K.VISWANATHA PANICKER, V. PRINCIPAL COMMISSIONER OF INCOME TAX-1,

OP (CAT)/170/2023

AI Insights

The case involves K. Viswanatha Panicker, a retired Income Tax Officer, who challenged the disciplinary proceedings initiated against him by the Income Tax Department, which were based on allegations of disproportionate assets and other misconduct. These proceedings were contested on the grounds that they should be held in abeyance until the conclusion of related criminal proceedings against him. The Central Administrative Tribunal (CAT) initially rejected this plea, leading to the present appeal in the High Court of Kerala. The High Court, referencing precedents that discourage simultaneous departmental and criminal proceedings due to the risk of prejudicing the criminal trial, modified the Tribunal's order to ensure that common witnesses are first examined in the criminal trial before any departmental proceedings.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 747115 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 26-06-2024
• Assessment Year: misc
• Other Referred Cases: Ishwar Singh v. State of Haryana, Capt. M. Paul Antony V. Bharat Gold Mines Ltd.
• Laws Referred To: Prevention of Corruption Act, 1988, Abkari Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: MANU S; T C KRISHNA; M R HARIRAJ
• Assessee Lawyers: REKHA SOYA; D C C R; ELIZABETH JOSEPH; ROJIT ZACHARIAH; M R HARIRAJ
• Keywords: Criminal Proceedings; Departmental Enquiry; Disciplinary Proceedings; Disproportionate assets; Superannuation; Common witnesses
• Section: 13(2); 55(a); 58; 13(1)(e)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MR. JUSTICE EASWARAN S. WEDNESDAY, THE 26TH DAY OF JUNE 2024 / 5TH ASHADHA, 1946 OP (CAT) NO. 170 OF 2023 AGAINST THE ORDER/JUDGMENT DATED 17.08.2023 IN OA NO.503 OF 2022 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH PETITIONER(S)/APPLICANT: K.VISWANATHA PANICKER, AGED 63 YEARS SON OF THE LATE K.P.NAIR, RETIRED INCOME TAX OFFICER, OFFICE OF THE PRINCIPAL COMMISSIONER OF INCOME TAX-1, KOCHI, C R BUILDING, I.S.PRESS ROAD, KOCHI- 682 018, RESIDING AT HOUSE NO. 17/126, SOWBHAGYA, NIRAVATH ROAD, MARADU P O, ERNAKULAM, KERALA, PIN – 682304 BY ADVS. REKHA VASUDEVAN SOYA D.C MAHESH C.R. ELIZABETH V.JOSEPH ROJIT ZACHARIAH M.R.HARIRAJ (SR.) RESPONDENT(S)/RESPONDENT 1: 1 PRINCIPAL COMMISSIONER OF INCOME TAX-1, KOCHI, CENTRAL REVENUE BUILDING, I.S. ROAD, ERNAKULAM, KOCHI, KERALA, PIN – 682018 2 COMMISSIONER OF INCOME TAX (ADMN AND TPS), O/O THE PRINCIPAL COMMISSIONER OF INCOME TAX-1, KOCHI, CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, ERNAKULAM, KOCHI, KERALA, PIN – 682018 3 P.K.SENTHIL KUMAR, ADDITIONAL COMMISSIONER OF INCOME TAX, INTERNATIONAL TAXATION, KOCHI, GROUND FLOOR, C.R.BUILDING, I S PRESS ROAD, OP (CAT) NO. 170 OF 2023 2 ERNAKULAM, KOCHI, KERALA, PIN – 682018 BY ADVS. MANU S., DSG OF INDIA SHRI.T.C.KRISHNA, SCGC SRI.M.R.HARIRAJ, (SR) THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 26.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT) NO. 170 OF 2023 3 JUDGMENT AMIT RAWAL, J. 1. The present OP(CAT)No.170/2023 is directed against the decision of the Tribunal dated 17.08.2023 rendered in O.A.No.503/2022. 