TMI Blog2009 (3) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... y also take note of Para 12.2 of the Government Instructions dated 30.8.1990 as per which, when the employee is found fit for promotion, notwithstanding the penalty, such promotion is to be given after the currency of the penalty. Moreover, had the intention of ACC was to deny the promotion outright, even when DPC had recommended the case of the respondent for promotion finding him "fit", as per the procedure ACC would have sent the matter back to the DPC, which was not done. Appeal dismissed. - WP (C) No. 13640 of 2006, WP (C) No. 7054 of 2009, WP (C) No. 13640/2006 - - - Dated:- 20-3-2009 - A. K. Sikri And Suresh Kait,JJ. For the Petitioner : Mr. P. S. Patwalia, Sr. Advocate with Mr. D.C. Pandey and Mr. Piyush Sharma, Advocates For the Respondents : Mr. H. K. Gangwani with Mr. Ashwani Bhardwaj, Advocates ORDER A. K. Sikri, J. 1. Subject matter of the afore-mentioned two writ petitions is different. In the petition filed by Shri Lahiri, challenge is to the penalty imposed upon him by the respondents therein after holding a departmental inquiry. His OA in this behalf has been dismissed by the Tribunal and, therefore, he has come up to this Court challenging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand in the above mentioned case ignoring statutory requirements and also the decision of ITAT on the same issue for A.Y. 84-85 to 86-87 and acted in a manner which was detrimental to the interest of revenue. By above acts of misconduct Shri A. Lahiri has failed to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of Government Servant and thereby violated provisions of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of CCS (Conduct) Rules, 1964. Article-II That during the aforesaid period and while functioning in aforesaid office, the said Shri A. Lahiri decided appeals by passing perverse and malafide orders in the cases of (i) GTC Industries Ltd. (ii) Simplex Enterprises, (iii) Ashok Rupani and (iv) Hindustan Transmission Projects. The orders passed by him were prejudicial to the interest of revenue as material evidence on record was ignored and assessing officer was not given opportunity as required u/s. 250 of I.T. Act to represent revenue‟s case. By above acts of misconduct Shri A. Lahiri has failed to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a Government Servant and thereby violated provisions of Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner had shown favours to those assessees. There was no evidence at all to implicate the petitioner and prove that he had shown any such favours to the said assessees while deciding the appeals. He submitted that the entire matter was to be examined keeping in view one important element, namely, the appeals were decided while discharging quasi-judicial functions and applying the test laid down by the Supreme Court while dealing with the charges relating to discharge of quasi-judicial function, on mere apprehension/doubts, such quasi-judicial authorities could not be proceeded departmentally. He pitched it to be a case of No Evidence‟. 7. To buttress this submission, Mr. Patwalia referred to the advice of the UPSC wherein the UPSC itself had only conjectured to rope in the petitioner, conceding at the same time that there was no direct evidence to establish that the petitioner had shown any favour to the said assessees. 8. Mr. Patwalia also pointed out that Article of Charge No.I related to the orders of stay of demand granted by the petitioner in the appeal filed by M/s. GTC Industries Ltd. Specific allegation was that while doing so, he ignored statutory requirements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unting to circumvent the fall out/consequence of the order dated 05.09.1994 passed by the Bombay High Court in CWP No. 1805 of 1994 directing that evidence of witnesses who have not been put to cross-examination to the assessee shall not be relied upon the department in excise proceedings having vital bearing to the Income Tax Proceedings also being one and similar. The same principle has been reiterated by the High Court vide order dated 31st July 1995 passed in CWP No. 707 of 1995 qua proceedings under the Income Tax Act. Further the coercive proceedings were in direct contravention to the Ld. ITAT Order dated 9.2.1989 in the case of M/s. GTC Industries itself pertaining to assessment year 1984-85 wherein the matter was remanded to the CIT (Appeal) for compliance with directions. Consequently the order dated 12.9.1994 had been passed by the petitioner following the proposition of law and directions contained in the orders passed by the Bombay High Court and the Ld. ITAT Orders. The other contention that the proposal of assessee to liquidate the demands in installments before the CIT (Admn.) was also not correct. As held by the Kerala High Court in the case reported as 221 ITR 502 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifying the full facts and the correctness of the assessee‟s submission. Likewise, in the case of Ashok Rupali, the charge was that the petitioner passed the orders without correctly examining the facts and considering the new evidence without giving an opportunity to the Assessing Officer. Mr. Patwalia, learned senior counsel, reiterated that in the absence of any motive, etc. these could not be treated as the charges of misconduct against a person who was discharging quasi-judicial function. 