9911796707
TMI Blog2024 (9) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 irresponsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D (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 reflectin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer, 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. 2.2 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. 2.3 On 24.02.1990, the Hindustan Times published news that one General Secretary of All India Congress Committee had alleged that the Vishwa Hindu Parishad had collected Rs. 700 crores in the name of Ram Janmbhumi Temple. Taking cognizance of the said news item, on 02.03.1990 petitioner issued summons under Section 131 of the Income Tax Act to the said General Secretary as well as persons connected with the Ram Janmbhumi Nyas. That issue got raised in the Parliament of India, after which the petitioner was transferred from New Delhi to Tamil Nadu vide order dated 08.03.1990 and later the Director General of Income Tax (Exemptions) withdrew the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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. 2.10 On the basis of departmental proceedings, which are not relevant for present purposes (since the present challenge remains confined to quantum of punishment), petitioner was dismissed from service on 30.05.2003 in pursuance of Advice dated 08.05.2003, rendered by UPSC. The said dismissal order dated 30.05.2003 was successfully challenged by the petitioner through O.A. No. 2155/2003, in which the learned Tribunal vide order dated 04.06.2004 held that UPSC had based its opinion on certain facts which were not part of the Charge. Thus, the dismissal order dated 30.05.2003 was set aside, granting liberty to the disciplinary authority to pass fresh order in accordance with law. 2.11 Accordingly, fresh order dated 03.09.2004 was passed by the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010) 7 SCR 465 in support of his contention that while imposing punishment, the disciplinary authority ought to have taken into consideration the past service record of the petitioner, which was not done so the dismissal order was not sustainable. 4. On the other hand, learned counsel for respondents supported the impugned orders as well as the punishment order and contended that the present petition is totally devoid of merit. Learned counsel for respondents took us through detailed records of various statements unauthorisedly made by the petitioner to media and contended that in view of obnoxious allegations levelled by the petitioner against the government, no compassion is called for. It was argued that the misconduct of the petitioner is not just unauthorized absence or just making obnoxious statements before the media but both, so it cannot be believed that during the period in question, the petitioner was confined to bed due to illness. 5. Thence, the question before us is as to whether the punishment of dismissal from service imposed on the petitioner is or is not proportionate to the acts of misconduct committed by him. 6. The two Articles of Charge served vide Memo dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r sent by Shri Gupta to the office of CIT, Delhi-IX, though he had mentioned in his letter dated 1.12.1998 that he would be sending the same shortly. The CIT, Delhi-IX has stated in his report that no leave was sanctioned to Shri V.B. Gupta after 6.11.1998 (7.11.98 and 8.11.98 having been suffixed). The absence of Shri V.B. Gupta since 9.11.98 is therefore totally unauthorised. 1.2 In view of the above, a letter dated 4th February, 1999 was issued by the Addl. CIT(HQ) Admn., Delhi to Shri V.B. Gupta requesting him to explain his unauthorised absence from duty since the expiry of his sanctioned leave, and also why no charge of his post was handed over by him before proceeding on his undated reply to the aforesaid letter, which was received in CCIT s Office. On 16.2.1999, Shri Gupta stated that he was suffering from backache and was advised medical rest. He also mentioned that he had applied for grant of medical leave from 20.10.1998 to CIT, Delhi-IX, and the same was sanctioned. He requested for further extension of this medical leave till February 14, 1999. As mentioned earlier, he had applied only for earned leave (on medical grounds) for 18 days w.e.f 20.10.1998 to 06.11.1998 pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but no reply was received from Sh. V.B. Gupta. Thus, his absence beyond 8.11.1998 remains both unauthorised and wilful displaying contravention of Rules 3(l)(ii) and 3(l)(iii) of the CCS(Conduct) Rules. 1964. 1.8 Further, under Rule 25 of CCS (Leave) Rules, 1972 wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action. Article-II 2.1 In several news items appearing in national dailies, the statements given by Shri V.B.Gupta have been reported. These are discussed below:- (i) In a news item dated 27.2.2000 in Hindustan Times, it is reported that Shri V.B. Gupta had told a TV channel that he has personal knowledge that several test cricketers had disclosed concealed income under the VDIS and that a present Test captain had disclosed hidden income worth Rs.16 crores. According to the press report, Shri Gupta told the Hindustan Times: The disclosures are sufficient reason for investigation. I will write to the Cricket Board, asking it to direct all cricketers who have played for India over the last ten years to state whether they have disclosed money under VDIS. The list ought to be made public . Further, ... Gupta says questions sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he film industry for running the same. He officially said that we (the department) conducted a survey which unearthed Rs.10000 crores invested by the mafia in the industry out of which only 100 crores were declared by the film producers in their income-tax returns. He is further reported to have said that kidnapping, extortion and murder were being done with the knowledge of Govt. of India and Maharashtra Government. He went to the extent of saying that one Secretary was caught in a hotel room along with the keep of Mafia King Dawood Ibrahim and that the Home Secretary had approached Dawood to harm an actress Manisha Koirala to benefit some other heroine, the tape or conversation of which was available with CBI. He further, officially announced that I on behalf of the Government of India would bring out a White Paper on this issue and I can challenge that only 5% has been declared as white money . In case, it was found incorrect he would tender his resignation, says the news item report. 