9911796707
TMI Blog2023 (12) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... s under: "11. Ordinarily a writ application does not lie against a chargesheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, chargesheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a chargesheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court. (Vide : State of U.P. v. Brahm Datt Sharma, AIR 1987 SC 943; Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh & Ors., (1996) 1 SCC 327; Ulagappa & Ors. v. Div. Commr., Mysore & Ors., AIR 2000 SC 3603 (2); Special Director & Anr. v. Mohd. Ghulam Ghouse & Anr., AIR 2004 SC 1467; and Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906). 12. In State of Orissa & Anr. v. Sangram Keshari Misra & Anr., (2010) 13 SCC 311, this Court held that normally a ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents, calling upon her to submit her version in connection with disposal of the appeal decided by her on February 13, 2015, in the case of M/s Mahaveer Infra Engineering Private Limited for Assessment Year 2011-12. 3. The petitioner submitted her reply on May 12, 2016 explaining the order passed in the said appeal. It was also her stand that the order passed by her, has been subsequently upheld by the Income Tax Appellate Tribunal (ITAT), vide its order dated January 11, 2017. 4. Thereafter, Charge Memorandum dated September 26, 2017, was issued to her by the respondents, proposing to hold an inquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 ('Rules of 1965', for short), wherein, three Articles of Charge were framed against the petitioner. She submitted her reply to the Charge Memorandum on October 30, 2017 and again on November 10, 2017. 5. According to the petitioner, the charges levelled against her cannot be construed as misconduct which requires imposition of major penalty by conducting disciplinary proceedings, as the order was passed by her in discharge of quasi-judicial functions as Commissioner of Income Tax (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided to the petitioner at all stages in the disciplinary proceedings, which were duly conducted in consultation with CVC and UPSC. 8. It was also their case that the Charge Memorandum has been issued by the disciplinary authority after considering all the facts and circumstances of the case. They justified the issuance of Charge Memorandum in the facts of the present case. 9. Whereas, the respondents had relied upon the following judgments in support of their case:- (a) Union of India & Ors. vs. Swathi S. Patil, Civil Appeal No. 3881 of 2007 (arising out of SLP (C) No. 17417 of 2006) decided on August 22, 2007; (b) Union of India & Ors. vs. K.K. Dhawan, 1993 AIR 1478; (c) Union of India vs. Benoy Gupta, 2002 (3) ATJ 7; (d) Union of India vs. Parma Nand, Civil Appeal No. 1709 of 1988, decided on March 14, 1989; (e) Union of India (UOI) and Ors. vs. Ashok Kacker, Civil Appeal No. 5208/1993 decided on 27.09.1993; (f) The Secretary, Ministry of Defence & Ors. vs. Prabhas Chandra Mirdha, Civil Appeal No. 2333 of 2007, decided on April 30, 2007; (g) State of Karnataka & Anr. vs. N. Gangaraj, Civil Appeal No. 8071 of 2014 decided on February 14, 2020; (h) Union of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1965, of affording at least 15 days time to the petitioner to submit her written statement of defense, before going ahead with the disciplinary inquiry, has been complied with (whereas, in this case, only 10 days were given to the petitioner). 12.4 As per Dr. Kothari, the aforesaid instructions have not been complied with, by the respondents, before going ahead with the disciplinary inquiry and thereby very jurisdiction of the disciplinary authority was challenged by the petitioner before the Tribunal. He submitted that the following jurisdictional issues were pleaded by the petitioner before the Tribunal: 12.4.1. Mistake of law or wrong interpretation of law done by a quasi judicial officer while exercising lawful jurisdiction, cannot be made basis for initiating disciplinary proceedings; 12.4.2. Charge Memorandum should have clearly revealed as to how the order passed by the petitioner could be treated as misconduct; 12.4.3. Initiation of disciplinary proceedings for carelessness, inadvertence or omission, whilst rendering orders, is not legally permissible, specifically when such an action is open to judicial review by way of an appeal; 12.4.4. There cannot be a Charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eciate that the petitioner was not seeking adjudication or review in the context of correctness or otherwise of the allegations levelled in the Charge Memorandum, before it, but she only wanted the Tribunal to examine whether in the facts and circumstances of the petitioner's case, the disciplinary authority had the jurisdiction to initiate the disciplinary proceedings. He submitted that the Tribunal clearly erred in equating the fundamental ground in the OA qua absolute 'lack of jurisdiction' with 'review of correctness or otherwise of the allegations', as made out in the Charge Memorandum. 18. He also submitted that the finding recorded by the Tribunal that 'there is limitation of powers of judicial review of Courts and Tribunal in disciplinary proceedings' is patently wrong and unsustainable because the Tribunal has relied upon the following judgments of the Supreme Courts while arriving at the said conclusion and the said judgments are clearly inapplicable in the facts and circumstances of the present case: (a) Parma Nanda (supra) (b) N.Gangaraj (supra) (c) Dalbir Singh (supra) (d) Prabhas Chandra Mirdha (supra) 19. He has submitted that the impugned order passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ITAT vide order dated January 11, 2017, when it upheld the order passed by the petitioner herein in an appeal filed by the respondents herein. 