2. Succinctly, the facts in brief are that on superannuation petitioner retired on 30.04.2019 while working as Income Tax Officer (Technical) and Principal Commissioner of Income Tax-I, Kochi, Central Revenue Building, Kerala after rendering 38 years of service. On 22.09.2016, CBI conducted a search at his residence, seized all the documents available there and accordingly, an FIR bearing No.RC 12(A)/2016/CBI/ACB/Cochin was registered. At the time of search, certain Indian Made Foreign Liquor was found at his residence, the matter was reported to the State Excise Department and also lodged an FIR for commission of offence under Section 55(a) and 58 of the Abkari Act. On the basis of the aforementioned FIR, was placed under OP (CAT) NO. 170 OF 2023 4 suspension on 19.10.2016. However, the suspension was revoked vide order dated 09.11.2016 Annexur-A4. 3. On 26.03.2019, CBI filed the Final Report before the Special Judge-I, CBI Court, Kaloor, for commission of offence under Section 13(2) r/w Section 13 (1) (e) of the Prevention of Corruption Act, 1988. 4. Eight(8) days before the retirement, was served with a memo of charges Annexure-A1 alleging the acquisition of disproportionate assets. According to the allegation, the memo of charges did not contain the list of documents and the witnesses relied upon by the respondents. Enquiry Officer was appointed on 18.07.2019. Repeated request was made for providing the copies of the documents relied upon by the department in support of the allegations, but was not replied. Rule 14(24) of the CCS (CCA) Rules provided that department proceedings have to be completed within six(6) months. Another ground taken in the OA was that the charge sheet was issued by incompetent person. On the basis of the aforementioned averments, following relief was claimed OP (CAT) NO. 170 OF 2023 5 before the Tribunal: (i) declare that the disciplinary proceedings initiated against the applicant pursuant to Annesure-A1 are liable to be kept in abeyance till the disposal of C.C.No.1/2019 on the files of te CBI Court, Kochi-I (Kaloor, Ernakulam) (ii) direct the respondents to keep in abeyance all proceedings of the departmental enquiry initiated against the applicant pursuant to Annexure-A1 till the disposal of C.C.No.1/2019 on the files of the CBI Court, Kochi-I (Kaloor, Ernakualam). (iii) grant such other reliefs as may be prayed for and which this Hon’ble Tribunal deems fit to grant.” 5. Respondents contested the aforementioned reliefs by filing a reply Ext.P8, taken up various grounds and supported the memo of charges. 6. The case before the Tribunal was that both departmental and criminal proceedings cannot go side by side on the premise that it concededly prejudice the right of the person as there is a commonality of witnesses in the departmental as well as criminal proceedings. But the Tribunal rejected the matter vide impugned order dated 17.08.2023. OP (CAT) NO. 170 OF 2023 6 7. In support of the contention relied upon the judgment of Punjab and Haryana High Court in Ishwar Singh v. State of Haryana (2019 SCC Online P&H 3402) whereby, relying upon the ratio decidendi culled out in Capt. M. Paul Antony V. Bharat Gold Mines Ltd. [1999 (2) SCT 660] disposed of the writ petition by issuing direction to the department not to examine the common or identical witnesses in both the proceedings, until and unless they are examined in the criminal proceedings first as there was a perceptible apprehension of disclosing the defence. A detailed list of witnesses in both departmental and criminal cases have been given and it was found that there are about 21 witnesses which are common. 