14. On merits qua each allegation, the explanation of the petitioner was as under :- In terms of Section 119 of the Income Tax Act, even the board has not been authorized to interfere with the exercise of power and jurisdiction of CIT (Appeal) and thus the allegations so made are misplaced. Even otherwise the hearing in the appeal pertaining to M/s. GTC Industries had concluded on 18.10.1994 and the orders were reserved which had been pronounced on 20.10.1994. Thus even otherwise assuming, without admitting the veracity and legality of such contentions in any manner, that the jurisdiction was supposed to have been transferred in terms of Circular issued on 18.10.1994 when the hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all. 15. Explaining the appeal decided in Ashok Kumar Rupani‟s case, the petitioner submitted that it was wrong imputation that he relied upon the statement/order of the FERA Authorities while deciding the appeal and thus allowed additional evidence in violation of Rule 46A of the Income Tax Rules. The ITO had relied and had referred to the proceedings before the FERA Authorities as is clear from question No. 13 appearing in this Assessment Order. Consequently the violation as alleged are absolutely not made out and is rather false and misplaced. The petitioner vide his detailed appellate order, deleted the entire addition made by the AO amounting to Rs.1.07 crores accepting the assessee‟s arguments and the findings of the FERA authorities that Shri Rupani was only a go between in these transactions and was not involved in any way in his personal capacity. 16. As regards the contentions raised by the respondents pertaining to the appellate orders passed by the petitioner in the cases of M/s. Simplex Industries is concerned, submission was that the petitioner had passed the order based upon the applicable provisions of laws relevant for the case in hand. As noticed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was ultimately imposed, namely, reduction of 3 stages in the time-scale for a period of three years in 2004 had its affect till 7.10.2007. Had it been imposed immediately after the conclusion of the inquiry, it would have been over much before the petitioner was considered for promotion to the post of Chief Commissioner of Income Tax in the year 2005 and would have been granted promotion as he was found fit for promotion by the DPC. Legal submission was that because of delay the punishment be quashed in view of the following judgments of the Supreme Court :- (i) P.V. Mahadevan v. MD, T.N. Housing Board (2005) 6 SCC 363 (ii) State of A.P. v. N. Radhakishan (1998) 4 SCC 154 (iii) State of M.P. v. Bani Singh 1990 (Supp.) SCC 738 (iv) M.V. Bijlani v. Union of India (2006) 4 SCC 88 Alternatively, he submitted that even if such a penalty is to be maintained, it should be ante-dated so as not to effect the promotional chances of the petitioner, as held in :- (i) Major Singh Gill v. State of Punjab 1992 (1) SCT 436 (ii) State of Punjab v. Major Singh Gill 1994 (1) SCT 811 (iii) Shiv Kumar Sharma v. HSEB Ors. AIR 1988 SC 1673 (iv) FCI v. S.N. Nugarkar 2002 (1) SCT 1049 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a hasty, biased and non judicious manner as has already been reflected in the penalty order. There was sufficient material on record and the petitioner was found guilty on the principles of preponderance of probability and the petitioner had failed to show any prejudice caused to him, from any action of the IO. In fact from the conduct of the petitioner it is clear that the petitioner had been too eager to oblige the assessees without taking a judicious approach and passing orders in a hurry before the date on which the jurisdiction over the case was to be withdrawn from him which shows his bias in favour of the assessees. The department had no option but to go in appeal to the higher authority in the cases decided by him. The disciplinary proceedings have been held in accordance with the rules and the Inquiry Officer has come to the conclusion based on the relevant reports and documents which form part of the case. The petitioner has been afforded reasonable opportunity to defend himself and the penalty awarded is justified. 20. Referring to various judgments of the Supreme Court, he argued that in such circumstances, even a quasi-judicial authority whose action is not bona fide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efuted the contention that the disciplinary authority did not have any material or evidence for recording the finding. Referring to the judgment of the Supreme Court in State of Orissa v. Bidya Bhushari Mohapatra, AIR 1963 SC 779, he submitted that the Court had pointed out that an order of punishment can be supported on any finding as to the substantial misdemeanor which the punishment can lawfully be imposed and it was not for the court to consider whether that ground alone would have weighted with the authority in dismissing the public servant. In the decision in Krishna Chandra Tandon‟s case, (1974) 4 SCC 374, the Apex Court has also observed that if an allegation or two fell, it hardly mattered if the order could be supported on other counts. In the present case, there is sufficient material on record for coming the view that this cannot be said to be a case of "No Evidence". He pleaded that so long as the findings are based on evidence, this Court would not like to interfere in the present case. We have considered the respective submissions 23. LEGAL POSITION The petitioner acted in a quasi-judicial authority in passing orders of stay in one case or deciding appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrupt motive, however small the bribe may be. 25. The Apex Court also added immediately thereafter that the aforesaid instances were exhaustive and made following pertinent observations in this behalf :- "29. The instances above catalogued are not exhaustive. However, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated." 26. While the aforesaid principles are not difficult to fathom, it is the application of these principles in given cases which may become a thorny issue. In the present case itself the department has tried to allege that the manner in which the orders were passed by the petitioner, it manifests that he acted in order to unduly favour those assessees. At the same time, it is also accepted by the department that there is no evidence or even allegation that the petitioner was actuated by corrupt motive or he had acceded his statutory powers while passing those orders. 