Central Administrative Tribunal - Delhi
Santosh Kumar Karnani vs Revenue on 19 December, 2024
1
OA 1152 of 2024 with OA 1148 of 2024
Item No.19/C-1
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No.1152/2024
with
O.A. No. 1148/2024
Order reserved on: 11.12.2024
Order pronounced on: 19.12.2024
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Rajinder Kashyap, Member (A)
1. OA NO.1152/2024
Santosh Kumar Karnani,
(Civil Code : 05024)
Aged: 43 years( DoB being 03.09.1979)
Son of Shri Ram Chandra Karnani,
Additional Commissioner of Income Tax (OSD) in O/o
Pr. CCIT, Ahmedabad
Address For Communication:
R/o No. 1202/A, Sundarvan Epitome
Near ISRO, Satellite,
AHAMEDABAD 380015.
2. OA No. 1148/2024
Santosh Kumar Karnani,
(Civil Code : 05024)
Aged: 43 years( DoB being 03.09.1979)
Son of Shri Ram Chandra Karnani,
Additional Commissioner of Income Tax (OSD) in O/o
Pr.CCIT, Ahmedabad
Address For Communication:
R/o No. 1202/A, Sundarvan Epitome
Near ISRO, Satellite,
AHAMEDABAD 380015.
... Applicant
(By Advocate: Mr. S.Sunil )
2
OA 1152 of 2024 with OA 1148 of 2024
Item No.19/C-1
Versus
1. UNION OF INDIA
(Notice to be served through its Secretary to the GOI.
Department of Revenue, Ministry of Finance,
Government of India, North Block, New Delhi.
2. CENTRAL BOARD OF DIRECT TAXES
[To be represented through its Chairman,
(CBDT), North Block,New Delhi 110 001]
3. THE PRINCIPAL CHIEF COMMISSIONER OF
INCOMETAX (GUJARAT), O/o Pr.CCIT, Gujarat,
Ahmedabad 3rd Floor, Aayakar Bhavan Ashram Road,
AHMEDABAD 380 009.
4. THE PRINCIPAL CHIEF COMMISSIONER OF INCOME
TAX(CCA), North Eastern Region, Guwahati, O/o.
Pr.CCIT, NER. Guwahati. Aayakar Bhavan, G.S.Road,
Christanbasti, GUWAHATI 781 005
... Respondents
(By Advocate : Mr. Pradeep Kumar Sharma)
3
OA 1152 of 2024 with OA 1148 of 2024
Item No.19/C-1
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):
By way of the present OA filed u/s 19 of the AT Act, 1985, the applicant in para 8 of the OA has prayed for the following reliefs: -
"Relief in OA 1152/2024
(1) Order dated 31.03.2023, issued under F.No.C-
18011/19/2022- Ad.VI. issued by Respondent No.2, whereby the Applicant's representation dated 27.12.2022 requesting to cancel the Office Order No:220 of 2022 dated 10.10.2022 issued by Respondent No.2 transferring the Applicant out of his posting as Additional Commissioner of Income Tax (OSD) in the office of Director General of Income Tax (Investigation), Ahmedabad to North East Region (II) Order issued under F.No.C-18011/19/2022-Adv.VI dated 23.12.2022, whereby Respondent No.2 has rejected the representation dated 18.11.2022 requesting to cancel the Office Order No:220 of 2022 dated 10.10.2022, issued by Respondent No.2, by which the Applicant has been transferred out of his posting as Additional Commissioner of Income Tax (OSD) in the office of Director General of Income Tax (Investigation), Ahmedabad to North East Region.
