V.K. Agnihotri, Member (A)
1. In this OA the applicant has sough quashing and setting aside of impugned orders dated 11.07.2003, 21.05.2004 and 07.06.2005 whereby a penalty of reduction in pay by five stages for a period of three years was imposed on him. It was also ordered that he will not earn increments of pay during the period of reduction and it will have the effect of postponing his future increments of pay.
2. The brief facts of the case are that the applicant was initially appointed as Lower Division Clerk in 1990 by the respondents. While the applicant was working as Assistant Sales Tax Officer (ASTO, for short), a Charge Memo for major penalty was issued to him on 14.05.2001 through which the following Article of Charge was communicated to him:
While functioning as ASTO in Old Ward - 36 and New Ward - 89, Sh. H.O. Gupta, the then ASTO, has committed mis-conduct in as much as that he had passed the rejection order in the case of registration of M/s. Tarai Foods Ltd., 304, Sai Plaza, 187-88, Sant Nagar, New Delhi, vide order dated 21.12.93. The rejection order of registration was passed under the Local as well as Central Act. The order of rejection was passed mainly on the plea that none appeared nor any intimation was received and as per report of the inquiring ASTO, that the dealer is engaged in the business of resale of freezed vegetable which are not taxable under the Delhi Sale Tax Act, 1975 and, as such, the dealer is not eligible for registration. As against this illegal decision of Sh. H.O. Gupta, it was found that the dealer was selling freezed vegetables in sealed/packages which are taxable and therefore the dealer is liable to pay tax. While passing the rejection order, the then ASTO, Sh. H.O. Gupta, failed to pass the order for initiating proceedings Under Section 23(6) of the Delhi Sales Tax Act, 1975 and thereby, conducted gross misconduct.
The aforesaid misconduct committed by Sh. H.O. Gupta, the then ASTO establishes negligence in the discharge of his duties as a Revenue Officer and he also acted in a manner unbecoming of a govt. servant and violated the provisions of Rule 3 of the CCS (Conduct) Rules, 1964.
3. Upon conclusion of enquiry, the Disciplinary Authority passed the impugned order dated 11.07.2003 whereby the penalty aforementioned was imposed on him. The applicant submitted an appeal, which was rejected, vide order dated 21.05.2004. He, thereafter, submitted a Revision Petition, which too was rejected, vide order dated 07.06.2005. Hence the OA.
4. The applicant has stated that the impugned orders are liable to be quashed on the ground that he acted in a bona fide manner with due diligence on the basis of report submitted by Sh. S.K. Hari, ASTO. There was no other evidence on which the applicant could base his decision. The applicant has also stated that it is ironical that a person who gives false and misleading report enquiry against him is dropped whereas the applicant has been imposed a penalty.
5. He has also averred that the validity of the orders of the applicant having been upheld in appeal by the Additional Commissioner and Deputy Commissioner, vide orders dated 04.04.1994 and 25.04.1994, no Charge Memo is maintainable for any alleged misconduct.
6. He has further argued that the impugned orders should be quashed on the ground that no mala fide has been attributed to the applicant and the Hon'ble Madras High Court in the case of R. Abdul Azeez v. State of Tamil Nadu and Anr. 1991 (80) Sales Tax Cases 53, has held that if a judicial authority passes any wrong order without any mala fide and the same order can be set right within the provisions of the relevant statute, the authority passing the order should not be subjected to vigilance proceedings against him.
7. The respondents have stated that a dealer M/s. Tarai Foods Ltd., 304, Sai Plaza, 187-88, Sant Nagar, New Delhi, vide application dated 29.07.1993 had applied for registration under DST Act for resale of food, meat, eggs, poultry, fruits, and vegetables - dried, canned and preserved. But the applicant while working as ASTO (Old Ward No. 36 and new Ward No. 89) rejected the application of the dealer, vide order dated 21.12.1993, on the plea that the dealer was not engaged in the resale of taxable items. Later on, it was found that dealer was engaged in the resale of frozen vegetables in sealed/packages, which were taxable; hence, the dealer was liable to pay tax. While passing the rejection order, the applicant also failed to pass the order for initiating proceedings under Section 23(6) of the DST Act, 1975 (DST Act, for short). The dealer was later on proceeded and assessed under Section 23(6) of the DST Act for the assessment year 1992-93 and 1993-94 and a demand of Rs. 8.05 lacs and Rs. 74.04 lacs respectively were raised against the dealer. Thus, the said misconduct of the applicant caused a huge revenue loss to the Government.
