S.SARATH vs. THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX

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WP(C)/32950/2022HC KeralaKLHC01070117202218 October 2022Author: HONOURABLE MR.JUSTICE V.G.ARUN6 pages
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What did the High Court hold?

The High Court held that Ext. P8 Office Memorandum does not contain an absolute interdiction against issuing vigilance clearance when a final report has been filed in a case where the applicant is an accused. The OM only states that vigilance clearance can be withheld if a charge has been filed in court by the investigating agency. Since the 1st respondent had already granted permission for the petitioner to travel abroad for ten days, the denial of vigilance clearance based on Ext. P8 was deemed unjustified. The Court directed the 2nd respondent to issue the vigilance clearance certificate immediately upon production of the judgment. Subsequently, the 1st respondent was to issue the no-objection certificate. No issue was expressly left undecided.

What were the facts?

The petitioner, S. Sarath, an Income Tax Officer, is an accused in pending criminal cases. He sought permission to travel abroad to accompany his daughter for her studies. While courts had granted permission for passport renewal, he applied for vigilance clearance and a No Objection Certificate (NOC) from the respondents. After a previous writ petition (W.P.(C) No. 31760 of 2022) directed the 2nd respondent to consider his request, the petitioner filed the present writ petition. He pointed out that his request for vigilance clearance was rejected even before the previous judgment was rendered, and the 1st respondent had already granted approval for his travel from November 1, 2022, to November 10, 2022. The petitioner argued that pending cases with a final report should not automatically lead to refusal of vigilance clearance, citing an Office Memorandum (OM).

What were the issues?

1. Whether the pendency of criminal cases, where a final report has been filed, necessitates the refusal of vigilance clearance for an Income Tax Officer seeking to travel abroad (turning on the interpretation of Ext. P8 Office Memorandum). Assessee's Contentions: - The petitioner argued that Ext. P8 Office Memorandum indicates that vigilance clearance need not be refused merely because cases are pending before a criminal court and a final report has been framed. Revenue's Contentions: - The learned Central Government Standing Counsel submitted that in the wake of Ext. P8 OM, the 2nd respondent was left with no alternative but to reject the application for vigilance clearance.

AI-generated summary — verify with the full judgment below

Heard together (2 matters)

WP(C) NO. 32950 OF 2022
W.P.(C) No. 31760 of 2022

Read from the judgment's own cause title. This page is filed under one of them.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN TUE AY, THE 18TH DAY OF OCTOBER 2022 / 26TH ASWINA, 1944 WP(C) NO. 32950 OF 2022 PETITIONER: S.SARATH AGED 51 YEARS S/O. K. SASIDHARAN PILLAI, HOUSE NO. 307, SREEVATSAM, PTP NAGAR, PTP NAGAR PO, THIRUVANANTHAPURAM DISTRICT- 695038. BY ADVS. THOMAS ABRAHAM (NILACKAPPILLIL) ARUN TOM PHILIP RESPONDENTS: 1 THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX KERALA, AAYKAR BHAVAN, I S PRESS ROAD, ERNAKULAM - 682018. 2 THE ADDITIONAL DIRECTOR GENERAL OF INCOME TAX [VIG.] [SOUTH] [CBDT], CHENNAI, ANNEX BUILDING, 8TH FLOOR, 121, MG ROAD, NUNGAMBAKKAM, CHENNAI - 600034. OTHER PRESENT: SC CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT Dated this the 18th day of October, 2022 The petitioner is working as an Income Tax Officer at Alappuzha. He is an accused in two Sessions Cases pending before the Special Court (CBI), Thiruvananthapuram and one Calender Case pending before the Judicial First Class Magistrate-II, Nedumangad. The petitioner has to accompany his daughter to the UAE in connection with her studies. Therefore, he applied for permission to travel abroad and the courts granted permission for renewal of the petitioner's passport. In the meanwhile, the petitioner submitted requests for vigilance clearance and NOC before the respondents. As no action was forthcoming on the requests, petitioner approached this Court by filing W.P.(C) No. 31760 of 2022. By Ext. P9, the writ petition was disposed of directing the 2nd respondent to consider petitioner's request and take a decision thereon within one week.

2.

