the proceedings under Section 158 BD of the Income Tax Act. Section 158 BD of the Act is applicable where the assessing officer is satisfied that any undisclosed income belongs to any person, other than the person with respect to whom search was made under Section 132 or whose books of account or other documents or any assets were requisitioned under Section 132A, then, the books of account, other documents or assets seized or requisitioned shall be handed over to the Assessing Officer. Thereafter, the Assessing Officer is entitled to proceeding under Section 158BC of the Act.
9. The DIT(Vig.) West further records that the ITAT upheld the CIT(A) order in which the additions made by the applicant were deleted. However, the Department did not accept the ITATs order and had filed an appeal under Section 260A in the Gujarat High Court in support of the assessment order passed by the applicant. The DIT(Vig.) West found it logical and in order that since the Department had itself supported the applicants reassessment order in the ITAT and the High Court, therefore, this charge would be rendered non est.
10. We have given our conscious consideration to the facts of this charge and have also gone through the decision of the Honble High Court of Madras in the case of Dr. P.G.Viswanathan versus Director of Income Tax [WP(C) No. 20073/2003 and others decided on 04.01.2013], where the petitioner was employed as a Surgeon in a hospital owned by his wife and two of his daughters were also employed there and a raid had been conducted leading to seizures. Notices were issued under Section 158BC of the Act calling upon the petitioners to file their returns disclosing the undisclosed income for the block period 01.04.1996 to 12.09.2002 despite the fact that they had filed their returns and had been asked to appear before the said authority. In reply, it had been stated that a sum of Rs. 10,82,850/- had been found during the search and out of which a sum of Rs. 10,00,000/- had been adjusted against the tax liability. The sources of the cash could not be disclosed. Honble High Court of Madras held that it was immaterial as to who issued the search warrant. The Writ Petitions were disallowed on the ground that it was upon the petitioners to raise all such grounds and defend themselves during the enquiry.
11. One is not required to go so much into the previous decisions of the different Honble Courts as it would stand out from the logic of the Articles of Charge and the defence that once the Government itself had defended the stand of the applicant before the ITAT and the Honble High Court, it is now estopped from turning about and making allegations out of it. We also take into account the fact that similar logic had been used by the Honble High Court while quashing the Article-I of the charges. We are also clear in our findings that certainly no vigilance angle is involved in the case in hand.
12. Now we come to the sub-charge (ii) of Article of Charge No.II which says that the applicant did not make enquiry in terms of the direction of the ITAT. The defence of the applicant in respect to this allegation is that no vigilance action could be initiated against him in these cases as there was no requirement to take the approval of the CIT in the block reassessment proceedings when the same additions had been made which were made in the original orders and the original orders had been approved by the CIT. In other words, there was no necessity for taking the second approval. Other examples have already been cited above in relation to Article of Charge No.II(i) and no action had been initiated against those officers. Moreover, the applicant submitted that the orders were passed after giving adequate opportunities to the assessee and there is no infringement to the rights of natural justice. The applicant further submitted that no directions had been received by him under Section 144A from the Addl. CIT before passing the assessment order. The DIT(Vig.) West, while making her analysis, stated that the approval of CIT was required to be taken in the case of block reassessment orders, though there is no express provision in the Act. The applicant did not make enquiries into the genuineness of the share capital as had been directed by the ITAT and he made the additions which had been made in the original assessments. The applicant has denied receiving any direction from the Addl. CIT and the DIT(Vig.) West, after having examined the original records, observed as under:-
(iii) As regards the issue whether any directions were given by the Addl. CIT to the officer, DIT(Vig.) has stated that she has examined the original records and has found a letter td. 21.03.2002 written by the Addl. CIT to the officer by which the assessees petition dtd. 08.03.2002 was forwarded. This letter has been stamped as received on 22.03.2002 in the o/o DCIT, CC(1), but there is no dak receipt number or signature of any official on it (copy of this letter is at page 1101/c). the officer, in his representation, has denied receiving any such letter from the Addl. CIT. [Page 80/N of File No.DGIT(V)WZ/COM/115/02 Vol.I].
