Central Administrative Tribunal - Allahabad
Dr. Sudhakar Tiwari vs Union Of India on 2 February, 2012
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH
ALLAHABAD
ORIGINAL APPLICATION NO. 296/2010
Allahabad this the 2nd day of February, 2012.
Present:
HONBLE MR. JUSTICE S.C. SHARMA, MEMBER- J
HONBLE MR. SHASHI PRAKASH, MEMBER -A
Dr. Sudhakar Tiwari, Aged about 60 years S/o Late Vishwanath Tiwari, Commissioner of Income Tax (Retired) from Ayakar Bhawan, Civil Lines, Gorakhpur, Presently resident of C/o Dr. Bhagwat Pandey, Janhit Hospital Darbhanga Colony, Allahabad.
Applicant
V E R S U S
1. Union of India, Ministry of Finance, North Block, New Delhi, through Revenue Secretary.
2. The Chairman, Central Board of Direct Taxes, Ministry of Finance, North Block, New Delhi.
3. Under Secretary, Government of India, Ministry of Finance, Department of Revenue, Central Board of Direct Taxes, New Delhi.
..Respondents
Present for the Applicant: Sri Vikas Budhwar.
Present for the Respondents: Sri S.N. Chatterji.
O R D E R
(Delivered by Honble Mr. Justice S.C. Sharma, J.M.)
1. The instant O.A. has been instituted for the following relief:
(i) to issue order, direction in the nature of certiorari setting aside the charge sheet dated 31.12.2009 as served upon the applicant on 6.1.2010 (Annexure No. 1 to Compilation No. 1).
(ii) to issue order, direction in the nature of certiorari setting aside the entire proceedings sought to be initiated in pursuance of the charge sheet dated 31.12.2009 as served upon the applicant on 6.1.2010 (Annexure No. 1 to Compilation No. 1).
(iii) to issue order, direction in the nature of mandamus commanding the respondents to pay full pensionary benefits to the applicant along with interest at the rate of 24% per annum from the date of superannuation of the applicant i.e. 31.12.2009 ignoring the charge sheet dated 31.12.2009 as served upon the applicant on 6.1.2010.
(iv) to issue order, direction in the nature of mandamus commanding the respondents to pay all consequential benefits to the applicant ignoring the charge sheet dated 31.12.2009 as served upon the applicant on 6.1.2010.
2. Pleadings of the parties may be summarized as follows. It has been alleged by the applicant that he was selected as Class I officer in the Income Tax Department (Indian Revenue Service) (hereinafter referred to as IRS) on 28.11.1974.That prior to his posting as Commissioner of Income Tax, he was posted as Commissioner of Income Tax, Departmental Representative, Appellate Tribunal, Chennai. The applicant was entitled to be considered for promotion to the higher post of Chief Commissioner of Income Tax/Director General of Income Tax. It is a selection post and requires approval of Appointments Committee of the Cabinet (hereinafter referred to as ACC). On 22.8.2007, D.P.C., headed by a Member of the U.P.S.C. was convened for consideration of the names of the eligible candidates of the Commissioner of Income Tax, including the applicant for promotion as Chief Commissioner of Income Tax. The Committee had to consider the list of the officers belonging to the 1974 and 1975 batch of IRS. In the eligibility list, the name of the applicant found place at serial no. 18. But the claim of the applicant for promotion was turned down whereas the juniors to the applicant were granted promotion on the post of Chief Commissioner of Income Tax and the D.P.C. assessed the applicant as unfit for promotion and the main reason for super session of the applicant was that in earlier years, grading of the applicant was downgraded and a representation was preferred by the applicant and during the pendency of the representation vide letter dated 2.11.2007 the applicant received a letter dated 9.11.2007 that adverse remarks were recorded in the C.R. of the applicant for the