27. Before dealing with the issue as to whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and two persons had been shot dead in a crowded area next to the Collectorate at Jhansi and the accused were named in the FIR as well as in the dying declaration and the bail applications having been considered and rejected twice on merits by the respective courts, the third bail application granted by the charged officer in utter disregard of the judicial norms and on insufficient grounds appeared to be based on extraneous considerations. The Supreme Court, in the aforesaid conspectus, formulated the following issue which needed determination: "8. The question for consideration is whether the appellant had granted bail on insufficient grounds or was justified in passing such an order..." The Apex Court thereafter observed that granting of bail to the accused, pending trial, is one of the significant judicial functions to be performed by a judicial officer. Neither the State nor the complainant had filed appeal against the bail order passed by the appellant. The State had also not alleged that the accused, who had been granted bail, was likely to abuse his bail or likely to abscond. Commenting upon the reasons given by the Inquiry Officer, the Apex Court noted the following mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... major penalty were initiated under Rule 14 of the CCS (CCA) Rules, 1965 against the appellant. The charge against him was that he, while working as Collector/Commissioner, Central Excise, "passed an Order-in- Original... in which he had favoured (an assessee party) by not imposing any penalty on the said party even though he had held that (the party) had clandestinely manufactured and cleared the excisable goods and evaded the excise duty willfully. (The appellant) thus failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a government servant and contravened Rules 3(1)(i) and (ii) and (iii) of the CCS (Conduct) Rules, 1964." The appellant ordered imposition of excise duty and confiscation of the goods but his Order-in-Original was silent about imposition of penalty. The Supreme Court on reviewing the legal position regarding imposition of penalty, concluded that the appellant had no discretion not to impose penalty though he had discretion to decide quantum of penalty. His approach in not imposing penalty was therefore not in conformity with the law. The Court however considered the question whether mistaken view of law itself was sufficie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quashed. To maintain a charge- sheet against a quasi-judicial authority, something more has to be alleged than a mere mistake of law, e.g. in the nature of some extraneous consideration influencing quasi-judicial order. Since nothing of the sort is alleged herein, the impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will impinge upon the confidence and independent functioning of a quasi- judicial authority. 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 constant threat of disciplinary proceedings." On the aforesaid analysis, the Supreme Court was of the opinion that no case for initiation of any disciplinary proceedings against the appellant therein had been made out and the penalty imposed upon him. 32. This case came up for discussion before the Supreme Court in Union of India Ors. v. Duli Chand, (2006) 5 SCC 680. Following passage therefrom was relied upon by the learned counsel for the respondent to argue that the ratio of Naga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings would ultimately harm the judicial system at the grass root level." (ii) Inspector Prem Chand v. Govt. of NCT of Delhi Ors. (2007) 4 SCC 566 "11. A finding of fact was arrived at that the accused did not make demand of any amount from the complainant and thus no case has been made out against him. This Court in Zunjarrao Bhikaji Nagarkar v. Union of India and Ors. (1999) 7 SCC 409, has categorically held: 42. Initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. 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." 34. All these cases, and precisely the issue whether Nagarkar (supra) stands disapproved by the Supreme Court in subsequent judgments, has been discussed by the Madras High Court in its i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3;s case was approved and resolved the dactylonomy in the following manner :- "14. Once again, in this matter also, there is no reference to the earlier three Judge Bench judgment in Duli Chand‟s case. However, since Nagarkar‟s case was found to be contrary to the earlier judgment of the Supreme Court in K.K. Dhawan case wherein the Supreme Court had laid down six instances under which a Government servant discharging quasi-judicial function can be proceeded in a disciplinary action (which have been already extracted). We will have to apply those facts also in the present case. But the subsequent judgment in Ramesh Chander Singh case (cited supra), K.G. Balakrishnan, CJ had referred to Nagarkar‟s case and quoted it with approval. Ultimately, the decisions will have to