The DIT(Vig.) West further mentioned regarding the appeals filed by two assessees against the deletion of the additions before the ITAT. The ITAT, after having discussed the same, though the assessees had also challenged the validity of the assessment on the ground that the officer had not taken the approval of the CIT, the ITAT did not choose to adjudicate this issue as it had already deleted the additions on merit. The DIT (Vig.) also examined the issue of the other case relating to one Chandansingh P Champawat and Dr S N Harshe. The former had challenged the wrong approval of the JCIT instead of CIT in the ITAT. In that case, the ITAT had set aside the reassessment order and directed that the correct position be followed. In the other case of Dr S N Harshe, the assessee had not challenged on this ground. DIT (Vig.) West, has stated in her report dated 09.04.2008 that no action had been taken against the officers who had not sought the approval of the CIT before passing the two set aside block reassessment orders. The ITAT had considered this to be a procedural and curable defect. DIT (Vig.) has also mentioned that since the block assessment had been newly introduced, there was lack of clarity for the field formations regarding the provisions and the mistake of not taking the approval of CIT for set aside block assessments appeared to have been made by more than one officer.
13. In conclusion, we agree with the DIT(Vig.) West that the Block Assessment being a new practice was in the process of development. Moreover, what is applicable in the case of Chandansingh P Champawat and Dr S N Harshe will also be applicable in the case of the applicant. The defence is largely cured and mitigated by the fact that it was the Department which had gone in appeal before the ITAT and subsequently before the Honble High Court. Hence, we do not find this charge established against the applicant.
14. In so far as Articles of Charge No.III & IV are concerned, these are being dealt with together as they relate to one assessee. However, for the sake of clarity, the Articles of Charge No.III & IV are reproduced hereunder:-
Article III:
That Shri Ajit Kumar Singh, while functioning as Deputy Commissioner of Income-tax, Central Circle 1(3), Ahmedbad committed irregularities in the form of flagrant violation of system and procedure by antedating the assessment order to 15.03.2002 in the case of M/s Shree Araveli Finlease Ltd., Ahmedabad for A.Y. 1999-2000 in order to subvert the assessee?s application filed on 18.03.2002 before the addl. Commissioner of Income Tax solicitating issuance of directions to Shri Singh u/s 144A of the I.T Act.
By his aforesaid acts, Shri Ajit Kumar Singh failed to maintain integrity and devotion to duty and exhibited conduct unbecoming of a Government servant in violation of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS Conduct Rules, 1964.
Article IV:
That Shri Ajit Kumar Singh, while functioning as Deputy Commissioner of Income-tax, Central Circle 1(3), Ahmedbad, committed irregularities in finalising the assessment, prematurely on 15.3.2002 in the case of M/s Shree Araveli Finlease Ltd., Ahmedabad for A.Y. 1999-2000 without waiting for the enquiry report solicitated by himself from the Deputy Director of Income Tax, Udaipur, latest by 27.3.2002.
By his aforesaid acts, Shri Ajit Kumar Singh failed to maintain integrity and devotion to duty and exhibited conduct unbecoming of a Government servant in violation of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS Conduct Rules, 1964.
15. The applicant has completely denied the above charges. He has sought to state that the Department had filed an appeal before the ITAT defending his assessment order and the two major additions which were made by him in the assessment order had been confirmed by CIT(A).
16. The DIT (Vig.) West finds that the applicant had submitted prosecution proceedings under Section 197 and 198 r.w.s. 477A of the IPC against the assessee and its counsel on an issue of wrong accounting of shares of a certain company. The ADIT (Prosecution) vide letter dated 22.06.2001 directed that evidence regarding the share transaction may be obtained. It was in this context that the applicant had written a letter to DDIT(Inv.), Udaipur and this enquiry did not have any relevance to the assessment proceedings. Thus, the submissions of the officer are to be taken on his face value. The Addl. CIT had sent a report dated 26.04.2002 to DGIT(Inv.), Ahmedabad making a mention of the fact that it was orally reported by the AO that the assessment order had been passed on 15.03.2002. the assessment order was served upon the assessee on 21.03.2002. Copies of the order of CIT (A) dated 25.02.2003 and the ITAT order dated 21.09.2007 were forwarded by the DIT (Vig.) West. The CIT (A) had confirmed two additions of Rs.1.81 crores and Rs. 3.72 lacs made by the applicant. He had also deleted two additions of Rs.41.37 lacs and Rs. 1.73 crores. The Department filed an appeal against these deletions in the ITAT and the ITAT vide its order dated 21.09.2007, confirmed the deletion of the addition of Rs.41.37 lacs and the issue of the addition of Rs.1.73 crores had been remanded to CIT (A) for fresh adjudication.
