JAYANTI S.AIYAR vs. THE CHIEF COMMISSIONER OF INCOME TAX,PATNA

DATE OF RESERVING THE JUDGMENT : 08th August 2018. DATE OF PRONOUNCING THE JUDGMENT : 10th August 2018. JUDGMENT: 1] Heard learned counsel for the parties. 2] The challenge in this petition is to the judgment and order dated 19.12.2000 made by the Central Administrative Tribunal (CAT), Mumbai dismissing O.A. No. 343/98/7826 instituted by the petitioner to question the order dated 13th/14th.4.1993 imposing penalty of compulsory retirement upon the petitioner. 3] Mr.Ashutosh Kaushik, learned counsel for the petitioner, submits that from institution and continuation of disciplinary proceedings against the petitioner was vitiated D.S.Sherla CNR No : HCBM020011602001 Uploaded on - 21/08/2020 j-os-wp-1161-01 by mala fides. He submits that the petitioner had several grievances against the Commissioner of Income Tax at Ranchi, one Mr. Jha. He submits that Mr. Jha would therefore, target the petitioner from time to time. He submits that the petitioner brought to the notice of Mr. M.N. Tiwari, Joint Secretary (Administrative Board) the behaviour of said Mr.Jha. The Joint Secretary directed the petitioner to submit a report in writing about the conduct of Mr. Jha. This report was submitted by the petitioner, but the same was leaked and published in the newspaper. Soon after such leakage and publication in the newspaper, the petitioner was placed under suspension and trumped up charges were leveled against the petitioner. 4] Mr. Kaushik submits that from these facts it is quite clear that from initiation and continuation of disciplinary proceedings was vitiated by mala fides. He points out that all these averments have been made in the petition and there are no serious denial in the affidavit-in-reply filed on behalf of the respondent. On this ground, Mr. Kaushik submits that the disciplinary proceedings and the penalty of compulsory retirement imposed upon the petitioner is liable D.S.Sherla Uploaded on - 21/08/2020 j-os-wp-1161-01 to be set aside. He submits that the CAT has failed to exercise jurisdiction vested in it by not even adverting to the issue of mala fides. 5] Mr. Kaushik further submits that the enquiry proceedings were vitiated on account of non-compliance with principles of natural justice and fair play. He points out that though the enquiry was held at places like Delhi and Goa, no subsistence allowance was paid to the petitioner despite her representations and demand for the payment of the same. He points out that even the CAT, in the impugned judgment and order, has noted that though the order for payment of subsistence allowance was passed on 17.7.1987, the same was never communicated to the petitioner up to 7.4.1989. Mr. Kaushik submits that even on 7.4.1989, no such order was ever communicated to the petitioner. He submits that non-payment of subsistence allowance rendered it impossible for the petitioner to attend the enquiry and to defend herself. He submits that it is for this reason that the enquiry proceeded ex-parte. He submits that non-payment of subsistence allowance in such circumstances amounts to violation of principles of natural D.S.Sherla Uploaded on - 21/08/2020 j-os-wp-1161-01 justice and fair play. He relies upon ruling in Jagdamba Prasad Shukla vs. State of U.P. and ors. - (2000) 7 SCC 90 = AIR 2000 SC 2806. 6] Mr. Kaushik submits that since the enquiries were held in Delhi and Goa, it was not possible for the petitioner to attend and therefore, the petitioner sought for adjournment. He points out that only short adjournments were granted and the eqnuiry proceeded ex-parte. He submits that refusal of adjournment and grant of reasonable time also amounts to violation of principle of natural justice and fair play thereby vitiating the enquiry proceedings and the penalty imposed. He relies upon M.Paul Anthony vs. Bharat Gold Mines Ltd. and ors. - 1999 (3) SCC 679 in support of this contention. 7] Mr. Kaushik submits that the petitioner had made detailed representations raising several defences. However, the disciplinary authority has not even considered those defences. He refers to representations dated 6.1.1988 and 10.1.1989. Mr. Kaushik then refers to penalty order dated 13/14th.4.1993 and points out that the disciplinary authority D.S.Sherla Uploaded on - 21/08/2020 j-os-wp-1161-01 has failed to even take into consideration the several defences raised by the petitioner. He submits that non- consideration of such defences amounts to denial reasonable opportunity as contemplated by Article 311 of the Constitution of India. 8] Mr. Kaushik submits that the charges leveled against the petitioner were fabricated and most of them did not even constitute any misconduct. Mr. Kaushik submits that since these aspects have not been considered by the CAT, the impugned judgment and order warrants interference. 