Central Administrative Tribunal - Delhi
Ajit Kumar Singh vs Union Of India on 20 April, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 1000/2009 New Delhi this the 20th day of April, 2010 Honble Mr. Shanker Raju, Member (J) Honble Dr. Veena Chhotray, 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 Shri P.P. Khurana, Sr. Counsel with Ms. Seema Padey) 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 V.P. Uppal) O R D E R Shri Shanker Raju, Member (J):
In the rule of law and justice delivery system, in a judicial review, no authority or person is above law. Any illegality committed at any stage has to be redeemed to prevent miscarriage of justice.
2. In the matter of disciplinary proceedings, it is trite law that at an interlocutory stage when a challenge is made to these proceedings from time to time, norms have been laid down by the Apex court as to how the situation has to be dealt with. If in a proceeding from cumulative reading of the charge and the appended annexures as well as additional material in support indicates an action wholly without jurisdiction or the charge is levelled contrary to law, nothing precludes, in judicial review, the Tribunal to interfere to mitigate the aggrieved party from defending an action which is nullity in law. However, to reappraise the evidence and facts and to substitute our own views in place of the views expressed by the departmental authorities is not the scope and ambit of interference in the disciplinary proceedings.
3. Administrative authorities act but when this act vests them in a discretion, it is trite law that such a discretion is to be exercised judicially as criteria of statute the authorities have to remain within the four corners of the statutes.
4. Fairness is a sine qua non of justifiable action. Any arbitrariness discrimination or an act actuated with legal or factual mala fide does not also pass the test on the touchstone of reasonableness. When the authorities act in a disciplinary proceeding against a Government servant they are discharging quasi judicial function. The sine qua non of such action is fairness, transparency, recording of reasons and to ensure that whenever a disciplinary proceeding is initiated, it has the backdrop of all procedural formalities completed and it is founded on some misconduct allegedly committed by the Government servant being contrary to the rules or an act which is contrary to the norms prescribed by the Government on day to day working relating to the particular department in which the person has been posted.
5. What amounts to consideration in exercise of discretionary power has been defined to mean think over on active application of mind and consideration of all relevant aspects of the matter, as ruled in Bhikhubhai Vithlabhai Patel and Ors. Vs. State of Gujarat and Ors. (2008 (4) SCC 144). Sometimes a Government servant acts in performance and discharge of his official duties as a quasi judicial authority and in such view of the matter when his acts are allegedly treated as misconduct the scope of holding an inquiry is well explained and led to rest in finality by the Apex Court in Union of India & Ors. vs. Duli Chand (2006 (5) SCC 680) by a three judges Bench which has upheld the ratio of decidendi in another decision of Union of India Vs. K.K. Dhawan (1993 (2) SCC 56) with the following observations:
5. The law on the subject was considered in extenso in the three-Judge Bench decision of Union of India v. K.K. Dhawan((1993) 2 SCC 56 : 1993 SCC (L&S) 325 : (1993) 24 ATC 1) wherein it was noted that the view that no disciplinary action could be initiated against an officer in respect of judicial or quasi-judicial functions was wrong. It was further said that the officer who exercises judicial or quasi-judicial powers acting negligently or recklessly could be proceeded against by way of disciplinary action. The Court listed six instances when such action could be taken: (SCC p. 67, para 28) "28. (i) where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;
(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
iii) if he has acted in a manner which is unbecoming of a government servant;
(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party;
(vi) if he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago 'though the bribe may be small, yet the fault is great'."
6. The Court, however, made it clear that ultimately the matter would have to depend upon the facts of a particular case. The present case would fall squarely within the fourth instance listed above.
6. With the above background of law and general principles culled out, the present controversy needs introduction with a brief description of relevant facts.
7. Applicant, an Indian Revenue Service Officer, while working as Dy. Commissioner of Income Tax (DCIT), Central Circle-I (3) in August, 2000, was discharging his quasi judicial functions, including assessments under the Income Tax Act, Wealth Tax Act, Interest Tax Act, etc. and was an authority within the meaning of Section 116 of the Income Tax Act, 196, which includes Deputy Commissioner of Income Tax. As per the Scheme of Income Tax Act, under Section 119, the Board is authorized to issue orders/instructions to other income tax authorities for proper administration of the Act but no such orders would include a particular assessment or dispose of a case in a particular manner so as to minimize the interference with the discretion of the Commissioner (Appeals) in exercise of his appellate functions. As per Section 293 of the Income Tax Act, there is a bar on prosecution and other proceedings against officers for the acts done in good faith.