17. Having gone through the Article of Charges, the defence projected by the applicant and the records, we are of the opinion that in view of the subsequent conduct of the CIT (A) and the orders of the ITAT, these Charges do not hold any water. Therefore, we are not inclined to agree with the same.
18. Before dealing with the Article of Charge No.V, we deem it necessary to reproduce the same hereinbelow:-
Article V:
That Shri Ajit Kumar Singh, while functioning as Deputy Commissioner of Income-tax, Central Circle 1(3), Ahmedbad, failed to do his duty, displayed insubordination and utter lack of respect towards his superiors through language and tenor his communication dated 11.04.2002 addressed to the Addl. Commissioner of Income Tax pursuant to Commissioner of Income Tax requisition of Shri Singh?s explanation in connection with assessment made in the case of Shri Nitin P.Shah for of A.Y. 1997-98.
By his aforesaid acts, Shri Ajit Kumar Singh failed to maintain integrity and devotion to duty and exhibited conduct unbecoming of a Government servant in violation of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS Conduct Rules, 1964.
19. The instant charge appears to have been formulated on the basis of a letter written by one Vijay Ranjan, CIT (Central)-I, Ahmedabad to the Additional CIT, Central Circle-I, Ahmedabad. The sender of this letter reports that the JCIT had made an addition of Rs.67,75,000/- under Section 69 of the Income Tax Act holding that the said amount did not form part of a declaration of Rs. 1.37 crores made by the assessee under VDIS, 1997 for assessment year 1997-98. CIT (A)-VIII, Ahmedabad vide her order dated 15.03.2001 set aside this issue to be examined afresh on the ground that the assessing officer had not given adequate and proper opportunity to the assessee before including the said amount in his hands. It was further observed that it could not be conclusively held that the declaration made under VDIC, 1997 included the aforesaid amount of Rs. 67.75 lacs as before the assessing officer the assessee had neither accepted nor clearly denied the existence of the credit balance in his name which came to be revealed from the search in L.T. Shroff group. The only issue before the assessing officer for the purpose of re-examination was that whether the said amount of Rs.67.75 lacs was included in the disclosure made by the assessee under the VDIC, 1997 for the year 1997-98. The CIT, Central-I, Ahmedabad found that the assessing officer had added the entire amount of Rs. 1.37 crores disclosed by the assessee under the VDIS, 1997, a disclosure which had been accepted by the Department. Moreover, while doing this, the assessing officer had also questioned the vires of the clarificatory circular issued by the Central Board of Direct Taxes The CIT, Central-I, Ahmedabad further found that the applicant had taken the stand that the said amount of Rs. 67.75 lacs could only be assessed under Section 158 BD of the Act. The reporting officer in this case found that this fact was not substantiated by the papers found during the search that it was undisclosed income of the Nitin P. Modi. The CIT, Central-I, Ahmedabad took an objection into the fact that the applicant had remarked on the vires of the circular of the CBDT and thereby he had disregarded the certificate issued by the competent authority. Further, the applicant had initiated proceedings under Section 158 BD in the assessees case without the satisfaction of the assessing officer.
20. In his reply, the applicant had stated that the judicial decision of the AOs had not been administratively called in question in any of the other cases while it had been called in question in the instant case. He had also sought the following information/details in order to enable him to furnish his reply:-
(I) The complete background under which I am being singled out now and my judicial decision is being called in question, while on identical issue in other orders passed by other officers and in one case where your kindself is a party to the decision, as mentioned above, no such explanation has ever been called form, from any of the officers.
(II) The section or relevant provisions of the statute under which the circular of the Board has been issued for the VDIS, as to my mind there is no such provision.