be applied depending on the fact situation of each case. 15. Therefore, if the decisions in K.K. Dhawan case, Nagarkar case, Duli Chand case, Ramesh Chander Singh case and Inspector Prem Chand case are read together, it is necessary that before initiating disciplinary action, the Department must have a prima facie material to show recklessness and that the officer had acted negligently or by his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for stay was put up to him directly and he passed orders on the same day without giving an opportunity to the Assessing Officer or obtaining the comments of the Administrative Commission. He also did not verify the facts mentioned by the assessee. The Commission note that it is indeed astonishing that the CO granted a stay on demand to the tune of Rs.85,64,58,769/- on the same day on which the application was filed without taking into consideration the version of the Assessing Officer and without fully considering the merits of the case. However, there is no evidence on record to prove that the CO granted the stay for some considerations. However, the haste and the manner in which the CO disposed of the applications does create a serious doubt regarding his intentions in passing such an order. The Commission, in view of these facts, consider Article-I of the charge as proved. (Emphasis supplied)" Thus, the authorities are mainly influenced by the fact that the petitioner passed the orders on the said application on the same day without giving an opportunity to the Assessing Officer or obtaining the comments of the Administrative Commissioner and without verifying the facts me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is course of action, in his wisdom, the petitioner chose to decide the appeals finally at an early date so that stay does not remain in operation for long period. Once the matter is to be looked into from this perspective, which we feel is the right perspective having regard to the law laid down by the Supreme Court in various judgments noted above, we feel that the finding of the disciplinary authority is based on presumptions and surmises. We may hasten to add that the power of judicial review over such decisions of the disciplinary authorities is limited and courts are not to sit as appellate authorities, as rightly pointed out by the learned Tribunal. At the same time, it cannot be denied that the court has the power to examine as to whether there is any evidence worth the name which may connect with the specific charge levelled against the delinquent employee. We are of the opinion that except some doubts, there is no other evidence to show mala fide intention on the part of the petitioner in deciding the say application of the assessee. Moreover, for this purpose we have not made any attempt to go through the evidence ourselves like the appellate authority, but have gone by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the miscarriage of justice and the appellate orders passed by him have a definite bias towards the assessee and against the Department." 42. On the aforesaid comments, we are constrained to make the following observations :- a) It was not even a charge against the petitioner that he had decided most of the appeals in favour of the assessees and against the department or that he had decided 12 appeals during short period from 17 to 21st October 1994. Thus, extraneous material is brought on record which has influenced the decision making process. b) For want of any allegation to this effect in the charge memo, the petitioner was denied any opportunity to explain the circumstances. c) Merely because the petitioner decided more appeals in favour of the assessees and against the department, because of which the department had filed second appeals, cannot be a ground to doubt his intentions. d) That apart, allegation is that while passing those orders, the conduct of the petitioner was prejudicial to the interest of the Revenue "as material evidence on record was ignored and AO was not given opportunity as required under Section 250 of the Income Tax Act to represent Revenue& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessing authority ignoring the material facts. These additions were on account of suppression of sales and on account of unsecured loans. We find from the report of the Inquiry Officer that entire comments related to the merits of the case, which give an impression that according to the Inquiry Officer, appeal should not have been decided in that manner. As far as the merits of the case are concerned, the department has filed an appeal in the ITAT. This, therefore, could not have been the basis of charge even if the decision of the petitioner, on merits, is wrong. 45. In respect of assessment in the case of Mr. Ashok Rupani, it is pointed out that while deciding the appeal, the petitioner had considered the statement given by Mr. S.K. Neotia before the FERA authorities. This statement was not referred to by the Assessing Officer in the assessment order. Therefore, the petitioner should have given an opportunity to the Assessing Officer while adducing additional evidence and by not doing so, the petitioner violated Rule 46-A of the 1956 Rules. If the petitioner failed to notice the provisions of Rule 46-A of the Income Tax Rules, 1956 and passed the order based on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the disciplinary authority, are set aside. Fresh orders shall be passed by the disciplinary authority within four weeks. No order as to costs. 