JUDGMENT
K.S. Bakthavatsalam, Vice-Chairman
1. O.A.867 of 1998 is directed against the charge memo dated 18.8.1998 issued by the second respondent and O.A.920 of 1998 is directed against an order of suspension pending enquiry, dated 12.10.1998 passed under Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The applicant belongs to IRS serving as Commissioner of Income Tax at Chennai. She had worked as Deputy Commissioner, Income Tax (Assessment), Special Range, Trichur during the period July 1985 to April 1994. It seems that when she was promoted as Commissioner and has been working as a Commissioner in Chennai. On 8.10.1996 a memorandum was issued to the applicant for certain acts of omission and commission said to have been committed by the applicant during the period from July 1985 to April 1994. According to the applicant out of 12,000 assessments made by the applicant during the said period, 25 cases were picked out as unsatisfactory and prejudicial from the revenue point of view and the
memo was issued. The applicant was asked to show cause why disciplinary proceedings for major penalty should not be initiated against her under CCS (CCA) Rules, 1965 for these lapses. The applicant seems to have gathered material and sent a detailed reply on 9.7.97. In that reply, the applicant seems to have stated that there are factual mistakes in the allegations and how in every one of the instance she had correctly exercised the power granted to her under the Income Tax Act. This reply seems to have been sent by the applicant through the then Chief Commissioner, Income Tax, Madras on 9.7.97 addressed to the Joint Secretary, Ministry of Finance, Department of Revenue, New Delhi as well as to the Vigilance Department of the Income Tax, New Delhi. It is stated in the application that the applicant has not heard anything about it further. However, it is stated that all of a sudden the impugned charge memo dated 18.8.1998 has been issued under Rule 14 of the CCS (CCA) Rules, 1965. The applicant alleges in the application that item 9 in the charge memo refers to a case named E.J. Davis for Assessment year 1991-92 and a memo was issued in this case on 12.10.1992 and a reply was given on 9.11.92 and after which there was no communication at all to show whether her explanation was accepted or not. It is stated in the application that the present memo also raises the same issue without referring to the reply dated 9.11.1992. The applicant further alleges that the impugned charge memo has been issued without considering in any manner the prior show cause notice issued to the applicant in respect of the same subject matter and especially a very detailed reply was given to the same by the applicant. The applicant states that when the Government has decided to issue a memorandum seeking a reply from the concerned to the allegations in the memorandum why a disciplinary proceedings should not be initiated and where the reply had been given to the said show cause notice, it is incumbent on the part of the disciplinary authority to consider the memorandum of show cause notice in the light of the reply given by the applicant then arrive at a conclusion whether or not to initiate disciplinary proceedings under the rule. According to the applicant, in the impugned charge memo dated 18.8.98, neither the prior memorandum dated 8.10.96 nor the reply has been referred to. According to the applicant, the initiation of disciplinary proceedings without considering the reply is wholly invalid. In other words, the impugned charge memo without referring to what has happened earlier and the decision arrived at by the Government is not valid in law. The applicant also states that according to paras 2.1, 2.3 and 2.7 of the Vigilance Manual, the explanation of the applicant ought to have been considered and that has not been done. According to the applicant, the impugned charge memo has been issued as if there was no earlier memorandum and an explanation thereto by the1 applicant. Further according to the applicant it is a valuable right granted to a person and initiation of departmental proceedings entails very grave consequence and if an officer holding the rank as a Commissioner is subjected to departmental proceedings, sufficient reason should be available. Otherwise serious prejudice and humiliation would be caused to the applicant. The applicant also states that the impugned memorandum of charges is liable to be quashed it is 7 to 10 years old in the sense the commission and omissions mentioned are the assessments passed by the applicant exercising her quasi-judicial functions under the discretionary power granted under the Income Tax Act. According to the applicant, the assessment orders passed by the Deputy Commissioner of Income-Tax could be challenged by way of revision by the Department and that every assessment order is also subjected to a very detailed scrutiny by the Auditing (Investigation) Wing and every assessment order is reviewed in the following year. When such is the case, and when none of these audited and reviewed in any one case mentioned in the memorandum, it has been said that the order is not valid or not in accordance with the norms. So the applicant states that she cannot take a proper defence when such stale occurrence that had been taken place 7 to 10 years earlier are
made ground for imposition of major penalty. According to the applicant, it is settled law that the Court may have to assume prejudice where such a stale charges for commissions and omissions that had been made 7 to 10 years ago are made subject matter of the disciplinary proceedings.