22. He has also relied upon the judgment of the Supreme Court in the case of Abhay Jain (supra) to state that the Supreme Court in this Judgment has held that mere suspicion cannot be construed as misconduct. He submitted that the inquiry officer in his report has specifically held that there is no allegation of corruption against the petitioner and on this basis only, the Charge Memorandum deserves to be quashed. He submitted that if Tribunal failed to acknowledge, that specifically in the context of a person discharging functions as quasi judicial officer, no charge memorandum can be said to be legal or justified, if such a charge memorandum does not allege malice or ulterior motive on the part of the delinquent officer. 23. He has also submitted that the Tribunal has also failed to consider the judgment passed by the High Court of Bombay in the case of Naipal Singh (supra), wherein, in the similar facts and circumstances as of this case, the High Court of Bombay quashed the charge memorandum framed against the petitioner therein. 24. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondents have also relied upon the copy of the statement recorded in the fact finding inquiry. As per Annexure-III of the Charge Memorandum, the respondents have relied upon the statement of one Kishore Jain and Pawan Agarwal, recorded during the preliminary inquiry to prove the charges. He submitted that neither Pawan Agarwal nor Kishore Jain were named as witnesses in the Charge Memorandum and in their absence, their statements cannot be taken into consideration. It is his submission that by mere production of documents, the charges cannot be proved, unless and until, such documents are proved by their author. He has relied upon the judgment of the Supreme Court in the case of Roop Singh Negi (supra) to contend that the Supreme Court in the said judgment has held that the documents are required to be proved by the witnesses and in the absence of witnesses, documents cannot be relied upon during the course of a departmental inquiry. It has been his case that the Charge Memorandum deserved to be quashed and set aside on this ground only. In other words, he submitted that the present petition needs to be allowed as there is no witness to prove the charges alleged against the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of the guilt of the charged employee; there is nonapplication of mind in issuing the charge sheet; if it does not disclose any misconduct; it is vague; it is based on stale allegations or when it is issued mala fide. 28. On the basis of the aforesaid submissions, Dr. Kothari prays that the present petition needs to be allowed, the Charge Memorandum dated September 26, 2017 and the impugned order passed by the Tribunal need to be quashed and set aside, respectively. SUBMISSIONS ON BEHALF OF RESPONDENTS 29. On the other hand the learned Counsel appearing on behalf of the respondents has submitted that the order dated April 20, 2022 passed by the Tribunal is well reasoned and as such warrants no interference by this Court, on the following grounds:- 29.1 It is his submission that by filing this petition, the petitioner is trying to enlarge the scope of challenge by going into the merits of the Charge Memorandum, just before the final view of the disciplinary authority; 29.2 He submitted that the case is at final stages and the advice of UPSC on the misconduct of the petitioner has already been examined and moreover, the approval of the disciplinary authority has already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 He also submitted that the judgment relied upon by Mr. Kothari in the case of Abhay Jain (supra) is altogether distinguishable from the facts of the present case; 29.11 It was his submission that the judgment in the case of Arindam Lahiri v. Union of India & Ors., W.P.(C) 13640/2006 decided on March 20, 2009 of the coordinate Bench of this Court is also distinguishable inasmuch as in that case, this Court was considering a case wherein inquiry proceedings were already concluded and moreover the punishment was already imposed upon the petitioner therein. However, in the present case the facts are completely different for the simple reason that the petitioner has not yet been imposed with any punishment; 29.12 He has submitted that the judgment in the case of Nai Pal Singh (supra) passed by the High Court of Judicature at Bombay is also very much distinguishable inasmuch as in that case the High Court of Bombay was dealing with a matter, wherein, the charge sheet was issued against the petitioner after much delay and also the inquiry proceedings were already completed. Further, the case of Sadhna Chaudhary (supra), is also distinguishable, inasmuch as, when the matter reached b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red certain material(s) to pass the impugned order against which the Charge Memorandum has been issued or the petitioner has exercised her quasi-judicial powers dishonestly or the case in hand was of misconduct and not just erroneous decision of law or fact. 32. It was the case of the petitioner before the Tribunal that the mistake of law or wrong interpretation of law committed by a quasi-judicial officer while exercising lawful jurisdiction cannot be made the basis for initiating disciplinary proceedings. The Charge Memorandum issued upon the petitioner, should have clearly contained allegations against the petitioner that the order passed by her reveals misconduct on her part. The carelessness, inadvertence or omission while rendering the order cannot be made the subject matter to initiate disciplinary proceedings, especially against a judicial or quasi-judicial officer. 