(III) Office Order No:220 of 2022 dated 10.10.2022, issued by Respondent No.2, by which the Applicant has been transferred out of his posting as Additional Commissioner of Income Tax (OSD) in the office of Director General of Income Tax (Investigation), Ahmedabad to North East Region. (IV) Relieving Order SKK 2022-23 DATED 10.10.2022 issued by the Office of the Principal Commissioner of Income Tax (Central) Gujarat, (V) Consequent, direct Respondents herein from transferring or shifting the applicant herein from Ahmedabad on any pretext whatsoever, till the final disposal of the case, (VI) Consequent, direct Respondents herein from transferring or shifting the applicant herein from Ahmedabad on any pretext whatsoever, until and unless the applicant's elder son Master Shreshta Santosh Karnani completes his 12th Standard which he is currently pursuing in Anand Niketan, Satellite Campus, Ahmedabad.
4
OA 1152 of 2024 with OA 1148 of 2024 Item No.19/C-1 (VI). Grant such other & further relief's as may be deemed fit and appropriate in the peculiar facts and circumstances of the present case.
BRIEF FACTS IN OA 1152/2024
2. The applicant belongs to 2005 batch of Indian Revenue Service (IRS). He joined services in December 2005 as Assistant Commissioner of Income Tax (ACIT). He was promoted to the rank of Joint Commissioner of Income Tax in August, 2014 and was transferred to Ahmedabad. During the year 2018-19, a survey was conducted against Flagship Company of one Shri Rupesh Balwantbhai Brahmbhatt [M/s. SAFAL Construction (Pvt.) Limited]. The applicant authorized the survey action. In September, 2021, the Director General of Income Tax (DGIT) undertook a massive search against all the companies of Shri Rupesh Balwantbhai Brahmbhatt. After completion of search, the cases were assigned to assessing officers who were working under the applicant. On 04.10.2022, the above mentioned Shri Rupesh Balwantbhai Brahmbhatt filed a complaint with Gujarat State ACB against the applicant alleging that the applicant demanded illegal gratification of Rs.30 Lakhs. Based on the above mentioned complaint, an FIR was registered on 04.10.2022. Later on, the case was transferred by the Gujarat Government to CBI 5 OA 1152 of 2024 with OA 1148 of 2024 Item No.19/C-1 and the CBI registered an FIR on 12.10.2022. On 07.10.2022, the applicant was posted as Additional CIT (OSD) in DGIT (Investigation) Office, Ahmedabad. On 10.10.2022, the applicant was transferred to North East Region and on the very same day, his relieving order was issued. On 18.11.2022, the applicant was placed under suspension with immediate effect on the ground of contemplated disciplinary proceedings and FIR registered against him by the ACB, Ahmedabad. The applicant states that he obtained Anticipatory Bail on 19.11.2022 and Hon'ble High Court granted him the said Bail in connection with the aforesaid FIR with one of the conditions being that he shall not change his residence till disposal of the case. The Anticipatory Bail was challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court vide order dated 17.04.2023 cancelled the Anticipatory Bail order and directed the applicant to surrender before the CBI before 21.04.2023. In compliance to the above mentioned order of Hon'ble Supreme Court, the applicant surrendered before the CBI on 21.04.2023 and he was arrested. The applicant states that he applied for Regular Bail in connection with the case registered against him by the CBI on the grounds that investigation with the CBI was over and the applicant was no longer required under the custody of CBI. The 6 OA 1152 of 2024 with OA 1148 of 2024 Item No.19/C-1 applicant also states that he was released from the Jail on 23.11.2022 pursuant to the Bail order of Hon'ble PMLA Court. The Hon'ble High Court of Gujarat granted the Regular Bail vide its order dated 27.10.2023 with the following important conditions:
(d) Not to leave the State of Gujarat without prior permission of the Trial Court concerned.
(e) Mark presence before the concerned Police Station once in a month for a period of six months between 11.00 am. and 2.00 pm.
(f) Furnish the present address of this residence to the investigation officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of Trial Court.
3. Applicant states that he has filed the present Original Application against the transfer order in view of the conditions imposed by the Hon'ble High Court of Gujarat while granting him Regular Bail which did not allow him to move away to join his new place of posting. He contends that movement outside Gujarat was severely curtailed due to High Court directions. Session Court too have allowed travel to limited places and in limited times. There is a strong opposition from investigating agency against applicant's movement. He also states that it is not practically feasible to join Jorhat and attend to the CBI proceedings at Gandhinagar and the proceedings before 7 OA 1152 of 2024 with OA 1148 of 2024 Item No.19/C-1 High Court and Supreme Court due to short and frequent dates and lack of connectivity.
