2024 (9) TMI 24 - HC - Income Tax

Misconduct of duty by Additional Commissioner of Income Tax - Penalty of dismissal from service imposed by the Disciplinary Authority on the petitioner for his acts of misconduct - whether sledgehammer has been used by the State in this case to crack a nut? - In the year 1976, petitioner was appointed as Income Tax Officer, Group A in Junior Time Scale after he successfully qualified the All India Civil Services Examination. Over a period of time, petitioner earned promotions and became Deputy Commissioner of Income Tax, posted at Bombay. On account of his ill health and medical treatment at AIIMS, New Delhi, the petitioner was transferred to Delhi at his request on compassionate grounds as Officer on Special Duty till 20.11.1989, after which he was posted as Deputy Commissioner (Exemptions) at Delhi with charge over 74 trusts within his jurisdiction. Petitioner received letter from ACIT, calling him upon to furnish the CBI details of various properties belonging to one Romesh Sharma, a henchman of Dawood Ibrahim. Petitioner issued summons u/s 131 of the Income Tax Act and also wrote a letter to the Recovery Officer to attach the helicopter of Romesh Sharma so as to ensure that the same was not used by the political parties. The said Romesh Sharma had voluntarily disclosed his assets worth Rs. 51,00,000/- under the Voluntary Disclosure Scheme, though the said assets did not belong to him. Being a patient of acute angina and depression, the petitioner was finding it difficult to work so he submitted leave application on 12.10.1998, which leave was sanctioned and was extended later. By way of order petitioner was suspended from service in contemplation of departmental enquiry on the allegations of misconduct unbecoming of a government servant - Memo of Charge was served on the petitioner, alleging that while posted as Additional Commissioner of Income Tax he remained unauthorisedly absent from duty during the period from 09.11.1998 till the date of suspension (19.06.2000) and performed other acts of insubordination related thereto, reflecting lack of devotion to duty; and further alleging that he gave statements to the press and electronic media irresponsibly without authority and recklessly on sensitive issues even on matters of government policies, constituting acts of indiscipline unacceptable from any government servant. HELD THAT - Two charges of misconduct stand admittedly proved against the petitioner viz, unauthorised absence for the period from 09.11.1998 to 19.06.2000 (the date of his suspension from service) and his unauthorised scandalous communications with media which created avoidable controversies with potential of generating cynicism against the government. What is to be considered by us is as to whether any reasonable employer would have imposed the punishment of dismissal from service on the petitioner for his said acts of misconduct? - The unauthorised absence of the petitioner from duties was not for a period of a day or two or a week or so. The absence was for much prolonged period from 09.11.1998 to 19.06.2000. Even according to his own pleadings, the petitioner availed leave for a fairly long period, till 06.11.1998 with next two days being suffixes and admittedly he could not cope up with work pressure. If he was ill, nothing prevented him from seeking further leave. Rather, in response to letter dated 04.02.1999 of the respondents, calling him upon to explain his unauthorised absence and for a failure to hand over charge, the petitioner stated that on 16.02.1999 he had been advised medical rest for backache and that he had applied for medical leave for the period from 20.10.1998 and had sought extension thereof till 14.02.1999. It would also be significant to note that the petitioner in the said letter, seeking extension of medical leave till 14.02.1999, ante-dated the letter to 01.12.1998, and dispatched the same on 12.01.1999 as reflected from the postal record of PO, Vasant Kunj. The petitioner also claimed in the said letter that he had sought extension of leave up to 04.12.1998 by way of earlier letter. But no such earlier letter had ever reached the respondents. Not only this, neither the medical certificate nor the leave application in prescribed format was sent by the petitioner ever. The said unauthorised absence of the petitioner across such prolonged period of time has to be also seen in the light of high profile nature of his duties. It would also be very significant to note that during the said period of unauthorised absence, reason whereof is sought to be explained by the petitioner as backache, it is not that the petitioner was bedridden and was unable to submit leave application; as mentioned above, even during this period of unauthorised absence, petitioner was engaged in tirade against the government through his interactions with media and was making obnoxious and scurrilous statements against the government. And all these factors have to be kept in mind while testing as to whether any reasonable employer would or would not have imposed the punishment of dismissal from service on account of such acts of misconduct. Coming to the second article of charge proved against the petitioner, the petitioner despite being a government servant engaged himself in slanderous campaign against the government and made scandalous statements to the media, which statements owing to his high position in the taxation machinery enjoyed high acceptability by media and public as credible information, thereby damaging the reputation of the government in the eyes of public. Some such scandalising statements made by the petitioner to the media were that he had personal knowledge about disclosure of concealed income under the VDIS by several test cricketers including a disclosure of hidden income of Rs.16 crores by a test captain; that the said disclosures are sufficient reason for initiating investigation against all cricketers who played for India over last 10 years and in this regard someone should file Public Interest Litigation (though he was not authorised to deal with VDIS declarations and information provided by him was wrong or misleading); that the Chief Minister was leading a personal campaign against him to protect the interests of Romesh Sharma and in that regard, he had written to the Chief Election Commissioner; that there were other allegations, casting aspersions on the motive and conduct of the then Chief Minister of Delhi and Chief Commissioner Income Tax, behind his transfer; that there were corruption related transfers in the government and payment of huge dowry to government servants owing to their potential to earn money illegally; that the Chief Minister of Delhi was siding with the tax evaders; that there was nexus between the film industry and criminal mafia which led to attack on film star Rajesh Roshan; that Income Tax Department had unearthed Rs. 10,000 crores invested by mafia in the film industry, out of which only Rs. 100 crores was declared by the film producers in their income tax returns; that kidnappings, extortions and murders were being committed with the knowledge of Government of India and Maharashtra Government; that one Secretary was caught in a hotel room with the keep of mafia king Dawood Ibrahim and the Home Secretary had approached Dawood to harm the actress Manisha Koirala to benefit some other heroine and tape recorded conversations was available with CBI; that in Jain Hawala case, the CBI had deliberately not taken appropriate action and had not placed full facts before the Supreme Court; that the CBI deliberately concealed from Supreme Court statements of the politicians whereby they had accepted on oath under the Income Tax Act having received money from Jain Brothers; that there were many loopholes in VDIS of CBDT, which were abused by certain foreign agencies or some underworld people; and that there were acts of criminal misconduct on the part of Revenue Secretary in the matters related to VDIS. Those scandalous statements were made by the petitioner through interviews to various popular media entities including the Hindustan Times, the Times of India, the Zee TV, the DD (Metro), the Zee News, the Business Today, the Economic Times and the CNBC etc. Going by the described acts of misconduct committed by the petitioner, we are unable to believe that no reasonable employer would have dismissed him from service by way of penalty. We are unable to find the punishment of dismissal imposed on the petitioner as the one that could shock conscience of any court. We are of the considered view that no lesser punishment than dismissal from service would be commensurate to the gravity of the multiple acts of misconduct described above. Even if there were no restraints on this court exercising judicial review of punishment order, we would not find any other punishment proportionate to the acts of misconduct committed by the petitioner. A person castigating their employer through a constant tirade of false and scandalous allegations does not deserve to continue in the employment of the said employer. So far as consideration of past service record of the petitioner is concerned (on which learned counsel for petitioner laid strong emphasis), suffice it to record that petitioner s own pleadings cited above and also the extracted statements of imputations reflecting repeated suspensions for his other acts of misconduct would fail to help his cause here. As reflected from the above extract earlier also the petitioner was suspended from 06.06.1990 to 21.10.1994 and disciplinary proceedings for major penalty were initiated against him, which proceedings culminated into a lenient penalty of censure. Certainly, it is not a case which could be dealt with paring knife; use of battle axe was most appropriate. We do not find it a case of the State using sledgehammer to crack a nut - We are unable to find any infirmity in the impugned order, so the same is upheld and the petition is dismissed.

