* THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO :10713 of 2010 %Dated 31.05.2010 #Between: Union of India and others. ..... PETITIONERS AND Sri K. Krishna Murthy and others. .....RESPONDENTS ! Counsel for the Petitioner: Sri B. Narasimha Sarma. ^ Counsel for Respondent No.1 : Sri K.R.K.V.Prasad ^Counsel for Respondent Nos.2 and 3: SC for UPSC <GIST [1] (1999) 7 SCC 409 2 (2007) 4 SCC 247 3 (2006) 5 SCC 680 4 (2007) 4 SCC 566 5 AIR 1964 SC 477 6 (1969) 1 All E.R. >HEAD NOTE THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD W.P.No.10713 of 2010 ORDER: (Per Sri Justice Ghulam Mohammed, J) This writ petition is filed seeking a writ of certiorari assailing the order, dated 11.08.2009, passed by the Central Administrative Tribunal, Hyderabad (for short ‘the Tribunal’) allowing O.A.No.248 of 2009 filed by the first respondent seeking to declare the action of the petitioners in imposing the penalty of ‘censure’ against him, as illegal and arbitrary. 2. The brief facts of the case are that the first respondent, while working as Additional Commissioner of Income-Tax, Rajahmundry, was served with a charge memo, dated 19.02.2004, along with the statement of imputation of misconduct or misbehavior, on the ground that when he was working as Deputy Commissioner of Income-tax at Bangalore, he made adjustments beyond the scope of Section 143(1)(a) of the Income-tax Act, 1961 (for short ‘the Act’). He submitted his explanation on 14.05.2004 denying the allegations made in the charge memo. The first respondent-disciplinary authority having considered the material on record and following the advice of the Union Public Service Commission (for short ‘UPSC’), found the first respondent guilty of the misconduct mentioned in the charge memo and imposed on him the penalty of ‘censure’ vide order dated 14.07.2008. Aggrieved by the same, the first respondent filed O.A.No.248 of 2009 before the Tribunal, which in turn allowed the same on 11.08.2009 setting aside the order, dated 14.07.2008. Questioning the same, the petitioners filed the present writ petition. 3. Heard the learned Standing Counsel for Income Tax Department appearing for the petitioners, the learned counsel for the first respondent and the learned Standing Counsel for UPSC appearing for the third respondent. 4. Learned counsel for the petitioners mainly contended that the impugned order suffers from jurisdictional error because the judgment of the Apex Court in ZUNJARRAO BHIKAJI NAGARKAR v. UNION OF INDIA[1], which was relied upon by the Tribunal, was overruled by the Apex Court in RAMESH CHANDER SINGH v. HIGH COURT OF ALLAHABAD[2] and UNION OF INDIA v. DULI CHAND[3]. I n RAMESH CHANDER SINGH’s case, (2 supra), it was held as under: “In Zunjarrao Bhikaji Nagarkar v. Union of India (1999) 7 SCC 409 this Court held that wrong exercise of jurisdiction by a quasi-judicial authority or mistake of law or wrong interpretation of law cannot be the basis for initiating disciplinary proceeding. Of course, if the judicial officer conducted in a manner as would reflect on his reputation or integrity or good faith or there is a prima facie material to show recklessness or misconduct in discharge of his duties or he had acted in a manner to unduly favour a party or had passed an order actuated by corrupt motive, the High court by virtue of its power under Article 235 of the Constitution may exercise its supervisory jurisdiction. Nevertheless, under such circumstances it should be kept in mind that the Judges at all levels have to administer justice without fear or favour. Fearlessness and maintenance of judicial independence are very essential for an efficacious judicial system. Making adverse comments against subordinate judicial officers and subjecting them to sever disciplinary proceedings would ultimately harm the judicial system at the grassroot level”. In DULI CHAND’s case cited (3 supra), it was held as under: “The law on the subject was considered in extenso in the three-Judge Bench decision of Union of India v. K.K.Dhawan wherein it was noted that the view that no disciplinary action could be initiated against an officer in respect of judicial or quasi-judicial functions was wrong. It was further said that the officer who exercises judicial or quasi- judicial powers acting negligently or recklessly could be proceeded against by way of disciplinary action. The Court listed six instances when such action could be taken (SCC p. 67, para 28) 28. (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”. In 1999 another Bench of two Judges in