year 2005-2006. Vide order dated 27.12.2007, 39 persons were promoted on regular basis as Chief Commissioner of Income Tax and 8 persons on officiating basis. The applicant ought to have been placed at serial No. 18, above Dr. Vedanant Jha who was junior to the applicant. As injustice was done to the applicant, he preferred O.A. No. 6/2008 before the Central Administrative Tribunal, Chennai Bench and the O.A. was disposed of directing the respondents to decide the representation of the applicant preferred on 12.11.2007 against the adverse remarks recoded in his ACR for the year 2005-06. It ought to have been decided within a period of one month from the date of receipt of certified copy of the order. But the representation of the applicant was rejected against the ACR whereas the Chief Commissioner of Income Tax Allahabad had recommended favourably in favour of the applicant. Being aggrieved from the order passed in O.A., the applicant preferred writ petition No. 6155/2009 Sudhakar Tiwari vs. Union of India before the Hon. High Court at Madras. The Hon. High Court set aside the order passed by the Tribunal on 13.3.2009 and the order passed by the respondents dated 22.4.2009, and the respondents were directed to re-consider the matter without reference to the un-communicated adverse remarks recorded against the applicant in the year 2005-06 and pass appropriate orders within a period of two months. Vide order dated 27.8.2009, the applicant was transferred as Commissioner of Income Tax Gorakhpur and he joined at Gorakhpur on 3.09.2009. In spite of the fact that there was clear and categorical direction of the Hon. High Court of Madras dated 8.9.2009, the respondents did not implement the order and failed to extend the benefit to the applicant. Under these circumstances, the applicant had to file a contempt petition before the Hon. High Court. Notices were issued in the contempt petition fixing 8.1.2010, 5.2.2010 and 19.2.2010. The applicant superannuated on 31.12.2009. But to the utter surprise of the applicant, the respondents, in order to malign the service career of the applicant and to harass him, in all possible manner and in order to circumvent the directions issued by the Hon. High Court of Judicature at Madras, vide its judgment dated 8.9.2009, issued a charge sheet dated 31.12.2009 which was served on the applicant on 6.1.2010 after retirement. That the applicant submitted reply of the charge sheet. But on the face of it the charge sheet dated 31.12.2009 is patently illegal, barred by limitation, contrary to law, besides being without authority and is liable to be set aside. The charges farmed against the applicant were fake, misconceived, false and fictitious, besides being stale. That the charges were pertaining to a period which is more than 4 years prior to the date of issuance of the charge sheet. Moreover, once the document has been sought to be served on the applicant on 31.12.2009 in respect of deferring of the Vigilance Clearance, then how the charge sheet can be issued against the applicant. Moreover, the charge sheet was not issued to the applicant prior to the date of retirement of the applicant on 31.12.2009. Moreover, ,it is also provided in Rule 9 of the Central Civil Service (Pension Rules), 1972 that only the President has got right to withhold the pension of the applicant, but the charge sheet was served without the permission of the President. Moreover, the charge sheet cannot be served in respect of any event which took place more than 4 years before such institution. Moreover, according to rules, provisional pension must be paid to such an employee. Even provisional pension has not been paid to the applicant. Under these circumstances, the charge sheet served on the applicant dated 31.12.2009 deserves to be quashed.
