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TMI Blog2012 (4) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... I, IV, and VII not proved while Articles III, V and VI partly proved but the Disciplinary Authority ultimately concluded that the "IO's finding has not been found acceptable and the charge has been viewed as 'proved' or 'fully proved' except for Article VI which was held to be substantially proved while only part (a) of the charge was held to be "not proved" – the charges did not contain any allegations that while passing the various orders or conducting the proceedings the Respondent No.1 had malafide intentions or had passed the order on extraneous considerations - decided in favour of respondent with cost of Rs. 30,000. X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. on 28th April, 2003. According to the Respondent No.1, the perusal of the chargesheet revealed that the imputations made therein were substantially different from the lapses/irregularities alleged in the preliminary show cause notice. The Respondent No.1 denied the allegations made out in the charge sheet by his letter dated 27th May, 2003. 4. On 17th November, 2003, the Respondent No.1 again made a request for inspection of the complete case records. On 10th November, 2005, the Respondent No.1 had also requested for expeditious disposal of the enquiry proceedings as he was being punished in the form of frequent cross country transfers and sidelined postings, causing grave mental torture to him, as well as, his entire family. The education of his children also greatly suffered due to the frequent transfers. 5. Since there was no progress made in the enquiry, the Respondent No.1 was compelled to approach the Jabalpur Bench of the Tribunal by way of OA No. 769/2005 praying for the quashing of the enquiry proceedings on the ground of delay and latches. The writ petition filed by the Respondent No.1 was disposed of by order dated 19th October, 2005 directing the petitioners to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, 2006 the Respondent No.1 was made to submit his defense brief. 7. After a lapse of more than a year, the Respondent No.1 was served with a copy of the note of disagreement along with the enquiry report dated 27th October, 2006 and the second stage advice of the CVC on 5th March, 2007. According to the Respondent No.1, on perusing the CVC advice, as well as, the note of disagreement, it was clearly evident that the Respondent No.1 was held guilty at that very stage itself without giving him a reasonable opportunity to defend himself and thereby violating principles of natural justice. However, despite this the Respondent No.1 submitted a detailed reply dated 5th April, 2007 to the note of disagreement contending that the disagreement note of the disciplinary authority was contrary to the facts, material and evidence available on record. 8. Since the enquiry was not completed and the final order in the matter had not been passed despite enough opportunities given, the Respondent No.1 was compelled to again move the Administrative Tribunal of the Jabalpur Bench. The Jabalpur Bench of the Tribunal passed a final order on 21st August, 2007 in OA No. 911/2007 holding that the enq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No.1 without giving him an opportunity of being heard. The impugned order was passed without complying with the directions of the High Court of Madhya Pradesh. 11. Per contra, the petitioners had contended, inter alia, that the Respondent No.1 has been engaged in protracted litigation with the department in respect of two disciplinary proceedings pending against him. The petitioners further contended that the directions of the High Court of Madhya Pradesh were duly complied with as the penalty order of compulsory retirement was served upon the Respondent No.1 on 27th May, 2008 along with a cheque of 10,000/- as ordered by the Madhya Pradesh High Court. With regard to the averment that the allegations are in relation to certain assessment orders passes by the Respondent No.1 as a quasi judicial authority and therefore, it cannot be subjected to disciplinary proceedings, the petitioners alleged that the allegations fell within the six exception enumerated by the Apex Court in Union of India v. K.K. Dhawan, 1993 (2) SCC 56 holding that even officers exercising quasi judicial functions are liable to be proceeded within disciplinary proceedings. With regard to the contention of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly proved, but collectively as well in conclusion drawn as extracted above. While disagreeing with the enquiry officers findings in relation to articles I to VII, articles I, II, III, IV, V and VII have been held to have been fully proved, article VI having been substantially proved, and only part (a) of charge under article VI has been viewed as not proved. There cannot be any manner of doubt that the disciplinary authority while recording its disagreement note pre-determined the issues without taking into consideration the representation that may have been made by the applicant. This, in our view, clearly amounts to pre-judging the issue. Such a course is not permissible." 