# Arvind Kumar Gupta v. Tax Recovery Officer, NOIDA and others

- **Citation:** (2005) 1 ILRA 178
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-09-14
- **Case number:** Civil Misc. Writ Petition (Tax) No.1502 of 2002
- **Bench:** R.K. Agrawal, K.N. Ojha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-kumar-gupta-v-tax-recovery-officer-noida-and-others-40349
- **Pages:** 8

## Headnote

Income Tax Act, Ss. 179, 220 (2)-
Applicability-Notice
to
show
cause
against issue of warrant of arrest issue
on 26.3.2002-wherious order under S.
179 passed on 29.5.2003-Hence notice,
held, illegal-order passed under S. 179,
held, contrary to law-Hence quashed.

Held: Para 18 & 19
As already mentioned hereinbefore that
there was no order under Section 179 of
the Act when the notice to show cause
as to why the warrant of arrest be not
issued to the petitioner was issued. The
notice to show cause as to why warrant
of arrest be not issued had been issued
on 26.3.2002 whereas the order under
Section 179 of the act has been passed
on 29.5.2003. Thus, the notice dated
26.3.2002 is itself illegal and without
jurisdiction
and
is
hereby
quashed.
Further, it is an admitted case of the
Income
Tax
Department
that
the
petitioner was made a director only on
3rd April, 1993 and the outstanding tax
dues of respondent No.3 relates to
Assessment Years 1983-84 to 1990-91
and 1992-93 i.e. when the petitioner was
not even a director of the respondent
No.3, thus, the recourse to Section 179
(1) of the Act could not have been taken
at all. Moreover, it is also an admitted
position
that
the
respondent
No.3
became a deemed public company under
the provisions of Section 43-A of the
Companies Act, 1956 with effect from
9th February, 1992. Thus, in view of the
decision of the Apex Court in the case of
M.
Rajamoni
Amma
(supra)
the
outstanding tax dues of respondent No.3
which relates prior to 9th April, 1992 can
not be recovered under Section 179(1) of
the Act from the petitioner.

In view of the foregoing discussion, we
are of the considered opinion that the
order passed under Section 179 of the
Act is contrary to the well settled
principles
discussed
above
and
therefore, cannot be sustained. It is
hereby quashed. However, it will be
open to the Income Tax Department to
recover the outstanding amount of tax
from the company or its directors who
were there at the relevant time.
Case law discussed:
(1990) 183 ITR 143 (Bom)
(1992) 195 ITR 873 (SC)
(1998) 232 ITR 306 (AP)
(1999) 238 ITR 127 (Guj)
(1988) 172 ITR 1 (Bom)
(2002) 253 ITR 139
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1All] Arvind Kumar Gupta V. Tax Recovery Officer, NOIDA and others
179

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
178
he remains in possession or till 31st
December, 2005, whichever is earlier; and

(iii) in the event of default of any of the
conditions aforementioned, it will be open
to the landlord to execute the order passed
by the appellate authority.

11. Except for the modification,
referred to above, this writ petition has no
force and is accordingly dismissed. The
interim order, if any, stands vacated.

Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.09.2004

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE K.N. OJHA, J.

Civil Misc. Writ Petition (Tax) No.1502 of
2002

Arvind Kumar Gupta

...Petitioner
Versus
Tax Recovery Officer NOIDA and others

 ...Respondents

Counsel for the Petitioner:
Sri R.P. Agarwal
Sri S.P. Gupta

Counsel for the Respondents:
Sri Bharat Ji Agrawal
Sri Shambhu Chopra

Income Tax Act, Ss. 179, 220 (2)-
Applicability-Notice
to
show
cause
against issue of warrant of arrest issue
on 26.3.2002-wherious order under S.
179 passed on 29.5.2003-Hence notice,
held, illegal-order passed under S. 179,
held, contrary to law-Hence quashed.

Held: Para 18 & 19
As already mentioned hereinbefore that
there was no order under Section 179 of
the Act when the notice to show cause
as to why the warrant of arrest be not
issued to the petitioner was issued. The
notice to show cause as to why warrant
of arrest be not issued had been issued
on 26.3.2002 whereas the order under
Section 179 of the act has been passed
on 29.5.2003. Thus, the notice dated
26.3.2002 is itself illegal and without
jurisdiction
and
is
hereby
quashed.
Further, it is an admitted case of the
Income
Tax
Department
that
the
petitioner was made a director only on
3rd April, 1993 and the outstanding tax
dues of respondent No.3 relates to
Assessment Years 1983-84 to 1990-91
and 1992-93 i.e. when the petitioner was
not even a director of the respondent
No.3, thus, the recourse to Section 179
(1) of the Act could not have been taken
at all. Moreover, it is also an admitted
position
that
the
respondent
No.3
became a deemed public company under
the provisions of Section 43-A of the
Companies Act, 1956 with effect from
9th February, 1992. Thus, in view of the
decision of the Apex Court in the case of
M.
Rajamoni
Amma
(supra)
the
outstanding tax dues of respondent No.3
which relates prior to 9th April, 1992 can
not be recovered under Section 179(1) of
the Act from the petitioner.