2. The respondents contested the case and filed the Counter reply and denied from the allegations made in the O.A. It has further been alleged that it is wrong to allege that the charge sheet served upon the applicant is based on false, frivolous and fictitious charges. Moreover, the applicant is entitled to plead his case before the enquiry officer and it can only be decided by the enquiry officer. That the charge sheet was issued on 31.12.2009 as per procedure laid down in Rule 14 of the CCS (CCA ) Rules. As per the extant rules, the applicant is entitled for provisional pension as the disciplinary proceedings are pending against him on the date of superannuation. It has further been alleged that the applicant was promoted as Chief Commissioner of Income Tax vide CBDT order No. 22 of 2010 dated 4.3.2010 w.e.f. 1.1.2008 i.e the date of promotion of his juniors with all consequential benefits in compliance of the order of Hon. High Court dated 8.9.2009 in the writ petition. Annexure CA-1 is the copy of the order. It is wrong to allege that the charge sheet was served against the applicant with malafide intention for moving the contempt petition against the respondents. That the charge sheet was served on the applicant on 31.12.2009 when the applicant was in service and charge memo issued to the applicant was well within time. It will not make any difference if the charge sheet was served on the applicant after 31.12.2009. As the charge sheet was issued on 31.12.2009, when the applicant was in service, hence, Pension Rules as well as letter dated 22.12.2009 issued by C.V.C. are not applicable in the case of the applicant. Moreover, the charge sheet is also not barred by limitation as pleaded by the applicant. As per rules, it is essential that the charge sheet be served/ issued while the employee is in service. The provisions, of Civil Services (Pension) Rules, 1972 do not apply in the case of the applicant. The letter dated 23rd December, 2009 in respect of deferring of vigilance clearance of the applicant will not come to the rescue of the applicant and it has no relevance. As the enquiry has been ordered against the applicant by the disciplinary authority, hence the applicant is at liberty to plead his case before the enquiry officer and proper opportunity will be provided to the applicant during departmental enquiry. The provisional pension bill was submitted to Zonal Accounts Officer, Allahabad after receiving sanction granted by the Chief Commissioner of Income Tax Allahabad for the period from 1.1.2010 to 3.6.2010, but the provisional pension bill was returned in the light of the objection raised by the Zonal Accounts Officer and every effort is being made to remove the defect. That the O.A. lacks merit and is liable to be dismissed.
3. In response to the Counter reply of the respondents, the applicant filed R.A. and reiterated the facts which have been alleged in the O.A. and what has been alleged in the C.A. has been denied.
4. We have heard Shri Vikas Budhwar Advocate for the applicant and Shri S.N. Chatterjee , advocate for the respondents and perused the entire facts of the case.
5. It has been alleged by the applicant that the applicant had been working as Commissioner of Income Tax Gorakhpur and thereafter the applicant was transferred and posted as Commissioner of Income Tax, Departmental Representative, Income Tax Appellate Tribunal, Chennai. It has also been alleged by the applicant that applicant was due for promotion to the next higher post and the applicant was to be promoted on the post of Chief Commissioner of Income Tax /Director General, Income Tax and it is a selection post which requires approval of the ACC. It has also been alleged by the applicant that on 22.8.2007, a DPC was convened headed by member of the U.P.S.C in order to consider the case of eligible Commissioners of Income Tax including the applicant for promotion as Chief Commissioner of Income Tax/Director General of Income Tax. DPC had to consider the list of officers who belonged to 1974-75 batch of the IRS. The applicant joined IRS on 28.11.1974 after being successful in the examination conducted in the year 1973 by the U.P.S.C. and the applicant joined service as Class I Officer in the Income Tax Department. It has also been alleged that the claim of the applicant for promotion on the post of Chief Commissioner of Income Tax was turned down by the DPC whereas junior officers to the applicant were promoted on the post of Chief Commissioner of Income Tax. And it was alleged that the applicant had been downgraded in the meeting of the D.P.C. It was communicated to the applicant that adverse remarks were recorded in the Confidential Remarks of the applicant for the year 2005-06. Vide order dated 27.12.2007, 39 officers were promoted on regular basis as Chief Commissioner of Income Tax and 8 were promoted on officiating basis. The applicants name ought to have been placed at serial No. 18, above Dr. Vedanant Jha who was junior to the applicant. That the applicant was downgraded, hence he preferred O.A. No. 6/2008 before the C.A.T., Chennai Bench and the O.A. was disposed of. The respondents, in the counter reply admitted all these facts, rather there is no specific denial of the respondents regarding these facts.
