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TMI Blog2019 (10) TMI 1596X X X X Extracts X X X X X X X X Extracts X X X X ..... t issue answered to the effect that the disciplinary authority in this case does have the power to initiate the disciplinary proceedings in relation to the discharge of quasi judicial functions by the applicant also, subject to the rider that there must exist adequate material, even at the stage of issuance of charge memo, to disclose that the power has been misused for wrongful gains. The Hon ble Supreme Court, through a catena of judgments held that if the disciplinary proceedings pertain to the manner in which an officer has discharged his quasi judicial functions, the mere information is not adequate, and suspicion alone cannot constitute the basis - In the instant case, there is not even an allegation that the applicant resorted to any acts of dishonesty or wrongful gain. The whole edifice of the charge memo is built on the foundation of the so called hasty disposal of the appeal. Rest of the allegations are supplemental thereto. A perusal of the record, on the two principal and important aspects mentioned above, clearly demonstrates that the entire exercise does not accord with the law laid down by the Hon ble Supreme Court. The charge memo was based solely upon the imaginati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view taken by an Appellate Authority is not to the liking of the Department, disciplinary proceedings cannot be initiated. The applicant further states that the allegations made in the articles of charge are factually incorrect, and that can be demonstrated by the correspondence that ensued in this behalf, without the necessity of further inquiry. It is also stated that the office of the CCIT, Patna addressed repeated letters for taking up the high profile appeals at the earliest, and even she had to address letters to the assessee, who was reluctant in proceeding with the appeal, and it cannot be said that there was any undue haste in disposal of the same. It is also stated thgat in the second appeal preferred by the Department before the ITAT against the order passed by the applicant herein, no a word was said about the so called irregularities or illegalities mentioned in the impugned charge memo. 3. The applicant further contends that ever since two search operations were conducted against the assessee, no amount was recovered, much less it was refunded, as a result of the order passed by her, and that the case is now pending before the ITAT. 4. The respondents filed a counter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v Union of India [OA No.2815/2012, decided on 01.02.2013], and B. B. Mohanty v Union of India [OA No.1208/2013, decided on 31.03.2014]. 8. Shri R. K. Sharma, learned counsel for the respondents, on the other hand, submits that the OA cannot be entertained against a charge memo, and it is not even the case of the applicant that the authority who issued the charge memo is not conferred with the power to do so. He submits that it is only after verification of the relevant record that certain irregularities in the course of disposal of the appeal were noticed, and accordingly, the charge memo was issued. The learned counsel contends that there is no prohibition against initiation of disciplinary proceedings in relation to the discharge of duties by an officer in quasi judicial capacity. He too relied upon certain precedents. 9. In this OA, the challenge is to the charge memo dated 14.08.2018. The general principle is that whenever an employee or officer assails a charge memo, the Courts or Tribunals would be reluctant to interfere with the same, unless the factors such as (a) the charge memo having been issued by an officer not competent to do so; (b) the subject matter of the discipli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere exists adequate proof or material to disclose that the powers have been misused with an ulterior motive, or for personal gain, the option for the administration to take disciplinary action cannot be shut. It is keeping in view, these two predominant considerations that the Hon ble Supreme Court in Union of India v A. N. Saxena s case observed as under: 7. It was urged before us by learned Counsel for the respondent that as the respondent was performing judicial or quasi-judicial functions in making the assessment orders in question even if his actions were wrong they could be corrected in an appeal or in revision and no disciplinary proceedings could be taken regarding such actions. 