BRIEF FACTS IN OA 1148/2024
4. In addition to the facts mentioned in OA No.1152/2024, the following facts specifically relate to OA No. 1148/2024. The applicant contends that the respondent no.2 issued the memorandum of charge dated 02.05.2023 under Rule 14 of CCS (CCA) Rules, 1965 and served upon him during his confinement on 21- 22.05.2023, wherein it was proposed to hold disciplinary inquiry against him. The applicant contends that the sole charge against him was that he was transferred to North East region on 10.10.2022, against which he made a representation which was considered and rejected by the competent authority, and still the applicant did not report for duty at his new place of posting till date. It was held to be willful absence from duty and accordingly a memorandum of charge dated 02.05.2023 was issued. Aggrieved by the above-mentioned memorandum of charge, the applicant has filed the present OA no. 1148/2024 seeking the following reliefs: -
"(i) to quash and set aside the disciplinary proceeding instated memorandum dated 02.05.2023:8
OA 1152 of 2024 with OA 1148 of 2024 Item No.19/C-1
(ii) Grant such other & further relief's as may be deemed fit and appropriate in the peculiar facts and circumstances of the present case."
5. On admission of the OAs, notices were issued to the respondents and they have filed their counter affidavit in OA 1152/24 on 22.07.2024 and in OA No.1148/24 on 02.09.2024 to which the applicant has also filed rejoinder reiterating his stand taken in the OAs.
6. In the counter affidavit filed in OA No.1152/2024, the respondents have stated that on the complaint of Shri Rupesh Balwantbhai Brahmbhatt Director of [M/s. SAFAL Construction (Pvt.) Limited], an FIR was registered on 04.10.2022 by Gujarat State ACB against the applicant U/s 7, 13 (1), 13 (2) of Prevention of Corruption Act., 2018 regarding demand of illegal gratification. Subsequently, the FIR was transferred to CBI, and on 12.10.2022 the CBI registered an FIR against the applicant. The applicant was transferred to North Eastern Region vide order dated 10.10.2022 and was relieved from duty on 10.10.2022 itself. As per the order of Pr. CCIT, North East Region Guwahati dated 10.10.2022, the applicant was posted as Additional CCIT (VU) -1 (2) Jorhat but he did not join at new place of posting in Jorhat even after availing the joining time of 12 days. They further state that whereabouts of the applicant were not known, and the fact 9 OA 1152 of 2024 with OA 1148 of 2024 Item No.19/C-1 that the applicant was absconding has also been highlighted by the CBI in the FIR. They also state that considering the nature and gravity of the charges and contemplated disciplinary proceedings against the applicant, he was placed under suspension on 18.11.2022. They contend that the suspension of the applicant is still continuing and last order extending his suspension was issued on 11.01.2024. Insofar as the disciplinary proceedings under Rule 14 of CCS (CCA) Rules, 1965 initiated on the charge of unauthorized absence against the applicant vide memorandum dated 02.05.2023 is concerned, the IO/PO have already been appointed vide order dated 20.10.2023 and inquiry report is awaited. The respondents further contend that the Anticipatory Bail granted by the Hon'ble High Court of Gujarat on 19.12.2022 was challenged before the Hon'ble Supreme Court, and vide order dated 17.04.2023 the order of Hon'ble High Court granting Anticipatory Bail was set aside, and the applicant was directed to surrender before the CBI on 21.4.2023 and accordingly, he surrendered before the CBI on 21.4.2023. The applicant was granted regular Bail by the Hon'ble High Court of Gujarat vide its order dated 27.10.2023 with the restrictions not to leave the territory of Gujarat without prior permission of Trial 10 OA 1152 of 2024 with OA 1148 of 2024 Item No.19/C-1 Court concerned. The respondents submit that the applicant was transferred from Ahmedabad to North East Region on 10.10.2022 and was relieved on the same day but he did not join at newly posted station nor he joined investigation conducted by the CBI. The applicant moved for Anticipatory Bail in December 2022 and regular Bail in October, 2023 and in both the Bail applications, the applicant gave his residential address of Ahmedabad, and accordingly the Hon'ble High Court imposed the condition of not to leave the Gujarat State. They state that while doing so, the applicant has concealed the material fact from the Hon'ble High Court that he had already been transferred from Ahmedabad to North East Region on 10.10.2022, and that he had to join at the newly posted station. They allege that the applicant with malafide intention did not disclose the factum of his transfer before the High Court because he wanted to get a favorable order from the Hon'ble High Court.