8. Sri.T.C.Krishna, learned Deputy Solicitor in Charge supported the findings of the Tribunal to contend that it is now settled law both proceedings can go side by side. But, however, when confronted with the ratio decidendi, did not dispute the same. 9. We have heard the learned counsel for the parties OP (CAT) NO. 170 OF 2023 7 and appraised the paper book. 10. The judgment rendered by the Punjab and Hariyana High Court in Ishwar Singh (supra) reads as under: The petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution of India for issuance of a writ in the nature of certiorari, quashing order dated 16.09.2019 (Annexure P-2) passed by respondent No. 4, whereby departmental enquiry has been ordered against the petitioner, on having been falsely implicated in a criminal case bearing FIR No. 376 dated 15.09.2019 under Sections 147, 149, 323/354-8/506 of the Penal Code, 1860, Police Station at Khedki Daula, District Gurgram and subsequent proceedings and further writ of mandamus directing the respondents to held in abeyance the departmental proceedings till the final decision of criminal case. 2. As per averments in the writ petition, in both departmental and criminal proceedings, most of the witnesses are common/identical. In case the witnesses are examined in departmental proceedings, then it will affect his right in defending the criminal proceedings. In support of the averments, reliance has been placed upon the ratio decidendi culled out by Hon'ble the Supreme Court in \"Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.\" 1999 (2) SCT 660. 3. I have appraised paper book and of view that since few of witnesses are common/identical in both the proceedings, the Department shall not examine the common/identical witnesses, until and unless, they are OP (CAT) NO. 170 OF 2023 8 examined in the criminal proceedings first, as there is perceptible apprehension of disclosing the defence. 4. It is made clear that in case, the petitioner is found to be delaying in cross- examination of same set of the witnesses in the criminal proceedings, this order will not come in the way of the Department to examine the said witnesses. 5. With the aforesaid observations, the present writ petition stands disposed of.” 11. In Paul Antony V. Bharat Gold Mines Ltd. (1999 KHC 461) the Supreme Court also had stayed the departmental proceedings till the common witnesses in both cases are allowed to be cross examined in the criminal case. The list of the common witnesses in this matter reads as under: WITNESSES DESIGNATION POSITION IN MEMO OF CHARGES (ANNEXURE A1) (PAGE 58) POSITION IN CBI FINAL REPORT (EXHIBIT P3) Rajeeth P.C. General Manager HR, SFO Technologies Pvt. Ltd. No.1 No.117 at Pg.267 K.T.Mohanan Chartered Accountant and Treasurer of Ernakulam Karayogam No.2 No.75 at Pg. 262 OP (CAT) NO. 170 OF 2023 9 Sabareenath R. Accounts Executive, Bhima Jewels No.3 No.70 at Pg. 261 Swami Gurusavidh Jnan Thapaswi Santhigiri Ashramam No.4 No.97 at Pg 265 C.S.Jayadevan Accountant, A. Geeri Pai Jewellers No.5 No.71 at Pg 261 Prashob Veluthakkal Director and CTO, Focaloid Technologies No.6 No.62 at Pg 260 Rakesh Gopinath Accounts Officer, Kerala Cars Pvt. Ltd. No.7 No.66 at Pg. 261 Sunil Kumar Proprietor, Yeskay Builders No.8 No.54 at Pg. 259 Dince K.N. AAO, LIC Branch Office No.9 No.39 at Pg. 258 Subeesh T.S. Assistant Manager, PNBHFL No.10 No.41 at Pg. 258 Colleen Petriz Branch Head, Jain Housing and Construction Ltd. No.11 No.44 at Pg. 259 Rajitha Sr.Manager (Finance), Mini Muthood Nidhi