Zunjarrao Bhikaji Nagarkar (1999) 7 SCC 409 considered and referred to these earlier decisions. However, the Court appears to have reverted back to the earlier view of the matter where disciplinary action could be taken against an officer discharging judicial functions only where there was an element of culpability involved. Since in that particular case there was no evidence whatsoever that the employee had shown any favour to the assessee to whom refund had been made, it was held that the proceedings against him would not lie. In fact the Court set aside the disciplinary proceedings at the stage of the issuance of charge-sheet to the charged officer. In our opinion, Nagarkar case was contrary to the view expressed in K.K. Dhawan case. The decision in K.K.Dhawan being that of a larger Bench would prevail. The decision in Nagarkar case therefore does not correctly represent the law. Inasmuch as the impugned orders of the Tribunal and the High Court were passed on the law enunciated in Nagarkar case this appeal must be allowed. The impugned decisions are accordingly set aside and the order of punishment upheld. There will be no order as to costs”. Learned counsel for the petitioners further contended that the adjustments made by the first respondent in as many as ten cases under Section 143(1)(a) of the Act were without any justification and that the same were reversed through the orders under Section 154 of the Act and that the Tribunal has committed error in allowing the O.A. since the charge framed against him was technically proved and the disciplinary authority taking into account the advice of UPSC, imposed on him the punishment of ‘censure’. 5. Learned counsel for the first respondent contended that the judgment cited one supra was not overruled and was followed by the Apex Court in INSPECTOR PREM CHAND v. GOVERNMENT OF NCT OF DELHI[4] wherein it was held as under: “A finding of fact was arrived at that the accused did not make demand of any amount from the complainant and thus no case has been made out against him. This Court in Zunjarrao Bhikaji Nagarkar v. Union of India (1999) 7 SCC 409 has categorically held: (SCC p. 430, para 42) “42. Initiation of disciplinary proceedings against an officer cannot take place on 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”. Learned counsel further contended that the adjustments made by the first respondent were within the scope of section 143(1)(a) of the Act and to safeguard the interest of revenue and that there is no finding by the disciplinary authority that he acted negligently, except technical. He has drawn the attention of this Court to the relevant portion of the finding of the disciplinary authority and the same reads as under: “Thus, the lapses on the part of Shri Krishnamurthy, were seen to be technical. The actions of AOs, though inconsistent with Board’s guidelines, appear to be bona fide and intended to protect the interest of revenue. No deliberate intention to violate the guidelines could be inferred. That the mistake was consistently repeated in a number of cases in itself was not too significant”. He has also drawn the attention of this Court to the confidential letter dated 07.05.2008 of UPSC, which reads as under: 3.2 The commission further note that although the DA has ruled out any malafide on the part of the CO, the DA is, however, of the view that the adjustments in all the cases under Section 143(1)(a) were made by the CO without any justification and these were also reversed through orders under Section 154. The reasons put forth by the CO for doing so are not acceptable to the DA. 3.3 The commission also took note that while the DA on the one hand has held the CO fully responsible for exceeding his jurisdiction, on the other hand the DA has admitted that the provisions/implications of the said Section had not been uniformly understood by the departmental officers and the assessees and there had been a great deal of litigation and confusion in that regard. According to the DA, many other Assessing Officers had acted in a similar manner and has admitted that in a majority of cases the actions were bona fide and intended to protect the interest of revenue”. He contended that as there is a confusion in interpreting various provisions of the Act, imposing punishment on the first respondent is illegal and arbitrary and that the Tribunal has rightly allowed the O.A., following the judgment of the Apex Court cited one supra. 6. Now, the point for consideration is whether the order impugned suffers from jurisdictional error warranting interference by this Court. 