9] Mr. A.R. Gole, learned counsel for the respondent, submits that the charge of mala fides have been denied. He points out that the persons against whom mala fides have been alleged have not been impleaded as party. He points out that the petitioner did not participate in the enquiry despite grant of several opportunity and make good of allegation of mala fides. He points out that almost 12 departmental witnesses were examined in the course of enquiry in support of the charges which were quite serious in nature. He submits that the enquiry report is based upon D.S.Sherla Uploaded on - 21/08/2020 j-os-wp-1161-01 the evidence adduced in the course of enquiry. He submits that the scope of interference with findings recorded by the disciplinary authority is quite limited and for this purpose he relies upon Union of India and ors vs. P. Gunasekaran – (2015) 2 SCC 610. 10] Mr. Gole submits that necessary order for payment of subsistence allowance was made on 17.7.1987. This order requires the petitioner to furnish a Certificate that she was not engaged in any other employment, business, profession or vocation. Several efforts were made to communicate this order to the petitioner. He submits that the order was sent through the regular postal channels at the last known address of the petitioner and therefore, there was a presumption that the same was duly served upon her. He points out that the CAT has only held that it might have not been communicated to the petitioner until 7.4.1989. He submits that there is no doubt as regards the communication on 7.4.1989. Until this time, the enquiry did not really proceed. After 7.4.1989, there was no justification on the part of the petitioner in not furnishing Certificate in terms of FR 53(2) and participating in the enquiry. He D.S.Sherla Uploaded on - 21/08/2020 j-os-wp-1161-01 submits that the rulings relied upon by the petitioner are distinguishable and have been rightly distinguished by the CAT. For all these reasons, Mr. Gole submits that this petition may be dismissed. 11] The rival contentions now fall for our determination. 12] Insofar as the ground of mala fides is concerned, we must note at the outset, that though the charge of mala fides is basically leveled against Mr. Jha, the Commissioner of Income Tax at Ranchi, he has not been impleaded as a respondent in this petition. That apart, the petitioner has not demonstrated that Mr. Jha was really responsible for initiation of disciplinary proceedings against the petitioner. Admittedly, the disciplinary proceedings have been initiated by the Chief Commissioner of Income Tax and there are neither any pleadings nor any material to suggest that the Chief Commissioner of Income Tax, Patna was influenced by Mr. Jha to initiate disciplinary proceedings against the petitioner. D.S.Sherla Uploaded on - 21/08/2020 j-os-wp-1161-01 13] The allegations against Mr. Jha are basically contained in paragraph 4 of the petitioner. The respondents, in their reply, have stated that perusal of articles of charge which are 12 in number, would indicate that the charges against the petitioner are extremely serious and alleged prejudice that Shri Jha had against the petitioner would be of little consequence. From such a response, it cannot be said that the allegations of mala fides have gone uncontroverted. 14] Besides, in a matter of this nature, the petitioner was required to raise and thereafter establish the charge of mala fides before the enquiry officer during the enquiry proceedings. At least, it was necessary that the petitioner leads some evidence on this aspect of mala fides and lays a foundation for the charge of mala fides. In the present case, the petitioner has not undertaken this exercise at all. Besides, from the nature of charges levelled against the petitioner, we cannot say that the charges have any nexus with Shri. R.R. Jha. Therefore, it is not possible to interfere with the penalty imposed upon the petitioner on the ground that from initiation or continuation of disciplinary proceedings against her was vitiated by mala fides. D.S.Sherla Uploaded on - 21/08/2020 j-os-wp-1161-01 15] From the perusal of the impugned judgment and order as well, we find that the issue of mala fides does not appear to have been raised before the CAT. Merely, raising some grounds in the O.A. is not sufficient. Such ground has to be pressed at the time of arguments. At least perusal of the impugned judgment and order does not indicate that such ground was raised or pressed before the CAT. 16] The charges levelled against the petitioner relate to the following: “(a) Unauthorised absence from duty for 97 days; (b) Inter-seeking on behalf of a NSA detenu by writing to the DG & IGP of Maharashtra; (c) Misusing her official position by issuing summons under sec.131 of Income Tax Act with the intention to pressurize the Landlady to enter into a tenancy agreement with her; (d) Furnishing wrong particulars of TA/DA claim which smacks out lack of integrity; (e) Claiming and receiving HRA from Government vault while staying in the departmental transit accommodation; (f) Communicating information from file