(III) The authority for the proposition that a quasi judicial authority, which the AO is, cannot opine on the vires of the Circular. It is a legally settled principle that a quasi judicial authority can express his views on all aspects of law in advancing the cause of justice and tax administration. The applicant had further submitted that the entire action was being initiated at the behest of DGIT-respondent no.2, who had misbehaved with him and threatened him of dire consequences on earlier occasions. Therefore, the applicant had alleged personal malice against the respondent no.2.
21. It appears from perusal of the records that the DIT (Vig.) West had reported that the applicant had not submitted his explanation despite several reminders to that effect and that she had been compelled on this account to submit an ex parte report dated 21.02.2012 recommending initiation of major penalty proceedings against the applicant. The applicant finally submitted his explanation after the Honble Finance Minister had given his nod for initiation of major penalty proceedings wherein he had brought out a number of facts, which had been considered by the DIT (Vig.) West, and also a number of appellate orders had now been passed by the ITAT, which had not been available at the time of proceedings, wherein the Department had itself defended the assessment order passed by the applicant before the ITAT and Honble High Court of Gujarat. It is the assessment of the Addl. DIT (HQ-I) that ITAT has not quashed the applicants re-assessment orders on the ground that the misconduct had been committed by the applicant but it was committed by other officers as well and the said mistake was a curable one. Therefore, it would not be proper to initiate major penalty proceedings in these cases. In the case of M/s. Shree Araveli Finlease Ltd., as has already been discussed earlier, it was observed that not taking approval of the block assessment was a mistake made by others as well in which case no departmental proceedings had been initiated against the officers concerned treating it to be a curable mistake. We have further noted that these two additions had been upheld by the ITAT and one of the issues had been remanded to the CIT (A) for fresh consideration. We further observe that under these circumstances to initiate departmental proceedings against major penalty against the applicant while others under similar circumstances had been allowed to go scot free would not stand the scrutiny of Article 14 of the Constitution of India particularly in light of the allegations of serious nature leveled by the applicant against the respondent no.2.
22. Now we come to the issue of insubordination. We find that the applicant had made a representation against the respondent no.2 alleging that he had been humiliated and was being coerced into passing orders which would be against the legal norms and contrary to the principles. For the sake of clarity, the following part of the representation of the applicant is being extracted below:-
5.1 Incident on 03.04.2002:
On 03.04.2002, I was informed by the Addl. CIT that Ld.DGIT was calling me in his Chamber. I asked the Add.CIT, if he was aware of the reasons of my being called. The Ld. Addl. CIT (Cen.)-I, however, did not have any clue about the same. So I went to his Chamber where Shri S.K. Misra, Addl. DIT, Shri A.K. Satpathy, Addl. DIT. Miss. D.B. Khalsa, DDIT, Shri R.J. Trivedi, Prosecution Counsel and one more person who I do not know, were sitting.
5.2 The Ld. DGIT was having the Prosecution folder of Royal Manor Hogtel & Industries in his hand and he angrily asked me, Why has no reference been made in the Prosecution proposal in respect fo issue of share capital of Rs.36,94,100? 5.3 I told the Ld. DGIT that this issue was set aside for which assessment has been made on 27.03.2002.
5.4 Thereupon, the Ld. DGIT, in the presence of so many persons, some of who were outsiders, lost his temper and shouted, Which issue is set aside? You dont understand anything. You read the order of the Tribunal;. The issue not set aside. 5.5 I started reading the Tribunals order, but Ld. DGIT, again yelled, Read loudly so that others can also hear. I felt as if I was a fresher of an University being publicly ragged. However, I read aloud the order of the Tribunal wherein the Tribunal had clearly set aside the issue.
5.6 The Ld. DGIT, having realized his mistake, tried to pounce upon me in another way, Central Circles are sleeping here. Howe many prosecution proposals have you submitted so far in your two years stay in the Central Circle? 5.7 I told him that I have submitted many proposals. Then the Ld. DGIT, asked Shri Satpathy, What happened to those proposals? Shri Satpathy told him, We have put up all of them before Ld. CIT (Cen.)-I. On this, Ld. DGIT, told Mr. Satpathy, You should not put up proposals to CIT (Cen.)-I. I am the authority to accord approval. You are acting on my behalf and not on behalf of the CIT (Cen.). Put up all folders before me immediately. 5.8 Thereupon the Ld. DGIT again turned to me, How many proposals of prosecution in respect of concealment of income have you submitted so far? I told him that the proposals are generally submitted after the first appeal order.