8. The respondents have further stated that as per the judgments of the Hon'ble Supreme Court dated 27.03.1992 in the case of Union of India v. A.P. Saxena and dated 27.01.1993 in the case of Union of India v. K.K. Dhawan, it has been held that disciplinary action against a Government servants even with regard to the quasi-judicial power can be taken when the officer has acted in a manner as would reflect on his reputation or integrity or good faith or devotion to duty or if he has acted in order to unduly favour a party or he has been actuated by corrupt motive etc. In the instant case the petitioner is guilty of gross misconduct inasmuch as while passing the rejection order, the applicant failed to pass the order for initiating proceedings under Section 23 of DST Act. He was found negligent in discharging of his duties as a revenue officer and the charge against the officer was proved during the course of inquiry by the Inquiry Officer.
9. In his rejoinder, the applicant, apart from reiterating and elaborating on the averments made in the main application, has stated that when the application for grant of certificate of registration under DST Act itself was rejected, there was no question of initiating any proceedings under Section 23 (6) of DST Act.
10. In the course of oral arguments, Shri M.K. Bhardwaj, learned Counsel for the applicant, highlighted the fact that, in the first place, the applicant had acted on the basis of the report of another ASTOs and the respondents have failed to consider this fact in its totality. Again, giving registration certificate to an ineligible firm/person would have had its own repercussions as that firm/person may have been able to obtain certain tax benefits etc. on the basis of the registration certificate, without really being eligible to get them. He also stated that insofar as the applicant was performing a quasi-judicial function, which was amenable to appeal to higher fora, it was inappropriate for the authorities to initiate disciplinary proceeding against him in view of the judgment of the Hon'ble High Court of Madras in R. Abdul Azeez v. State of Tamil Nadu and Anr. (supra).
11. Mrs. P.K. Gupta, learned Counsel for the respondents, on the other hand, invited attention to paras 4, 6 & 8 of the reply dated 04.04.2003 of the applicant to the Charge Memo to argue that the applicant had admitted that he had committed a mistake.
12. We have heard the learned Counsel for both the parties and perused the material on record.
13. Upon consideration of the facts and circumstances of the case, we find substance in the averment of the applicant that he had acted in a bona fide manner on the basis of the inspection report of a colleague and hence finding the applicant guilty of a misconduct is not warranted. Moreover, taking disciplinary action against officers performing quasi-judicial functions is fraught with perilous consequences. The following ruling of the Hon'ble Madras High Court in the case of R. Abdul Azeez v. State of Tamil Nadu and Anr. (supra) in this context is worth taking into consideration:
12 In other words, a hierarchy of authorities is constituted for correction if the original order of assessment is wrong, even if palpably wrong. So long as the doctrine of judicial immunity remains, it could at best be stated that he cannot be safely entrusted with the discharge of judicial functions. To say that merely because he passed a wrong order - this is on the assumption that he passed a wrong order or an inappropriate order - the appellant could be exposed to disciplinary proceedings, is something which we find difficult to comprehend. Such disciplinary proceedings would mean a negation of judicial immunity and independence because it is not that every order of the original authority is upheld by the appellate authority invariably. It may be reversed or it may be set aside. But on that score, to call upon a judicial functionary which the appellant undoubtedly is, to explain for his lapses, which according to him, have been caused by inadvertence or error of judgment, which is not disputed by the respondent, is something which will be difficult to support. Of course, if he had passed a bad order or an order even opposed to elementary principles of law, that is a matter for censure. We would go to the extent of saying that that could be entered in the confidential file, so as to deprive him of increment, promotion, etc. However, by no stretch of imagination, according to us he could be exposed to the peril of disciplinary proceedings
14. In addition to the above, the Hon'ble Supreme Court in the case of Zunjarrao Bhikaji Nagarkar v. Union of India and Ors. 1999 (7) SCC 409, has made the following significant observation:
43. If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication whereunder quasi judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings.
15. As regards the averment of the learned Counsel for the respondents that the applicant in his reply to the Charge Memo has admitted his mistake, it is, in our opinion, far from the truth. Looking at it from another point of view, it only shows that the applicant was trying to establish his bona fides.
16. Taking the totality of facts and circumstances into consideration, we come to the conclusion that the respondents have failed to establish that the applicant was actuated by corrupt motives and had acted, as he did, in order to unduly favour the party concerned for extraneous considerations. The proceedings initiated by the disciplinary authorities against the applicant are, therefore, misconceived and without any basis in fact.
17. In the result, the OA is allowed and the impugned orders dated 11.07.2003, 21.05.2004 and 07.06.2005 are quashed and set aside. There will be no order as to costs.