2. A detailed reply has been filed by the respondents. It is stated that it is a matter of record that a memorandum dated 8.10.96 was issued by the Under Secretary, V & L Section. It was in the nature of a preliminary show cause memorandum calling upon the applicant to furnish her explanation on the irregularities noticed in various matters dealt with by her in her official capacity, including specific assessments framed by her during her tenure as Deputy Commissioner of Income Tax (Assts), Special Range, Trichur and irregularities in the financial transactions entered into by her. The issue of that memorandum dated 8.10.96 was in the interest of natural justice and with a view to afford an opportunity to the applicant to give her explanation on the irregularities noticed. According to the respondents, the reply submitted by the applicant on 9.7.97 was duly considered and only after considering her representation dated 9.7.97, the impugned charge memorandum has been issued which brings out the irregularities and charges against the applicant. It is also pointed out that in the charge memorandum dated 18.8.98 that it is not necessary as per the provision of Sub-rule (3) of Rule 14 of the CCS (CCA) Rules to mention the particulars of the earlier memorandum and the reply given by the applicant. With regard to the allegation regarding item 9 of the memorandum, dated 18.8.98, the reply of the applicant has been considered before including the facts in toto in the charge memorandum. It has been stated that there has been no violations of natural justice and full opportunities have been given to the applicant to furnish her view points by issuing memorandum dated 8.10.96. It is further stated by the respondents that the charge memorandum dated 18.8.98 under the CCS (CCA) Rules has been issued after following the prescribed procedure and the proceedings taken against the applicant are wholly valid. With regard to the contention raised by the applicant based on the Vigilance Manual, it is stated that the provision has been followed strictly and the applicant has been given an opportunity to say whatever she may have to say vide the memorandum dated 8.10.96 and the reply of the applicant has been duly examined before issuing the impugned charge memorandum. It is also pointed out in the reply that serious irregularities committed by the applicant are duly enumerated in the memorandum dated 18.8.98 and the functionaries of the department are expected to discharge their duties in a proper manner and even exercise of discretion in quasi judicial matters has to be proper and beyond reapproach. It is also pointed out that there is no bar in taking into consideration the facts of various irregularities on the part of the applicant after a time gap especially when it comes to the knowledge only subsequently. It is further pointed out that the applicant has a remedy by submitting a written statement of defence in response to the memorandum as provided in Rule 14(4) of the CCS (CCA) Rules.
