Bombay High Court
K.D.Deshpande (Since Decesed), 1) ... vs Chief Commissioner Of Income Tax, ... on 20 March, 2018
Bench: V. K. Tahilramani, M. S. Sonak
408-oswp-714-03
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 714 OF 2003
K.D. Deshpande
(since deceased
Sunanda K. Deshpande and ors.) ...Petitioners
Versus
The Chief Commissioner of
Income Tax, Nashik and ors. ...Respondents
Mr. S.N. Pillai for the Petitioners.
Mr. D.P. Singh a/w. Ms Vaishali Chaudhari for the
Respondents.
CORAM : SMT. V. K. TAHILRAMANI, Acting C.J. &
M. S. SONAK, J.
DATE OF RESERVING THE JUDGMENT : 15th MARCH 2018.
DATE OF PRONOUNCING THE JUDGMENT : 20th MARCH 2018.
JUDGMENT :
1] Heard learned counsel for the parties. 2] This petition takes exception to the judgment and order dated 7th January 2002 made by the Central Administrative Tribunal (CAT) in O.A. No. 771 of 1999 instituted by late K.D. Deshpande questioning his termination of services by order dated 16th January 1997.
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3] Late K.D. Deshpande was served with the charge-
sheet dated 12th October 1989 enlisting four charges against him. The first investigating officer who enquired into charges submitted a report that late K.D.Deshpande was not at all cooperative and therefore, she was unable to record any findings on the charges levelled. In the second bout of inquiry, the evidence was led and the inquiry officer in the inquiry report dated 4th November 1996 held the charges leveled against late K.D. Deshpande, as proved. Upon compliance with principles of natural justice, penalty of dismissal from service was imposed upon late K.D. Deshpande on 16th January 1997. Late K.D. Deshpande's appeal was dismissed by the appellate authority on 14 th January 1999. Mr. Deshpande's revision/revision petitions also did not meet with any success. Therefore, Mr. K.D. Deshpande instituted O.A. No. 771 of 1999 before the CAT which came to be dismissed by the impugned judgment and order dated 7th January 2002. Hence, the present petition.
4] Mr. S.N. Pillai, learned counsel for the petitioners, submits that from out of four Articles of charge framed D.S.Sherla page 2 of 15 ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 02:40:34 ::: 408-oswp-714-03 against Mr. K.D. Deshpande, Article - I, which relates to assets disproportionate to his known source of income was the most serious. This charge had been held as only partly proved by the inquiry officer. However, the CAT, by the impugned judgment and order has held that there was absolutely no material for proof of such a charge and accordingly, set aside the findings insofar as Article - I of the charge-sheet is concerned. Mr. Pillai submits that rest of the three charges were minor and in any case, were not proved on basis of legal evidence. Mr. Pillai submits that even assuming that rest of the charges are to be held as proved, as held by the CAT, penalty of dismissal from service for such charges was grossly disproportionate and therefore, ought to have shocked conscience of the CAT as well as this court. On this ground, Mr. Pillai submits that the impugned order made by the MAT warrants interference. 5] Mr. Pillai submits that Articles I and II of the charge- sheet are inter related. Mr. Pillai submits that late Mr. K.D. Deshpande had admitted rendering some assistance to his wife who had purchased family property from relatives. On basis of such an admission, neither the inquiry officer nor D.S.Sherla page 3 of 15 ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 02:40:34 ::: 408-oswp-714-03 the CAT was entitled to hold that any Benami property had been purchased by late K.D. Deshpande in his wife's name or that late K.D.Deshpande had indulged in any business activity with a profit motive thereby violating Rule 15 of the Central Civil Services (Conduct) Rules 1964. Mr. Pillai emphasizes that Articles - I and II of the charge-sheet are interrelated. He submits that since the CAT has categorically ruled that Article I of the charge-sheet could not be held as proved, the fate of Article II of the charge- sheet can be no different. He submits that since this aspect has been ignored by the CAT, the impugned judgment and order warrants interference.
6] Mr. Pillai submits that the charges like failure to intimate about purchase of moveable or immoveable property to the department, are minor charges and even assuming that the same can be said to be proved, only, a minor penalty could have imposed upon late K.D. Deshpande. Mr. Pillai submits that the penalty of dismissal is, grossly disproportionate and should shock the conscience. Mr. Pillai submits that on these grounds, the impugned judgment and order made by the CAT warrants D.S.Sherla page 4 of 15 ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 02:40:34 ::: 408-oswp-714-03 interference.
