Retired Income Tax Additional Commissioner Charge sheeted - for granting refund - CAT quashes charge-sheet
THE Applicant retired from service on 31.12.2004 as Additional CIT and has been drawing pension w.e.f. 01.01.2005. Ministry of Finance, Department of Revenue, after obtaining approval of the President under sub-clause(i) of clause (b) of sub-rule (2) of Rule 9 of the CCS (Pension) Rules, 1972, vide its Order No.C-14011/20/2008-V&L dated 11.07.2008, instituted an enquiry against him. Along with the said Memorandum, there was also a letter dated 11.07.2008 conveying the sanction of the President for instituting the departmental proceedings against him.
The substance of imputation of misconduct or misbehaviour in respect of which the enquiry was proposed to be held as set out in the Articles of Charges are as under:-
1. While holding the charge of Additional Commissioner of Income-tax, Range-36, New Delhi during the period 2003 to 2004, he granted approval for issuing refund of Rs.44,68,939/- (with interest) in the case of M/s Oriental Apparels, A.Y. 2003-04, in a casual and negligent manner and without safeguarding the interest of revenue, knowing fully well that it was a case, where the refund was claimed by the assessee by retracting the income disclosed during the survey operation conducted on the assessee.
2. While holding the charge of Additional Commissioner of Income-tax, Range-36, New Delhi during the period 2003 to 2004, he failed to properly monitor and supervise the follow-up action such as early selection of the case of scrutiny, conduct of investigation and early finalization of assessment in the case of M/s Oriental Apparels for the A.Y. 2003-04.
In its order dated 01 10 2014, the Central Administrative Tribunal observed,
It is seen that the proposal to initiate disciplinary proceedings under Rule 9 of the CCS (Pension) Rules, 1972 was approved by the President on 09.07.2008. In the note submitted to the President, the Respondent-department has specifically noted that, under the aforesaid rules, the proceedings could be initiated against the Applicant till 14.07.2008 (i.e., within 4 years from the date of referred approval). Thereafter, the Respondents have signed the impugned Memorandum and the sanction on 11.07.2008. But it is seen that the Respondent-Department prepared the covering letter for them only on 16.07.2008 and sent them by Registered Post only on 17.07.2008, i.e., after the expiry of the prescribed period. Both the dates are after the period of limitation which expired on 14.07.2008. The Applicant got those letters again after further delay on 23.07.2008. Rule 9(2)(b) of the CCS (Pension) Rules, 1972 is an order prohibiting the Respondents to initiate departmental enquiry proceedings against a retired Government servant unless the conditions mentioned therein are fulfilled. Sub-rule (ii) (b) of the said Rules says in clear and unequivocal terms that departmental proceedings against a retired Government servant shall not be instituted in respect of any event which took place more than four years before such institution. It is a mandatory provision. It is a provision to protect the retired employees from departmental enquiry after several years of retirement as they are not able to defend their position in their old age. The Respondents themselves have admitted that the disciplinary proceedings could be issued only till 14.07.2008. On the contrary, the Respondents have conveyed their decision to initiate departmental proceedings against the Applicant only by their letter dated 16.07.2008 posted only on 17.07.2008. It is a well settled position of law that if the rules provide that a particular action has to be taken in a particular manner, it is to be done in that manner and in no other manner. Further, as pointed out by the learned counsel for the Applicant, the Apex Court in its judgment in State of Punjab Vs. Amar Singh Harika held that it is not sufficient that the competent authority pass its orders and keep in its file but they have to be actually communicated to take effect.
Another question that arises in this case is whether the charge issued to the Applicant was approved by the President or not.
Yet another important aspect of this case is that the Respondents themselves had admitted that there were no witnesses to prove the charge levelled against the Applicant. In terms of Sub Rule 3 & 4 of Rule-14 of the CCS (CCA) Rules, 1965, it is an essential requirement of the enquiry proceedings that allegations made against the delinquent official has to be sustained with the help of the documents produced by the prosecution proved by its witnesses. According to the Sub Rule-(14) of Rule-14 of the CCS (CCA) Rules, 1965, it is by the Disciplinary Authority or on his behalf the Presenting Officer to produce oral and documentary evidence by which the Articles of Charge are proposed to be proved. Thereafter the witnesses have to be examined by or on behalf of the Presenting Officer and they may be cross-examined by or on behalf of the Government servant. However, in the present case, as pointed out earlier, there was not even a single prosecution witness.
The Tribunal held that the impugned charge Memorandum issued to the Applicant is not in conformity with the rules and the law laid down by the Apex Court on the issue. In the absence of any witnesses to prove the charge, the enquiry proposed to be held is an exercise in futility.
And so the inquiry proceedings are quashed.
The Former Additional Commissioner is now about 70 years old and for the last six years he was on this case. Is it fair for the Government to harass its former officers like this? Why don't you allow them a peaceful retired life? What do you get by such frivolous cases against your own employees, which will any way not stand? Who will pay for the mental torture endured by this retired officer? Or is it a warning to the present officers?