7. With regard to the jurisdiction of this Court for issuance of an order under a writ of certiorari, it is relevant to refer the decision of the Apex Court in SYED YAKOOB v. K.S.RADHA KRISHNAN[5] wherein it was held as under: “The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals; these are cases where orders are passed by inferior Courts or Tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised”. I n ANISMINIC LTD.,V. THE FOREIGN COMPENSATION COMMISSION AND ANOTHER[6], it was held as under: “The question, what is the tribunal’s proper area, is one which it has always been permissible to ask and to answer, and it must follow that examination of its extent is not precluded by a clause conferring conclusiveness, finality, or unquestionability on its decisions. These clauses in their nature can only relate to decisions given within the field of operation entrusted to the tribunal. They may, according to the width and emphasis of their formulation, help to ascertain the extent of that field, to narrow it or to enlarge it, but unless one is to deny the statutory origin of the tribunal, and of its powers, they cannot preclude examination of that extent. It is sometimes said (the argument was presented in these terms) that the preclusive clause does not operate to decisions outside the permitted field because they are a nullity. There are dangers in the use of this word it if draws with it the difficult distinction between what is void and what is voidable, and I certainly do not wish to be taken to recognize that this distinction exists or to analyse it if it does. But it may be convenient so long as it is used to described a decision made outside the permitted field, in order words, as a word of description rather than as in itself a touchstone. The Courts, when they decide that a ‘decision’ is a ‘nullity’ are not disregarding the preclusive clause. For just as it is their duty to attribute autonomy of decision of action to the tribunal within the designated area, so as the counterpart of this autonomy, they must ensure that the limits of that area which have been laid down are observed.” 8. From a perusal of the material on record, it is clear that the adjustments made by the first respondent as an Assessing Officer, under Section 4(1)(a) of the Act, were reversed under Section 154 of the Act. The disciplinary authority in its order, dated 14.07.2008, though observed that the lapses on the part of the first respondent were seen to be technical; that the action of the Assessing Officers appear to be bona fide and intended to protect the interest of revenue; that no deliberate intention to violate the guidelines could be inferred and that the mistake was consistently repeated in a number of cases in itself was not too significant, found the first respondent guilty of the charge and imposed the penalty of ‘censure’ The advice of UPSC also shows that the first respondent is not the only officer, who has committed mistake and made adjustments and that according to the disciplinary authority, there prevailed some confusion in relevant provisions. However, neither the advice of UPSC nor the finding of the disciplinary authority shows that the first respondent had obtained undue advantage while discharging quasi-judicial functions. The Tribunal has rightly observed that the disciplinary authority, without considering the fact that whether any misconduct is proved on the part of the first respondent, imposed on him the penalty of ‘censure”. 9. In DULI CHAND’s case cited (3 supra), the Apex Court while referring K.K.Dhawan’s case, held that the view that no disciplinary action could be initiated against an officer in respect of judicial or quasi-judicial functions was wrong and that the officer, who exercises judicial or quasi-judicial powers acting negligently or recklessly, could be proceeded against by way of disciplinary action and listed six instances when such action could be taken. In the instant case, the first respondent has not acted negligently or recklessly while exercising quasi-judicial powers, but only technical. 10. In view of the above, we find no jurisdictional error in the order impugned warranting interference by this Court. 11. Accordingly, the Writ Petition is dismissed. No order as to costs. _____________________ GHULAM MOHAMMED,J ____________________ G.BHAVANI PRASAD, J Date:31.05.2010. sj [1] (1999) 7 SCC 409 [2] (2007) 4 SCC 247 [3] (2006) 5 SCC 680 [4] (2007) 4 SCC 566 [5] AIR 1964 SC 477 [6] (1969) 1 All E.R.