3. A rejoinder has been filed by the applicant. In the rejoinder, it is stated that the respondents to specifically show before this Tribunal whether the reply dated 9.9.97 was considered in accordance with the provisions of the Vigilance Manual. It is also pointed that the instances mentioned in the charge memorandum are all stale and would not be basis for initiating disciplinary proceedings. According to the applicant, not even one instance mentioned is within 5 years old and some of the instances like the assessment in respect of one V.K. Asokan is 10 years old and as such there could never be a justification in pick put such stale occurrence for initiating disciplinary proceedings especially when the same had been subjected to special audit and revenue audit and had resulted more revenue to the
Government. Further according to the applicant if the proceedings are continued serious prejudice would be caused. The applicant also stated in the rejoinder that every instances mentioned in the charge is stale, therefore, in the interest of justice to prevent the continuation of the disciplinary proceedings. Moreso, in view of the fact that at the end of each Assessment year, the orders of the assessment passed in the previous year are all reviewed by high power Committee of audit by the Auditor and Comptroller General of India (C & AG) and reviewed by high power Committee the fact of which is also placed on record. The applicant has taken pains to show in the rejoindly that each one of the charge is very stale and has been made after a gap of nearly 7 to 12 years. The applicant has brought out in paragraphs 8 to (sic) of the rejoinder how the charges are stale and that there is no substance in the charges. The applicant has also stated that the order of suspension is wholly unjustified as the relevant parameters would justify passing an order of suspension are totally absent on the facts of this case as the alleged irregularities occurred in case of Kerala jurisdiction a decade back and the and the applicant now occupies a different position. According to the applicant the records are at the safe custody of the Vigilance Department and there is no purpose will serve by keeping the applicant under suspension. According to the applicant an order of suspension would not be passed merely because it is lawfully to be so. Further according to the applicant that she has been promoted as Commissioner of Income Tax (Appeals) and her work had all through been rated as exemplary as per the report of the Chief Commissioner of Income Tax, Chennai. The applicant has stated in the rejoinder that the Chief Commissioner has said that over all performance of the applicant during the month of September, 1998 is excellent. The applicant has given annexure along with the rejoinder in which it is stated that the applicant was promoted as Additional Commissioner of Income Tax on 4.10.96 and even though the memo was served on the applicant on 8.10.96, she has been to the cadre of Commissioner on 11.4.97. So the applicant prays that the charge memorandum dated 18.8.98 and the order of ad-interim suspension impugned in these applications have got to be set aside.
4. So far as O.A.920 of 1998 is concerned, the applicant has stated in the application that the order of suspension has been passed. Without taking into account the explanation offered by the applicant to the earlier memorandum dated 8.10.96 vitiates the order. It is also pointed out that when the applicant has been promoted as Commissioner of Income Tax in 1998 and when the Government thought that the charges do not warrant even withholding of a promotion, the suspension passed is arbitrary. It has been pointed out that the applicant has been transferred on promotion to Chennai and she is far away from where the occurrence has taken place and the order of suspension is wholly unnecessary. It is also should that the order of suspension can be passed if the presence of the public servant will be deterimental to a fair enquiry into the allegations of misconduct. It has been further stated out that the charge memorandum contains allegations solely pertaining to various orders of assessment passed by the applicant when she was Deputy Commissioner of Income Tax (Assessment) in Kerala and these are matters of record and documents and as such the order of suspension is wholly unsustainable. The applicant has stated in so far as the applicant occupies as Commissioner of Income Tax (Appeals), Chennai has no connection to the work of DCIT (Assessment) in Kerala and the order of suspension passed is unjustified. It is contended that the power of suspension has been exercised arbitrarily. It is also pointed out that when O.A.867 of 1998 has been pending before this Tribunal the order of suspension could not have been passed without the permission of this Tribunal.
5. This application has been taken up along with C.A.867 of 1998 and as both are interconnected, we thought it is not necessary that the respondents should file a reply in
O.A.920/98, as we do not propose to enter into the merits of that case.
6. Mr. B. Kumar, learned Counsel for the applicant contended that the subject matter of the charge memo is very stale and almost all items in the charge memo are more than 5 years old. The learned Counsel points out that out of 25 cases, 23 instances had happened before 8 to 13 years. The learned Counsel also points out that the impugned charge memorandum dated 18.8.98 has not made any reference to the reply given by the applicant to the memo dated 8.10.96 and as such the action of the respondents against the provisions of the Vigilance Manual and the charge memo has got to be set aside. The learned Counsel also points out that there is no reasonable justification for keeping the applicant under suspension as the subject matter of the enquiry relies back to more than 8 to 13 years. The learned Counsel also draw our attention to the fact that with regard to item No. 9 E.J. Davis case, it was taken on appeal by the Tribunal and the order of the applicant was restored. With regard to item No. 11 M/s. Ramanand Oil & Flour Mills, Kannur, it has been picked up for meritorious order by the department but it has been made as one of the Articles of charge and the basis of the charge is that law is not properly applied. The learned Counsel for the applicant also points out that a special audit party reviewed all the assessment orders and has given a clean chit. The learned Counsel also points out that the Comptroller General of India (C & AG) has also given a clean chit. The learned Counsel also points out that a period of 2 years has given in the Statute to question the validity of the assessment. When such is the case, it is not open to the respondents to issue the charge memo dated 18.8.98 for the assessments made years back. According to the learned Counsel that all the assessments have become final and the respondents have issued the charge memo after a delay of 5 1/2 years to 13 years and if the respondents are allowed to proceed with the inquiry prejudice will be caused to the applicant in her defence. The learned Counsel refers to the following judgments of the Supreme Court,
