Central Administrative Tribunal - Madras
Shiva Srinivas vs M/O Finance on 6 September, 2018
1 OA 1067/2016
Central Administrative Tribunal
Madras Bench
OA/310/01067/2016
Dated the 6th day of September Two Thousand Eighteen
PRESENT
Hon'ble Mr.R.Ramanujam, Member(A)
&
Hon'ble Mr.P.Madhavan, Member(J)
Shiva Srinivas
S/o V.Srinivasan,
E-2, ITO Quarters,
Bazulla Road, T.Nagar,
Chennai 600 017. .. Applicant
By Advocate M/s.Menon, Karthik Mukundan & Neelakandan
Vs.
Union of India, rep. by the
Secretary to the Government,
M/o Finance, Department of Revenue,
Central Board of Direct Taxes,
New Delhi 110 001. .. Respondent
By Advocte Mr.V.Vijay Shankar
2 OA 1067/2016
ORDER
Pronounced by Hon'ble Mr.P.Madhavan, Member(J) Heard. The applicant has filed this OA seeking the following relief:-
"to quash the Charge Memorandum in F.No.C-
14011/7/2016-V&L dated 18.4.2016 issued by the respondent and pass such further or other orders as may be deemed fit and proper."
2. The applicant herein is working as Joint Commissioner of Income Tax. According to him the respondent had served him with a Charge Memo dated 18.4.2016 alleging misconduct relating to an assessment of Tax decided by him in the year 2009. According to the counsel for the applicant, the applicant was holding the post of Joint Commissioner of Income Tax from 01.4.2016. He would further say that the applicant had an unblemished service carrier till the issuance of Charge Memo in this case. This assessment, in respect of this Charge Memo, occurred on 18.12.2009 and according to the counsel for the applicant after consideration of various aspects had enhanced the tax liability of one B.Mohammed Yousuf. The respondent had issued a Memo of Charge to him after about 7 years regarding certain irregularities committed by him under Rule 14 of CCS (CCA) Rules. The Charge Memo contained the following misconduct:-
"The applicant has not obtained the signature of the authorised representative of the assessee in the order sheet for proving the presence of representative.
The applicant after passing the assessment order on 18.12.2009, did not despatch the order by post to the assessee properly.3 OA 1067/2016
The assessment of the applicant was erroneous.
The applicant by handing over the copies of order has facilitated the representative to exert undue pressure."
3. The counsel would contend that the person aggrieved by the assessment order has filed an Appeal before the Commissioner of Income Tax (CIT) (Appeals), Chennai on 19.2.2010. While the Appeal was pending, the assessee approached the CIT, Puducherry with an application for review under Section 264 of I.T. Act. The assessee thereafter withdrew the Appeal facilitating the CIT Mr.Senthamarai Kannan to review the assessment order and Commissioner had cancelled the increased tax imposed by the applicant. There was no mention of any dishonest intention against him in the Appeal or in the Review filed by the assessee, There is no complaint seen filed by the assessee against the applicant. The counsel for the applicant would content that the initiation of disciplinary proceeding after a long delay of 7 years is against natural justice. The applicant will be put to much difficulty if an inquiry proceeds against him after a long delay. The entire proceedings is based on the statement of the then CIT Mr.Senthamarai Kannan who had issued favourable orders to the assessee in this case. The applicant had never attempted to give any favour to the assessee and he had never caused any loss of revenue due to the government. The applicant was doing a quasi judicial function and the assessment was done on the basis of facts produced before him. This being a judicial function, the aggrieved person has a clear remedy, i.e. to file an appeal. The other irregularities alleged to have been committed is technical in nature and it was also committed in the course of 4 OA 1067/2016 the quasi judicial proceedings and it cannot be a reason for initiating disciplinary proceedings.
4. The respondent appeared and filed a reply denying the averments in the OA. Respondent admitted the issuance of Charge Memo dated 18.4.2016 produced as Annexure A1 in the OA. The applicant was ordered to give a fresh copy of the assessment order on the basis of a complaint filed by the assessee stating that he was not given a copy of the assessment order. Though the applicant had stated that copy was given to the authorised representative, he could not produce any acknowledgement as evidence. It was contended that no appeal was pending at the time of revision was considered as alleged. The delay occurred since the matter had to be referred to DGIT (Vigilance) and DIT(V)(S) and thereafter, to CVC and only after that a charge memo can be issued. There is no inordinate delay. The CVC had advised to initiate proceedings to impose major penalty on 04.3.2016. It will be premature to challenge the charge memo as only an inquiry alone is initiated. He will be given opportunity to defend his case. The respondent has initiated the disciplinary proceedings taking into account the guidelines issued by the Hon'ble Supreme Court in Union of India & Others vs. K.K.Dhawan reported in AIR 1993 SC 1993. There is no ulterior purpose in initiating the proceedings. Respondent also cites the decision of the Hon'ble Supreme Court in Union of India & Others vs. Swathi S Patil (Civil Appeal No.3881/2007 where it was held that -
"we are unable to countenance with the above extracted reasoning recorded by the High Court whether there exists sufficient and cogent material to sustain the articles of charge 5 OA 1067/2016 or not, should not be decided by the court at the stage of framing of the charges. The articles of charge can be established by the evidence only during the course of inquiry without being inquired into by an inquiry officer and without recording any finding whether the article of charge has been sustained or not either by oral enquiry or documentary evidence, it was not open for the High Court to come to the conclusion at the stage of framing of charges that no material is forthcoming to establish the charges."
