Avinash Kishore Sahay V. Union of India and Ors

W.P.(C)/333/2021

AI Insights

Avinash Kishore Sahay, former Commissioner of Income Tax, Gandhinagar, challenged the Central Administrative Tribunal's (CAT) decision, which refused to quash a charge memo issued against him. The charges were related to his role as a disciplinary authority in the case of Shri B.A. Dave, ITO, where he allegedly exonerated the charged officer without proper jurisdiction or consultation, despite the officer's prior conviction. The High Court dismissed the petition, agreeing with the disciplinary action's justification based on Sahay's failure to adhere to procedural norms and his misconduct.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 803264 (HC-DELHI)
• Appeal Type: Others
• Pronouncement Date: 11-01-2021
• Assessment Year: misc
• Other Referred Cases: Union of India & Others Vs. K.K. Dhawan (1993) 2 SCC 56
• Laws Referred To: CCS (CCA) Rules, 1965, CCS (Conduct) Rules, 1964
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: NAGINDER BENIPAL; HARITHI KAMBIRI
• Assessee Lawyers: ARVIND KUMAR
• Keywords: Charge Memo; Disciplinary Authority; Integrity; Misconduct; Quasi-Judicial Function; Conduct unbecoming
• Section: 15; 14; 19; 29; 3(1)(i); 3(1)(ii); 3(1)(iii)

Judgement Text

"W.P. (C) 333/2021 Page 1 of 6 $~Supple.-47 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 333/2021 & CM APPL. 877/2021 AVINASH KISHORE SAHAY ..... Petitioner Through: Mr.Arvind Kumar, Advocate. versus UNION OF INDIA AND ORS ..... Respondents Through: Mr.Naginder Benipal with Mr.Harithi Kambiri, Advocates. % Date of Decision: 11th January, 2021 CORAM: HON'BLE MR. JUSTICE MANMOHAN HON'BLE MS. JUSTICE ASHA MENON J U D G M E N T MANMOHAN, J 1. The present petition has been heard by way of video conferencing. : (Oral) 2. Present writ petition has been filed challenging the order dated 26th 3. Learned counsel for the petitioner states that the CAT has failed to appreciate that the charge memo issued to the petitioner is for the role performed by him as a disciplinary authority, which admittedly is a quasi-judicial function and therefore, it was imperative that the contents October, 2020 passed by the Central Administrative Tribunal (hereinafter referred to as ‘CAT’) whereby CAT refused to quash the charge memo issued to the petitioner. W.P. (C) 333/2021 Page 2 of 6 of the charge memo were examined to ascertain whether there was any prima facie material to show misconduct or dishonesty. 4. During the course of hearing, we have perused the articles of charge. The same are reproduced hereinbelow: “ARTICLE-I While serving as Commissioner of Income Tax, Gandhinagar, Shri Avinash Kishore Sahay was the Disciplinary Authority (DA) in the disciplinary proceedings under Rule 14 and 15 of CCS (CCA) Rules, 1965 in the case of Shri B.A. Dave, ITO. In his capacity as DA, Shri Sahay passed an order dated 27/03/2014 exonerating the Charged Officer (CO). The order was passed without consulting Zonal Directorate despite there being disagreement with the Inquiry Report wherein 2 charges were partly proved and the CO having been convicted by the Spl. Judge of CBI Court vide order dated 16/03/2012. Shri Sahay also questioned the judgment of the Special Judge of CBI despite not being competent to do so. Thus, Shri Avinash Kishore Sahay exceeded authority by violation of prescribed norms thereby failing to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a Government servant. Thus, he violated the provisions of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964. ARTICLE-II That Shri Avinash Kishore Sahay, while serving as Commissioner of Income Tax, Gandhinagar, passed a second order dated 10/11/2014, once again exonerating the Charged Officer, Shri Dave when Sahay had no administration jurisdiction over the ITO. Mehsana as Shri Sahay was DA only till 26/08/2014. The issue of administrative jurisdiction over a subordinate is a factual matter. The fact that Shri Sahay held such jurisdiction till 26.08.2014 has also been accepted by him in his reply dated 12.06.2019 to the CFV. Thus, by the aforesaid acts, Shri Avinash Kishore Sahay passed an order on 10.11.2014,, i.e. at a time when he ceased W.P. (C) 333/2021 Page 3 of 6 to be the DA by virtue of transfer of the CO to the office of CIT (Audit) who was in the new DA of the CO, thereby failing to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a Government servant. Thus, he violated the provisions of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964. ARTICLE-III That Shri Avinash Kishore Sahay, while serving as Commissioner of Income Tax, Gandhinagar, passed a second order dated 10/11/2014. Vide this order, he once again exonerated the Charged Officer, Shri Dave. Even while passing this order, Shri Sahay, for the second time, failed to follow the established procedure of consulting the Zonal Directorate disregarding the directions contained in the Order under Rule 29 of the CCS (CCA) Rules, 1965 and failing to rectify the lapses/flaws discussed therein. Not only this order was passed without jurisdiction, but also by not consulting the Zonal Directorate. Thus, by his aforesaid acts, Shri Avinash Kishore Sahay passed an order on 10.11.2014 disregarding the directions contained in the Order under Rule 29 of the CCS(CCA) Rules, 1965, thereby failing to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a Government servant. Thus, he violated the provisions of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964. ARTICLE-IV That Shri Avinash Kishore Sahay, while serving as Commissioner of Income Tax, Gandhinagar, failed to initiate proceedings under Rule 19, in the capacity as DA in the case of Shri Dave’s Disciplinary Proceedings. Shri Sahay ought to have involved the provisions of Rule 19 which is mandatorily warranted since he was aware of the conviction order passed by the Special Judge, CBI and the said Shri B.A. Dave, having intimated the office of the CCIT, Ahmedabad-2 about his conviction for the first time on 10/07/2014 through CIT. Gandhinagar which is after a period of more than two years W.P. (C) 333/2021 Page 4 of 6 after the actual conviction. The claim by Shri Sahay about the Charged Officer having intimated about his conviction vide letter dated 30.04.2012 is without any sustainable corroborative evidence. Besides, in his reply dated 12.06.2019 to the Calling For Version, Shri Sahay has stated that he joined Gandhinagar in July, 2014. The posting profile of Shri Sahay, available on the portal which is accessible to the Officers of the Department on ‘www.irsofficersonline.gov.in’ reflects data which is contrary. As per the said profile, Shri Sahay joined as CIT, Gandhinagar on 01st 5. Keeping in the aforesaid serious charges, this Court is of the view that the following observation of the Supreme Court in Union of India & Others Vs. K.K. Dhawan (1993) 2 SCC 56 is attracted to the present case:- July, 2013.” (emphasis supplied) 28. Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly 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 or 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 cases: (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; W.P. (C) 333/2021 Page 5 of 6 (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 6. Consequently, we are of the view that the charge memo is warranted in the facts and circumstances of the present case and it has neither been issued without jurisdiction nor in the absence of any established procedure. In fact, none of the exceptions stipulated in the aforesaid judgment is attracted to the present case, as admittedly, the petitioner was aware of the conviction of the charged officer by the CBI Court while exonerating him, even when, he was not his disciplinary authority. ”. 29. 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. (emphasis supplied) 7. Accordingly, the present writ petition being bereft of merit is dismissed. 8. It is, however, clarified that the IO shall decide the matter without being influenced by any observations made by this Court. 9. Accordingly, the present petition bereft of merits is dismissed. W.P. (C) 333/2021 Page 6 of 6 10. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e-mail. MANMOHAN, J ASHA MENON, J JANUARY 11, 2021 TS "