1. State of Punjab and Others v. Chamanlal Goyal, (1995) 2. SCC 570,
2. State of Andhra Pradesh v. N. Radhakishan (1998) 4 SCC 154, and
3. V.S. Ramanarayanan v. The Food Corporation of India, 1984 TLNJ 123.
for the proposition that the Tribunal has to balance and see whether the charges can be proceeded with at this stage. Another argument put forth by the learned Counsel for the applicant is that after the charge memo was issued in 1996, the applicant was promoted. The learned Counsel points out that it is true that even a person exercising quasi-judicial powers, can be framed charges but no explanation is given by the respondents for the delay in issuing the charge memo. The learned Counsel also points out paras 2.6 and 2.9 of the Vigilance Manual and states that no whisper is made with regard to the Vigilance Manual or the reply given by the applicant to the memorandum issued to the applicant during 1996. With regard to the order of suspension, the learned Counsel for the applicant points out that the delay is due to the department and it is not proper to keep the applicant out of office when the acts of commissions and omissions alleged to have been done by the applicant in Kerala State and in support of this contention the learned Counsel relies upon the judgment of the Supreme Court in State of Punjab and Ors. v. Chamanlal Goyal, (1995) 2 SCC 570.
7. Learned Counsel Mr. M. Veluswami appearing for the respondents argued that the
charge memorandum has been issued to the applicant for loss to the ex-chequer to the tune
of Rs. 2.5. crores and the applicant cannot challenge the charge memorandum at this stage.
According to the learned Counsel for the respondents the reply of the applicant has been
considered and has been taken into consideration while issuing the charge memorandum.
Further according to the learned Counsel for the respondents, there is no delay on the part of the department and the moment they had information, the department started investigation and it has ended up with issue of charge memorandum. The learned Counsel relies upon the judgments of the Supreme Court in B.C. Chaturvedi v. Union of India and Ors., (1995) 6 SCC 749, and Deputy Inspector General of Police v. K.S. Swaminathan, (1996) 11 SCC 498, and contends that the Tribunal need not interfere with the impugned charge memorandum at this stage. The learned Counsel for the respondents also argued that the Tribunal should not interfere at this stage as the applicant can give her explanation for the impugned charge memorandum. The learned Counsel further argued that it is not correct to state that when an officer exercises a quasi-judicial functions no charge can be framed. In support of this contention the learned Counsel relies upon the judgments of the Supreme Court in Union of India and Ors. v. Upendra Singh, (1994) 27 ATC 200, and Union of India and Ors. v. A.N. Saxena, (1992) 3 SCC 124.
8. We have considered the arguments of Mr. B. Kumar, learned Counsel for the applicant and Mr. M. Veluswami, learned Counsel for the respondents. We have gone through the Original Applications 867 and 920 of 1998 and the reply filed by the respondents and the common rejoinder filed by the applicant.
9. The records relating to the impugned charge memo and the order of suspension has been produced before us. We have gone through the records.
10. The point for consideration in these applications are :
1. Whether the Tribunal can interdict with the disciplinary proceedings at this stage on the ground that the charges are stale and there is delay in initiating the disciplinary proceedings ?
2. Is it right to the Tribunal to enter into the merits of this case at this stage and decide whether it is open to the respondents to initiate an inquiry at all for the misconduct alleged to have been committed by the delinquent officer when she was functioning as Deputy Commissioner of Income Tax at Trichur during the period between 1985 and 1994 ?