Kerala Ltd. No.12 No.13 at Pg. 255 Sanu.T.S. Branch Mananger, Bank of India No.13 No.4 at Pg. 254 OP (CAT) NO. 170 OF 2023 10 Baiju Balakrishnan Deputy Manager, Customer relations, HDFC Life No.14 No.40 at Pg. 258 Bibin Baby Self Employed No.15 No.53 at Pg. 259 Davis T.L. Sales in charge, Valavi & Co. No.16 No.80 at Pg. 263 Sreelakshmi Gopinath J Assistant Manager, Federal Bank No.17 No.16 at Pg. 255 Johnson K. John Proprietor, Karingattil Travels No.18 No.81 at Pg. 263 T.I.Antony Branch Manager, Canara Bank No.19 No.24 at Pg. 256 K.S. Sunil Dath Managing Partner, National Transport Company No.20 No.55 at Pg. 260 Mahesh K. Nair S.K.Builders No.21 No.52 at pg. 259 12. we are of the view that no flexible grounds can be made out for allowing both departmental and criminal proceedings or otherwise as each case requires to be considered in its own facts as there is a perceptible OP (CAT) NO. 170 OF 2023 11 apprehension that the departmental enquiry would prejudice the delinquent's defence at the criminal trial. Thus, we modify the order of the Tribunal and dispose of the petition by issuing directions that the department shall not examine the common or identical witnessess until and unless they are examined in criminal proceedings first, owing to the perceptible apprehension of disclosing the defence. It is made clear that in case the petitioner is found to be delaying to cross examine the same set of witnesses in criminal proceedings, this judgment will not come in the way of department to examine the said witnesses. With the aforementioned observations, petition stands allowed. Sd/- AMIT RAWAL JUDGE Sd/- EASWARAN S. JUDGE nak OP (CAT) NO. 170 OF 2023 12 APPENDIX OF OP (CAT) 170/2023 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE MEMORANDUM F.NO.CIT- 1/CHN/VIG/2018-19 DATED 18.04.2019 ISSUED BY THE FRIST RESPONDENT ISSUED ALONG ITS ENCLOSURES. Annexure A2 TRUE COPY OF OFFICE ORDER F.NO.11/ESTT/CC-CHN DATED 2015-16 DATED 4.06.2015 OF THE 1ST RESPONDENT ENCLOSING THE GOVERNMENT OF INDIA INSTRUCTION F.NO.HRD/CM/102/28/ 2013- 14/917 DATED 05.05.2015 Annexure A3 TRUE COPY OF THE ORDER F.NO.PRCC-CHN/VIG-II/01/VKP/2016-17 DATED 19.10.2016 OF THE 2ND RESPONDENT. Annexure A4 TRUE COPY OF THE ORDER F.NO.PRCC-CHN/VIG-II/01/CBI/VKP/2016-17 DATED 09.11.2016 OD THE 2ND RESPONDENT. Annexure A5 TRUE COPY OF THE REPLY DATED 30.04.2019 FILED BY THE APPLICANT TO ANNEXURE-A1. Annexure A6 TRUE COPY OF THE ORDER F.NO.CIT-1/CHN/VIG./2018-19 DATED 18.07.2019 OF THE 1ST RESPONDENT. Annexure A7 TRUE COPY OF THE NOTICE.F.NO.CONF/IO/KVP/2019-20 DATED 04.09.2019 OF THE 3RD RESPONDENT. Annexure A8 TRUE COPY OF THE WRITTEN OBJECTION DATED 26.04.2021 SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT Annexure A9 TRUE COPY OF THE GOVERNMENT OF INDIA LETTER F.NO.C-14010/3/2011-AD.V DATED 24.02.2011. Annexure A10 TRUE COPY OF THE REPRESENTATION DATED OP (CAT) NO. 170 OF 2023 13 17.05.2021 SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT. Annexure A11 TRUE COPY OF THE LETTER F.NO.CONF/IO/KVP/2019-20 DATED 28.07.2021 0F THE 3RD RESPONDENT. Annexure A12 TRUE COPY OF THE REPRESENTATION DATED 03.08.2021 SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT. Annexure A13 TRUE COPY OF THE LETTER F.NO.CONF/IO/KVP/2019-20 DATED 09.11.2021 OF THE 3RD RESPONDENT. Annexure A14 TRUE COPY OF THE REPRESENTATION DATED 15.12.2021 SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT. Annexure A15 TRUE COPY OF THE LETTER F.NO.CONF/IO/KVP/2019-20 