7. We have extensively heard the learned counsels for the parties and thoroughly examined the pleadings available on record as well as brief / amended brief handed over later on in both the above-mentioned OAs. 11
OA 1152 of 2024 with OA 1148 of 2024 Item No.19/C-1 ANALYSIS
8. The applicant was transferred on 10.10.2022 and was ordered to be relieved on the same day. The applicant preferred Original Application No.434/2022 before the CAT, Ahmedabad Bench against the impugned order of transfer being arbitrary, unreasonable, punitive and in contravention of law settled by the Hon'ble Supreme Court. The Ahmedabad Bench of this Tribunal disposed of the said OA, vide order dated 16.11.2022 which is as follows: -
"After arguing the matter at length, learned counsel for the applicant seeks permission to withdraw this OA with a liberty to file representation before the competent authority. Permission is granted to withdraw this OA with liberty as prayed for The respondent authority is expected to decide the representation within a period of four weeks after receiving a copy of it by a speaking order keeping in mind the fact that whether the applicant shall be able to defend the criminal case instituted against him effectively while remaining posted in North East of India"
9. Accordingly, the applicant submitted representation on 18.11.2022 against the order of his transfer from Gujarat region to North East Region. The said representation was rejected by the competent authority by passing a speaking order dated 23.12.2022.
10. The applicant preferred another representation dated 28.12.2022 again requesting for withdrawal of his transfer order. While disposing of the representation dated 12 OA 1152 of 2024 with OA 1148 of 2024 Item No.19/C-1 28.12.2022 vide order dated 31.03.2023 (impugned order), the respondents have come to the conclusion that the applicant did not join his new place/region of posting even after the disposal of his representation, but rather chose to file another representation five days after the speaking order, which, in the assessment of respondents revels no intention on the part of applicant to comply with their order dated 10.10.2022 transferring applicant to the North East Region. They further opined that the applicant is merely buying time to delay his joining at the new place/region of posting. They also state that the Hon'ble Court has directed the applicant to cooperate with the investigation agencies and that he should furnish his residential address to the Investigation Officers and the Court concerned at the time of execution of bond, and shall not change residence till the final disposal of the case or till further order. In para 4 of the rejoinder, it is observed that Anticipatory Bail application was filed by the applicant on 10.11.2022 and not in December 2022 as stated by the respondents in their reply. It could also be seen that the Hon'ble Gujarat High Court was aware of the factum of transfer of the applicant as this aspect was specifically raised in Para 37 (g) of affidavit in reply dated 08.09.2023 filed by the CBI opposing the Bail application petition. For 13 OA 1152 of 2024 with OA 1148 of 2024 Item No.19/C-1 facility of reference, para 37(g) of reply filed by the CBI while opposing Bail application reads as follows: -
"g. That according to the information available with CBI, despite of lapse of six month period, applicant accused didn't join at his new place of posting till his arrest in this case."
11. Learned counsel for the applicant states that it is clear from the above quoted reference that respondents made incorrect statements without checking the petition filed by the applicant for bail; without perusing the affidavit filed in reply by the CBI, and without perusing records of the Court proceedings, and that this approach has continued to be followed by the respondents even while issuing order dated 31.03.2023 (impugned order) as they have failed to make any effort to ascertain the correct position and the take corrective action.