3. Whether the disciplinary proceedings can be initiated against the applicant with regard to discharge of her duties as Deputy Commissioner of Income Tax at Trichur for the omissions and commissions alleged to have occurred when she exercised the power as a quasi-judicial authority ?
The learned Counsel for the applicant as we have already stated, contended that to frame charges for certain alleged commissions and omissions which had been committed during the period between 1985 and 1994 at this stage will prejudice the applicant in the sense that the applicant will not be able to put up her defence in a proper manner cannot be accepted by us in toto. It is true that the Supreme Court has held in State of Punjab and Ors. v. Chamanlal Goyal, (supra) that there is a delay in the service of charge-sheet and while considering whether it will vitiate the charges, the Supreme Court has held that it should be decided by balancing process, weighing factors for and against and taking a decision, on the totality of the circumstances. The Supreme Court has held in page 576 at para 11 as follows:
“The principles to be borne in mind in this behalf have been set out by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak (1992 1 SCC 22). Though the said case pertained to criminal prosecution, the principles enunciated therein are broadly applicable to a plea of delay in taking the disciplinary proceedings as well. In paragraph 86 of the judgment, this Court
mentioned the propositions emerging from the several decisions considered therein and observed that “ultimately the Court has to balance and weigh the several relevant facts–balancing test or balancing process–and determine in each case whether the right to speedy trial has been denied in a given case”.
It has also been held that, ordinarily speaking, where the Court comes to the conclusion that right to speedy trial of the accused has been infringed, the charges, or the conviction, as the case may be, will be quashed. At the same time, it has been observed that that is not the only course open to the Court and that in a given case, the nature of the offence and other circumstances may be such that quashing of the proceedings may not be in the interest of justice. In such a case, it has been observed, it is open to the Court to make such other appropriate order as it finds just and equitable in the circumstance of the case.
Having held so, the Supreme Court further held that the quashing of the charges is not warranted on the facts and circumstances of the case as during the pendency of the Writ Petition the enquiry was proceeded with and the Government have completed its evidence. In V.S. Ramanarayanan v. The Food Corporation of India, 1984 T.L.N.J. 123, a Division Bench of the Madras High Court quashed the charge memo on the ground that the delay was inordinate and unexplained and that it was not a case where the prosecution rests upon the documentary evidence alone and as many as 22 witnesses were to speak about the petitioner in that case and on the ground that if the proceedings are continued it violate the principles of natural justice, the charges were struck down. However, in Union of India and Ors. v. A.N. Saxena, (supra), a two Judges Bench of the Supreme Court has held that the Tribunal must be very cautious and careful in granting stay of disciplinary proceedings. It is seen from that case that the charge memo was issued in 1989 for a omission committed by the officer concerned for the assessment year 1979-80. In B.C. Chaturvedi v. Union of India and Ors., (supra), the Supreme Court considered the question of delay in initiating disciplinary proceedings. The Supreme Court has held at para 11 as follows:
“The next question is whether the delay in initiating disciplinary proceeding is
an unfair procedure depriving the livelihood of a public servant offending
Article 14 or 21 of the Constitution. Each case depends upon its own facts. In
a case of the type on hand, it is difficult to have evidence of disproportionate
pecuniary resources or assets or property. The public servant, during his tenure,
may not be known to be in possession of disproportionate assets or pecuniary
resources. He may hold either himself or through somebody on his behalf,
property or pecuniary resources. To connect the officer with the resources or
assets is a tardy journey, as the Government has to do a lot to collect necessary
material in this regard. In normal circumstances, an investigation would be
undertaken by the police under the Code of Criminal Procedure, 1973 to collect
and collate the entire evidence establishing the essential links between the
public servant and the property or pecuniary resources. Snap of any link may
prove fatal to the whole exercise. Care and dexterity are necessary. Delay
thereby necessarily entails. Therefore, delay by itself is not fatal in these type
of cases. It is seen that the CBI had investigated and recommended that the
evidence was not strong enough for successful prosecution of the appellant
under Section 5(1)(e) of the Act. It had, however, recommended to take
disciplinary action. No doubt, much time elapsed in taking necessary decisions
at different levels. So, the delay by itself cannot be regarded to have violate
Article 14 or 21 of the Constitution.”