of an assessee to a person to whom she was not authorised to communicate such information; (g) Allowing access to Income Tax files and other documents to an unauthorised person and D.S.Sherla Uploaded on - 21/08/2020 j-os-wp-1161-01 allowing him to further interfere with official work; (h) Misusing authority to extract undue favour from an assessee; (i) Misusing authority to extract favour from her subordinates; (j) Giving patronages to one Srinivasan K. Rao who was living with her and including him in the interference and allowing him to interfere in official work, extortion and intimidation on officers, staff and assesses; (k) Addressing communication directly to higher authorities without following official channel; (l) Using of abusive and intemperate language in connection with her superiors”. 17] In support of charges, which are quite serious in nature, the department examined about 12 witnesses. The enquiry officer, based upon the material on record has held that most of the charges are conclusively proved except Articles 4 and 8 which were held to be partly proved. The disciplinary authority, after afford of due opportunity to the petitioner has accepted the enquiry report and imposed penalty of compulsory retirement upon the petitioner. 18] The scope of judicial review with the findings recorded by the disciplinary authority is quite limited. In D.S.Sherla Uploaded on - 21/08/2020 j-os-wp-1161-01 P.Gunasekaran (supra), the Hon'ble Supreme Court has made it clear that in disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. Therefore, in the exercise of writ powers under Article 226/227 of the Constitution of India, the High Court shall not venture into reappreciation of the evidence. The High Court can only see whether the enquiry is held by a competent authority; in accordance with procedure prescribed in that behalf; issues of whether there is violation of the principles of natural justice ; the considerations of extraneous evidence ; influenced by irrelevant or extraneous considerations or whether the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion. The High Court can also examine whether the disciplinary authority had erroneously failed to admit the admissible and material evidence admitted inadmissible evidence which is influenced the finding or whether the finding of fact is based on no evidence. 19] The Hon'ble Supreme Court, in P.Gunasekaran (supra), after positively stating what the High Court, in the exercise D.S.Sherla Uploaded on - 21/08/2020 j-os-wp-1161-01 of its powers under Article 226/227 of the Constitution of India can do in a matter dealing with disciplinary proceedings, has further, in clear and unambiguous terms set out, what the High Court, in exercise of powers under Article 226/227 of the Constitution of India cannot do while exercising powers of judicial review in disciplinary proceedings. It is held that the High Court shall not re- appreciate the evidence, interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law, go into the adequacy of the evidence; go into the reliability of the evidence, interfere, if there be some legal evidence on which findings can be based; correct the error of fact however grave it may appear to be; go into the proportionality of punishment unless it shocks its conscience. 20] Applying the aforesaid principles, there is really no case made out to interfere with the findings recorded by the disciplinary authority. In fact, it does not appear that the petitioner has any serious grievances against the findings as such. The petitioner's main grievance was that she was denied reasonable opportunity of defending herself. The D.S.Sherla Uploaded on - 21/08/2020 j-os-wp-1161-01 petitioner's grievance is that there was no compliance with principles of natural justice and fair play in the course of enquiry proceedings. In support of these contentions, she urges the following: (a) That she was not paid subsistence allowance which rendered it impossible for her to take part in disciplinary proceedings which were held in Delhi and Goa. She urges that this by itself constitute violation of principles of natural justice and fair play; (b) The petitioner urges that she had applied for adjournments which were unreasonably denied. She alleges that denial of adjournments and proceeding with the matter with ex parte amounts to violation of principles of natural justice and fair play. 21] Insofar as the issue of non-payment of subsistence allowance is concerned, the material on record indicates that not only an order was made for payment of subsistence allowance on 17.7.1987, but even attempts were made to serve such order upon the petitioner. The order, it appears that was even posted to the petitioner at her last known D.S.Sherla Uploaded on - 21/08/2020 j-os-wp-1161-01 address. The CAT has only observed that the order dated 17.7.1987 “might have not communicated to the applicant earlier to 7.4.1989”. There is no conclusive finding as regards non-communication until 7.4.1989. 