This writ petition is filed pointing out that, even before Ext.P9 judgment was rendered, the 2nd respondent had rejected the petitioner's request for vigilance clearance and the 1st respondent had granted approval for travelling abroad from 01.11.2022 to 10.11.2022. 3. Learned Counsel for the petitioner submits that, had the above crucial aspect been brought to the notice of this Court at the appropriate stage, this Court could have issued positive directions. It is submitted that if vigilance clearance is not granted, the petitioner will not be able to accompany his daughter, who is going abroad for pursuing her studies. Attention is drawn to Ext. P8 Office Memorandum to contend that, merely because cases are pending before the criminal court and final report has been framed, vigilance clearance need not be refused.

4.

Learned Central Government Standing Counsel submits that, in the wake of Ext. P8 OM, the 2nd respondent is left with no alternative other than reject to the application for vigilance clearance.

5.

Having perused Ext. P8 OM, I am unable to find any absolute interdiction against issuance of vigilance clearance certificate if final report is filed in a case in which the applicant is an accused. The OM only says that vigilance clearance can be withheld in cases where charge has been filed in court by the investigating agency. In the instant case, the 1st respondent has already granted permission to the petitioner to travel abroad for ten days. Being so, denial of vigilance clearance based on Ext. P8 is not justified. The writ petition is hence disposed of, directing the 2nd respondent to issue vigilance clearance certificate to the petitioner immediately on production of a copy of this judgment. Once vigilance clearance certificate is issued, it is for the 1st respondent to issue the no-objection certificate applied for. Ordered accordingly. V.G.ARUN JUDGE sb

Appendix — schedule of exhibits
APPENDIX OF WP(C) 32950/2022 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE RELEVANT PAGE OF THE PASSPORT OF THE PETITIONER Exhibit P2 THE TRUE COPY OF THE APPLICATION DATED 19.09.2022 SUBMITTED BEFORE RESPONDENT NO.1 THE PRINCIPAL COMMISSIONER OF INCOME TAX KERALA. Exhibit P3 THE TRUE COPY OF THE REQUISITION FOR TRAVEL ABROAD AND DECLARATION SUBMITTED BEFORE RESPONDENT NO.1 THE PRINCIPAL COMMISSIONER OF INCOME TAX KERALA.DATED 21-9-2022 Exhibit P4 THE TRUE COPY OF THE ORDER, GRANTING NOC TO THE PETITIONER FOR RENEWAL OF PASSPORT, DATED 03.10.2022 IN CRL. M.P NO. 131/2022 IN C.C. NO. 3/2019 OF THE COURT OF SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM. Exhibit P5 THE TRUE COPY OF THE ORDER, GRANTING NOC TO THE PETITIONER FOR RENEWAL OF PASSPORT, DATED 03.10.2022 IN CRL. M.P NO. 133/2022 IN C.C. NO. 4/2018 OF THE COURT OF SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM. Exhibit P6 THE TRUE COPY OF THE ORDER, GRANTING NOC TO THE PETITIONER FOR RENEWAL OF PASSPORT, DATED 28.09.2022 IN C.M.P NO. 2300/2022 IN C.C. NO. 1595/2016 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE - II, NEDUMANGAD. Exhibit P7 THE TRUE COPY OF THE REQUISITION LETTER DATED 04.10.2022 SUBMITTED BEFORE RESPONDENT NO.1 THE PRINCIPAL COMMISSIONER OF INCOME TAX KERALA. Exhibit P8 THE TRUE COPY OF THE OFFICE MEMORANDUM F.NO.11012/7/2017- ESTT.A-III DATED 18-2- 2020. Exhibit P9 THE TRUE COPY OF THE ORDER DATED 12-10-2022 IN WP (C)NO. 31760/2022. W.P.(C). 32950/2022 6 Exhibit P10 THE TRUE COPY OF THE ORDER DATED 10-10-2022 ISSUED BY THE OFFICE OF THE RESPONDENT NO.2 THE ADDITIONAL DIRECTOR GENERAL OF INCOME TAX [VIG.] [SOUTH] [CBDT], CHENNAI. Exhibit P11 THE TRUE OF THE ORDER DATED 11-10-2022 ISSUED BY THE OFFICE OF THE RESPONDENT NO.1 THE PRINCIPAL CHIEF COMMISSIONER INCOME TAX, KERALA. Exhibit P12 THE TRUE COPY OF THE REPRESENTATION DATED 14- 10-2022 SUBMITTED BY THE PETITIONER.

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