One other case relied upon by the learned Counsel for the applicant in State of Madhya
Pradesh v. Bani Singh, A.I.R. 1990 SC 1308, is to be mentioned, in that case, disciplinary
proceedings against an officer was set aside because of delay The Supreme Court has given
the reasons in para 4 at page 1309 as follows:
“The appeal against the order dt. 16.12.1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with the contention of the learned Counsel. The irregularities which were the subject-matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities if any, and came to know it only in 1987. According to them even in April 1977, there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal’s orders and accordingly we dismiss this appeal.”
But on the facts of this case we are of the view that just because the charges are framed in 1998, it cannot be said that the charge memo should be interfered with at this stage. Further we have gone through the records and we find from the records that the proceedings has been started against the applicant as early as in 1992 on certain allegations made against the applicant and the inquiry has been made. That is why notice has been issued to the applicant in 1996 to which the applicant answered in 1997. Only after considering the facts and circumstances of the case, the respondents thought fit enough to initiate proceedings under Rule 14 of the CCS (CCA) Rules. One other point to be considered is that though the assessments are between 1985 and 1994, the assessments were concluded only during 1993 onwards. It is also seen that the respondents started receiving complaints and certain cases were selected by at random and 60 cases were picked up out of 533 assessments made by the applicant during the period between 1989 and 1992. So we are not able to accept the contention that there is delay in framing charges on the facts and circumstances of this case. In State of Andhra Pradesh v. N. Radhakishan, 1998 4 SCC 154, the Supreme Court has held while considering the question whether delay in conclusion of departmental inquiry will vitiate the proceedings, that there are no predetermined principles applicable to all cases and in all situations and each case has to be considered taking into account all relevant facts and circumstances. So it cannot be said that the respondents have not applied their mind on the facts and circumstances of this case before initiating departmental inquiry.
11. The contention that since the applicant has exercised quasi-judicial powers as such no disciplinary proceedings can be taken against her for nay commissions and omissions, is not sustainable in view of the pronouncements of the Supreme Court in Union of India and Ors. v. A.N. Saxena (supra), wherein a two Judges Bench of the Supreme Court has held at para 8 as follows :
“In our view, an argument that no disciplinary action can be taken in regard to
actions taken or purported to be done in the course of judicial or quasi-judicial
proceedings is not correct. It is true that when an officer is performing judicial or quasi-judicial functions disciplinary proceedings regarding any of his actions in the course of such proceedings should be taken only after great caution and a close scrutiny of his actions and only if the circumstances so warrant. The initiation of such proceedings, it is true, is likely to shake the confidence of the public in the officer concerned and also if lightly taken likely to undermine his independence. Hence the need for extreme care and caution before initiation of disciplinary proceedings against an officer performing judicial or quasi-judicial functions in respect of his actions in the discharge or purported to discharge his functions. But it is not as if such action cannot be taken at all. Where the actions of such an officer indicate culpability, namely, a desire to oblige himself or unduly favour one of the parties or an improper motive there is no reason why disciplinary action should not be taken.”
A two Judges Bench of the Supreme Court in Union of India and Ors. v.R.K. Desai, 1993 (2) SCC 49, has held at para 7 as follows :
“It seems difficult beyond dispute, and is not in fact disputed before us, that it is not as if an officer belonging to the Central Civil Service is totally immune from disciplinary proceedings wherever he discharges quasi-judicial or judicial functions. If in the discharge of such function he takes any action pursuant to a corrupt motive or an improper motive to oblige someone or takes revenge on someone, in such a case it is not as if no disciplinary proceedings can be taken at all. On the contrary, merely because he gives a judicial or quasi-judicial decision which is erroneous or even palpably erroneous no disciplinary proceedings would lie. We may in this connection usefully refer to H.H.B. Gill v. R, AIR 1948 PC 128.