2.5 Regarding Jain Hawala case, the officer made the statement that the CBI had deliberately not taken appropriate action and did not place full facts before the Hon ble Supreme Court which were av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... increased with the passage of time. Shri Gupta has again been placed under suspension vide Ministry's order dated 19.6.2000 for his grave lapses discussed herein above. 8. To reiterate, the petitioner has opted not to dispute that during the period from 09.11.1998 to 19.06.2000 he remained unauthorisedly absent from duty and that he made the above quoted unauthorized statements before media against the government. And the only submission on behalf of petitioner is that punishment of dismissal from service is disproportionately excessive to the acts of misconduct. 9. At this stage, it would be apposite to briefly traverse through the legal position relevant for present purposes. 9.1 In the case of B.C. Chaturvedi vs. Union of India, (1995) 6 SCC 749, the Hon ble Supreme Court examined the issue of punishments and the scope of judicial review, holding thus: 18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 257] , Brind [(1991) 1 AC 696 : (1991) 1 All ER 720] and Smith [Cunliffe v. Commonwealth, [(1994) 68 Aust LJ 791] (at 827, 839) (also 799, 810, 821), Australian Capital Tel. Co. v. Commonwealth, 1992 CL p. 106 (at 157) (Aus), R. v. Oake, 1987 Law Reports of Commonwealth 477 (at 500) (Can), R. v. Big M Drug Mart Ltd., (1985) 1 SCR 295 (Can)] as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon. (4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the least restrictive alternative. [Judicial Review of Administrative Action (1995), pp. 601-05, para 13.085; see also Wade Forsyth: Administrative Law (2005), p. 366.] 20. In Halsbury's Laws of England (4th Edn.), Reissue, Vol. 1(1), pp. 144-45, para 78, it is stated: The court will quash exercise of discretionary powers in which there is no reasonable relationship between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts are wholly out of proportion to the relevant misconduct. The principle of proportionality is well established in European law, and will be applied by English courts where European law is enforceable in the domestic courts. The principle of proportionality is still at a stage of development in English law; lack of proportionality is not usually treated as a separate ground for review in English law, but is regarded as one indication of manifest unreasonableness. 21. The doctrine has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. 20. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. (emphasis supplied) 9.5 In the cases of B.C. Chaturvedi (supra) as well as Ganayutham (supra) , the Supreme Court also held that the Court exercising writ jurisdiction in such matters will not interfere with quantum of punishment in order to substitute the decision of the disciplinary authority with its view unless the punishment awarded was one which shocked the conscience of the court and that even in case its conscience is shocked, this court would normally remand the matter to the disciplinary authority instead of substituting the impugned pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority sitting in appeal over any such order of punishment is by all means entitled to examine the issue regarding the quantum of punishment as much as it is entitled to examine whether the charges have been satisfactorily proved. But when any such order is challenged before a Service Tribunal or the High Court the exercise of discretion by the competent authority in determining and awarding punishment is generally respected except where the same is found to be so outrageously disproportionate to the gravity of the misconduct that the Court considers it be arbitrary in that it is wholly unreasonable. The superior courts and the Tribunal invoke the doctrine of proportionality which has been gradually accepted as one of the facets of judicial review. A punishment that is so excessive or disproportionate to the offence as to shock the conscience of the Court is seen as unacceptable even when courts are slow and generally reluctant to interfere with the quantum of punishment. The law on the subject is well settled by a series of decisions rendered by this Court. We remain content with reference to only some of them. 11. In Ranjit Thakur v. Union of India [(1987) 4 SCC 611 : 1988 SCC (L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harges and misconduct of indiscipline and insubordination and giving threats to the superior of dire consequences on the ground that the same is disproportionate to the gravity of the wrong. In Surinder Kumar [CRPF v. Surinder Kumar, (2011) 10 SCC 244 : (2012) 1 SCC (L S) 398] while considering the power of judicial review of the High Court in interfering with the punishment of dismissal, it is observed and held by this Court after considering the earlier decision in Union of India v. R.K. Sharma [Union of India v. R.K. Sharma, (2001) 9 SCC 592 : 2002 SCC (Cri) 767] that in exercise of powers of judicial review interfering with the punishment of dismissal on the ground that it was disproportionate, the punishment should not be merely disproportionate but should be strikingly disproportionate. As observed and held that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227 or under Article 32 of the Constitution. (emphasis supplied) 9.8 Thence, the legal position relevant for present purposes, as culled out of above quoted and other plethora of judicial pronouncements is that imposition of penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsion 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. 11.2 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. 11.3 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. 11.4 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. 12. Coming to the second article of charge proved against the petitioner, as extra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 12.2 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. 13. Going by the above 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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