IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18-12-2008 CORAM : THE HONOURABLE MR.JUSTICE P.K. MISRA and THE HONOURABLE MR.JUSTICE A. KULASEKARAN W.P. No. 26503 of 2008 and M.P. No. 1 of 2008 1. The Union of India rep. By the Under Secretary to Government of India Ministry of Finance Department of Revenue Central Board of Direct Taxes (Ministry of Finance) North Block, New Delhi – 110 001 2. The Chairman Central Board of Direct Taxes New Delhi – 110 001 3. The Director Central Vigilance Commission Government of India Satarkta Bhavan, GOP Complex INA New Delhi 4. The Deputy Director of Income Tax (Vig) O/o. The Director of Income Tax (Vig) South No.121, Mahatma Gandhi Road Chennai .. Petitioners Versus 1. The Central Administrative Tribunal rep. By its Registrar City Civil Court Buildings High Court Campus, Chennai 2. A.C. Joseph Dy. Commissioner of Income Tax Circle-III Trichy, Tamil Nadu .. Respondents Prayer: Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorari to calling for the records of proceedings of the first respondent Tribunal in O.A. No. 890 of 2006 dated 01.04.2008 and to quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr. M. Velusami Sr. Central Govt. Standing Counsel For Respondents : Mr. S. Sridharan for R2 ORDER (Order of the Court was made by P.K. MISRA, J) Heard the counsel appearing for the parties. 2. The present writ petition has been filed by the Union of India challenging the Order passed by the Central Administrative Tribunal in O.A. No. 890 of 2006 dated 01.04.2008. Such Original application has been filed by the present second respondent challenging the order of punishment of stoppage of increment without cumulative effect for a period of three years. Such order of punishment was imposed by following the procedures contemplated under Rule 15 of CCS (CCA) Rules 1965. 3. The allegation against the second respondent was that he did not follow the guidelines laid down in the appraisal report. The substance of the imputation, which ultimately resulted in punishment is found at Page No.2 of the typed set of papers, which is to the following effect:- “1.1. In this case, during the course of search on 8.3.96, a kacha balance sheet was found at the business premises of the assessee, depicting the true state of affairs of the firm as on 31.3.95. The balance sheet showed the total capital balance in the accounts of the partners at Rs.1,26,51,810/- as on 31.3.95. The assessee had filed the return for the asst.year 1995-96 before the search and the balance sheet filed with the return showed the balance in the capital account at Rs.14,62,633/-. It was thus clear that in the return filed the capital balance in the accounts of the partners had been suppressed to the tune of Rs.112 lakhs. On consideration of this and the credit balance in the accounts of agriculturists, Sri Sathyanarayana Rathi, husband of the partner Smt. Srirangabai and brother of partner Sri Om Prakash Rathi, admitted that under creditors, the balance outstanding as on 31.3.95 had been inflated to the extent of Rs.117 lakhs. He made a disclosure of this amount u/s.132(4). He also made disclosure of Rs.12.80 lakhs towards unexplained cash and Rs.5 lakhs towards jewellery. A total disclosure of https://hcservices.ecourts.gov.in/hcservices/ Rs.134.80 lakhs was thus made. In the appraisal report the modus operandi of the assessee in generating the unaccounted income was discussed in detail. The appraisal report also pointed out that the Assessing Officer should enquire into the genuineness of the balance shown under other agricultural creditors as on 8.3.96 to the extent of Rs.6,78,99,042/-. This was based on the list of creditors prepared by the assessee on the date of search. Subsequent to the declaration, the assessee made an adhoc payment of Rs.25 lakhs towards tax liability. The assessee has also filed an affidavit, duly notarized, confirming the disclosure made by Sri Rathi on 19.4.96.” 4. The second respondent has replied to the charges on 23.06.2003. The disciplinary authority, after going through the imputation and reply has considered the case as follows:- “DA's views:- The CO's reply on allegation (i) above cannot be accepted. He accepted the version of the assessee ignoring the fact that a surrender was made in the statement recorded u/s.132 (4) and that the assessee had also filed an affidavit in this regard. He did not discharge his duties with the seriousness which is called for in completing the search & seizure cases and accepted the fabricatory story of the assessee. He did not apply the rates as were applicable in the block assessment cases. As regards the information given to the CIT at the time of seeking his approval, this does not absolve the CO of his guilt. On the allegation at (ii) above, the CO, in spite of his such a long experience in service, failed to understand that in the case of creditors, the onus lies on the assessee to prove the identity, genuineness and creditworthiness of the creditors. Therefore, his brushing aside the Inspector's report and getting satisfied merely with the current books of accounts, clearly speaks of a lapse on his part. The charge on both the above counts has been viewed as 'proved' at this stage.” https://hcservices.ecourts.gov.in/hcservices/ 5. On the aforesaid basis, the punishment of stoppage of increment for a period of three years, without cumulative effect, was imposed on the second respondent as per the Order dated 16.10.2006, after obtaining the opinion of the UPSC. Challenging such order of punishment, the second respondent has approached the Tribunal. 6. The Tribunal, under the impugned judgment, has set aside the order of punishment imposed on the second respondent. The Tribunal was of the view that the allegations related to the year 1997, the departmental proceedings were initiated only in the year 2003 and even though the reply to the charge memo was sent by the second respondent in the month of June 2003, the order of punishment was passed only on 16.10.2006 and therefore, there was a delay, which was not properly explained by the Department. 