6. Copy of the order dated 13.3.2009 of O.A. No. 6/2008 is on record and from the perusal of the order passed by the Tribunal, it is evident that the O.A. was disposed of by giving direction to the respondents to consider and decide the representation of the applicant within stipulated period of time. It was a fact that the applicant had already made detailed representation on 12.11.2007. Nothing has been commented by the Tribunal regarding merits of the case. The applicant, aggrieved from the order passed by the Tribunal, filed Writ Petition No. 6155/2009 before the Hon. High Court of Judicature at Madras. The Writ petition was decided by the Hon. High Court on 8.9.2009. It will be relevant and material to reproduce the operative portion of the order passed by the Hon. High Court:
Therefore, we set aside the order under challenge as well as the order dated 22.04.2009 rejecting the representation of the petitioner. Consequently, the writ petition is disposed of with a direction to the authorities concerned to re-consider the matter, without reference to the un-communicated adverse remarks made against the petitioner for the year 2005-06 and pass appropriate orders within a period of two months from the date of receipt of a copy of this order. Since it is stated that the petitioner had retired from service, if on the re-consideration of the representation, the petitioner is found fit for promotion, then, he is entitled to get consequential monetary and other benefits. No costs. Connected miscellaneous petition is closed. The entire exercise has to be done within a period of three months from the date of receipt of this order. No costs.
7. The Hon. High Court set aside the order passed by the Tribunal as well as the order passed on the representation of the applicant and further direction was given to the respondents to re-consider the matter without reference to the un-communicated adverse remarks made against the applicant in the year 2005-06 and pass appropriate orders within a period of two months. Moreover, it was also ordered that in case the applicant retired from service, even then if the applicant is found fit for promotion, then promotion will be given to the applicant with all consequential benefits. It has been argued by the learned counsel for the applicant as well as alleged in the O.A. that the respondents failed to comply with the order passed by the Hon. High Court within a period of two months from the date of receipt of the order, then the applicant had to file contempt petition before the Hon. High Court after retirement on 31.12.2009. Moreover, it has also been argued by the learned counsel for the applicant that the respondents lost the litigation before the Hon. High Court of Judicature at Madras, then the respondents, in order to circumvent and over reach the contempt proceedings, have not considered the claim of the applicant for promotion on the post of Chief Commissioner of Income Tax/Director General of Income Tax, a novel method was adopted by the respondents by serving a charge sheet on the applicant on the last date of his retirement. There was a clear direction of the Hon. High Court of Judicature at Madras that the case of the applicant shall be considered for promotion as Chief Commissioner of Income Tax without reference to un-communicated adverse remarks made against the applicant for the year 2005-06. But in order to nullify the order of the Hon. High Court, intentionally and with malafide intention, issued the charge sheet on 31.12.2009 so that the order of the Hon. High Court may not be complied with. That the copy of the order of Hon. High Court was sent to the respondents for compliance, but no compliance was made and the respondents were under pressure for not complying with the order of the Hon. High Court.
8. It has also been alleged by the applicant that when the order of Hon. High Court was not complied with, then the applicant had to file the contempt petition before the Hon. High Court of Judicature at Madras. In the contempt petition, notices were issued against the respondents fixing 8.1.2010, 5.2.2010 and 19.2.2010. Earlier to filing of contempt petition before the Hon. High Court several applications were sent to the respondents to ensure compliance of the order of Hon. High Court. And in order to circumvent the order of Hon. High Court the charge sheet was served on the applicant. It has been alleged by the respondents in the Counter reply that the applicant was promoted as Chief Commissioner of Income Tax vide CBDT order No. 22 of 2010 dated 4.3.2010 w.e.f. 1.1.2008 i.e. the date of promotion of his junior with all consequential benefits and this promotion order of the applicant was issued in compliance of the order of Hon. High Court of Madras dated 8.9.2009 in the Writ Petition. Annexure CA-2 is the order of promotion dated 4.3.2010 and from the perusal of the order, it is evident that the applicant was promoted in compliance of the order of Hon. High Court in the Writ Petition. But it is a fact that the order passed by the Hon. High Court was complied with by the respondents, after initiation of the contempt proceedings whereas the order was passed by the Hon. High Court on 8.9.2009, and the order was to be complied with by the respondents within a period of two months from the date of receipt of the copy of the order. Several documents have been filed by the applicant to show that the copy of the order of Hon. High Court was served on the respondents within a period of two months but the compliance was not made and in order to circumvent the order of Hon. High Court, the charge sheet was issued against the applicant on 31.12.2009 on the date when the applicant was going to retire. And from all these circumstances only inference can be drawn that the charge sheet was issued against the applicant with malafide intentions.