5.9 Thereupon the Ld. DGIT looking at Shri R.J. Trivedi, sarcastically said, He is a very wise Officer! He is wiser than all of us, we all are learning, but he is wise! Ha Ha Ha! 5.10 Then he turned to Satpathy, Prepare a guideline that for Prosecution, we should not wait for CIT (A)s order. We should issue notice of Prosecution along with notice u/s 158 BC as the finding is already there in the Appraisal Report.
5.11 Then the Ld. DGIT turned to me, You must submit proposal along with notice u/s 158 BC/ I then submitted to him that unless the issue of concealment was adjudicated by the Assessing Officer, it would not be proper to proceed for prosecution. The Ld. DGIT said, Why, are you Supreme Court? The Appraisal Report is already there. What is there to be adjudicated? The role of the A.O. is to compute taxable income. 5.12 Thereupon I told the Ld. DGIT that in that case, a copy of the Appraisal Report may have to be given to the assessee at that stage, if the Appraisal Report is to be taken as an evidence of concealment. The applicant thereafter made a request for his transfer out of the administrative control of the respondent no.2 which was not acceded to. Instead, the applicant was transferred as Officer on Special Duty in the office of the CIT (Central)-I even though there was no such post of OSD in that office. It cannot be forgotten sight of that the applicant had made an assessment at Rs. 1,37 crores as against the earlier assessed income of Rs.67.75 lacs. In addition, a sum of Rs. 67.75 lacs was ordered to be assessed under Section 158BD where the assessee would have to pay higher tax @ 60%. The respondent no.2, while transferring out the applicant as OSD, made a perverse order. We find no answer to the query of the applicant that if it was perverse order then why the assessee had not made any complaint against him.
23. This is a case of conflict between a superior officer and an officer, who is several notches junior to the superior. The entire case is based on disregard of the orders of the superior. The plea of superiors order was the main defence adopted by the persons accused, in Nuremberg Trials in the year 1945-46. The accused persons in that case had taken the defence of Befehl ist Befehl (orders are orders). This is generally known as Nuremberg Defence which usually means that the accused was merely following orders. This was conclusively rejected by the Trial Court and has since been accepted the world over. This, in other words, implies that superior officers are not competent to issue illegal orders and if issued, the subordinates are not bound to obey the same. Insubordination is the act of willfully disobeying the superior. However, refusal of an order which is either illegal or not within the purview of law or competence of the authority issuing it is not insubordination. Nor can the difference in opinion be treated as insubordination. The Law Lexicon defines the insubordination as under:-
The word insubordination means un-willingness to submit to authority; disobedience to orders; infraction of rules, or generally disaffected attitude towards authority. (Websters Third New International Dictionary).
Insubordination means a refusal to subordinate oneself to authority, and it does not follow that a mere failure to obey an order amounts to insubordination. R v. Grant, (1957) 2 All ER 694, 696 (Court Martial Appeal Court). [Army Act (1955), S.7].
The quality or state of being insubordinate; defiance of authority; disobedience of superior authority. [S.138, IPC (45) of 1860]. The Honble Supreme Court in the matter of The Joint Action Committee of Airlines Pilots Association of India and Others versus Director General of Civil Aviation and Others [Civil Appeal No. 3844/2011 decided on 03.05.2011] has gone into this question, which reads as under:-
26.The contention was raised before the High Court that the Circular dated 29.5.2008 has been issued by the authority having no competence, thus cannot be enforced. It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the Statutory Authority. In a democratic set up like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decision making authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal. (Vide: The Purtabpur Co., Ltd. v. Cane Commissioner of Bihar & Ors., AIR 1970 SC 1896; Chandrika Jha v. State of Bihar & Ors., AIR 1984 SC 322; Tarlochan Dev Sharma v. State of Punjab & 19Ors., AIR 2001 SC 2524; and Manohar Lal (D) by L.Rs.v. Ugrasen (D) by L.Rs. & Ors., AIR 2010 SC 2210).