7. It is no doubt true that the allegations against the second respondent related to the year 1997, but in normal course, obviously, it would consume time for the department to look into the matter and to initiate proceedings against the delinquent. Therefore, initiation of proceedings in the year 2003 cannot be said to have delayed inordinately. Moreover, at that stage, the second respondent had not raised any objection regarding the delay in initiating departmental proceedings. After initiating departmental proceedings in the year 2003, the order, imposing punishment, was issued in the year 2006. Obviously, in the meantime, the opinion of UPSC had to be obtained as required under Law. Under such circumstance, we are unable to accept the conclusion arrived at by the Tribunal with regard to delay in imposing the punishment. 8. The other conclusion of the Tribunal is to the effect that the second respondent was discharging a quasi judicial function like making the assessment and therefore, no disciplinary proceedings could have been initiated against him. For the aforesaid purpose, the Tribunal relied on the decision of the Supreme Court reported in (Zunjarrao Bhikaji Nagarkar vs. Union of India and others) 1999 7 SCC 409. 9. The learned counsel appearing for the petitioners contended that the law laid down in Nagarkar's case relied on by the Tribunal was subsequently clarified in several decisions of the Supreme Court including one reported in (Union of India and others vs. Duli Chand) (2006) 5 SCC 680. As a matter of fact, in the aforesaid decision, the Supreme Court had gone to the extent of holding that the opinion rendered in Nagarkar's case is contrary to the decision of a larger bench of the Supreme Court reported in (Union of India vs. K.K. Dhawan) (1993) 2 SCC 56. It is also held that mere exercise of quasi judicial powers by itself does not afford immunity to an authority. In (Union of India vs. K.K. Dhawan) (1993) 2 SCC 56, in para No.28, it was observed by the Supreme Court as follows:- https://hcservices.ecourts.gov.in/hcservices/ “28. Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases: (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 manner which is unbecoming of a Government servant; (iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers; (v) if he had acted in order to unduly favour a party; (vi) if he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago “though the bribe may be small, yet the fault is great”. 10. In a recent decision of the Division bench of this Court reported in (T.K.K. Tharmar vs. Registrar, Central Administrative Tribunal, Chennai Bench, Chennai – 600 104 and others) 2008 3 MLJ 877, a Division Bench of this Court, in which, one of us was a https://hcservices.ecourts.gov.in/hcservices/ party (P.K. Misra, J) held that the disciplinary proceedings can be initiated if there is negligence even while discharging judicial or quasi judicial function. 11. On the aforesaid contention, the learned counsel for the second respondent submitted that there is no conclusion arrived it in the order of the disciplinary authority that there has been any negligence in the discharge of duty by the second respondent and therefore the order passed by the Tribunal is sustainable. 12. In our opinion, a bare reading of the order passed by the disciplinary authority clearly points to the negligence of the second respondent while discharging his duties. In such view of the matter, the ratio laid down in (Union of India vs. K.K. Dhawan) (1993) 2 SCC 56 will be applicable. 13. Once it is held that the departmental proceedings could have been initiated, the Tribunal or the High Court is not expected to interfere with such conclusion arrived at by the disciplinary authority. In the present case, the disciplinary authority has considered the imputation and explanation and has come to a particular conclusion, which cannot be characterised as arbitrary. In such view of the matter, the order passed by the Tribunal cannot be sustained. 14. The learned counsel for the second respondent submitted that on the basis of very same allegations, proceedings had been initiated by the respondents against the Commissioner of Income Tax and he was let off only with a warning and therefore, the punishment of stoppage of increment without cumulative effect imposed on the second respondent is grossly disproportionate to the charges. It is also submitted that because of the pendency of such proceedings, the second respondent could not get his promotion in normal course and therefore a lenient view must be taken. 15. In normal course, we would have remanded the matter to the disciplinary authority for re-considering the question of punishment. However, in view of the fact that the occurrence took place in the year 1997 for which punishment was imposed against the second respondent only in October 2006, remanding the matter would only further delay and prolong the agony of the second respondent. Accordingly, we feel that interest of justice would be served by directing that instead of punishment of stoppage of increment for three years without cumulative effect, stoppage of increment for a period of one year without cumulative effect would meet the ends of justice. https://hcservices.ecourts.gov.in/hcservices/ 16. Accordingly, the writ petition is allowed in part. No costs. rsh Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To The Registrar The Central Administrative Tribunal City Civil Court Buildings High Court Campus, Chennai 1 cc to Mr.M.Veluswami, Advocate, SR. 71508 1 cc to Mr.S.Sridharan, Advocate, SR. 70935 bs (co) dv/28.1. WP No. 26503 of 2008 https://hcservices.ecourts.gov.in/hcservices/