Heard Sri Sudeep Kumar, learned counsel for petitioner assisted by Miss Radhika Varma, and Sri Surya Bhan Pandey, learned ASG, assisted by Sri Varun Kumar Pandey, learned counsel for Union of India.
Petitioner by the present writ petition has challenged the punishment order dated 3.6.2020 passed by the respondent No.3, Principal Commissioner of Income Tax-I, Lucknow/ Disciplinary Authority. By the said order, the petitioner has been awarded reduction to a lower stage in the time scale of pay by six stages i.e., his pay is reduced to the level his pay as on 1.7.2013; amount of Rs.7,62,270/-, losses causes by the petitioner to the Government, to be recovered from him; and further recommendation that the petitioner would not be given any field/sensitive post in future.
The facts of the case are that at the relevant time, the petitioner was functioning as Income Tax Officer at Lucknow where refunds fraudulently were made to some persons. The department lodged an FIR as well as initiated departmental proceedings against the petitioner and some other persons. Initially, the petitioner filed an Original Application No.18/2020 before the Central Administrative Tribunal, Lucknow, challenging that both, criminal and departmental proceedings on same charge cannot be simultaneously conducted. The said O.A. was finally heard and the Tribunal reserved its judgment on 24.2.2020, but, till date, the judgment is not delivered and meanwhile his departmental proceedings are concluded. Now, recovery is being effected against him under the impugned order dated 3.6.2020.
At the very outset, learned ASG has raised two preliminary objections; first being that the petitioner can approach the Tribunal for his grievances and secondly that, the petitioner has filed a departmental appeal on 30.6.2020 which is pending before the appellate authority/President of India. Therefore, this petition should not be entertained.
Learned counsel for petitioner submits that the petitioner is being denied his legal rights of proper opportunity of hearing in legal technicalities. Initially, his submission, that, when a criminal proceeding on same charge is initiated by the department, the departmental inquiry should not be conducted, was not decided by the Tribunal, despite the arguments being concluded on 24.2.2020, and now, during pendency of appeal, the recovery under the impugned order is being made from him. He submits that departmental appeal is pending for around eight months and in the said period, instead of deciding the appeal, the recovery from the petitioner is being effected.
On merits, learned counsel for petitioner submits that after conducting the inquiry, the Inquiry Officer in its report with regard to the charges which were framed against the petitioner, gave following conclusions:-
"a) Charge no 1. is partially proved as Charges of Connivance could not be proved but issue of false refunds by manipulation of electronic records in computer system of IT department by use of his RSA token and password is proved.
b) Charge no 1.2 is partially proved, since connivance, dishonest and fraudulent act could not be proved but issuance of bogus refunds to persons who had neither filed any ITRs or claimed any refunds nor did submit any application for rectification u/s 154 of IT Act has been fully proved. This has been possible due to his act of negligence and dereliction of duties. It is proved that false refunds were issued in 11 cases incurring a revenue loss of Rs.7,62,270/- to the department and wrongful gain to private persons.
c) Charge no 1.3 is fully proved as by allowing misuse of his RSA token he has failed to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a Government servant and thereby contravened the provisions of rule 3 (1) (i), 3 (1) (ii) and 3 (1) (iii) of CCS Conduct rule 1964."
He submits that from the above, it is clear that charge No.1 and 1.2 were partially proved. The Inquiry Officer gave a specific finding that connivance, dishonest and fraudulent act on part of petitioner could not be proved and he has been found guilty of negligence and dereliction of duties and failure to maintain absolute integrity, devotion to duties as he permitted misuse of RSA token and was not careful about the same. However, the punishing authority while punishing the petitioner, held, he "has by scheming along with other persons as referred above, during his posting from 2012 to 2016 in Range-6, Lucknow, entered into a criminal conspiracy by issuing bogus refunds, are proved. He has, by resorting to manipulation of electronic records in the computer system of Income Tax Department, generated such income tax refunds, in the names of persons who were not entitled to such refunds. Further, Shri Sanjeev Kumar, issued bogus refunds to the assessees who had neither filed any income tax returns nor claimed any income tax refunds nor did submit any application for rectification u/s 154 of I.T. Act for the Assessment Years 2012-13, 2013-14 and 2014-15, resulting loss to the government exchequer."
The punishing authority in the show cause notice dated 2.3.2020 issued to the petitioner on the basis of the report of Inquiry Officer, had not disagreed with the findings of Inquiry Officer. The notice was simpliciter in nature and did not say that the punishing authority may differ with the inquiry report on any ground whatsoever. Therefore, the findings, on the basis of which the punishment order is passed by the punishing authority, are more grave and finds the petitioner guilty of more serious charge than the findings given by the Inquiry Officer. The same could not have been done unless a notice was given to the petitioner by the punishing authority that it proposes to differ with the inquiry report. Thus, petitioner has been awarded a much stricter punishment than he would have got on the basis of the inquiry report.
Learned counsel for petitioner further submits that in case he is not granted a stay during pendency of appeal, the entire recovery under the impugned order would be made and his appeal would also become infructuous, as earlier his, Original Application No.18/2020 before the Tribunal had become infructuous. It is further stated that at present, there is only one Member working at the Tribunal and, therefore, a Bench cannot be formed. The said single Member of the Tribunal at Lucknow is also not available at Lucknow or in State of U.P. and is working online from some other place. As a result, there is huge uncertainty of the matters being taken up at Lucknow and even if, they are taken up, the same is after a very long delay.
Learned ASG could not dispute the correctness of the said fact with regard to working of Tribunal at Lucknow. He, however, states that any order on merit at this stage by this Court would seriously impact the decision which is yet to be taken in the appeal of the petitioner. He further states that department would fully cooperate in early disposal of the appeal. Learned counsel for pteititoner states that the petitioner would also fully cooperate in its early disposal.
Having considered the submissions of both the parties and perusing the record, I find force in the submission of learned counsel for the petitioner that it would cause huge prejudice to the petitioner in case his appeal is decided after the entire recovery is made from him.
In view thereof, I find it a fit case for grant of protection to the petitioner from recovery during pendency of appeal.
Therefore, it is provided that no further recovery shall be made in pursuance of the impugned order till disposal of appeal of the petitioner. It is further provided that both the parties shall fully cooperate in earliest disposal of appeal of petitioner.
With the aforesaid, the writ petition is disposed of.
Order Date :- 19.2.2021 Rajneesh JR-PS) (Vivek Chaudhary, J.)