“A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts, nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does in virtue of his office.”
Following this ruling in United Provinces v. Electricity Distributing Co., AIR 1948 PC 159, it was held in paragraph 21 as under :
“In the present case, it is equally clear that the appellant ‘could not justify the acts in respect of which he was charged’, i.e. acts of fraudulently misapplying money entrusted to his care as a public servant, ‘as acts done by him by virtue of his office that he held’.”
This view has been reiterated by a three Judges Bench of the Supreme Court in Union of India and Ors. v. K.K. Dhawan, 1993 (2) SCC 56. The Supreme Court has held at paras 28 and 29 as follows:
“Certainly, therefore, the officer who exercises judicial or quasi-judicial
powers acts negligently or in order to confer undue favour on a person is not
acting as a Judge. Accordingly, the contention of the respondent has to be
rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness of legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules.
Thus, we conclude that the disciplinary action can be taken in the following case :
(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."
The instances above catalogued are not exhaustive. However, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated.”
So we are unable to accept the contention of the learned Counsel that no charge memo can be issued to the applicant when she exercised quasi-judicial powers for certain acts of commissions and omissions occurred. We are not able to appreciate the argument that there are provisions in the Income Tax Act for revision and for rectification and as such the power to frame charges under Rule 14 of the CCS (CCA) Rules cannot be resorted to.
12. With regard to the argument based on the Vigilance Manual, it seems to be a Manual of guidelines for the department to make a preliminary enquiry has to be made when a complaint is received against an officer. A conjoined reading of paras 2.1 and 2.3 and 2.7 of the Manual, in our view cannot over reach the statutory rules framed under Article 309 of the Constitution of India, i.e. Rule 14 of CCS (CCA) Rules, 1965. On the facts of this case, it is seen from the records that the explanation given by the applicant has been considered and a decision has been taken to initiate proceedings under Rule 14 of the CCS (CCA) Rules, 1965 and the impugned charge memo has been issued. As such, the contention that the guidelines set out in the Vigilance Manual is not followed is to be rejected. That apart, the other argument of the applicant’s Counsel that the applicant has been promoted and a clean chit has been given by all the authorities as mentioned about her performance as an officer in Trichur, cannot be accepted. Assuming that a clean chit has been given, and simply because the applicant has been promoted it does not mean that the respondents are prevented from taking disciplinary action under the CCS (CCA) Rules, 1965.
13. The Supreme Court in Union of India and Anr. v. Ashok Kacker, (1995 (1) SCC
180) has held in a case where the Tribunal interfered with the charge-sheet at para 4 as follows:
“Admittedly, the respondent has not yet submitted his rlply to the charge-sheet and the respondent rushed to the Central Administrative Tribunal merely on the information that a charge-sheet to this effect was to be issued to him. The Tribunal entertained the respondent’s application at that premature stage and quashed the charge-sheet issued during the pendency of the matter before the Tribunal on a ground which even the learned Counsel for the respondent made no attempt to support. The respondent has the full opportunity to reply to the charge-sheet and to raise all the points available to him including those which are now urged on his behalf by learned Counsel for the respondent. In our opinion, this was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet and invite the decision of the disciplinary authority thereon. This being the stage at which the respondent had rushed to the Tribunal, we do not consider it necessary to require the Tribunal at this stage, to examine nay other point which may be available to the respondent or which may have been raised by him.”