27.Similar view has been re-iterated by this Court in Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16; Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia & Ors., AIR 2004 SC 1159; and Pancham Chand & Ors. v. State of Himachal Pradesh & Ors., AIR 2008 SC 1888, observing that an authority vested with the power to act under the statute alone should exercise its discretion following the procedure prescribed therein and interference on the part of any authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law. It violates the Constitutional scheme. Here, it has appeared from the records that what had affronted the CIT, Central-I (A) was that the applicant had questioned the vires of CBDTs instructions. It is the duty of every officer to bring to the notice of his superior where he feels that one of the superior authorities had erred in making an interpretation of some statute or has issued an order contrary to law. In the instant case, we are firmly of the opinion that the submissions made by the applicant do not smack of any insubordination but rather seeks to project a point of view. It is a well established principle that differences of opinion and dissent are bound to arise in any organization during the course of its functioning. It is for the organization to respect such difference of opinion and to resolve the same through mutual discussions.
24. In the instant case, we find that there was no such attempt made and instead a chargesheet has been issued to the applicant even without having considered his explanation. When his explanation was submitted and re-examined it had been thrown off hand vide means of an order (at the level of Finance Minister). It is dissent and difference of opinion that adds to institutional strength both in democracy and in any organization elsewhere. Where the difference of opinion is stifled, it would lead to complete opaqueness and lack of transparency. Today, the entire Nation is concerned about this issue and the same is sought to be cured by appointing bevy of Lokpal and Janlokpal. However, the point is easily missed that the transparency has to be institutionally embedded in order to be effective. A Hitlerion approach to dissent would only lead to what happened in Nazi Germany large scale corruption and slaughter. Any system in order to prosper and deliver on its objectives must show respect to differences in opinion and should have modalities to incorporate or reconcile the same. A system which lacks in such mechanism cannot deliver on its promised objectives.
25. We further find that there is nothing on record to conclude that there has been a simultaneous enquiry into the allegations against the respondent no.2. He had issued threats against the applicant in presence of several witnesses but they have nowhere been examined. It otherwise implies that the applicant had been left completely at the mercy of the respondent no.2, who was a very senior officer by all means and was on the verge of retirement. In our view, this is not how a Department should function.
26. It is an established fact and we need not to enter the debate for any further that the Honble Supreme Court in the case of Union of India versus K.K. Dhawan (supra) has held that it is within the competence of the superior authorities to issue directions to the subordinates. However, nowhere does this case state that these directions can be against the norms and rules framed by the Department and have to be implemented even where contested. We take full cognizance of the fact that the charges of integrity are not established in the form of what we have discussed above. However, the charges as analyzed and appraised above are being summed up as laid down in the case of Union of India versus K.K. Dhawan (supra) are given hereunder in tabular form:-
Sl.
No. KK Dhawans case principles Whether Articles of Charge framed against the applicant are proved/not proved.
Charge II Charge III Charge IV Charge V
i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty.
Not proved Not proved Not proved Not proved
ii) If there is prima facie material to show recklessness or misconduct in the discharge of his duty.
Not proved Not proved Not proved Not proved
iii) If he has acted in a manner which is unbecoming of a Government servant.
Not proved Not proved Not proved Not proved
iv) If he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers.
Not proved Not proved Not proved Not proved
v) If he had acted in order to unduly favour a party. Not proved Not proved Not proved Not proved
vi) If he had been actuated by corrupt motive, however small the bribe may be.