14. The Tribunal also relied on the judgments of Commissioner of Police v. Const. Pramod Kumar and Ors. CWP No. 2665/2002 and 4593/2001, Yoginath D. Bagde v. State of Maharashtra and Anr. JT 1999 (7) SC 62, and Punjab National Bank and Ors. v. Kunj Behari Mishra, (1998) 7 SCC 84 wherein it was held that while disagreeing with the findings of the enquiry officer, the disciplinary authority must arrive at a decision in good faith and he is also required to give the rationale for such a disagreement, while such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, instead of remitting the matter back to the disciplinary authority, since in the later scenario the charges would still be pending against the Respondent No.1 and he would become disentitle for any substantive relief in case of charges not getting established and as considerable delay had already been caused in conducting the enquiry. Thus, the Tribunal further considered the plea of delay in the initiation of the proceedings and also in concluding the same. With regard to the aspect of delay in concluding the proceedings in view of the sequence of events in the facts and circumstances of the case it was observed that since the petitioners had complied with the orders of the High Court as per the final extension allowed in the matter, within which the proceedings had indeed culminated, the same cannot be allowed to be re-agitated by the Respondent No.1 before the Tribunal but it will be a relevant factor to consider and decide whether to decide the allegations against the Respondent No.1 or to remand the matter back to the disciplinary authority. The plea of delay in initiating the proceedings against the Respondent No.1 was not relied by the Tribunal to quash the charge sheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5000/- as cost to the applicant, vide order dated 2.3.2007. It was mentioned in the order that if the total cost of Rs.10000/- was not paid within two weeks, the order dated 2.3.2007 would be deemed to have become extinct. Vide another misc. application No.1190/2007 before the High Court, the Respondents sought extension of time for a period of six months to fully comply with the order dated 2.3.2007. The High Court vide order dated 25.6.2007 allowed the prayer of the Respondents and granted extension of time as sought for, subject to a further payment of Rs.5000/- as cost to the applicant. The Respondents were directed to ensure compliance of the orders passed by the High Court fully and positively by the end of October, 2007. From the events as given above, it is clear that the Respondents were successful in obtaining an order from the High Court granting time to them to finalise the proceedings by the end of October, 2007, by which time, admittedly the proceedings were completed. The plea of the applicant for quashing the proceedings on account of delay in finalisation of the same ultimately resulted only in partial success, when a time bound direction came to be issued and with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that all causes of action have to be joined in one lis, and that a party cannot be permitted to seek the same relief based on different grounds in different petitions. Further, in case, this Tribunal may hold initiation of proceedings to be delayed, warranting quashing of the charge, the orders passed by the Tribunal and the High Court would be as if non-existent. Once, the applicant has accepted the orders, as referred to above, and the Respondents were allowed to conclude the proceedings by the specified period, during which period they did complete the proceedings, the ground of delayed initiation of proceedings, in our considered view, cannot be taken into consideration at this stage." 17. The Tribunal also observed that the articles of charges could be broadly placed in three categories i.e. (i) not passing appropriate orders or passing the same in a casual manner (ii) committing irregularities or lapses and (iii) exhibiting gross negligence and total disregard to statutory provisions conferring undue benefit upon the assessee. The Tribunal also noted that the charges did not contain any allegations that while passing the various orders or conducting the proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , also ought to have been chargesheeted. There was absolutely no cause to have singled out the Respondent No.1. Thus, it was conclude that the disciplinary authority in departmental proceedings could not go into the legality of the order passed by the Respondent No.1, particularly when the same was upheld in appeal. 