8. In our view, an argument that no disciplinary action can be taken in regard to actions taken or purported to be done in the course of judicial or quasi-judicial proceedings is not correct. It is true that when an officer is performing judicial or quasijudicial functions disciplinary proceedings regarding any of his actions in the course of such proceedings should be taken only after great caution and a close scrutiny of his actions and only if the circumstances so warrant. The initiation of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to judicial supervision in appeal. Incidentally, the judgment in Zunjarrao Bhikaji Nagarkar is relied upon by both the parties. 14. In S. Rajguru s case, this Tribunal referred to that very judgment of the Hon ble Supreme Court on this issue. Paras 42 and 43 of the judgment were quoted. They read as under: 42. Initiation of disciplinary proceedings against an officer cannot take place on an information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty. 43. If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is mostly on facts, it becomes necessary to take note of the articles of charge framed against the applicant. They read as under: ARTICLE-I That the said officer, Smt. Anuradha Mookerjee (Civil List No.86001, D.O.B.08.03.1961), while functioning as Commissioner of Income Tax (Appeals)-I, Patna during the month of March, 2013 and while passing the Appellate Order in the case of one assessee M/s. Ganga Carriers Pvt. Ltd. (PAN : AABCG1850E), A.Ys 2003-04 to 2009-10, had entered into a collusive arrangement with Shri Chaman Lal Negi, who was the then ACIT, Central Circle-I, Patna and the Assessing Officer in the case during that period, and the said assessee and allowed relief to the assessee to the tune of Rs.52,67,22,264/- in undue haste, i.e., in just 10 (ten) working days between 13.03.2013 and 26.03.2013 during which remand order was given to the said Assessing Officer, remand reports received hastily from him, comments on the remand reports received hastily from the assessee and lengthy appellate orders allowing huge relief to the assessee were passed for all the seven assessment years (A.Ys 2003-04 to 2009- 10) in the case with an objective to give undue favour to the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ha Mookerjee (Civil List No.86001, D.O.B.08.03.1961), while functioning as Commissioner of Income Tax (Appeals)-I, Patna during the month of March, 2013 and while passing the Appellate Order in the case of one assessee M/s. Ganga Carriers Pvt. Ltd. (PAN : AABCG1850E), A.Ys 2003-04 to 2009-10, had entertained the remand reports even though the AO, i.e. Shri Negi had not sent the remand reports through the Addl./JCIT, Central Range-I, Patna who had approved the original assessment orders. This was equivalent to allowing a subordinate officer to overrule his immediate superior s previous approval on the sly. By the aforesaid act of omission and commission, Smt. Anuradha Mookerjee failed to maintain absolute integrity and had shown complete lack of devotion to duty and had thus, exhibited conduct unbecoming of a Government servant in violation of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964. ARTICLE-IV That the said officer, Smt. Anuradha Mookerjee (Civil List No.86001, D.O.B.08.03.1961), while functioning as Commissioner of Income Tax (Appeals)-I, Patna during the month of March, 2013 and while passing the Appellate Order in the case of one assessee M/s. Gang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposal of an appeal filed by an assessee M/s GCPL; by the applicant, in her capacity as CIT (Appeals), Patna. The gravamen of the charge is contained in Article-I. In the remaining Articles, certain other subsidiary aspects are supplemented. From a perusal of Article-I, it becomes clear that the allegation against the applicant is (a) she entered into a collusive arrangement with Chaman Lal Negi, the then ACIT, Central Circle-1, Patna, and the Assessing Officer, who worked during that period; and (b) that she decided the appeal with undue haste, and granted the relief to the assessee to the tune of Rs.55,67,22,264/- within ten days from requiring the remand orders, and thereby she undid all the hard work done by the Directorate of Investigation. The purport of the remaining Articles was indicated in the introductory paragraphs, and the full text of the Articles is extracted above. Another aspect is that though the figure of Rs.55,67,22,264/- is mentioned, it is stated that the value of the appeal itself was Rs.31,62,57,725/-. At the most, it can be a mistake of fact, but it cannot be of much consequence. 