Not proved Not proved Not proved Not proved Another factor that we are constrained to take note of is in the manner in which the representation of the applicant was disposed of. As it would appear from the record that the report of ADIT (Vig.)-II, Mumbai was submitted initially without the benefit of the reply of the applicant. The ADIV under the impugned order dated 20.06.2006 had submitted that the applicant had not submitted his explanation despite several opportunities afforded to him and, therefore, kept on procrastinating the matter [page 1034 of F.No.DGIT(V)WZ/Com/115/02 Vol.IV]. However, the plea of the applicant, on the other hand, is that all the relevant records had not been made available to him and that the decision to proceed against him has been taken without considering his point of view. The applicant finally submitted his representation on 16.02.2006 in form of an advance copy which was subsequently forwarded to DIT (Vig.), West Zone, Mumbai and was examined in the department. On detailed examination, the department reached the view that both the applicant and the respondent no.2 [the then DGIT (Inv.), Ahmedabad] had made complaints against each other. The complaint against the respondent no.2 has been closed. The applicant has alleged that he is been victimized and harassed since 2002. The report of D.I.T. (Vig.) West on the applicants representation shows that the allegations made in the complaint against him cannot now be substantiated in view of the new facts brought on record (as a consequence of his representation).
27. The moot point in this exercise was that there was a representation from the applicant which had been considered by the department and on the basis of which the department reached the conclusion that the charges were not substantiated. However, the Finance Minister recorded the note, which reads as under:-
On basis of information, I called for this file.
On 14.02.2006, I approved initiation of major penalty proceedings. That order remains unimpemented until this day.
Meanwhile, under the pretext of examining a representation from the officer dated 13/14.02.2006, the matter is under consideration. What is under consideration? Whatever may be under consideration, please put up draft charge sheet, with your views, if any, on 21.07.2008 by 5.00 p.m.
28. We feel that in light of the facts discussed earlier and the allegations and counter allegations made by the applicant and the respondent no.2 against each other, it was all the more duty of the department to take into consideration the representation submitted by the applicant explaining his conduct. We cannot lose sight of the fact that any order delivered has to be based upon reasoning and facts. We are of the considered opinion that once the explanation of the applicant had been received and given credence to by the department, the same ought to have been taken into account instead of being disposed of peremptorily.
29. We also take into consideration the fact that the applicant has had the courage of conviction to stand up to the orders repugnant to his ethos and what certainly amounts to intimidatory tactics on part of a very senior officer, respondent no.2. We find that the stand of the applicant is fully vindicated by the subsequent orders of the ITAT and the Honble High Court. We are also of firm opinion that such kind of persons need the protection of law at par with others. This proceeding has now been lingering for almost twelve years, during which the applicant has endured successive rounds of litigation leading to mental agony. It has also cost him his share of assignments that would have normally come his way. In a case where no charges are getting established, departmental proceedings were to be launched, it would kill the very ethics of respect for difference of opinion which forms the soul of democracy and inflict upon the applicant wanton hardships and loss of dignity for a period of next 7-8 years. This, we think, would be contrary to the basic objectives of law.
30. While summing up our opinion, we are compelled to reiterate that a similar issue had been adjudicated before the Honble Supreme Court in the case of Zunjarrao Bhikaji Nagarkar Versus Union of India and Others [1999) 7 SCC 409] wherein the charges related to his posting as Collector of Central Excise Nagpur were served upon him in the form of a chargesheet. The applicant challenged the same before the Tribunal and High Court without success. The Honble Supreme Court clearly held that every error of law does not constitute misconduct. In order to sustain a chargesheet against an officer acting in quasi judicial capacity it has to be alleged and sustained as to how the act causes a wrongful loss to the State exchequer or a wrongful gain to some others. In the instant case, no such acts have been alleged on the part of the applicant. For the sake of greater clarity, we extract the relevant portion of the decision in Zunjarrao Bhikaji Nagarkar Versus Union of India and Others (supra) as under:-
43. If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication where under quasi judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings.
31. We further like to reiterate that this case has been decided on its own facts under directives of the Honble High Court referred to liberally earlier. As every case constitutes an authority in itself, we have no hesitation to hold that the Charges No.II to IV do not sustain in terms of the examination above in the facts of this case.
32. In view of our above discussion, the instant Original Application stands allowed. Impugned Charge Sheet dated 20.10.2008 and order dated 09.01.2009 appointing the Enquiry Officer are quashed and set aside. This makes the applicant entitled to all consequential benefits arising therefrom. We have deliberately omitted consideration of the order of transfer as the same is not encompassed within the scope of remand by the Honble High Court of Delhi. There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam)
Member (A) Chairman
/naresh/