12. While granting Bail to the applicant on 27.10.2023, Hon'ble High Court of Gujarat imposed the following conditions: -
"12 Hence, the present application is allowed. The applicant is ordered to be released on regular Bail in connection with FIR being RC0292022A0011/2022 registered with CBI, ACB Police Station, Gandhinagar, on executing a personal bond of Rs. 10,000/- (Rupees Ten Thousand only) with one surety of the like amount 14 OA 1152 of 2024 with OA 1148 of 2024 Item No.19/C-1 to the satisfaction of the trial Court and subject to the conditions that he shall;
(a) not take undue advantage of liberty or misuse liberty;
(b) not act in a manner injurious to the interest of the prosecution & shall not obstruct or hamper the police investigation and shall not to play mischief with the evidence collected or yet to be collected by the police;
(c) surrender passport, if any, to the Trial Court within a week;
(d) not leave the State of Gujarat without prior permission of the Trial Court concerned;
(e) mark presence before the concerned Police Station once in a month for a period of six months between 11.00 a.m. and 2.00 p.m.;
(f) furnish the present address of his residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of Trial Court;"
13. In so far as matter of transfer is concerned, in the matter of Somesh Tiwari Vs. Union of India and Others, (2009) 2 SCC 592, the following was held: -
"16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer 15 OA 1152 of 2024 with OA 1148 of 2024 Item No.19/C-1 and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."
14. In the present case, while granting Bail to the applicant, certain conditions were imposed by the Hon'ble High Court of Gujarat. As per Bail condition No. 12 (d), the applicant was not to leave the State of Gujarat without prior permission of the Trial Court concerned. On the request of the applicant, the Hon'ble High Court vide its order dated 02.05.2024 (Cri. Misc Application no.1172 of 2024), modified the condition No.12 (d) of the order passed in Cri. Misc. Appl. No. 14884 of 2023 dated 27.10.2023, by suspending/relaxing the condition for limited period from 08.05.2024 to 31.5.2024 to travel to Delhi for his presence in proceedings before this Tribunal, and rejected the application to travel to Mumbai (for vigilance related work), to Rajasthan (for social purposes) and to West Bengal, Uttar Pradesh, Andhra Pradesh for religious Purposes (para no.11 of the order). The applicant was allowed to travel out of Gujarat (only Delhi and not other places) only for 3 weeks, against his request made for 3 months. In view of Bail conditions laid down by the Hon'ble High Court of 16 OA 1152 of 2024 with OA 1148 of 2024 Item No.19/C-1 Gujarat, we are of the view that the applicant was unable to join duty at his new place of posting in NE Region.
15. The pleadings filed in the OAs by the respondents do not reveal any efforts made by them either to get the Bail Order dated 27.10.2023 vacated, or modify the transfer order in conformity with conditions of Bail, despite fully well knowing that the conditions have been imposed by the Hon'ble Gujarat High Court while granting Bail to the applicant. In such a situation, the applicant cannot be held responsible for not joining his new place of posting at Jorhat in North East Region and initiation of disciplinary action by issuing a memorandum of charge dated 02.05.2023 shows disrespect by the respondents towards law. We are unable to appreciate such an approach on the part of the respondents.
16. In view of above both the Original Applications i.e. OA No. 1152/2024 and1148/2024 are allowed with the following orders: -
(a) Transfer order dated 10.10.2022 posting the applicant to NE Region is quashed and set aside.
(b) As a result of quashing the transfer order dated 10.10.2022 vide which the applicant was posted in the NE Region, the memorandum dated 17 OA 1152 of 2024 with OA 1148 of 2024 Item No.19/C-1 02.05.2023 initiating disciplinary proceeding against the applicant is also quashed and set aside.
(c) Pending MAs, if any, stand closed.
(d) No order as to cost.
(e) Let a copy of the order passed be placed in aforementioned OAs.
(Rajinder Kashyap) (Justice Ranjit More)
Member (A) Chairman
/mk/