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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH, 2021
PRESENT
THE HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
WRIT PETITION NO.7993/2020(S-CAT) C/W WRIT PETITION NO.5530/2021(S-CAT)
IN WRIT PETITION NO.7993/2020
BETWEEN:
UNION OF INDIA THROUGH THE FINANCE SECRETARY MINISTRY OF FINANCE DEPT. OF REVENUE GOVT OF INDIA NEW DELHI-110001
THE PR. CHIEF COMMISSIONER OF INCOME TAX KARNATAKA AND GOA REGION C R BUILDING BENGALURU-560001 …PETITIONERS (BY SRI.B.PRAMOD, ADV.,)
AND:
T.C.GUPTA AGED ABOUT 64 YEARS S/O GYAN CHAND GUPTA R/O S-77, GOLDEN ENCLAVE OLD AIRPORT ROAD BENGALURU-560017
… RESPONDENT
(BY SRI.T.C.GUPTA, PARTY-IN-PERSON)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 4.4.2019 (ANNEXURE-A) PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU BENCH, BENGALURU IN O A NO.170/01512/2018 BY HOLDING THE SAME TO BE ILLEGAL ARBITRARY AND UNTENABLE AND ETC.
IN WRIT PETITION NO.5530/2021
BETWEEN:
T C GUPTA S/O SHRI GYAN CHAND GUPTA, AGED 65 YEARS, R/O S-77, GOLDEN ENCLAVE, OLD AIR PORT ROAD, BANGALORE-560017 …PETITIONER (BY SRI.T.C.GUPTA, PARTY-IN-PERSON)
AND:
UNION OF INDIA THROUGH THE FINANCE SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, GOVERNMENT OF INDIA, NEW DELHI-110001
THE PR. CHIEF COMMISSIONER OF INCOME TAX KARNATAKA AND GOA REGION, C R BUILDING, BANGALORE-560001
MR K B SURESH, MEMBER (J) CAT BENCH, DOMLUR BANGALORE-560071
MR C V SANKAR, MEMBER (A) CAT BENCH, DOMLUR, BANGALORE-560071 … RESPONDENTS (R2 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO THE UNCALLED FOR, ILLEGAL, MALAGIDE AND DISPARAGING REMARKS MADE IN THE
ORDER DATED 4.4.2019 IN OA NO.170/01512/2018 AND ORDER DATED 17.12.2019 IN RA NO.170/00017/2019 PASSED BY THE CAT BENCH BANGALORE (T.C.GUPTA VS. UOI AND ORS) ANNEXURE-A AND B, BE QUASHED AND SET ASIDE AND THE RESPONDENT ORDER OR WITHHOLDING OF PENSION MAY BE QUASHED ON MERITS.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, SATISH CHANDRA SHARMA J., MADE THE FOLLOWING:
ORDER
WP No.7993/2020 is filed by petitioners-Union of India and another and the connected writ petition i.e., WP No.5530/2021 is filed by the respondent-employee being aggrieved by the orders dated 17.12.2019 passed in the Original Application No.170/01512/2018 and the Review Application No.170/00017/2019 passed by the Central Administrative Tribunal, Bangalore Bench.
Regard being had to the similitude in the controversy involved in the aforesaid cases, they were heard analogously together and a common order is being passed.
The facts of the case in WP No.7993/2020 reveal that the sole respondent-T.C.Gupta before this Court was appointed in the Income Tax Department on 17.12.1979 on the post of Inspector of Income Tax and retired after attaining the age of superannuation on 30.09.2014. While he was in
service he was chargesheeted and the misconduct reflected from the charge sheet revolves around the publication of a book published by the respondent-employee. There were three charges alleged against the respondent-employee and the Enquiry Officer after conducting an enquiry strictly in consonance with the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short ‘CCS(CCA), Rules’) gave a clean chit to the employee by submitting an enquiry report. The Disciplinary Authority not being satisfied with the enquiry report forwarded a note of disagreement on 19.10.2017 to the respondent-employee and at the relevant point of time he was no longer in service. Keeping in view the Central Civil Services (Pension) Rules 1972, (for short ‘CCC (Pension) Rules) the matter was forwarded to the UPSC as the only punishment which could have been awarded was reduction in pension/withholding of gratuity. The UPSC finally gave advise in the matter and an order was passed on 11.04.2018 proposing for inflicting a punishment of stoppage of 10% of pension. Against the findings of the UPSC, an opportunity was afforded to the respondent-employee to submit a representation and he did submit a representation on 28.05.2018 and finally on 22.06.2018 a punishment order
was passed inflicting a punishment order of stoppage of 10% of pension. The order dated 22.06.2018 was challenged before the Tribunal on various grounds.