18. The Tribunal also placed reliance on the judgment of the Apex Court in the matter of Union of India and Ors. v. K.K. Dhawan, (1993) 2 SCC 56 wherein it was discussed whether disciplinary proceedings can be initiated against an employee while discharging quasi judicial functions. The Apex Court while holding that an officer who exercises judicial or quasi judicial powers acts negligently or recklessly or in order to confer undue favor on a person, is not acting as a judge, culled out the following six exceptions where an officer could be departmentally proceeded even while exercising judicial functions: (i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty; (ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty; (iii) if he has acted in a ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be, if perhaps, the reply/representation of the applicant to the dissenting note of the disciplinary authority was properly gone into, the result would have been different. As mentioned above, even though, the disciplinary authority received the representation of the applicant against the dissenting note dated 5.3.2007, but it chose not to make even a reference of the same. We have already mentioned that at one stage we were thinking of remitting the matter to the disciplinary authority to consider the representation of the applicant against the dissenting note and pass speaking order, but in the facts and circumstances of this case, it does not appear appropriate or desirable. The reasons for that are manifold. The applicant, it may be recalled, was issued charge memo in the year 2003 with regard to orders passed by him in his quasi judicial capacity way back in 1995-86 and 1997-98. The applicant is an officer of 1977 batch. He was at the relevant time Deputy Commissioner of Income Tax. Thereafter, he was promoted to the rank of Joint Commissioner and further to that of Additional Commissioner and then Commissioner of Income Tax. The applicant has thus been subjected to departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , what we find is that no useful purpose at all would be served in remitting the matter to the disciplinary authority, as a clear and categorical finding can be returned on the basis of available records." 21. The Tribunal, therefore, held that there was no purpose in remitting the matter to the disciplinary authority, and, therefore, directed that the charge sheet memo dated 28th April, 2003, the dissenting note dated 5th March, 2007 and the final order dated 1st April 2008 imposing the punishment of compulsory retirement be quashed and set aside and the applicant be reinstated in service forthwith with all consequential benefits. A cost of Rs.10,000 was also imposed on the petitioners which was payable to the Respondent No.1 for putting him through such a long agonizing departmental enquiry and that too for assessment orders passed by him in his quasi judicial capacity. 22. The petitioners have challenged the order of the Tribunal dated 6th February, 2009 on the ground that the Tribunal failed to exercise its power of judicial review and instead acted as an appellate authority by passing an order which is clearly contrary to the law laid down by the Supreme Court in B.C. Chat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observations in the matter of Ramesh Chander Singh's case would only be in the nature of obiter. 25. It was also argued by the learned counsel for the petitioners that the Tribunal had erred in holding that once the proceedings under the Income Tax Act had attained finality for the reasons that the order of the delinquent officer was not challenged or was challenged however, it did not find favour with the appellate forum or otherwise, the departmental proceedings could not be initiated. As per the learned counsel, the proceedings under the Income tax Act or the Customs Act and the disciplinary rules, both are distinct and different. Whereas, the proceedings under the I.T. Act or the Customs Act are in the nature of quasi-criminal requiring the proof of beyond reasonable doubt, whereas, the proceedings under the service rules are based on the preponderance of probability. In addition, the authorities under the Act and the disciplinary authorities under the service rules are different. While under the Income Tax Act, the proceedings pertain to the assessment and appeal thereof involving the revenue, whereas under the Service rule, one is proceeded with for the lapses under the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ests of inspiring confidence in the minds of the government employees. 28. It is further contended that the findings of the Enquiry Officer on the charges framed against Respondent No.1 were based on facts and the evidence available on the record, however, the same was rejected by the Disciplinary Authority by way of a disagreement note, which culminated into the passing of the final order imposing the punishment of compulsory retirement on Respondent No.1. As per the learned counsel for the Respondent No.1 the findings of the Disciplinary Authority are not substantiated by any evidence on the record, and instead it is absolutely perverse and based on mere conjectures and surmises. 