9. With the above background, the learned counsel for the applicant argued that on vague and false allegations, on the last date of his retirement on 31.12.2009, the respondents issued a charge sheet to be served on the applicant and actually this charge sheet was served on the applicant on 6.1.2010. In this connection the learned counsel for the applicant argued that this charge sheet cannot be served on the applicant as it is in respect of the events which took place more than 4 years prior to the date of issuance of the charge sheet and that it is barred by the rules provided in Central Civil Services (Pension) Rules, 1972, as notified on 1.6.1972. Firstly, according to these rules, charge sheet must be served while the employee is in service. It will be material to reproduce rule 2 of the above Central Civil Services (Pension) Rules, 1972, which provides as under:
2.(a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the same manner as if the Government servant had continued in service:
Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President.
(b). The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment,-
(i) shall not be instituted save with the sanction of the President,
(ii) shall not be in respect of any event which took place more than four years before such institution, and
(iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. Hence, in view of the above rule, departmental proceedings must be instituted while a government servant was in service whether before his retirement or during his re-employment. However, if the departmental proceedings were instituted against a government servant while in service before his retirement or during re-employment, then these proceedings shall be continued even after retirement of the government servant and it shall be deemed to be proceedings under the rules. Whereas, in the present case the charge sheet was issued on 31.12.2009, on the last day of retirement of the applicant, but actually, according to the applicant, it was served on the applicant on 6.1.2010 and the respondents have not disputed this fact. It has only been stated on behalf of the respondents that the charge sheet was issued against the applicant on 31.12.2009 while the applicant was in service and it is not going to make any difference if the Memo of charge sheet was received by the applicant on 6.1.2010. The charge sheet shall be deemed to have been issued on 31.12.2009 while the applicant was in service. But in our opinion, it is also material that the charge sheet was served on the applicant on 6th January, 2010 when the applicant had already retired. It is also provided in the rules that if the departmental proceedings, if any initiated while the government servant was in service, then the same shall not be instituted without the sanction of the President of India. It is not the case of the applicant that the charge sheet was served on the applicant with the sanction of the President. If it may be presumed that the charge sheet was served on the applicant on 6.1.2010 after his retirement from service, then it cannot be said instituted without the sanction of the President. It has not been alleged by the respondents that they have obtained the sanction of the President of India. The respondents, in the Counter reply alleged that the charge sheet was issued on 31.12.2009 while the applicant was in service and it is not going to make any difference if the charge sheet was served on the applicant on 6.1.2010 after retirement of the applicant. But in our opinion, it is also material that the charge sheet was served on the applicant after retirement.
10. It has been argued by the learned counsel for the applicant that the charge sheet has been issued and served on the applicant in respect to the event which took place more than 4 years before the institution of the charge sheet. We have perused the allegations made in the charge sheet. A copy of the charge sheet has also been annexed as Annexure A-1 and according to the charge sheet, the applicant was charged that while the applicant was posted as Commissioner of Income Tax (A) III Lucknow, he granted undue and unjust favour in the appellate orders passed by him in the matter pertaining to Sahara India Airlines Limited referable to Assessment year 1997-98, Sahara India Financial Corporation Limited, referable to Assessment year 1997-98 and Sahara India (Firm) referable to Assessment year 1997-98 and thus the applicant failed to maintain absolute integrity. Hence, it is evident from the perusal of this fact that the charge sheet was served in respect of the event which took place in the year 1997-98. It has also been alleged by the learned counsel for the applicant that the department, aggrieved from the order passed by the applicant in the capacity of Income Tax Commissioner, preferred an appeal before the ITAT, Delhi and the appeal stood dismissed by the order dated 14.8.2008. Under these circumstances, the applicant cannot be held guilty for this charge. The applicant was also charged that while working as Commissioner of Income Tax (A)-III, Lucknow annulled the assessments orders passed by the assessing officers in as many as 45 cases, thereby granted undue benefits to the assessee at the cost of Government revenue. But it has been argued that this authority is also patently misconceived and on the basis of these allegations departmental proceedings cannot be initiated. It has been alleged by the applicant that these cases were related to the Commissioner of Income Tax Gorakhpur and these cases were forcibly