8. Respondent No. 2, who has been impleaded in person (since retired) as Director General of Income Tax (DGIT), Ahmedabad, issued directions to various subordinate authorities, including the applicant, to dispose of the cases in a particular manner. As alleged by the applicant, a search was ordered by Respondent No. 2 to officers in cases of `Asia Charitable Trust, running reputed schools at Ahmedabad, directing that all the unaccounted cash donations received by the School from parents at the time of admission of students as found mentioned in diaries of school seized during such operation be assessed as undisclosed income. Since assessment of Shri John Gee Verghese, Chairman of Asia Charitable Trust was already concluded, Respondent No. 2 orally directed Shri R.K. Bhayana, the then CIT (Central) to exercise jurisdiction under Section 263 of the Act. However, considering non-satisfaction of conditions precedent of Section 263, he refused to comply with the illegal directions of Respondent No.2. Respondent No. 2 later on issued written directions, on 06.03.2002 to the CIT (Central) justifying the completion of the assessment of Asia Charitable Trust in a particular manner. On the same day, after issuing directions, Respondent No. 2 asked the Addl. CIT to send the applicant in his chamber, along with the seized diaries of the Asia Trust. Again on 13.03.2002, Respondent No. 2 called the applicant in his chamber and humiliated. Applicant by letter dated 03.04.2002 had brought the entire incident on record and requested for transfer out of the administrative control of Respondent No.2. It is alleged that in order to achieve his ulterior motive, Respondent No. 2 managed to file complaints against the applicant from Shri N. P. Shah alias Modi, an erstwhile clerk of Income Tax Department at Ahemedabad and one Shri G.C. Pipara, Chartered Accountant. These persons have a history of prosecution against them, which is evident from the record. In one case of N. P. Shah, an entry of Rs.67.75 lakhs pertaining to the assessment year of 1997-98 was completed on 31.03.2000 by the Jt. CIT (Special), rejecting his claim on the ground that the said amount was part of his VDIS declaration. The same was agitated before the CIT (A), who ordered de novo assessment, on 15.03.2001, which was completed by the applicant, on 28.03.2002, holding that this sum was not part of VDIS declaration, which was not in accordance with law and as a result of which, a sum of Rs.1.37 crores, which was the sum declared under VDIS for assessment year 1997-98 was to be added in the present proceedings. This order was passed by the applicant after discussion and with the approval of Addl. CIT. The same was agitated in appeal before CIT (A) by Mr. N.P. Shah, which was partly allowed in favour of the revenue department, upholding the addition made. The same was the subject matter of the second appeal before the ITAT, which was decided in favour of Mr. Shah and on the basis of legal opinion obtained from standing counsel, appeal was filed before the High Court and finally Special Leave to Appeal before the Honble Supreme Court. This clearly indicated that there was question of law involved in the assessment order passed by the applicant, which was substantiated by the legal opinion of the standing counsel.
9. After managing a complaint from Mr. N.P. Shah, it is stated that Respondent No. 2 directed an explanation from the applicant in respect of completion of assessment vide CITs letter dated 10.04.2002. On 11.04.2002, applicant requested for certain details to enable him to tender his explanation but he was transferred as an Officer on Special Duty under the administrative control of Respondent No.2, on 11.04.2002 itself. On 13.04.2002, applicant proceeded to Patna on a pre-sanctioned leave of one week and during his absence, Respondent No. 2 started calling for the records of assessments.
10. Applicant, while discharging his quasi judicial functions, passed reassessment order in the block assessment matter of Mark Leasing and Finance Limited, Ahmedabad and Shri Harisingh Padamsingh Champavat, Ahmedabad in compliance of the directions issued by ITAT where proceedings were defended by the Revenue Department. However, applicant requested for transfer outside the jurisdiction of Respondent No.2 since he was facing persistent victimization and humiliation.
11. It is further alleged that a complaint against the applicant dated 22.04.2002 was personally handed over by Respondent No. 2 to DGIT (Vigilance), who ordered an inquiry in respect of assessment orders passed in three cases of Mr. N. P. Shah, Shree Aravalli Finlease Ltd. & Block assessment orders of Mark Leasing and Finance Ltd & Hari Singh Champawat. A reference without seeking explanation of the applicant was made to the CVC for its advice to levy a major penalty. However, in December, 2002, as no vigilance or corruption on the part of the applicant was found, he was promoted as JCIT, on 31.01.2003. Thereafter, applicant requested for inspection of the records and sought re-examination of referral of the alleged misconduct to the CVC, for which detailed representation was made to the Honble Finance Minister and CVO. However, the approval to the inquiry was accorded by the Finance Minister and a draft charge sheet was sent. However, on representation of the applicant in 2006, Member (Personnel) CBDT and the then CVO directed detailed inquiry in the issue involved, which resulted in a finding that applicant has no role to play and has not committed a misconduct. It is stated that based on such finding, a note was put up in August, 2008 to the CVO to close the file. At this stage, this finding being circulated through proper channel, an anonymous/pseudonymous complaint filed before the Finance Minister was acted upon and without considering the report and making no investigation, the draft charge sheet was to be submitted and accordingly this observation of the Finance Minister was taking cognizance on pre-determination of issue by the DGIT (Vigilance) whereby though it is found that there is some merit in the applicants case but as the issues were complex, they could be sorted out by process of inquiries put into motion by issuing charge sheet, which was approved by the Finance Minister.