5. The applicant has also filed a rejoinder explaining the facts stated in the reply. The applicant had also produced copies of the order in appeal preferred by the assessee before CIT (Appeals)-XII and copies of the review petitions filed by the assessee before the CIT and the copies of the order thereon in favour of the assessee.
6. Based on the above pleadings it can be seen that the applicant seeks to set aside the charge memo dated 18.4.2016 on the basis of undue delay as it causes much prejudice to him.
7. The counsel for the applicant relies on the following observation made by the Hon'ble Supreme Court in para 19 in State of A.P. vs. N.Radhakrishnan (1998) 4 SCC 154:-
"....The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path 6 OA 1067/2016 he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations."
According to the counsel for the applicant, the applicant has not contributed any delay in initiating the proceedings. The respondents has no proper explanation for the delay of 7 years elapsed after the incident. So according to him the issuance of charge after a lapse of 7 years is prejudicial to him.
8. The counsel also invited our attention to the decision in N.Sravankumar vs. Government of T.N. & 2 Others (reported in 2015 SCC online Mad 8661) wherein the Hon'ble Madras High Court had quashed the charge memo issued as there was no specific allegation of dishonest motive and the charges were vague.
9. We have accordingly gone through the pleadings and Annexure A1 Charge Memo issued. The basis of the charge memo is mainly based on the enhanced assessment made by the applicant. The other irregularities are not obtaining signatures in the order sheet from the representatives and not obtaining acknowledgement of receipt of copy from the representative, the copy of the assessment was not despatched to the assessee separately and the assessment made by the applicant was erroneous. As far as enhanced assessment is concerned, the CIT had cancelled the enhanced assessment by his review of the above order. There is no material to show that the aggrieved has taken up a case of malafide on the part of the assessing officer in the appeal. The assessee is not made a witness also in the 7 OA 1067/2016 disciplinary proceedings. The other charges of irregularity alleged is highly technical in nature and connected to the proceedings undertaken by him.
10. The decision of the Hon'ble Supreme Court in Union of India & Others vs. K.K.Dhawan has laid down the guidelines to be looked into while initiating a disciplinary proceedings against an authority discharging these type of functions.
11. If we go through the pleadings and reply filed by the respondent, it can be seen that there is nothing available with the disciplinary authority to show lack of integrity, recklessness or misconduct in discharge of duty, act unbecoming of a government servant, any negligent act or omission in the exercise of the statutory duty or had acted in order to unduly favour a party or act actuated by a corrupt motive, however small the bribe may be to initiate the disciplinary proceedings. The act committed was also not in favour a party. In this respect it has to be noted that the disciplinary action was initiated on the basis of a report of the Commissioner of Income Tax Shri Senthamarai Kannan who had permitted the assessee to file a review petition during pendency of an appeal before the appellate authority and cancelled the order of enhanced tax which is an act which can be interpreted as an act in favour of the party against whom an enhanced assessment was made.
12. Admittedly, the assessment was done in the year 2009 and the charge memo was given only in the year 2016. Annexure B filed by the respondent is the explanation offered for the delay. The complaint against the applicant is seen forwarded to DIT(V), South Zone on 02.2.2010. Thereafter, it took more than 6 years to issue a formal charge memo under CCA (CCS) Rules. The chronology of dates for 8 OA 1067/2016 completing each step shows undue delay. There is no proper explanation available to the respondents for this delay occurred in a serious matter like disciplinary proceedings. The observation of the Hon'ble Supreme Court in para 19 in State of A.P. vs. N.Radhakrishnan (1998) 4 SCC 154 cited supra is very much relevant as there is no proper explanation offered by the respondent for delaying the proceedings for about 7 years. Some of the charges are technical in nature which relate to some omissions like obtaining signature in the order sheet, not despatching the copy of order separately etc. Therefore, it is clear that the proceedings initiated by the respondent will cause great prejudice to the applicant as he has to defend the charges after a lapse of 7 years.
13. Having regard to the aforesaid facts and circumstances, we are of the view that the delay in issuing the charge memo after 7 years is highly prejudicial to the applicant and it is liable to be quashed. Accordingly, the Charge Memorandum in F.No.C-14011/7/2016-V&L dated 18.4.2016 issued by the respondent is quashed. The OA is Allowed. No order as to costs.
(P.Madhavan) (R.Ramanujam)
Member(J) Member(A)
06.09.2018
/G/