thrust upon the applicant. The direction was issued to the applicant to dispose of the case promptly so that budget target could be fulfilled and the applicant after putting a lot of work, day and night disposed of these cases and reasoned and speaking orders were passed by the applicant and ITAT upheld the orders. Only a few cases were remanded for passing fresh orders, but the applicant cannot be held guilty for misconduct due to this reason. The applicant has also been charged that while working as Commissioner of Income Tax Allahabad granted exemptions/ registration under Section 80 G and 12 A of the Income Tax Act, 1961. But the applicant followed the recommendations of his subordinates if it came to the notice of the applicant that Inspector demanded money and recommended against the party because the money was not paid to him then the applicant being extra cautious, decided the cases on the basis of facts and it will not amount to any misconduct. The applicant was also charged that while the applicant was holding the additional charge of Commissioner of Income Tax (DR), ITAT, Allahabad, he did not attend the hearing in certain ITAT cases resulting to the fact that cost of Rs. 1000/- in each case (in five cases) was imposed upon the Department by the Income Tax Tribunal, Allahabad. One Additional Commissioner was authorized by the CCIT to appear in those cases and these allegations were false and the confidential reports for the years 2005-06 was recorded in the character roll of the applicant which was expunged or overlooked by the order of Hon. High Court of Madras. That all these allegations show that in order to circumvent the order passed by the Hon. High Court of Madras, charge sheet was served on the applicant so that the order passed by the Hon. Supreme Court may not be complied with. We have perused the Pension rules which provide that in respect of any event which took place more than 4 years before, no departmental proceedings can be instituted. Hence, it cannot be said that the charge sheet was served properly, firstly because the sanction of the President was not obtained as the charge sheet was served on the applicant on 6.1.2010 and after retirement. Moreover, the charge sheet was served in respect of the event which took place more than 4 years earlier from the date of institution.
11. It has been argued that in the capacity of Commissioner of Income Tax Commissioner, the applicant discharged the duties as quasi judicial authority where appeal is provided. No strictures were passed against the applicant by the appellate authority of the ITAT, hence it cannot be said that the cases decided by the applicant in the capacity of Commissioner of Income Tax, while exercising the authority in the capacity of quasi judicial authority, any misconduct has been committed. The learned counsel for the applicant in this connection cited 1999 SC 2881 Zunjarrao Bhikaji Nagarkar vs. Union of India and others. The Hon. Apex court held as under:
it was not the case that the appellant did not impose penalty because of any negligence on his part but he said it was not a case of imposition of penalty. When penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. Record in the present case does not show if the disciplinary authority had any information within its possession from where it could form an opinion that the appellant showed favour to the assessee by not imposing the penalty. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form basis for initiating disciplinary proceedings for an officer while he is acting as quasi judicial authority. It must be kept in mind that being a quasi judicial authority, he is always subject to judicial supervision in appeal. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty. The charge of misconduct against the appellant was not proper. Disciplinary proceedings initiated against him are liable to be quashed. The learned counsel for the applicant also cited J.T. 2001 (6) SC 239 S.C. Joshi vs. State of U.P. and others and the Hon. Apex court held as under:
If in every case where an order of a sub-ordinate court is found to be faulty a disciplinary action were to be initiated, the confidence of the subordinate judicial will be shaken and the officers will be in constant fear of writing a judgment so not to face a disciplinary enquiry and that judicial officers cannot act independently or fearlessly. Indeed the words of caution are given in K.K. Dhawans case [1993 (1) SC 236] and A.N. Saxenas case [JT 1992 (2) SC 532] that merely because the order is wrong or the action taken could have been different does not warrant initiation of disciplinary proceedings against the judicial officer. In spite of such caution it is unfortunate that the High Court is chosen to initiate disciplinary proceedings against the appellant in this case. The learned counsel for the applicant also cited AIR 1979, S.C. 1022 Union of India and others vs. J. Ahmad. The Hon. Apex court held as under:
Therefore, it could not be said that an inquiry on a charge of misconduct was being held against the respondent and sub-rule (2) of R. 16 would be attracted and he would be deemed to have been retained in service till the inquiry was concluded. To retain him in service beyond the period of his normal retirement with a view to punishing him was wholly unjustified. The High Court was, therefore, right in coming to the conclusion that the respondent was no longer in service on the date on which an order removing him from service was made and, therefore, the order was illegal and void.