12. A charge sheet under Rule 14 of the CCS (CCA) Rules, was issued whereunder five Articles of Charge were levelled against the applicant, including irregularities in setting aside the assessment orders in cases of N.P. Shah whereby undue harassment has been made to the assessee to assess the tax on a sum of Rs.1.37 crores, which he had disclosed under the VDIS, 1997. Acting beyond the jurisdiction and going beyond the relevant facts is the sum and substance of the Article-I of the charge.
13. In Article-II, applicant has also been charged for committing irregularities in passing reassessment orders in cases of Mark Leasing & Finance Ltd. without procuring the approval of the Commissioner of Income Tax as per Section 158 BG of the Income Tax Act and not making inquiries, as directed by ITAT and also indicating the date of order in both the cases as 04.03.2002.
14. In Article-III, applicant has been alleged to have committed irregularities by antedating the assessment order to 15.03.2002 in the case of M/s Shree Araveli Finlease Ltd.
15. Article-IV alleges irregularities in finalizing the assessment prematurely on 15.03.2002 in the case of M/s Shri Araveli Finlease Ltd. and lastly it has been alleged in Article-V that applicant had displayed insubordination and lack of respect towards his superiors through language and tenor of his communication dated 11.04.2002.
16. In pursuance of the charge sheet, applicant, in order to prepare written statement of defence, requested for not only inspection of relevant documents but also required documents which he reiterated by his reminders. Instead of providing the inspection to enable the applicant to file his written statement of defence, an order was passed on 09.01.2009 appointing the inquiry officer.
17. An RTI was sought by the applicant for records, which was rejected, which followed another RTI on 02.02.2009, which was challenged as per the provisions of RTI Act, 2005 before the designated Appellate Authority by way of an appeal. However, instead of providing documents to the applicant, he was transferred on 27.02.2009.
18. Vide MA 716/2009, applicant had withdrawn Para 8 (d) and Para 9 (b) of the O.A. which was allowed by the Tribunal.
19. Shri P.P. Khurana, learned Senior Counsel along with Ms. Seema Pandey, appeared on behalf of the applicant and vociferously alleged mala fides against the respondents by stating that at the outset, the inquiry ordered against the applicant is on no misconduct and contrary to law. It is contended that first of all the CVC has been approached at the first stage of charge sheet without seeking explanation from the applicant but having found no vigilance angle, an official misconduct has been directed to be proved through this inquiry, yet on the report of DIT (Vig.) dated 17.05.2002, an approval of the Finance Minister for initiation of inquiry was recorded on 14.02.2006 yet the representation of the applicant whereby he has stated that the proceedings are vindictive, pre-determined and unjust, was proved into by the Addl. DIT (Vig.) and it has been recorded that there is no justification to initiate disciplinary proceedings for a major penalty against the applicant as he has not committed any misconduct or exceeded his jurisdiction to pass illegal assessment orders. It has been held to be good in all the cases on which five allegations have been alleged against the applicant. Shri Khurana, learned Sr. Counsel, on the basis of an opinion disclosed to the applicant on RTI whereby the notings have been served stated that on 19.5.2008, the proposal as to closure of the complaint or holding of inquiry was processed for examination of the competent authority/ Finance Minister. However, on the basis of a pseudonymous complaint of which cognizance has been taken by the Finance Minister, he had reiterated his earlier advice which shows that the competent authority while approving the action against the applicant had not gone into on application of mind to the recommendations and conclusion of the re-investigation which has been initiated by the Department in the backdrop of earlier approval by the Finance Minister yet the aforesaid observation of the Finance Minister has been further processed by the DGIT (Vig) and pre-judging the issue and without application of mind a mechanical following of the inappropriate cognizance and action by the Finance Minister though observed that there is merit in the claim of the applicant, yet on the complicity of the issues draft memorandum was put up which was approved by the Finance Minister on 21.07.2008 shows that there has been unreasonableness and unfairness in the act which approved the charge sheet without going into the findings accorded in favour of the applicant by the departmental authorities. It is in this backdrop it is stated that when a thing is to be done in a particular manner approved in law and rules, no other methodology is permissible in law. Learned senior counsel states that the applicant who has been discharging duties in a quasi judicial status is exempted from being proceeded against and as per Duli Chands case (supra) and the other law laid down in Z.B. Nagarkar Vs. Union of India (1999 (7) SCC 409), the inquiry ordered is not in accordance with law. A reference has been made to the decision of the co-ordinate Bench of the Tribunal in OA 1179/2008, decided on 06.02.2009 in case of Kamal Kishore Dhawan Vs. Union of India & Ors. Learned Senior counsel would further contend that the High Court of Delhi in Arindam Lahri Vs. Union of India & Ors. (WPC 13640/2006) by a judgment dated 20.03.2009 in a case of Income Tax set aside the proceedings, which in all fairness covers the present proceedings.
20. Further, reliance has been made to the decision of the co-ordinate Bench of the Tribunal in Sarvesh Kaushal Vs. Union of India (OA 808/2008), decided on 28.01.2010. Learned senior counsel states that in none of the exceptions carved out in Dhawans case (supra), even from the perusal of the charge sheet and the background of the inquiry conducted has been found to have committed an act which would be amenable to the disciplinary proceedings, as such quashing of the proceedings is sought.