It was argued by the learned counsel for the respondent-employee in question that for publication of a book, no permission is required and there was a deemed permission as no final order was passed keeping in view Rule 8 of the CCS (Conduct) Rules. His further contention is that the order of punishment is bad in law as no permission was obtained from President of India keeping in view Rule 9 of CCC (Pension) Rules, 1972. Rule 9 of the CCC (Pension) Rules, reads as under: “9. Right of President to withhold or withdraw pension.
(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re- employment after retirement :
Provided that the Union Public Service Commission shall be consulted before any final orders are passed :
Provided further that where a part of pension is withheld or withdrawn the amount of such pensions
shall not be reduced below the amount of rupees three hundred and seventy-five per mensem.]
(2) (a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service :
Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President.
(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment, -
(i) shall not be instituted save with the sanction of the President,
(ii) shall not be in respect of any event which took place more than four years before such institution, and
(iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.
(3) [xxx]
(4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub- rule (2), a provisional pension as provided in 2[Rule 69] shall be sanctioned.
(5) Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. (6) For the purpose of this rule, -
(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date ; and
(b) judicial proceedings shall be deemed to be instituted -
(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and
(ii) in the case of civil proceedings, on the date the plaint is presented in the court.”
4.1 Another ground was raised before the Tribunal that publication of book does not amount to misconduct keeping in view Rule 15 of the CCC (Conduct) Rules, 1964. Lastly, it was argued that no permission of President of India has been obtained while inflicting the punishment order.
Learned counsel for the Union of India before the Tribunal as well as before this Court has stated that the
employee in question did not obtain any permission from the Department for publishing the book and in the book it was mentioned that necessary permission has been obtained. The book was relating to the corruption in the Income Tax Department and allegations were made against the senior officers. Hence, as there was a violation of Rule 15(2)(b) of the CCS (Conduct) Rules, 1964, a punishment order has been rightly inflicted upon the employee after following the due process of law. The Tribunal has initially disposed of the OA by order dated 04.04.2019 and the order passed by the Tribunal is reproduced hereunder:- “We heard this matter in full. After detailed hearing, we are of the view that for such a serious infraction a miniscule punishment seems to be imposed on the applicant. But the applicant raises a question that the proper remedy is for the department to obtain the President’s consent and have a denovo inquiry commenced against him and that he is willing for it. In the peculiar circumstances, we accept the applicant’s view and direct the respondents to obtain the permission of the President or an appropriate authority and conduct denovo inquiry. Let it be conducted and concluded within six months next. In the meanwhile, the impugned order will be in suspended abeyance.
The OA is disposed off as above. No order as to costs.”
5.1 The Tribunal without referring to any statutory provision of law, in a four lined order has directed the Department to conduct a De novo inquiry. The Tribunal while dealing with the case of IRS officer, without discussing the facts and the statutory provisions has simply ordered a De novo inquiry for the reasons best known to the Tribunal. Thereafter, the employee in question has filed a review petition and the Tribunal in the review petition has quashed the charge sheet itself without mentioning any reason and without mentioning the statutory provisions governing the field. Though this Court would have normally remanded the matter back to the Tribunal to pass a detailed order on merits keeping in view the statutory provisions governing the field, however, as the employee in question is a retired employee, this Court has minutely gone through the entire record. This Court has also heard learned counsel for the Union of India at length as well as the respondent- employee who is present before us.
The undisputed facts of the case reveal that the respondent-employee in question published a book called
“Encounters with Corruption and Harassment in Income-tax of an IRS Officer”.
As argued before this Court by the respondent- employee in question that he made an attempt to bring it to the notice of the public at large the alleged corruption which was prevailing in the Income Tax Department and the authorities involved in the alleged corruption and only because certain persons were exposed by the respondent–employee, he was subjected to a departmental enquiry.