29. It is also argued that the allegations of misconduct on the part of Respondent No.1 are baseless and that the petitioners have been unsuccessful in imputing any mala fides or culpable negligence as against the Respondent No.1 to warrant the imposition of the punishment of compulsory retirement on him. Even if there is an error of judgment or an innocent mistake that is imputable against Respondent No.1, the same would not constitute misconduct. Reliance has also been place on the judgment of Z.B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33. The Tribunal in not remanding the matter to disciplinary authority, has taken into consideration that none of the charges even remotely showed or imputed any culpable intention of the Respondent No.1 or that he had passed orders on extraneous considerations; even regarding article II of the charge sheet, enquiry officer had held that the charge was not proved as difference in perception between the assessing authority/Respondent No.1 and the petitioners would not be the proof of the charge and that the order of the Respondent No.1 was even upheld by the appellate authority and no action was contemplated against the appellate authority for forming the same opinion on the basis of which charge was framed against the Respondent No.1; Disciplinary Authority could not go in legality of the order passed by the Respondent No.1; inordinate delay of 7 years in issuing the charge sheet; a further delay of 5 years in concluding the departmental proceedings and that the Respondent No.1 had been subjected to enquiry with regard to absolutely stale matters; Respondent No.1 is on the verge of retirement and he has been unnecessarily harassed and that even after the alleged assessments of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held that though the Disciplinary Authority has the power and jurisdiction to disagree with the findings of the Enquiry Officer by issuing a disagreement note and issue a notice to the delinquent officer as required. However, care has to be taken that the order of the Disciplinary Authority should not result in a second or de novo inquiry otherwise the inquiries could go on perpetually until the view of the Disciplinary Authority is accepted and this would be abuse of the process of law. 36. Whether or not to remand the matter to the disciplinary authority has to be decided in the backdrop of the facts and circumstances of each case and after considering various facets as enumerated hereinbefore. Rather, the Supreme Court has held in numerous cases that the interest of justice would be defeated, if the Courts start remanding the matter loosely and indiscriminately without application of mind. In order to appreciate the decision of the Tribunal not to remand the matter to the disciplinary authority, it would be appropriate to consider as to what are the charges, the findings of the enquiry officer, disagreement of the disciplinary authority and the observations of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich wasn't done by Respondent No.1 and, therefore, the assessment had been conducted in a casual manner. The Enquiry Officer's finding that the proceedings under section 271 B of the IT Act were unnecessary was also not accepted by the Disciplinary Authority, however, without giving any reason or rationale. iv. The Tribunal observed that the Respondent No.1 had made an assessment of Rs.1,50,000/- higher than the returned income. Therefore, the order was passed by the Respondent No.1 in favour of the Revenue and that rather aggrieved by the said order, it was the assessee who had filed an appeal and challenged the order of the Respondent No.1. Thereafter, the CIT (A) had confirmed the additions made by the Respondent No.1. Rather CIT (A) had chosen to reduce the addition done by the Respondent No.1 by one-half at Rs.75,000/- in place of Rs.1,50,000/- done by the Respondent No.1. Regardless, since the Respondent No.1 had passed an order in favour of the Revenue it was held that it cannot be contended that he had the intension to confer any undue benefit on the assessee or that he had any mala fide intension. v. In the disagreement note, the Disciplinary Authority has not relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, in the disagreement note had observed that the question of difference in opinion could not arise since the Respondent No.1 had failed to carry out the basic requirements of verification and investigation and also not passed a reasoned order. As regards the allegation that non application of Section 79 of the IT Act by the Respondent No.1 had been accepted by the Appellate Authority, it was stated that the same had not been accepted by the petitioners and that an appeal against the same was still pending. The Disciplinary Authority further disagreed with the Enquiry Officer's finding that there is no under assessment or escapement of income on two counts, firstly since it was Respondent No.1's conduct that was in question regardless of the loss of revenue and secondly, since under the IT Act, losses incurred in any A.Y. are allowed to be carried forward to be adjusted against the income of later or (successive) A.Y.s, therefore, it could not be held that no loss of revenue had resulted. Therefore, the Disciplinary Authority had concluded that the charge was proved. iv. The Tribunal on examining the charge and its facets in detail was of the view that the only charge that co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n charge-sheeted and that the Respondent no. 1 could not be solely held responsible for the same. Therefore, the Tribunal concluded that Respondent No.1 did not in any manner confer any undue advantage on the assessee and that the Disciplinary Authority perhaps was not justified to hold that the order passed by Respondent No.1 was incorrect or against law, till such time that the appeal filed