21. Shri Khurana, learned senior counsel, states that the Tribunal in OA 1377/2008, Chhedi Lal Vs. Union of India, decided on 26.02.2009, has ruled that without taking the defence statement and supplied documents sought for appointment of the inquiry officer vitiates the proceedings. It is stated that the applicant in all fairness is covered by the ratio as the charge memo was served on 03.11.2008 and despite requests for supply of documents non supply and deprivation of an opportunity to file a defence statement when the disciplinary authority has not applied its mind as to further continuance of the inquiry on the basis of the material defence produced had no occasion to exercise such jurisdiction when appointed an inquiry officer on 09.01.2009 vitiates the inquiry. Learned counsel has on the pleadings indicated that none of the articles have been showing any misconduct on the part of the applicant and alleging personal mala fide against the Respondent No.2. It is stated that the inquiry ordered specially when the applicant has been promoted despite the respondents were aware of the alleged misconduct not only condoned the misconduct but also victimized him stated that the inquiry proceedings are pre-determined, vexatious and cannot be sustained in law.
22. On the other hand, respondents counsel through Shri V.P. Uppal, as to interference by this Tribunal in disciplinary proceedings at an interlocutory stage and on the issue of reappraisal of evidence and material submitted the following cases in support which are enumerated as under:
Union of India Vs. K.K. Dhawan (1993(2) SCC 56;
Union of India Vs. Upendra Singh (1994 (3) SCC 357;
Bank of India Vs. Degula Suryanarayan (JT 1994 (4) SC 489);
Govt. of Andhra Pradesh Vs. Appalla Swamy (2007 (3) Scale-1;
Govt. of Tamil Nadu Vs. S. Vel Raj (1997 (2) SCC 708);
Bank of India Vs. T. Joga Ram (2008 (2) SLJ 169);
Union of India Vs. Duli Chand (2006 SCC (L&S) 1186);
Union of India Vs. Kunnisetty Satyanarayana (2006 (2) Scale 262);
District Forest Officer Vs. R. Rajamanickam (2000 SCC (L&S) 1100);
23. Learned counsel would further contend that what has been transpired in the assessment orders and proceedings under the I.T. Act is that the misconduct of the applicant has to be proved in the disciplinary proceedings as per law. Shri Uppal has also relied upon the decision of the Apex Court in Union of India Vs. Ashok Kacker (1995 Suppl.I SCC 1980). It is also stated that the applicant has acted beyond his jurisdiction, did not procure the approval of the Commissioner of Income Tax as per Section 158 BG before passing the block re-assessment orders and antedated assessment orders in order to subvert the assessees applications. It is also stated that the applicant shall be given an opportunity during the course of inquiry to have his say and while referring to transaction of business rules, it is stated that as an approval was already accorded by the Finance Minister at the time of issue of the charge sheet, the second proposal is of no consequence and moreover once in the hierarchy the DGIT (Vig) had cleared the draft charge sheet which has the approval of Finance Minister, no procedural illegality has been committed. He has, therefore, prayed for dismissal of the O.A.
24. In the rejoinder filed, certain important contentions have been raised. Applicant has referred to Circular No. 15/4/2008 dated 24.4.2008 of the CVC wherein reconsideration of advice at any stage by the CVC is entertained on additional facts, which would have the effect of altering the seriousness of allegations supported by adequate evidence and an explanation as to why this has not been considered. It is stated that investigation carried out subsequently on the representation of the applicant had all the ingredients of condition precedent and the matter should have gone to the CVC for reconsideration of its advice which when incorporated as one of the alternatives to be considered, the Finance Minister puts his abrupt interference at the interlocutory stage and the aforesaid aspect has not been considered. Learned counsel has also referred to the CVCs Order No. 3 (v)/99/2 dated 29.06.1999 where no anonymous of pseudonymous complaint has to be given effect, to state that the Finance Ministers taking cognizance of anonymous complaint without putting it to the applicant is an act not within the scope and against the guidelines which are mandated. It is stated that the respondents have also not spelt out as to how the approval of the Commissioner of Income Tax was required under the statutory provisions of Section 158-BG of the Income Tax Act in the block reassessment orders. It is also stated that when there is no vigilance angle in the allegations, on reconsideration of the aspects when CVC was approached for its advice, no opportunity was accorded and behind his back acted at a lower level than the disciplinary authority, act of the respondents is against the law.
25. We have carefully considered the rival contentions of the parties and perused the material on record.
26. Scope of interfering in departmental proceedings by the Tribunal in judicial review is no more res integra. In Upendra Singh (supra), an officer discharging quasi judicial duties is held to be amenable to the departmental inquiry but at an interlocutory stage, Tribunal cannot take over functions of the disciplinary authorities and cannot go to the truth or correctness of the charges. However, if a reading of the charge along with the circumstances preceding and attending indicate that the charge memo has been issued or the inquiry is continued contrary to law, we have jurisdiction to interfere at an interlocutory stage. In Union of India & Anr. Vs. Kunisetty Satyanarayana (2007(2) SCC (L&S) 304), it is held that scope of judicial review for interference in a departmental inquiry is ordinarily not maintainable. However, in some very rare and exceptional cases, a charge sheet can be quashed if it is found to be wholly without jurisdiction or otherwise wholly illegal.