33. It is also Dr. Kothari's submission that the Tribunal, without examining as to whether disciplinary authority had the jurisdiction to initiate disciplinary proceedings against the petitioner, has dismissed the OA. 34. Before we deal with the submissions made by Dr. Kothari, it is important to reproduce th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer like the appellant therein. It further held that 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 the quasi judicial order. Since nothing of that sort was alleged against the appellant therein, the impugned chargesheet was rendered illegal / quashed. 37. We may also highlight the following lines in paragraph 40 of the said judgment, which may have some bearing on the case in hand:- "40. When we talk of negligence in a quasi judicial adjudication, it is not negligence perceived as carelessness inadvertance or omission but as culpable negligence. This is how this court in State of Punjab & Ors. & Ors. vs. Ram Singh Ex-Constable [(1992) 4 SCC 54] interpreted 'misconduct' not coming within the purview of mere error in judgment, carelessness or negligence in performance of the duty...................." (emphasis supplied) 38. Perusal of the aforesaid paragraph would reveal that the Supreme Court has held that negligence in quasi-judicial adjudication is not negligence perceived as carelessness, inadvertence or omission but as cul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh Chander Singh (supra), the Supreme Court was concerned with the punishment imposed upon the appellant whereby the appellant was reduced to the rank of Civil Judge (Sr. Division) which was subsequently affirmed by the Division Bench of the High Court of Allahabad. The Supreme Court, in appeal, held that if the High Court were to initiate disciplinary proceedings based on judicial order, there should have been strong grounds to suspect officer's bonafides and the order itself should have been actuated by the malice, bias or illegality. Consequently, the judgment of the High Court was set aside and the appellant was directed to be posted to the cadre of District Judge. 42. In Krishna Prasad Verma v. State of Bihar, (2019) 10 SCC 640, on which reliance has been placed by Dr. Kothari, the first charge against the judicial officer / appellant, who was functioning as Additional Distt. and Sessions Judge, was, that he had granted bail to the accused person(s), notwithstanding the fact, that the bail petitions of the same accused person(s) were earlier rejected by the High Court. The second charge against the appellant was that he closed the prosecution evidence resulting in material w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 47,73,39,903.86 which leads to an inference that you were actuated by extraneous considerations and you thereby failed to maintain absolute integrity and complete devotion to duty and you thus committed misconduct within the meaning of Rule 3 of UP Govt. Servants Conduct Rules 1956. Charge No. 2 - That you on 7.11.2003 posted as Additional District Judge, Court No. 1, Ghaziabad, while deciding Land Acquisition Reference No. 91 of 2001 Umesh Chandra v. State of UP and 66 other cases enhanced the rate of compensation from Rs. 100/- per square yard determined by the S.L.A.O. to Rs. 160/- per square yard, illegally disregarding the exemplars filed by the Defendants including your own award in Land Acquisition Reference No. 1 of 1992, Surendra v. State of UP decided on 24.03.1993, for land acquired in the same year, in the same area and under the same scheme in order to award an additional amount of Rs. 28,53,24,896.80 to the claimants for land area 483 Bighas, 14 Biswas and 8 Biswansis leading to inference that you were actuated by extraneous considerations and you thereby failed to maintain absolute integrity and complete devotion to duty, and you thus committed misconduct within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that any probability of misconduct needs to be supported with oral or documentary material and this requirement has not been fulfilled in the present case. Accordingly, it allowed the appeal and set aside the impugned order of the High Court. 46. In the case of Union of India & Others v. Dolly Saxena, 2001 SCC OnLine Del 756, the facts are that the respondent was working as Collector of Customs and Central Excise at the relevant time and as such was adjudicating the cases under Central Excise Act. She was charged to have dropped proceedings against the assessee viz. M/s. J.K. Synthesis accused of evasion of customs duty of Rs.1.21 Crores or so. Inter alia, it was alleged that she was negligent and acted recklessly in discharge of her duties and as such acted contrary to the Conduct Rules, 1964. Against this, she filed the OA, claiming that she could not be subjected to disciplinary proceedings on a charge of misconduct while exercising her quasi judicial functions. The Tribunal on consideration of the matter found that the charges levelled against her were related to her alleged recklessness and negligence only and she was not charged of any other misconduct for showing favor t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating the order rendered by the respondent, did not find any merit in the said grounds and held that respondent had correctly appreciated the documentary evidence. Thereby, the Court also held that the department was unjustified in issuing a charge sheet in respect of Charge-2. Consequently, this Court held that, if the charge sheet is read meaningfully, it only sought to inculpate the respondent with reference to his acts performed in a quasi judicial functioning and accordingly the order passed by the Tribunal quashing the charge sheet issued by the department against the respondent, was upheld by this Court. 