by the revenue audit before the ITAT is allowed, the fate of which was not informed to the Tribunal at that time. Even now the learned counsel for the petitioners was unable to disclose the fate of said appeal. The Tribunal also categorically held that the Disciplinary Authority in departmental proceedings could not go into the legality of the order passed by Respondent No.1 in his quasi judicial capacity, particularly when the same was upheld in appeal. v. This Court is of the view that since the Appellate Authority upheld the decision of the Respondent No.1 with regard to non application of Section 79 of the IT Act, therefore, the same cannot be doubted to imply gross negligence or misconduct on the part of Respondent No. 1 since the Respondent No.1 had merely passed an order in exercise o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the findings of the Enquiry Officer on Article III and alleged in the disagreement note that the Respondent No.1 as an Assessing Officer is expected to be well versed in law and capable of deciding on the admissibility of deductions claimed by an assessee and therefore, there is a clear failure to examine the records properly on the part of the Respondent No.1 for making correct disallowances on account of interest already allowed to the assessee. It was also stipulated that the Respondent No.1 erred in not initiating the proceedings under section 271(1)(c) of the Act. Therefore, the Disciplinary Authority was of the view that the allegation in Article III had been fully proved. iv. With regard to Article III, the Tribunal observed that nil income had been returned by the assessee, and that Respondent No.1 had made an assessment at Rs.3.04 crores bringing in revenue of about Rs.2.49 crores, and that the additions made by Respondent No.1 were also confirmed in appeal by the CIT (A). Therefore, the charge could not be sustained. In any case, it is pertinent to note that the Disciplinary Authority has itself not imputed any mala fides, or gross negligence on the part of Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptable. The Enquiry Officer further went a step forward and stated that even if it is to be assumed that the Respondent No.1 had not discussed about the rejection of revised return in his assessment order, yet it is not a case of any malafide intensions or undue benefit to the assessee. iii. The Disciplinary Authority disagreed with the finding of the Enquiry Officer and stated that the Enquiry Officer had erred in concluding that there is no evidence to show that the Respondent No.1 had considered the income of the revised return. It was observed that in the revised return the assessee has excluded a sum of Rs.1, 15,379/- treating the same as income not attributed to the industrial activity. The Respondent No.1 had taken the said amount into consideration while computing the deductions under section 80 H and 80 I, as is evident from the assessment order. iv. It is pertinent to notice that the Disciplinary Authority could not assume that the amount excluded in the revised return by the assessee had been taken into consideration. If that be so then how undue benefit had been conferred on the assessee or how the Respondent No.1 had relied on any extraneous material while taking t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evident from the fact that the assessee had submitted the same in a separate folder. Therefore, the allegation of the department that the same had not been taken into consideration by the Respondent No.1 could not be accepted. It was also observed that the department had failed to substantiate their allegation that the Respondent No.1 had wrongly allowed deductions of amounts, since they did not contend as to what the correct admissible amount would have been which would not have resulted in under assessment or conferring undue benefit on the assessee. With regard to allegation (b), the Enquiry Officer observed that the irregularity in the same was highly technical in nature and that the same could perhaps be properly appreciated by an expert in the income tax laws. It was concluded that the said charge had been 'partly proved' since the total income as assessed by Respondent No.1 was Rs.78,87,670/-, whereas the reassessment order specified the same to be Rs.80,58,590/-. iii. The Disciplinary Authority accepted that the assessee had given the details of the expenses, but went on to hold that despite abnormal increase in the said expenses, no explanation was obtained by the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No.1 could not be imputed in the facts and circumstances of the case. Also with regard to allegation (b) of Article V the irregularity as noticed by the Enquiry Officer himself is of a very technical nature, therefore it cannot be assumed that the Respondent no. 1 had made the said deductions or caused the under assessment with a malafide intension or that the same was based on any extraneous considerations. This also cannot be disputed that the hierarchy succeeding the Respondent No.1 was more than capable to correct the technical error, if any, in the said assessment order. 