27. At the outset, a Division Bench of this Tribunal in Chhedilals case (supra) where a charge sheet issued to the Commissioner of Income Tax under Rule 14 of the CCS (CCA) Rules, was interfered at an interlocutory stage, and has been set aside. The issue of Rule 14 (4) and (5) of the CCS (CCA) Rules, was discussed and in the light of a Full Bench decision of Andhra Pradesh High Court which has a binding value to us in Govt. of A.P. and Ors. Vs. M.A. Majeed and Anr. (2006 (2) ATJ HC FB 581) set aside the charge sheet on the ground that the respondents/disciplinary authority before appointing Inquiry Officer has not considered the statement of defence with the following observations:
23. Learned counsel of respondents would contend that the stage to seek documents is a later stage and in the written statement what is required is only denial of charges. Rule 14 (4) and (5) (a) provide as under:
(4) The disciplinary authority shall deliver or cause to be delivered to the Government Servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government Servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.(5)
(a) On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted, or, if it considers if necessary to do so, appoint under sub-rule (2), an inquiring authority for the purpose, and where all the articles of charge have been admitted by the Government Servant in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in Rule 15.
24. In this view of the matter along with articles of charge a list of documents and witnesses has to be served upon and only then the EO is appointed. The documents sought for by the applicant is not with a view to finally defend the charges but at the outset to seek reasonable opportunity to be delivered the documents which were forming basis of the imputation against him with a pious hope that on receipt of the documents which were stale and the chargesheet being inordinately delayed apart from denying the documents a reasonable valid explanation, which if considered apt by the DA the enquiry can be dropped at this stage and there is no requirement of further continuing the proceedings. GIMHA OM dated 12.3.1981 and 8.12.1982 deal with dropping of the charges at the initial stage of defence where it is stipulated that the DA has inherent powers to drop the charges and is not bound to appoint an EO if it is satisfied on the basis of written statement of defence that there is no further cause to proceed with. However, certain formalities are to be completed like CVC consultation.
25. In the light of the above, when there is a scope to curtail the enquiry and culminate it at the threshold to avoid and prevent unnecessary sufferings by a Government servant on vexatious charges for which a valid defence is produced the defence to be given by the delinquent through his certain statement is the bone of contention and his promotion unless a rebuttal with explanation as to no charge made out on any misconduct is made out, as alleged, what is required is that the minimum of the documents appended as list of documents and in the instant case the assessment report which are made basis to allege a misconduct against the applicant if demanded the written statement where a right is reserved to file a detailed written statement treating this as a defence statement and act of the DA to proceed further by appointment of EO is non-consideration of record, defence of the applicant in this case has prejudiced the applicant as at the threshold of the enquiry a right and an opportunity to establish his innocence and no proof of misconduct has been deprived to him. Though documents are to be given, i.e., both relied upon by the prosecution and also required in the defence by the delinquent in a disciplinary proceedings the stage at which it is to be given though specified in Rule 14 of the Rules, yet Rule 14 (5)(a) does not preclude documents to be given to facilitate the charged officer to file an effective written statement to avail of an opportunity of dropping the enquiry by the DA on application of mind. When a person seeks time either to file reply before the DA or reserves his right to file a detailed one, on fulfilment of condition, which in the present case supply of the documents denial thereof certainly in violation of principles of natural justice and violates one of its components of audi alteram partem. In Ranjit Singh v. Union of India, 2006 (4) SCALE 154 in a situation where against the enquiry report the delinquent official sought time to file representation when not allowed has been considered to be violation of principles of natural justice. Applying mutatis mutandis the same to the present situation where the applicant has not filed his detailed written statement of defence, non-communication to him to deny the documents by the respondents and non-supply thereof he has been prevented from filing an effective written statement, which has deprived him of a reasonable opportunity. The act is certainly in violation of principles of natural justice. The Apex Court in V.K. Khannas case (supra) as to the jurisdiction of interference in judicial review in a disciplinary proceeding and written statement of defence to be filed before the appointment of the EO, the following observations have been made:
33. While it is true that justifiability of the charges at this stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the event there is an element of malice or malafide, motive involved in the matter of issue of a charge-sheet or the concerned authority is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law courts are otherwise justified in Interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court in the contextual facts has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings.