In Deputy Inspector General of Police v. K.S. Swaminatha, 1996 (11) SCC 498, the Supreme Court set aside an order of the Tribunal when the Tribunal interfered with the charge memo that was vague and held at para 4 explaining the scope of powers of judicial review by the Tribunal as follows:
“It is settled law by a catena of decisions of this Court that if the charge memo is totally vague and does not disclose any misconduct for which the charges have been framed, the Tribunal or the Court would not be justified at that stage to go into whether the charges are true and could be gone into, for it would be a matter on production of the evidence for consideration at the enquiry by the enquiry officer. At the stage of framing of the charge, the statement of facts and the charge-sheet supplied are required to be looked into by the Court or the Tribunal as to the nature of the charges, i.e., whether the statement of facts and material in support thereof supplied to the delinquent officer would disclose the alleged misconduct. The Tribunal, therefore, was totally unjustified in going into the charges at that stage. It is not the case that the charge memo and the statement of facts do not disclose any misconduct alleged against the delinquent officer. Therefore, the Tribunal was totally wrong in quashing the charge memo. In similar circumstances, in respect of other persons involved in the same transactions, this Court in appeals arising out of SLP’s (C) Nos. 19453-63 of 1995 had on 9-2-1996 allowed the appeals, set aside the order passed by the Tribunal and remitted the matter holding that:
“This is not the stage at which the truth or otherwise of the charges ought to be looked into. This is the uniform view taken by this Court in such matters.” ”
In view of these two decisions of the Supreme Court, we do not think we can interfere with the impugned charge memo at this stage. It is open to the applicant to give her explanation and face the enquiry if one is conducted.
14. With regard to the order of suspension, passed under Rule 10(1) of CCS (CCA) Rules, 1965, which is impugned in O.A. 920 of 1998, we are of the view that the applicant can file an appeal under Rule 23 of the CCS (CCA) Rules, 1965 as there is an alternate remedy
is provided by the department under this rule. It is open to the applicant to raise the contentions in the appeal that it is not necessary to keep the applicant out of office as she is working now in Chennai and the acts of commissions and omissions alleged to have been committed only in Trichur, in the Kerala State years back. It is also open to the applicant to satisfy the inquiry officer that the charges framed will not come under the principles laid down by the Supreme Court in K.K. Dhawan ‘s case, 1993 (2) SCC 56, especially para 28 of the judgment of the Supreme Court extracted above. In so far as the disciplinary proceedings is pending, we cannot say that there is no jurisdiction for the respondents to pass an order under Section 10(1) of the CCS (CCA) Rules, 1965. It is for the respondents to consider whether to keep the applicant under suspension on the facts and circumstances of the case is necessary. In our view, the applicant can raise this point before the appellate authority. As such, to interfere with the order of ad-interim suspension at this stage is premature. A Division Bench of the Bombay High Court in Dr. T.Y. Pawar v. B. Gaikwad, 1988 (II) LLN 700, has held that suspension is not to be resorted to as a matter of rule. In Shiv Sagar Tiwari v. Union of India, AIR 1997 SC 2725, the Supreme Court has held as follows :
“The administrative law has of late seen vast increase in discretionary powers. But then, the discretion conferred has to be exercised to advance the purpose of subserve which the power exists. Even the Minister, if he/she be the repository of discretionary power, cannot claim that either there is no discretion in the matter or unfettered discretion. This proposition was reiterated emphatically by the House of Lords in the landmark decision of Padfield, 1968 AC 997. This apart, as pointed out in United States v. Wunderlish, 348 US 98:
“Law has reached its finest moments, when it has freed man from unlimited discretion of some ruler, some official, some bureaucrat………Absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other invention.”
Under the present rule of law, as it exists, the discretion given to executive has never been a discretion of a tyrant, but is exercised judiciously considering the facts of a particular case, is based on relevant factors and is never on consideration of the face of the officer to be affected. As we already said, it is for the applicant to raise this issue before the appellate authority.
15. Having held so, we do not find any merits in both the applications and accordingly they shall stand dismissed.
16. Though we have dismissed these applications, it is made clear that it is open to the applicant to file an appeal against the order of suspension which is impugned in O. A.920 of 1998. So also we think in the interests of the applicant as well as the respondents, though normally disciplinary proceedings should be allowed to take its course as per the relevant rules, but any delay will defeat the justice, as such we do hope that the respondents will conclude the inquiry based upon the impugned charge memorandum in O.A.867 of 1998 expeditiously. We also hope that the applicant will co-operate with the respondents to arrive at a decision in the disciplinary proceedings. No costs.