42. Article VI i. Article VI alleged that Respondent No.1 while passing the assessment order U/s. 143 (3) in the case of M/s Demuric Holding P. Ltd. for A.Y. 1994-95, committed the following lapses:- (a) he inappropriately allowed a set off of speculation loss of Rs.24,31,100/- against the company's long term capital gain. (b) he blindly accepted the valuation and revised valuation under Rule ID of the WT Act, with regard to equity shares of United Phosphorous Ltd., without obtaining the certified balance sheet of the company on the nearest date available to the valuation date. (c) he unquesti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the creditor, (ii) the creditworthiness of the creditor and (iii) the genuineness of the transaction, which had not been adequately discharged by Respondent No.1, therefore, the said charge was proved. iv. The Tribunal on examination of the record observed that in Article-VI, against the returned income of Rs.30.29 lakhs the Respondent No.1 had completed the assessment at a taxable income of Rs.99.93 lakhs in a detailed speaking order and the major addition of Rs.74.88 lakhs was also confirmed in appeal by CIT (A) dismissing the assessee's appeal. Therefore, it is clear that the order which was passed by Respondent No.1 was also in favour of revenue, and that it was the assessee who was aggrieved by the same and not the department. Thus, it cannot be held that the Respondent No.1 had caused any undue benefit to the concerned assessee or that there was any prima facie material that the Respondent No.1 had acted recklessly or negligently. v. Consequently, there is no illegality or any irregularity in the order of the Tribunal not to remand the matter in this regard to the Disciplinary Authority so as to require any interference by this court in exercise of its Writ jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent No.1. In any case, the Department had not been able to impute any mala fides against the Respondent No.1 in the said charge. Thus, it cannot be held that the charge can be established against the Respondent No.1. The petitioners have not disclosed such facts which would have required re-evaluation by the Disciplinary Authority in the facts and circumstances. 44. The Tribunal while considering the charges framed against the Respondent No.1 had noted that none of the charges imputed that while passing the various orders or conducting the proceedings as alleged in the charges, the Respondent No.1 had mala fide intensions or that he had passed the orders on extraneous considerations, or that the said orders were an outcome of gross negligence, except for Article-II and Article V (a). In the said charge, it was alleged that Respondent No.1 had exhibited gross negligence and total disregard of the statutory provisions, by conferring undue benefit to the assessee. The Tribunal also held that by merely using the language employed in the charges framed, that the Respondent No.1 had "failed to maintain absolute integrity and devotion to duty and exhibited conduct unbecoming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute "misconduct" which was exhaustively dealt with in the impugned order by relying on the provisions of Rule3(1)(i) 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964 and also by relying on the list of acts specified in the Notes on CCS(Conduct) Rules, 1964 3rd Edition, 1980, published by the Government of India, MHA, DP and AR, below rule 3-C of the 1964 Rules. The Tribunal noted that even though a straightjacket definition of misconduct could not be given, but as generally and normally understood, misconduct amounts to transgression of some established and definite rule of action. 47. The Tribunal referred to the judgment of the Supreme Court, Union of India and Ors. v. K. K. Dhawan, (1993) 2 SCC 56 and held that in view of the six instances highlighted therein, in the instant case, it cannot be inferred that for a mere technical violation or merely because the order is wrong the disciplinary action was not warranted. The Tribunal also referred to the judgment of Zunjarrao Bhikaji Nagarkar v. Union of India and Ors. (1999) 7 SCC 409 wherein it was held that in the said case there was nothing to show that the Disciplinary Authority had any information within its possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer was discharging functions in quasi judicial capacity, whereas, in the judgment of Nagarkar, which has been upheld in the case of Ramesh Chand (supra) it was held that it would have to be culpable negligence of an officer which can be tested in a departmental enquiry. The bench strength of the judgments in K K Dhawan (supra), Duli Chand (supra) and Ramesh Chand (supra) is also equal, consisting of a quorum of three judges. Thus which judgment would be a precedent for the controversy, whether negligence would constitute misconduct to entitle disciplinary proceedings against the charged officer was questioned? The Tribunal noted that while the learned counsel representing the Respondent No.1 would insist that it is the law laid down by the Hon'ble Supreme Court in Nagarkar's case (supra) shall hold the field, which has been followed in Ramesh Chander Singh (supra), particularly, when the said judgment (Ramesh Chander Singh) is by a coordinate Bench and later in point of time than that of Duli Chand (supra), and that the Tribunal should hold that it is culpable negligence which can be subject matter of departmental enquiry when it may relate to allegations that may pertain to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the Respondent No.1 not being proved and taking into consideration that even if lapses on the part of the Respondent No.1 while exercising his quasi judicial capacity were to be accepted, held that it could not warrant such a ghastly punishment of compulsory retirement and, therefore, decided that the final order dated 1st April, 2008 was liable to be quashed. 