22] In any case, non-communication after 7.4.1989 would have assumed importance if between 17.7.1987 and 7.4.1989, the enquiry had proceeded. The record indicates that despite grant of ample opportunity to the petitioner, she failed to attend the enquiry proceedings which were therefore, pro-longed. The enquiry really commenced after 7.4.1989. On 23.5.1989, opportunity was given to the petitioner to inspect documents. The petitioner was given opportunity to submit her list of witnesses by 6.6.1989. Some interim orders were made and the hearing in the enquiry was then fixed from 3.10.1980 to 5.10.1980. It is on these dates that the evidence of 10 departmental witnesses was recorded. The enquiry was then fixed at Goa on 10.11.1989, but adjourned to 23.12.1989, on which date, the evidence of two departmental witnesses was recorded. This means that between 17.7.1987 and 7.4.1989, there were no enquiry proceedings as such which the petitioner D.S.Sherla Uploaded on - 21/08/2020 j-os-wp-1161-01 was required to attend. In these circumstances, it cannot be said that any reasonable opportunity of defence was denied to the petitioner. 23] The material on record bears out that the order for payment of subsistence allowance dated 17.7.1987 was certainly made known to the petitioner on 7.4.1989. The order, consistent with the requirements of FR 53(2) required that the petitioner to produce a Certificate that she was not engaged in any other employment, business, profession or vocation. The petitioner failed to produce such Certificate. In such circumstances, the petitioner cannot make any grievance as regards non-payment of subsistence allowance and any consequent prejudice. 24] The case of Jagdamba Shukla (supra) is distinguishable and not at all comparable on facts to the case of the petitioner. In the said case, the delinquent official in reply to the show cause notice has stated that he was unwell and even if he was to appear in enquiry against medical advise, he was unable to appear for want of funds on account of non-payment of subsistence allowance. That D.S.Sherla Uploaded on - 21/08/2020 j-os-wp-1161-01 was not a case where the delinquent official despite being informed all the requirements to furnish Certificate in terms of FR 53 (2) failed to furnish such Certificate. In the present case, the petitioner, despite being informed all the requirements for producing such Certificate failed to produce the Certificate. 25] This is also not a case where the request of adjournments made on behalf of the petitioner were unreasonably declined. On one occasion, the adjournment was granted, further, the petitioner, refused to appear even on the adjourned date. Besides, the enquiry dates were fixed well in advance with due notice to the petitioner. Therefore, this cannot be said to be a case where reasonable opportunity was denied to the petitioner. 26] The decision in M.Paul Anthony (supra), is again distinguishable. In that case, adjournment was applied for on the ground of illness duly supported by Medical Certificate. However, the adjournment was refused. In the facts of the case, the Hon'ble Supreme Court, found that denial of adjournment constituted breach of principles of D.S.Sherla Uploaded on - 21/08/2020 j-os-wp-1161-01 natural justice. Such facts, are not found in the present matter. 27] The contention that various defence raised by the petitioner have not been considered by the disciplinary autority or by the CAT also deserves no acceptance. No doubt, the petitioner, in her replies to the charge-sheet did raise certain defences. However, the petitioner failed to participate in the enquiry proceedings despite ample opportunities provided to her. Raising of defences in reply to the charge-sheet is never sufficient. The delinquent officer is required to make good such defence in the course of enquiry proceedings. Besides, as noted earlier, it appears that the only issue urged by the petitioner before the CAT with some seriousness was the issue of non-payment of subsistence allowance and consequent failure of natural justice. This issue has been squarely considered and answered by the CAT. The defence raised by the petitioner cannot be considered by us for the first time. This is because the defences would have required some evidence for their acceptance. The petitioner, despite grant of D.S.Sherla Uploaded on - 21/08/2020 j-os-wp-1161-01 opportunity, failed to participate in the enquiry proceedings and adduce evidence in support of her defences. 28] The CAT has considered the contentions raised by and on behalf of the petitioner before it in their proper perspective. There is neither any jurisdictional error nor any perversity of breach. Accordingly, no case is made out to interfere with the impugned judgment and order. 29] This petition is, therefore, dismissed. Rule is discharged. There shall, however, be no order as to costs.

(M.S. SONAK, J.) (ACTING CHIEF JUSTICE)

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