12. We have perused the judgments of the hon. Apex court and from perusal of the judgments it is evident that a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi judicial order. 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. The entire system of administrative adjudication whereunder 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. Moreover, earlier no stricture was passed against the applicant in discharge of quasi judicial functioning. Under these circumstances, it is not justified on the part of the respondents to serve the charge sheet on the applicant for the acts which he committed in the discharge of his duties as quasi judicial authority and under these circumstances, it will not be possible for an employee exercising this power, to exercise the powers fearlessly without favour. Under these circumstances, the charge leveled on the applicant is not justified.
13. It has also been argued by the learned counsel for the applicant that all the pensionary benefits were not paid to the applicant. Full pension, leave encashment, insurance amount, gratuity and commutation of pension have not been released to the applicant. In this connection, the respondents allege that the order for provisional pension shall be issued in favour of the applicant after completion of the Service Book. It has also been alleged in para 26 of the C.A. that provisional pension of the applicant is pending due to the objection raised by the Zonal Accounts Officer, Allahabad. Provisional Pension Bill was returned in the light of the objection raised by Zonal Accounts Officer, Allahabad. All efforts are being made to complete the Service Book which is lying pending between two departments i.e. CIT(A), Cuttack and CIT(1), Lucknow. The Service Book of the applicant was sent to CIT(A), Cuttack to fulfill the service entries as required by the Zonal Accounts Officer, Allahabad and after repeated effort, it was verified by CIT(A), Cuttack and now the service Book is being sent to CIT-1 Lucknow for further verification and making necessary entry in the Service Book. But, as we are of the opinion that on the applicant charge sheet was illegally served, hence the pension be paid to the applicant from the date of retirement on 31.12.2009. And moreover, the applicant is also entitled for promotional benefits w.e.f. 1.1.2008 from the date when his immediate junior was promoted and the pensionary benefits may be paid to the applicant on the promotional post.
14. For the reasons mentioned above, we are of the opinion that the charge sheet was served on the applicant on the last day of his retirement on 31.12.2009. It is also evident that in the background of issuing the charge sheet against the applicant was the order passed by the Hon. High Court of Madras. Certain directions were given to the respondents to promote the applicant within a period of 2 months when the copy of the order was received by them, ignoring the entry of 2005-06, from the date when his junior was promoted. But the order was not complied with and the respondents were under pressure for not complying with the order and there was a fear that contempt petition will be moved. Moreover, the charge sheet was served on the applicant on 6.1.2010 whereas the applicant retired from service on 31.12.2009 without sanction of the President as it is essential in the case of a retired government servant. It is not going to make any difference that the charge sheet was issued on 31.12.2009, on the date of his retirement, but the material date is 6.1.2010 when it was served on the applicant. Moreover, as per Pension Rules, charge sheet was in respect of an event which took place 4 years earlier from the institution of the charge sheet. Moreover, the alleged misconduct was committed by the applicant while discharging the duties as Commissioner of Income Tax as a quasi judicial authority and in view of the judgment of Hon. Supreme Court, it was not justified to serve a charge sheet on an employee regarding the misconduct committed by him while discharging the duties as quasi judicial authority. The O.A. deserves to be allowed.
15. O.A. is allowed. Charge sheet dated 31.12.2009 served on the applicant on 6.1.2010 (Annexure A-1) is quashed. Entire proceedings initiated in pursuance of the charge sheet dated 31.12.2009 is also quashed. The respondents are directed to pay full pensionary benefits to the applicant w.e.f. 31.12.2009 ignoring the charge sheet dated 31.12.2009 alongwith interest @ 9% per annum from the date of retirement upto the date of actual payment. All consequential benefits be paid to the applicant. No order as to costs.
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