18. Normally, the disciplinary proceedings are initiated whenever the conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer is pressing hard for collection. In this connection, I am directed to request you to fix the case early. The brief detail of the cases are as follows:- Sl. No. Name Address of the Assessee Demand involved (Rs.) A.Y. Date of filing of appeal 1. Ganga Carriers Pvt. Ltd., 314, Ashiana Towers, Exhibition Road, Patna Rs.31,62,57,725/- (for AY 2003-04 to 2009-10) 2003-04 to 2008- 09 15/09/2011 22. On 01.10.2012, the office of the CCIT addressed a letter (Annexure A-6), instructing the CIT (Appeals), Patna to bifurcate the appeals, based upon demand, i.e., Rs.1 crore and others, obviously for the purpose of early disposal of the high value appeals. It reads as under: Sub.: Disposal of appeal regarding. Please recall the review meeting of the Zonal Member wherein he has instructed that pendency and disposal in high demand appeal should be further bifurcated into demand over Rs.1 crore and others. Similarly, it was also instructed that the copy of quality order passed by you should be enclosed with the monthly D.O. to this office. You are advised to keep these points in mind while sending your monthly D.O. starting from September onwards. Please acknowledge the receipt of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )-1, Patna to hear and dispose off the above mentioned appeals out of turn as a huge demand of Rs.31.62 crores is pending. Please also refer to your letter dated 14.11.2001 written to the CIT(A)-1, Patna again requesting for early fixation of appeals filed on 15.09.2011 for A.Yrs. 2003-04 to 2008-09. On perusal of records it is seen that the appeal was first fixed up for hearing on 09.12.2011 vide this office letter dated 07.12.2011. In response to the same, a fortnight s time was sought to file year wise written submissions. The request was made not to treat the appellant as assessee in default and stay the impugned demand of Rs.31,62,57,729/- till disposal of the appeals. The appeals were fixed for hearing on 20.12.2011 when again adjournment was sought for by your Authorized Representative on the grounds that the Director of the appellant company was ill and there were certain documents and information which had to be obtained from him. Request was made to re-fix the case after 20th January, 2012. The appeals were re-fixed for hearing on 10.02.2012 vide this office letter dated 24.01.2012. Once again an adjournment was sought for by the authorized representative on the ground th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed into a collusive arrangement with Shri Chaman Lal Negi, the then ACIT and AO, in preparing a remand report within ten days. In this context, it is essential to take not of the procedure under the Act. Whenever an appeal is preferred, the entire record is forwarded to the Assessing Authority for necessary steps at his end. In certain cases, the Assessing Officer himself can grant reliefs, if he finds strength in the grounds of appeal, or he may simply justify the order passed by him, and offer comments. 27. It is not as if the steps for procuring the remand reports from the AO in the appeal presented by M/s GCPL started only after the applicant joined at Patna, or, just before the appeal was taken up for hearing. Shri C. L. Negi, ACIT, functioning in the office of DGIT, Patna, addressed a letter dated 25.09.2012 (Annexure A-9) to the CIT (Central), Patna, in the context of submission of remand reports. The letter reads as under: Sub.:-High pendency of remand reports with the A.Os.- matter reg. Kindly refer to the above. I am directed to forward herewith a copy of the letter Memo No.CIT (A)-I/Pat/2012-13/735 dated 14.09.2012 received from the CIT (Appeal)-I, Patna on the captioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law laid down by the Hon ble Supreme Court. The charge memo was based solely upon the imagination. It is fairly well known that if a person vested with the power to alter the legal status of another, permits his imagination to work, it may take him to a level, which he may not have imagined at all. The executive powers are required to be exercised on the basis of objective and verifiable material, and not on the basis of surmises, presumptions and imaginations. 31. The purpose of closely scrutinizing the disciplinary proceedings initiated against an officer with reference to his or her discharge of quasi judicial functions, at the threshold, is to ensure that the officer is not subjected to unnecessary ordeal of facing the disciplinary proceedings, and to avoid the situation of the loss being caused to him or her; in case the very initiation is found to be untenable. The case on hand warrants and justifies such scrutiny. 32. We, therefore, allow the OA and set aside the impugned charge memorandum. It is represented that the case of the applicant for promotion to the post of CCIT was considered but sealed cover procedure was adopted on account of issuance of the charge memorandum. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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