48. WP (C) No. 7054/2009 Mr. Arindam Lahiri is the respondent herein and is due to retire on 31.3.2009 when he attains the age of superannuation. Before his retirement, he aspires to become Chief Commissioner of Income Tax, which is the next promotional post. He became eligible to be considered for this post against the vacancies of the year 2004-05. The DPC, which considered his case for promotion in its meeting held on 25.11.2005, found him fit‟ for promotion. But his name for inclusion in the panel for promotion was not approved by the Appointing Committee of the Cabinet (for short, ACC‟) because of the reason that he had been inflicted with penalty of reduction in time-scale of pay, which was imposed after holding a departmental inquiry vide orders dated 7.10.2004. Though this penalty was for a period of three years and expired on 7.10.2007, the respondent was denied promotion even after the period of the said penalty was over. In the interregnum, as many as 55 persons junior to the respondent have been promoted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2005 in this behalf, which was prepared for ACC under the signatures of Shri B.K. Chaturvedi, the then Cabinet Secretary, reads as under :- "3. The officer at Sl.No. 01 of the panel for the year 2004- 05, Shri Arindam Lahiri does not appear to be suitable for promotion as a penalty of reduction of pay was imposed on the officer as recently as 7th October, 2004." 52. It may be pointed out at this stage that DPC in its meeting held on 25.11.2005 also undertook the exercise in respect of vacancies for the year 2005-06 as well. However, the respondent was found fit‟ for promotion against vacancies of the year 2004-05, his case was not even considered for promotion by the DPC against the vacancies of the year 2005-06. For filling up of the vacancies of the year 2006- 07, DPC was convened on 29.9.2006. The case of the respondent was considered, but result kept in sealed cover on the ground that there was no vigilance clearance given in his case (though during the course of arguments before the Tribunal, it was admitted by the petitioners that reason for keeping the DPC result in sealed cover was imposition of penalty vide orders dated 7.10.2004 for period of three years and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial review, which was limited to the decision making process and in this case it could not be shown as to how the decision of the ACC, the appointing authority, was vitiated on account of the decision making process. To buttress his aforesaid submissions, learned counsel placed strong reliance upon the following judgments:- (i) Shankarsa Dash v. Union of India (1991) 3 SCC 47 "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sealed cover if, according to the Tribunal, not giving effect to the findings in the sealed cover even when a penalty is imposed, amounts to double jeopardy. However, as we read the findings of the Tribunal, it appears that the Tribunal in no case wants the promotion of the officer to be deferred once the officer is visited with a penalty in the disciplinary proceedings and the Tribunal desires that the officer should be given promotion as per the findings in the sealed cover. 29. According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An empl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supp (1) SCC 1 "18. It will be clear from the above that the recommendations of the DPC are advisory in nature. Such recommendations are not binding on the appointing authority. It is open to the appointing authority to differ from the recommendations in public interest. That is beyond doubt. 19. Notwithstanding the fact that it is open to AAC which alone is the appointing authority and not the Minister concerned, as urged by the respondent to differ from the recommendations of the DPC, it must give reasons for so differing to ward off any attack of arbitrariness. Those reasons will have to be recorded in the file. It requires to be stated at this stage that we have perused the file in the instant case. We find no reasons have been recorded for differing from the recommendations of the DPC. That is why the tribunal also inter alia observes in the impugned judgment as under : "However, the counsel for the respondent felt helpless in the matter and he failed to provide us any inkling of what prevailed with the ACC in dropping the petitioner and four others out of the select panel of 59 officers." (iv) Union of India and Others v. Kali Dass Batish Anr., (2006) 1 SCC 779 "15. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n arises. They will take into account the circumstances leading to the imposition of the penalty and decide whether in the light of overall service records of the officer and the fact of the imposition of the penalty, he should be considered for promotion or not. Even where the Committee considers that despite the penalty the officer is suitable for promotion, the officer may be promoted only after the currency of the penalty." 57. On the basis of the aforesaid provision, his submission was that the suitability of the respondent for promotion to the post of Chief Commissioner of Income tax was to be assessed by the DPC after taking into account the circumstances leading to the imposition of the penalty. 58. Having regard to the said penalty as well as the overall service record of the respondent, it was for the DPC to consider as to whether the respondent was fit for promotion or not. It is obvious that even after taking into consideration the circumstances which led to imposition of the penalty, the DPC found the respondent Fit‟ for promotion. When seen in this context, it would be obvious that the ACC did not approve the recommendation of the DPC only for the reason th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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