Summary

Issues Involved:
1. Proportionality of the penalty of dismissal from service.
2. Legality and fairness of the departmental proceedings.
3. Consideration of past service record in determining the penalty.

Issue-Wise Detailed Analysis:

1. Proportionality of the Penalty of Dismissal from Service:

The main issue before the court was whether the penalty of dismissal from service imposed on the petitioner was proportionate to the acts of misconduct. The court examined the proportionality of the punishment under the principle of judicial review. The petitioner had been dismissed for unauthorized absence from duty and making unauthorized statements to the media. The court noted that the petitioner's unauthorized absence from duty was prolonged, from 09.11.1998 to 19.06.2000, and that during this period, the petitioner engaged in making scandalous statements against the government. The court emphasized that the petitioner's high-profile position and the nature of his duties necessitated strict adherence to discipline.

The court referred to several legal precedents, including B.C. Chaturvedi vs. Union of India and Union of India vs. G. Ganayutham, which established that the disciplinary authority has exclusive power to impose punishment, and judicial review should only interfere if the punishment is shockingly disproportionate. The court concluded that the punishment of dismissal was not disproportionate to the misconduct and did not shock the judicial conscience.

2. Legality and Fairness of the Departmental Proceedings:

The petitioner did not challenge the legality of the departmental proceedings but confined his challenge to the quantum of punishment. The court noted that the petitioner had admitted to the charges of unauthorized absence and making unauthorized statements. The court reiterated that the scope of judicial review in such matters is limited to examining the proportionality of the punishment and not the legality of the departmental proceedings.

3. Consideration of Past Service Record in Determining the Penalty:

The petitioner argued that his past service record should have been considered while imposing the penalty. The court noted that the petitioner had a history of misconduct, including previous suspensions and disciplinary proceedings. The court referred to the case of Indu Bhushan Dwivedi vs. State of Jharkhand & Anr., which emphasized the importance of considering past service records. However, the court concluded that the petitioner's past service record, which included repeated suspensions for misconduct, did not warrant a lenient view.

Conclusion:

The court dismissed the petition, upholding the penalty of dismissal from service. The court found that the punishment was proportionate to the gravity of the misconduct and that no lesser punishment would be commensurate with the petitioner's actions. The court emphasized that the petitioner's repeated acts of misconduct and unauthorized statements to the media justified the penalty of dismissal. The court concluded that the use of a battle axe, rather than a paring knife, was appropriate in this case.