7] Mr. D.P. Singh, learned counsel for the respondents, submits that the CAT was not at all justified in reassessing the material on record and held that Article - I of the charge-sheet was not proved. Be that as it may, Mr. Singh submits that Article - II of the charge-sheet was also an extremely serious charge and since, the same is held as proved by not only the investigating officer, but also the CAT, there is absolutely no case made out to interfere with the penalty imposed upon late K.D. Deshpande. Mr. Singh submits that late K.D. Deshpande was an Income Tax Officer. He submits that the material on record indicates that a plot was purchased by him in his wife's name and further, late K.D.Deshpande undertook a construction activity of a building on the said plot. 10 out of 11 flats in the building so constructed, were sold for profit by late K.D.Deshpande. This clearly amounts to undertaking business/trading activity with a profit motive. Mr. Singh submits that there is no nexus between Article - I and II of the charge-sheet. He submits that since there is ample material in support of Article - II, III and IV of the charge-
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sheet, penalty of dismissal from service was sustainable and has rightly not been interfered with by the CAT. For all these reasons, Mr. Singh submits that there is no merit in this petition, which may be dismissed.
8] The rival contentions now fall for our determination. 9] The respondents issued charge-sheet dated 12 th October 1989 to late Mr.K.D. Deshpande alleging his involvement in the following charges:
" ARTICLE - I That Shri K.D. Deshpande on 5.8.1988, while working as Inspector, was found in his possession of the assets worth Rs.2,64,091/-disproportionate to his known sources of income for the check period between 1.1.1973 to 5.8.1988.
ARTICLE-II That Shri K.D. Deshpande, while working as above purchased a plot of land admeasuring about 592 square meters in the name of his wife at Gangapur Road, NASHIK, constructed a building named "Prabhu Apartment" comprising of 11 flats and sold 10 flats to different persons with a profit motive engaging himself in private trading, in violation of Rule 15 of CCS (Conduct) Rules, 1964.
ARTICLE - III That Shri K.D. Deshpande, while working as above, acquired plot and building as mentioned in Article - II above in the name of his wife without prior intimation to the Department and violated Rule 18 (2) of CCS (Conduct) Rules, 1964.
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ARTICLE - IV
That Shri K.D. Deshpande, while working as above, purchased a Godrej Refrigerator, a colour T.V. and a Scooter and failed to intimate his Department regarding purchase of the said articles violating Rule 18 (3) of CCS (Conduct) Rules 1964.
Shri K.D. Deshpande, by his above acts exhibited lack of integrity, devotion to duty and acted in a manner unbecoming of a Government Servant, by contravening the provisions of Rule 3(1)(i)(ii)(iii) of CCS (Conduct) Rules 1964."
10] The CAT, in the impugned judgment and order, has held that Article - I of the charge-sheet cannot be held as proved even though, the inquiry officer in the inquiry report had held that late K.D.Deshpande was found in possession of assets worth Rs.36,507/-, which were disproportionate to his known source of income. Although, there may be some merit in the contention of Mr. Singh that the CAT ought not to have reassessed or re-appreciated the material on record before the inquiry officer, now that the CAT has exonerated late K.D.Deshpande of Article - I of the charge- sheet and further, since, such exoneration has not been challenged by any of the respondents, we propose to proceed on the basis that Article - I of the charge-sheet was not proved against late K.D. Deshpande.
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11] However, we are unable to agree with the submission
of Mr. Pillai that Article-I and Article -II of the charge-sheet are interlinked and therefore, if Article - I of the charge- sheet is held as not proved, then Article - II of the charge- sheet must also meet with the similar fate. From the perusal of the charge-sheet as well as the statement of imputations in support of the charges, we are of the opinion that the charges in Article - I and Article - II are quite independent of one another.
12] The gravamen of he charges in Article - II of the charge-sheet is that late K.D. Deshpande purchased a plot in his wife's name and further, undertook a construction activity thereof for commercial purposes. A building comprises of 11 apartments was constructed by late K.D.Deshpande, out of which, 10 apartments were sold for profit. Neither was any intimation given to the department nor were any income tax returns were filed indicating the income from such sale proceeds. The income tax returns were neither filed by late K.D.Deshpande nor his wife.
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13] The investigating officer, on basis of voluminous
evidence on record, has held that Article - II of the charge- sheet stands proved. The appellate/revisional/review authorities have concurrently agreed with the finding recorded by the investigating officer. The CAT has also quite correctly held that this charge stands proved and this charge is serious enough to warrant the penalty imposed. 14] Mr. Pillai submits that from the evidence on record it is seen that the plot was purchased by the late K.D. Deshpande's wife from Late K.D.Deshpande's cousin. He submits that the evidence also indicates that the amount of Rs.10,000/-, i.e., part payment for purchase of plot was from out of Mrs. Despande's own funds like Streedhan etc. Mr. Pillai submits that since, it is established that late K.D. Deshpande was not in possession of any assets disproportionate to his known source of income, this evidence was required to be accepted by the investigating officer and the CAT. Mr. Pillai submits that construction work was undertaken by late K.D. Deshpande's wife alongwith her brother. Merely because late K.D. Deshpande may have assisted his wife after office hours, it cannot be D.S.Sherla page 9 of 15 ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 02:40:34 ::: 408-oswp-714-03 said that Article - II of the charge-sheet is proved. Besides Mr. Pillai reiterates that Article - II of the charge-sheet is not at all serious, particularly since no pecuniary loss had been occasioned to the department. He submits that no intimation was sent to the department about purchase of movable and immovable property, because such purchase is made by Mrs. Deshapnde from out of her own funds like Streedhan etc. In any case, Mr. Pillai submits that all these are not serious charges so as to warrant penalty of dismissal.