DATED 23.08.2022 VOF THE 3RD RESPONDENT. Annexure A16 TRUE COPY OF THE LETTER F.NO.CONF/IO/KVP/2019-20 DATED 29.08.2022 OF THE 3RD RESPONDENT. Annexure A17 TRUE COPY OF THE REPRESENTATION DATED 04.09.2012 SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT ALONG WITH THE LIST OF PROVISIONAL DEFENCE DOCUMENTS. Annexure R1 TRUE COPY OF THE OFFICE LETTER DATED 13.05.2019. Annexure R2 TRUE COPY OF THE RELEVANT EXTRACT OF DOPT'S INSTRUCTION DATED 02.01.2014. Annexure R3 TRUE COPY OF THE CIRCULAR DATED 18.01.2016. Exhibit P1 TRUE COPY OF THE ORIGINAL APPLICATION ALONG WITH THE ANNEXURES (O A NO. OP (CAT) NO. 170 OF 2023 14 180/00503/2022) FILED BY THE PETITIONER ON THE FILES OF THE HONOURABLE TRIBUNAL. Exhibit P2 TRUE COPY OF THE FIR NO. RC 12(A)/2016/CBI/ACB/COCHIN DATED 22.09.2016 LODGED BY THE CBI Exhibit P3 TRUE COPY OF THE FINAL REPORT FILED BY THE CBI BEFORE THE HONOURABLE SPECIAL JUDGE-1, CBI COURT, KALOOR Exhibit P4 TRUE COPY OF THE D O F NO. HRD/CM/102/3/2009-10/(PT)/1102 DATED 02.07.2013 ISSUED BY THE DIRECTORATE OF INCOME TAX Exhibit P5 TRUE COPY OF THE RELEVANT PAGES OF THE CHAPTER 5 OF THE MANUAL OF OFFICE PROCEDURE 2019 OF THE INCOME TAX DEPARTMENT Exhibit P6 TRUE COPY OF THE APPLICATION DATED 13.09.2023 SUBMITTED BY THE PETITIONER TO THE CENTRAL PUBLIC INFORMATION OFFICER. Exhibit P7 TRUE COPY OF THE LETTER F.NO. PCIT-1/CHN/TECH/RTI/2023-24 DATED 18.09.2023 ISSUED BY THE CENTRAL PUBLIC INFORMATION OFFICER Exhibit P8 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN O A NO. 180/00503/2022 ON THE FILES OF THE HONOURABLE TRIBUNAL. Exhibit P9 TRUE COPY OF THE ORDER DATED 17.08.2023 OF THE HONOURABLE TRIBUNAL IN O A NO. 180/00503/2022 Exhibit P10 TRUE COPY OF THE JUDGMENT DATED 30.09.2023 IN SESSIONS CASE NO. 957/2019 OF THE HONOURABLE COURT OF THE II ADDITIONAL ASSISTANT SESSIONS JUDGE, OP (CAT) NO. 170 OF 2023 15 ERNAKULAM Exhibit P11 TRUE COPY OF THE LETTER F NO. CONF/IO/KVP/2023-24 DATED 05.10.2023 ISSUED BY THE 3RD RESPONDENT Exhibit P12 TRUE COPY OF THE REPRESENTATION DATED 05.10.2023 SUBMITTED BY THE APPLICANT TO THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX (CCA), ERNAKULAM ALONG WITH THE POSTAL RECEIPT AND ACKNOWLEDGMENT CARD Exhibit P13 TRUE COPY OF THE REPRESENTATION DATED 09.10.2023 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT Exhibit P14 TRUE COPY OF THE LETTER F NO.CONF/IO/KVP/2023-24 DATED 17.10.2023 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER Exhibit P15 TRUE COPY OF THE LETTER NO. PR CC- CHN /VIG.II /08 /CBI /KVP /2016-17 /2023-24 DATED 10.10.2023 ISSUED BY THE DEPUTY COMMISSIONER OF INCOME TAX (HQ) (ADM) ALONG WITH THE RELEVANT PAGES OF THE GAZETTE NOTIFICATION AS ISSUED TO THE PETITIONER. Exhibit P16 TRUE COPY OF THE LETTER F NO. P301/PR.CCIT/MISC./RESIGNATION/2023-24/ 14024 DATED 26.10.2023 ISSUED BY THE JOINT COMMISSIONER OF INCOME TAX (HQRS- PERS) DELHI Exhibit P17 TRUE COPY OF THE NOTICE NO. F.NO.CONF/IO/KVP/2024-25 DATED 12.04.2024 ISSUED BY THE 3RD RESPONDENT Exhibit P18 TRUE COPY OF THE REPRESENTATION DATED 17.04.2024 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT OP (CAT) NO. 170 OF 2023 16 Exhibit P19 TRUE COPY OF THE LETTER NO. F.NO.CONF/IO/KVP/2024-25 DATED 18.04.2024 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER RESPONDENT EXHIBITS EXHIBIT R1(A) TRUE COPY OF THE RELEVANT PAGES OF THE CCS (CCA) RULES, 1965 EXHIBIT R1(B) TRUE COPY OF THE RELEAVNT PAGE OF THE EXHIBIT EXHIBIT P5 NARRATING THE DISCLAIMER "