54. The Tribunal while setting aside the punishment order of compulsory retirement of the Respondent No.1 has also held that the petitioners, disciplinary authority had pre judged the issue, as though the enquiry officer had absolved the Respondent No.1 of most of the charges and had also held that the petitioners had failed to prove the allegation of gross negligence against the Respondent No.1, the Disciplinary Authority while issuing dissenting note, disagreeing with the Enquiry Officer had held that the charges had been proved and the dissenting note was not at all a tentative note. While awarding punishment, the Disciplinary Authority did not take into consideration the representation made by the Respondent No.1. The Disciplinary Authority had received the representation of the Respondent No.1 against the dissenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement note has prejudged the issue in violation of the principles of natural justice." 56. The Disciplinary Authority is required, under the law, to maintain objectivity, impartiality and openness of mind to ensure the observance of the principles of natural justice and fairness in administrative action. Therefore, while disagreeing with the findings of the Enquiry Officer care should be taken that the disagreement note must contain only tentative reasons for disagreement. The sole purpose of providing this in the departmental proceedings is to ensure that the charged officer does not feel blind sighted and is made aware of the reasons for which the Disciplinary Authority disagrees with the Enquiry Authority, which had initially found a report in favour of the charged officer. The main intention is to allow a proper and reasonable opportunity of hearing to the charged officer in consonance with the principles of natural justice and most importantly to render a last opportunity to the charged officer to persuade the Disciplinary Authority on the basis of the findings of the Enquiry Report. The reasons for disagreement should be tentative in nature. Whether or not a disagreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held to be "not proved". The 5th para of the dissenting note titled as "Conclusions" contains the summary of the view of the Disciplinary Authority pertaining to each charge and further detailed that the said note was sent to the CVC for their second stage advice for recommending levy of a suitable major penalty on the Charged Officer, which was replied to by OM dated 8th February, 2007 advising the imposition of a suitable major penalty on Respondent No.1.It is only after the advice of the CVC was received that the comments of Respondent No.1, representing against the said dissenting note were called for. 60. The dissenting note is clearly indicative of the mindset of the Disciplinary Authority, who had already decided that the Respondent No.1 was guilty of the charges framed against him. It is also evident that the opportunity of being heard given to Respondent No.1 was merely a procedural formality. The consultation with the CVC for the imposition of the punishment prior to hearing of the representation of Respondent No.1 is also a substantial clue about the mind of the Disciplinary Authority who had undoubtedly already formed its conclusion on the guilt of Respondent No.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners; the dissenting note and the final order are almost verbatim the same; for procedural flaws based more on his opinions in the assessment orders passed in quasi judicial capacity would not have warranted such ghastly punishment of compulsory retirement especially when there was not even the allegation that the Respondent No.1 had even favored the assessee for any extraneous considerations and that no useful purpose at all would be served in remitting the matter as categorical findings can be returned on the basis of available records and the Respondent no. 1 is retiring soon, do not suffer from any illegalities, any regularities or any such perversities which shall entail any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. 63. Therefore, for the foregoing reasons and in the facts and circumstances, the order of the Tribunal dated 6.2.2009 passed in O.A.No. 179 of 2008, titled as Kamal Kishore Dhawan vs Union of India and Ors. setting aside and quashing the Charge Memo dated 28.4.2003, dissenting note dated 5.3.2007 and the order of punishment of compulsory retirement of the Respondent No.1 and reinstating the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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