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4. Applicant who joined the Revenue Service in July 1974 was promoted as an Additional Commissioner of Income Tax and was posted at Calcutta from August 1997 to November 1997. In November, 1997 applicant was promoted as Commissioner of Income Tax, New Delhi and posted on appellate jurisdiction where he continued to perform quasi-judicial functions upto July 2002. From 1985 to 1997 the applicant during his tenure at Calcutta held the post of Additional Commissioner of several ranges and at a particular time was posted as Additional Commissioner Range-10, two charge-sheets issued to him have since been quashed by the Tribunal in OA-989/2003, decided on 14.11.2004 and also in OA-6/2006 by the Calcutta Bench on 27.7.2007. The DPC held for promotion to the post of Chief Commissioner of Income Tax on account of the chargesheet issued on 25.4.2004 the findings have been placed under sealed cover. A charge memorandum under Rule 14 of the CCS (CCA) Rules, 1965 was issued by the competent authority on 25.2.2004 on the allegations pertaining to the year 1996, alleging misuse of official position in issuing unlawful direction to an Inspector to conduct a sham enquiry in case of an assessee and also M/s Anand Bazar Patrika. It is also alleged that he colluded with M/s Distribution Media to conduct a sham enquiry and preparation of report to favour the assessee. It is further alleged against applicant that a report prepared by applicant on the basis of an enquiry was favorable to the assessee. Lastly, it is alleged that the applicant after an inordinate delay when he no longer held the charge of Range-10, he forwarded a copy of the report to the CIT WB-VIII, acting beyond jurisdiction. A detailed enquiry was conducted, whereby a disagreement has been arrived at with the finding of the enquiry officer (EO) in respect of articles I and II of the charge, whereas the same are held to be proved but simultaneously articles of charge III and IV when partly proved by the EO without taking a tentative view a disagreement has been arrived at, to fully prove the charge and without waiting for the representation of the applicant the matter was referred to the Central Vigilance Commission (CVC) for its 2nd stage advice and on being tendered on 24.11.2006 the representation of applicant was sought for, which when filed, the applicant has approached the Tribunal whereby on a reference and the view taken by the disciplinary authority (DA) in disagreement instead of being tentative is a pre-determined view to inflict a major penalty, notices were issued, as it is not disputed that no final order as yet was passed in the disciplinary proceedings.

6. Conclusion In view of the above discussions and for the reasons and to the extent discussed above the disciplinary authority does not agree with the IOs findings in relation to Articles I to IV of the charge sheet and is of the view that Articles I, II, III and IV stand fully proved

7. The matter was referred to the Central Vigilance Commission (CVC) alongwith the above views of the DA, recommending that th case warrants imposition of a suitable major penalty on the CO. The CVC in their stage advice conveyed under its OM dated 24.11.2006 has concurred with the CBDT and has advised imposition of a suitable major penalty on the CO. A copy of the CVCs advice is enclosed with this communication.

8. Shri B.S. Sondhi CIT is hereby allowed an opportunity to furnish his comments/representation, if any on the IOs report the Disciplinary Authoritys disagreement therewith and the CVCs advice dated 24.11.2006. the comments/representation should be furnished in writing, so as to reach the undersigned within 20 days of the receipt of above communication falling which it shall be presumed that the CO has nothing to state in the matter.

16. As we find that the import of the order on liberal construction is that the DA has disagreed only with articles I and II of the charge but has not decided to disagree with articles III and IV, yet its disagreement on articles III and IV of the charge is without making mind on application, as such this disagreement on articles III and IV without showing any intention specifically in the order is beyond its jurisdiction and cannot be countenanced in law.

17. Another aspect of the matter, which is to be examined, is that as per the laid down methodology under Rule 15 of the CCS (CCA) Rules, 1965, which empowers the DA to pass order as per CVCs circular letter dated 28.9.2000 but CVCs advice is to be sought at two stages, firstly on issuance of the chargesheet and secondly for second stage advice either on receipt of the reply to the chargesheet or on receipt of the enquiry report. From the perusal of disagreement Note, it appears that the enquiry report has not been sent by the DA to the CVC immediately on receipt from the EO, yet the disagreement arrived at without being commented upon by the applicant and without the representation being appended with it, what has been sent to CVC for tendering their 2nd stage advice, which ultimately was delivered on 24.11.2006, is sane reply on representation by the applicant. Accordingly, the CVC recommended for imposition of a suitable major penalty only on the basis of the enquiry report and the disagreement Note of the DA. This has prejudiced the applicant on deprivation of a reasonable opportunity, as though the advice of the CVC is not binding, yet has an influence over the DA after consultation with the Union Public Service Commission (UPSC) to impose a major penalty. The comments offered by the applicant have been left without consideration by the CVC. This tendering of advice may not be mandatory, but without the defence of the applicant to the disagreement Note, it cannot be acted upon in law.