15] As noted earlier, the inquiry officer, disciplinary authority and the appellate authority, revisional / review authorities and the CAT have held that Articles - II, III and IV of the charge-sheet stand proved. We are unable to agree with Mr. Pillai's contention that Article - II of the charge-sheet is not a serious charge or that on the basis of such a charge penalty imposed is grossly disproportionate. The charge not only alleges purchase of immovable property by late K.D.Deshpande in his wife's name, but further the charge alleges that late K.D. Deshpande undertook a business activity of real estate and earned D.S.Sherla page 10 of 15 ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 02:40:34 ::: 408-oswp-714-03 profits therefrom. It is another matter that no income tax returns were filed disclosing the income from the sale of such immovable properties. Late K.D. Deshpande did not even bother to intimate the department the factum of such purchase and such dealings.
16] There is voluminous evidence on record in the form of deposition of construction labourers, suppliers, purchasers of apartments, all of whom have deposed to the involvement of late K.D.Deshpande in the construction and sale of apartments. This is clearly a case of mis-conduct as contemplated by Rule 15 of he CCS (Conduct) Rules. Mr.Pillai has raised no defence insofar as Articles - III and IV of the charge-sheeet are concerned, which have been held as proved practically by the authorities including the CAT. We are also unable to agree with Mr. Pillai that the penalty imposed is shockingly disproportionate so as to warrant interference.
17] The CAT, has taken into consideration the evidence insofar as Articles - II, III and IV of the charge-sheet are concerned. As noted earlier, there is voluminous evidence D.S.Sherla page 11 of 15 ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 02:40:34 ::: 408-oswp-714-03 in support of these articles of charge-sheet. No serious submissions were even made that the findings recorded by the inquiry officer in respect of these charges suffer from any perversity so as to warrant interference. The defence of late K.D. Deshpande that he was merely assisting his wife has been disbelieved, particularly in the light of examination of late K.D. Deshpande's wife in the course of department proceedings. There is no serious allegation of any non-compliance with principles of natural justice or fair play.
18] In Union of India vs. P. Gunasekaran - AIR 2015 Supreme Court 545, the Hon'ble Supreme Court has ruled that the courts or tribunals exercising the powers of judicial review ought not to interfere with the findings of disciplinary authorities unless, such findings are demonstrated to be perverse. Similarly, the Hon'ble Supreme Court has held that the courts or tribunals should not go into the issue of proportionality of punishment unless it shocks its conscience. The Hon'ble Supreme Court, in the context of jurisdiction of High Court in such matters has made the following observations.
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"The High Court can only see whether:
a). the enquiry is held by a competent authority;
b). the enquiry is held according to the procedure prescribed in that behalf;
c). there is violation of the principles of natural justice in conducting the proceedings;
d). the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e). the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f). the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g). the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h). the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i). the finding of fact is based on no evidence.
Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience."
19] The parameters of judicial review referred to by the Hon'ble Supreme Court in P. Gunasekaran (supra), equally D.S.Sherla page 13 of 15 ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 02:40:34 ::: 408-oswp-714-03 apply to tribunals like CAT constituted under Article 323-A of the Constitution of India. Applying such parameters, we are doubtful whether the CAT was justified in interfering with the findings of fact recorded by the inquiry officer on Article - I of the charge-sheet. Be that as it may, the CAT, has , quite rightly agreed with the findings recorded by the inquiry officer and accepted by the disciplinary authority, appellate authority, revisional/review authorities insofar as Articles - II, III and IV of the charge-sheet are concerned. Taking into consideration the restrictive parameters of judicial review as set out in P. Gunasekaran, we too, see no reason to take any contrary view and interfere with the impugned judgment and order made by the CAT. 20] On the aspect of reference to revisional/review authorities, we may add that the record is not quite clear. There is reference to late K.D. Deshpande instituting revision/review petitions after the appeal against the termination order was disposed of by the appellate authority. However, it is not clear as to whether such revision/review petitions were indeed maintainable or were disposed of. Even Mr. Pillai has made no grievance in this D.S.Sherla page 14 of 15 ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 02:40:34 ::: 408-oswp-714-03 regard. In any case, the findings of inquiry officer were accepted by the disciplinary authority. Again, the appellate authority has also agreed with such findings recorded by the inquiry officer and on such basis, dismissed the appeals against the termination order. The CAT has also agreed with the findings insofar Articles - II, III and IV of the charge-sheet are concerned. Since, no perversity has been demonstrated and invitation of Mr. Pillai was merely to reassess or re-appreciate the material on record, we do not deem it appropriate to interfere with the impugned order made by the CAT.
21] For all the aforesaid reasons, this petition is dismissed. Rule is discharged. There shall be no order as to costs.
(M.S. SONAK, J.) (ACTING CHIEF JUSTICE)
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