This Court is not going into the contents of the book as it is required to see only whether publication of a book amounts to misconduct or not. Rule 15 of the CCS(Conduct) Rules, 1964 reads as under: “15. Private trade or employment- (1)Subject to the provisions of sub-rule (2), no Government servant shall, except with the previous sanction of the Government,-
(a)engage directly or indirectly in any trade or business, or
(b)negotiate for, or undertake, any other employment, or
(c)hold an elective office, or canvass for a candidate or candidates for an elective office in any body, whether incorporated or not, or
(d) canvass in support to any business of insurance agency, commission agency, etc., owned or managed by any member of his family, or
(e) take part except in the discharge of his official duties, in the registration, promotion or management of any bank or other company registered or required to be registered, under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force, or of any co-operative society for commercial purposes.
(f) participate in or associate himself in any manner in the making of-
(i) a sponsored media (radio or television) programme; or
(ii) a media programme commissioned by Government media but produced by a private agency; or
(iii) a privately produced media programme including video magazine:
Provided that no previous permission shall be necessary in case where the Government servant participates in a programme produced or commissioned by Government media in his official capacity.
(2) A Government servant may, without the previous sanction of the Government,-
(a) undertake honorary work of a social or charitable nature, or
(b)undertake occasional work of a literary, artistic or scientific character, or
(c)participate in sports activities as an amateur, or
(d) take part in the registration, promotion or management (not involving the
holding of an elective office) of a literary, scientific or charitable society or of a club or similar organisation, the aims or objects of which relate to promotion of sports, cultural or recreational activities, registered under the Societies Registration Act, 1860 (21 of 1860), or any other law for the time being in force, or
(e) take part in the registration, promotion or management (not involving the holding of elective office) of a co-operative society substantially for the benefit of Government servants, registered under the Co- operative Societies Act, 1912 (2 of 1912), or any other law for the time being in force:
Provided that – (i)he shall discontinue taking part in such activities, if so directed by the Government; and
(ii)in a case falling under clause (d) or clause(e) of this sub-rule, his official duties shall not suffer thereby and he shall, within a period of one month of his taking part in such activity, report to the Government giving details of the nature of his participation.
(3) Every Government servant shall report to the Government if any member of his family is engaged in a trade or business or owns or manages an insurance agency or commission agency.
(4) Unless otherwise provided by general or special orders of the Government, no Government servant may accept any fee for any work done by him for any private or public body or any private person without the sanction of the prescribed authority.
Explanation - The term 'fee' used here shall have the meaning assigned to it in Fundamental Rule 9 (6-A).”
8.1 Rule 15(2)(b) makes it very clear that a government servant may without previous sanction of the Government can undertake occasional work artistic or scientific character.
8.2 Apart from the aforesaid statutory provision of law, there is no other provision relating to publication of a book and therefore for publishing a book, no permission was required at the relevant point of time. The other allegation is in respect of mentioning one line in the book i.e., ‘permission was obtained from the Department’. The respondent- employee before this Court has drawn the attention of this Court towards Rule 8 of the CCC (Conduct) Rules, 1964 and the Government of India decision dated 09.04.1978. His contention is that because no reply was given by the Government of India to his application, there was a deemed permission granted by the Government of India and a book was published by him as aforestated.
The other important aspect of the case is that the respondent-employee is an IRS officer and a retired government servant and the Union of India has passed an order in exercise of powers conferred under Rule 15(6) of the
CCS(CCA) Rules, 1965 whereas the order should have been passed under Rule 9 of CCC (Pension) Rules, 1972.
In the considered opinion of this Court wrong mentioning of a statutory provision will not render the order as void abinitio. The facts remain that the procedure prescribed for inflicting a punishment upon a government servant has been followed and merely because in place of Rule 9, Rule 15(6) has been mentioned, the order cannot be treated as bad in law. However, on merits, as the CCS(Conduct) Rules, 1964 does not require any permission for publication of a book, it appears that only because the respondent-employee has made an attempt to expose the officer of the Department, he has been crucified.
This Court, keeping in view the totality of the circumstances of the case and Rule 15 of the CCS(Conduct) Rules, 1964, is of the opinion that the Tribunal at the first instance could not have ordered a De novo enquiry without mentioning any statutory provision of law and at the second instance the Tribunal could not have ordered quashment of the charge sheet itself. In the considered opinion this Court, the order passed in the original application
O.A.NO.170/01512/2018 dated 04.04.2019 is hereby quashed and the subsequent order dated 17.01.2021 passed in Review Application No.170/00017/2019 questioning the charge sheet is upheld for the reasons mentioned in the order passed by this Court.
Resultantly, the writ petition preferred by the Union of India and others is dismissed and the writ petition preferred by the respondent-employee is allowed.
Sd/- JUDGE
Sd/- JUDGE