48. In the case of Arindam Lahiri (supra), this Court was concerned with a charge sheet issued to the petitioner, who was working as Commissioner of Income Tax (Appeals). While functioning as Commissioner of Income Tax (Appeals) (Central-IV) in Mumbai, a charge memo, containing two articles of charge, was issued to him with regard to the appeals decided by him. As per Article-1, it was alleged that he passed the order dated September 12, 1994, staying the recovery of demand, in respect of an assessee ignoring statutory requirements and also the decision of ITAT on the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K. Dhawan (supra), by holding that in the absence of any element of corrupt motives or ulterior motives, the disciplinary action against quasi-judicial/ judicial officers cannot be sustained and has set aside the charge sheet. The appeal preferred by the government against this judgment was rejected by the Coordinate Bench of this Court in the case of Union of India v. Akshay Bipin, MANU/DE/2503/2019, by holding that the Single Judge has rightly quashed the charge sheet and no infirmity was found in the ratio laid down by the Single Judge. 51. Insofar as the judgment of the High Court of Bombay in the case of Nai Pal Singh (supra) is concerned, the High Court set aside the memorandum of charges framed against the petitioner alleging various deficiencies in the order passed by him while he was posted as Commissioner of Income Tax (Appeals)-IV, at the relevant time. Relying upon the judgment of the Supreme Court in the case of K.K. Dhawan (supra), it was observed that there was no allegation of corrupt motive or corrupt practice attributed to the petitioner in the memorandum of charges. Accordingly, charges framed against the petitioner were set aside. 52. Having noted the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee company, M/s Mahaveer Infra Engineering Private Limited for A.Y. 2011-12 vide order dated 13.02.2015, granting relief on share capital premium of Rs. 14.25cr without examining the real nature of the credits in spite of clear admission from the assessee company itself that the transaction is a mere book entry for the purposes of window dressing and that the counter parties were not even aware of such cash credits being made in their name in assessee's books and further without considering the fact that the assessee failed to discharge the legal onus cast on it to explain not only the source visa-vis identity, credit worthiness and capacity of the creditor but also to substantiate the true nature and genuineness of the transaction. By her aforesaid acts, Smt. Alka Rajvanshi Jain has failed to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a Government servant and thereby contravened the provisions of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964 ARTICLE-III That, Smt. Alka Rajvanshi Jain while functioning as CIT(A)-2, Jodhpur, Rajasthan from 19.12.2014 to 22.06.2016 decided the income tax appeal of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the AO and the repeated failure of the assessee to substantiate its claim on the issues under appeal is inexplicable. The hurried manner in which relief was granted by Smt. Alka Rajvanshi Jain, the then CIT(A)-2, Jodhpur on the issue of sub-contract expenses of Rs. 98.05 crore on the basis of unsigned contracts filed before her by merely relying on the judicial pronouncements cited by the assessee even after being pointed out by ACIT that they are not applicable to the facts of the assessee is therefore, found to be a clear case of dereliction of duty and failure to maintain absolute integrity on her part. Such acts do not come within the purview of the mere error in judgment, carelessless negligence in performance of the duty but a case of culpable negligence, and failure to maintain devotion to duty as per Rule 3(1)(ii) of the CCS (Conduct) Rules, 1964." (emphasis supplied) 56. We have already noted that the Supreme Court in the case of Zunjarrao Bhikaji Nagarkar (supra) has held that the negligence in case of quasi-judicial adjudication is not perceived as carelessness, inadvertence or omission, but as culpable negligence. In other words, if the view of the competent auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of interest expense of Rs. 36,88,347/- attributable to the interest free advances given by the assessee. 3.30 By her aforesaid acts, Smt Alka Rajvanshi Jain has failed to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a Government servant and thereby contravened the provisions of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964." 59. It may be stated, at this stage, that Dr. Kothari has heavily relied upon the fact that the order passed by the petitioner has been subsequently upheld by the ITAT. We are informed that the department has filed the Appeal against the order of the ITAT, before the Division Bench of the High Court of Rajasthan being IT Appeal No. 126/2018 and the same is pending consideration there. In that sense, the order passed by the petitioner has not attained finality. 60. Having said that, what is important is, that pursuant to the issuance of Charge Memorandum dated September 26, 2017, the disciplinary proceedings have been completed. The UPSC advice has also come. The petitioner has been given a copy of the UPSC advice and Inquiry Report. She has also submitted her representation on the Inquiry Report. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