34. The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an Inquiry Officer to substantiate the frame of mind of the authorities and thus depicting bias - What bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindset viz.: the inquiry shall proceed irrespective of the reply - Is it an indication of a free and fair attitude towards the concerned officer? the answer cannot possibly be in the affirmative. It is well settled in Service Jurisprudence that the concerned authority has to apply its mind upon receipt of reply to the charge-sheet or show-cause as the case may be, as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative - the inquiry follows but not otherwise and it is this part of Service Jurisprudence on which reliance was placed by Mr. Subramaniam and on that score, strongly criticised the conduct of the respondents here and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record. `26. The above proposition of law as a binding precedent covers on all fours the illegality committed in the present case. The Andhra Pradesh High Court, Full Bench decision in Govt. of A.P. and ors. v. M.A. Majeed and anr., 2006 (2) ATJ HC FB 581 has dealt with a similar situation where further proceedings were not considered and statement of defence filed by the delinquent official the rules in vogue were in parimateria with Rule 14 (5) (a) of CCS (CCA) Rules, 1965 it is clearly ruled that it was mandatory to consider the defence before an EO has been appointed.
27. The other legal grounds, since not discussed, are not adjudicated.
28. In the result, for the foregoing reasons, OA is allowed. The chargesheet dated 23.5.2006 is set aside. Applicant is directed to be accorded all consequential benefits, as permissible in law, as per Rules, within a period of two months from the date of receipt of a copy of this order. No costs.
Applying the aforesaid ratio in the instant case immediately on receipt of the memorandum for major penalty under Rule 14 of the Rules, applicant has sought for inspection and supply of certain documents to enable him to file a detailed representation in defence. However, without supplying the documents and without considering the defence statement, the respondents have appointed an Inquiry Officer by an order dated 09.01.2009 which not only goes contrary to the decision in Majeeds case but in all fours the decision in Chhedi Lals case covers the present issue which vitiates the charge sheet issued to the applicant. The aforesaid contention was specifically raised as a definite legal issued/ground in Para 4.36 and 4.37 of the O.A. which has not been rebutted by a specific reply of the respondents in the corresponding para. It is, however, stated that no inspection of documents is warranted at that stage and since he had denied all the charges, the desirability of listed documents could be at the later stages. It appears that mandatory compliance of Rule 14 (4) and (5) (a) has been ignored in oblivion, is a legal infirmity upheld by a co-ordinate Bench of the Tribunal in Chhedi Lals case (supra).
28. What amounts to a misconduct which cannot be precisely defined depends on the facts and circumstances of each case. Generally, misconduct is an act contrary by a government servant to the norms set out by the Government and more particularly in discharge of official duties to the post held by him. Negligence, acting mala fides with ulterior motives, immorality, corruption, etc. are few instances of alleged misconduct, as defined under the Rules. These acts of the government servant, which are unbecoming, are liable to be proceeded against for being punished in a disciplinary proceeding to be held under Rule 14 of the CCS (CCA) Rules in the instant case. However, as per Office Order No. 205/2005 dated 19.07.2005 issued by the Ministry of Finance, a Committee, including the CVO of the Department of Revenue and CVOs of both the Boards (CBEC & CBDT) laid down a procedure in respect of Vigilance/disciplinary cases where an anonymous/pseudonymous complaint as per CVC instructions dated 29.06.1999 can be closed without referral to CVC except when it is verifiable. To place a Group `A officer under suspension, the level of decision making is by the Finance Minister and on the basis of lingering investigation referral to CVC for first stage advice for officers below the Commissioner level is by Member (P) of the respective Board and for Commissioner level officer, it is Chairman of the respective Board. It is pertinent to note that as per Para 4.4 (g) of Chapter IV of Vigilance Manual, on a preliminary investigation at the departmental level, the public servant has to be given an opportunity for a satisfactory explanation, failing which it would be an unjustifiable act and thereafter the matter shall be referred to the CVC for first stage advice. The aforesaid plea was taken by the applicant specifically in Para 4.8, which has not been rebutted in the corresponding para in the counter reply filed by the respondents where it is rather admitted.
29. As per Office Order dated 19.07.2005, on reconsideration of CVCs first stage advice, the authority has been pestered on jurisdiction to Member (P) and thereafter Finance Minister approved issue of the charge memo. It is also pertinent to note that in pursuant upon a charge memo under Rule 4 of the CCS (CCA) Rules on simple denial of charges and representation, it is for the Chairman to consider written statement and for dropping the charges filed as put up to the Finance Minister and thereafter for initiation of the proceedings approval has to be sought from the Finance Minister. With the above backdrop of the procedure, on an RTI applicant has appended documents with his rejoinder where in chronological events it has been referred that DIT (Vig.) investigated the matter and submitted his report on 17.05.2002 which was a preliminary report for the purposes of having CVCs first stage advice before issue of the charge sheet to the applicant yet Paragraph 4 (g) as referred to ibid has not been complied with and followed and there was no participation of the applicant and no explanation has been sought from him. However, in its advice on 02.12.2002, finding no vigilance angle recommended investigation which was approved by Chairman, CBDT, for reconsideration of its earlier advice with recommendation of initiation of major penalty which was responded to by an advice of CVC on 12.05.2003 and reported that officer did not submit his version in spite of ample opportunities and an advice on 29.12.2005 recommended initiation of major penalty proceedings of which approval of Finance Minister was taken on 14.02.2006. In our considered view there is absolutely no material on record that during the course of preliminary enquiry or reconsideration referral to CVC had preceded by an opportunity to applicant to have his say or any explanation was sought from him.
30. Having approved initiation of a proceeding for a major penalty, the Finance Minister has become functus officio for that stage. However, the memorandum issued to the applicant before the memorandum of a major penalty could have been issued on the advice of CVC and approval of the Finance Minister, a representation preferred by the applicant was probed into by the Addl. DIT (Vig.) with regard to several reports. A categorical finding as to innocence of the applicant and the allegations not established even prima facie for holding a disciplinary proceeding, a detailed proposal keeping in light the earlier proposal of the Finance Minister framed two issues for consideration as to whether the earlier CVCs advice which was approved should be followed to issue a memorandum under Rule 14 of the Rules to the applicant or Finance Ministers approval to refer the case for reconsideration of their advice dated 29.12.2005 for closure of the proceedings may be adopted.
31. Before we proceed to examine the methodology adopted by the respondents as per vigilance guidelines, an anonymous complaint should not have been given cognizance as per the CVC Notification.
32. As per CVC Notification dated 26.02.2004, it is mandated upon the disciplinary authority at the initial stages to ensure on the basis of all documents and evidences that a major penalty is warranted or not. A decision taken by the DA is reported to the Commissioner for first stage advice with recommendation of penalty proceedings, a draft charge sheet should also be appended before the CVC proposal is made. As per Office Order dated 09.05.2005 by the CVC not only the version of the public servant on established allegations should accompany but also comments of the CVO and disciplinary authority are mandated.
33. In the instant case while sending note for CVC at first stage and on reconsideration as well, more particularly in the circumstances when no explanation was sought from the applicant, no such formality has been discharged by the respondents. However, a circular was issued by the CVC on 24.04.2008 on the subject of reference to the Commission for reconsideration of its advice. The Commission has reviewed its instructions in the matter which stipulates that the Commissions advice is based on the inputs received from the organization and if the Commissioner has taken a different view, it is decided that no proposal for reconsideration of the Commissions advice would be entertained unless new additional facts have come to light which would have the effect of altering the seriousness of allegations/charges levelled against an officer. These proposals should be submitted at the earliest but in any case within two months from the date of receipt of Commissioners advice. It further stipulates that the proposals should be submitted by the disciplinary authority or it should clearly indicate that the proposal has the approval of the disciplinary authority.
34. No doubt in the instant case, the first stage consideration was referred to CVC in 2005 for which approval by the Finance Minister was accorded on 14.02.2006 before this approval on 10.02.2006, Member (P) who is the competent authority for recommending reconsideration on first stage advice as per Ministry of Finance Office Order dated 19.07.2005 got orders of examination of the representation of the applicant which has been done at the level of Addl. DIT (Vig.) where the allegations have not been found substantiated against the applicant at the initial stages, a reconsideration for CVCs advice dated 29.12.2005 was recommended. This decision was circulated upto DGIT (Vig.) but on an information by the Finance Minister regarding his approval dated 14.02.2006 with a close mind without going into the aspect of reconsideration by CVC in the chain circumstances as additional materials have come into being and probed into which shows non involvement of the applicant and approval by the Finance Minister to a disciplinary proceeding which does not include any vigilance angle a rigid attitude to stick to the earlier approval has closed the matter with a direction to put the draft charge sheet by 5 P.M on 21.07.2008 resulting in bypassing and short-circuiting the entire procedure. Accordingly, the DGIT (Vig.) on the basis of Note of Finance Minister, considering the latest report dated 09.04.2008 though found that there is some merit in the officers case but as issues which were complex show departmental misconduct on the part of the applicant, a decision to hold an oral inquiry was approved by the Finance Minister, on 21.07.2008 resulting in issue of charge sheet to the applicant.
35. When an authority competent to act, i.e. the disciplinary authority on a laid down methodology where there is a scope of reconsideration of CVCs first stage advice in the instant case when Member (P) took cognizance of representation of the applicant and thereafter directed an action by which CVC has to be reapproached for reconsideration. It appears that the approval of the Finance Minister has been accorded without application of mind and in the light of the earlier approval given on 14.02.2006. It is not that the powers and act described to be discharged under the guidelines and Rules by Finance Minister are to be undertaken within its ambit. As an authority acting either on administrative or quasi judicial side sine qua non of discharge of duties entrusted to the Finance Minister are to be exercised within the four corners of statutes of which the duties are entrusted as a part of it. It appears that subsequent development and additional material has not at all been taken into consideration by referring the matter to CVC for reconsideration and earlier advice of the CVC and approval was reiterated shows the discretion vested has not been exercised judiciously and the consideration is not in accordance with law, as held in Bhikhubhai Vithlabhai Patels case (supra). Approval of the inquiry as well as issue of the charge sheet when disciplinary authority has been bypassed even without application of mind, the order initiating an inquiry and issue of the charge sheet is certainly with a close mind depriving the applicant a reasonable opportunity contrary to principles of natural justice and this decision has certainly prejudiced the applicant.
36. A disciplinary proceeding is not a ritual. It is to be ensured before initiating any action against a Government servant to institute a disciplinary proceeding that the acts complained of are approved in a preliminary investigation if carried out with a prior reasonable opportunity of explanation to the concerned and on the basis of the material a decision to institute proceedings is taken with a condition precedent that misconduct is made out prima facie from the acts which are contrary to the norms. Having not adopted this procedure which is mandated in the circumstances as the rules contained in CCS (CCA) Rules, 1965 are in no manner in conflict with the CVC guidelines which are supplementary. Authorities are not allowed to adopt a particular methodology on a different course not approved in law. It is very strange that despite approval of the Finance Minister a representation by the applicant when taken cognizance of at the level of Member (P), there is no consideration for referral of the matter on reconsideration to the CVC at first stage for their advice. Rather strangely on an information by the Finance Minister at a stage where he could not have exercised his jurisdiction, the issue has been prejudged, without application of mind and on extraneous grounds decision has been taken reiterating the earlier approval in oblivion of provision of reconsideration. This has an effect whereby the subordinate authorities have been deprived of exercising their independence in application of mind which resulted in an approval to hold an inquiry. Also the issue of the charge sheet was approved by the Finance Minister within the time limit as per his notings dated 17.07.2008. It is very illogical that on one hand the memorandum has been on the basis of the report in applicants case yet for the sake of formality and without any justification he has to undergo unnecessary ordeal of facing an inquiry which would have an adverse effect of withholding applicants fundamental right of promotion. If no misconduct is made out at the outset, ordering an inquiry only on the ground of complicity in the facts, without establishing prima facie involvement of the applicant and continuing it is contrary to law. When a proceeding is void ab initio, its continuance is as well, constituting an illegality.
37. To the rejoinder, respondents have filed their supplementary counter reply where it is stated that Note dated 09.05.2008 has neither been approved by DGIT (Vig.) or CVC or the DA, the Finance Minister who was unhappy that despite his approval for initiation of the proceedings the representation of the applicant was considered. It appears that to fulfil the dictate of Finance Minister all the rules and guidelines of the CVC have been kept at bay which ultimately deprived the disciplinary authority to act on independent application of mind to subsequent investigation which had a purpose of referring the matter for reconsideration to the CVC as additional circumstances would have mitigated the misconduct of the applicant and rather established that no misconduct was attributed to him. However, this opportunity under the Rules has since been curtailed depriving the applicant a reasonable opportunity to defend.
38. Insofar as the issue of time limit of two months from the date of first advice of CVC is concerned, the issue is prejudged even without referral for reconsideration of first advice to the CVC. Respondents have neither acted fairly nor reasonably in the circumstances which is expected of them while acting as administrative/quasi judicial authorities. It is stated that the information received by the Finance Minister refers to his earlier approval of 14.02.2006, has been assumed by the respondents. The notings of the Finance Minister dated 17.07.2008 despite his approval on 14.02.2006 in the guise of unsustainability of re-examination, is in oblivion of vigilance guidelines but also rule position has been totally ignored, which allows such a reconsideration. Curtailing short the procedure and pre-judging the issue, the consequent action is an illegality accorded on 14.02.2006.
39. Another aspect of the matter which the applicant has raised in the pleading as to his having discharged quasi judicial authority and consequently non amenability to a disciplinary proceedings is no more res integra as well explained by the Apex Court in Duli Chands case (supra). From its perusal, assuming the charge sheet is correct, what we find is that the applicant who admittedly as an assessing authority was discharging quasi judicial functions has been held to have acted in subordination, without authority and let to a conduct unbecoming of a Government servant. From the report of Addl. DIT (Vig.) regarding all these five articles of charges, it has been clearly established that the applicant has not misconducted in any manner. The respondents on one hand have defended the action of the applicant upto the Apex Court level yet approbating and reprobating simultaneously by alleging misconduct against the applicant took a contrary and divergent view. This cannot be expected from a model employer in view of the decision of the Apex Court in Rajasthan State Road Transport Corporation Vs. Bhik Nath (2005 SCC (L&S) 273). When the CVC has not found any vigilance angle and rather a departmental misconduct prima facie reported, we do not find any allegations levelled against the applicant to have involved any corrupt motive. The applicant has also not acted negligently by not complying with the decisions in exercise of statutory powers as the approval of the Commissioner was taken. No direction which now has been presumed to be an essential act on the part of the applicant to have complied with, failing which it amounts to misconduct has been issued to him. Neither any mala fide nor integrity is involved as well as any recklessness in applicants conduct. In such view of the matter, while the applicant has acted on quasi judicial side, his acts and orders may be amenable to the appeals as per the remedy in law is concerned, yet on administrative side without the exceptions being attracted in K.K. Dhawans case (supra) holding of an inquiry being contrary to the law cannot be countenanced.
40. Resultantly, O.A. is allowed. Impugned charge sheet is set aside, including order appointing the Inquiry Officer. Order dated 27.02.2009 is also set aside. Applicant is entitled to all the consequential benefits, as approved in law. No costs.
( Dr. Veena Chhoray) (Shanker Raju) Member (A) Member (J) `SRD