In view of the foregoing discussion, we
are of the considered opinion that the
order passed under Section 179 of the
Act is contrary to the well settled
principles
discussed
above
and
therefore, cannot be sustained. It is
hereby quashed. However, it will be
open to the Income Tax Department to
recover the outstanding amount of tax
from the company or its directors who
were there at the relevant time.
Case law discussed:
(1990) 183 ITR 143 (Bom)
(1992) 195 ITR 873 (SC)
(1998) 232 ITR 306 (AP)
(1999) 238 ITR 127 (Guj)
(1988) 172 ITR 1 (Bom)
(2002) 253 ITR 139
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1All] Arvind Kumar Gupta V. Tax Recovery Officer, NOIDA and others
179
(Delivered by Hon'ble R.K. Agrawal, J.)

1. Both these writ petitions have
been filed by the same petitioner
challenging the proceedings and the order
passed under Section 179 of the Income
Tax Act, 1961, hereinafter referred to as
the Act. While in writ petition No.1502
of 2002, the petitioner has sought a writ,
order or direction in the nature of
certiorari quashing the notice dated
26.3.2002 issued by the Tax Recovery
officer, NOIDA, respondent No.1, filed as
Annexure No.1 to the writ petition in
respect of the alleged outstanding income
tax dues against M/s. Shashank Polyplast
Limited (formerly Shashank Polyplast
Private Limited), respondent No.3 and
other consequential reliefs, in writ petition
No.911 of 2003 the petitioner seeks a
writ, order or direction in the nature of
certiorari quashing the order dated 29th
May, 2003 passed by the Assistant
Commissioner,
Income
Tax,
Circle
NOIDA,
respondent
No.1,
filed
as
Annexure No.1 to the writ petition and
other consequential reliefs.

Briefly stated the facts giving rise to
the present writ petitions are as follows:-

2. According to the petitioner, after
doing post graduation in Commerce from
Gorakhpur University he got a job on 12th
February,
1979
in
M/s.
Prestige
Engineering India Private Limited at its
factory at NOIDA. It is a sister concern of
M/s.
Shashank
Polyplast
Limited,
respondent No.3. He worked there upto
31st March, 1992. Thereafter he was
transferred to another sister concern of
respondent No.3, namely, M/s. Prestige
H.M. Poly containers Limited where he
served till 30th June, 1997. He left the
company on 30.6.1997. The Managing
Director of Prestige H.M. Poly containers
Limited issued a certificate on 30th June,
1997 stating therein that there was no
financial liability against the petitioner.
Thereafter he started his own business at
NOIDA. According to the petitioner, all
the three companies, namely, Prestige
Engineering
India
Private
Limited,
Prestige H.M. Polycontainers Limited and
Shashank Polyplast Limited are being
managed by one Sri P.K.Gupta, resident
of A-7, Maharani Bagh, New Delhi. He
has been Managing Director of M/s.
Prestige H.M. Polycontainers Limited. In
M/s.Shashank Polyplast Limited, Sri P.K.
Gupta has been holding 9994 shares of
Rs.100/- each out of total issued and paid
up capital of 10000 shares of Rs.100/-
each through his proprietorship firm
Paribhas Investment & Finance Company.
Out of the remaining six shares of
Rs.100/- each, four shares is held by Sri
Shashank Gupta son of Sri P.K. Gupta,
one share is held by Mrs. Gauri Shriya,
daughter of Sri P.K. Gupta and the
remaining one share is held by Sri Brij
Narain Agarwal, an employee of the
company. Thus, the petitioner was not
even a shareholder in M/s. Shashank
Polyplast Limited. The affairs of M/s.
Shashank Polyplast Limited were being
looked after by Sri P.K. Gupta who was
director and major shareholder. As an
employee
of
M/s.
Prestige
H.M.
Polycontainerrs Limited he was asked to
sign some forms by Sri P.K. Gupta where
in he was made Director of M/s. Shashank
Polyplast Limited w.e.f. 3rd April, 1993.
However, he was a director just for the
namesake and being an employee of a
group company he had no option but to
sign the required forms pertaining to his
appointment
in
respondent
No.3.
According to the petitioner, he was
neither an employee of the said company
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
180
nor had received any remuneration
whatsoever from the respondent No.3 in
the capacity of a director or otherwise. It
is further alleged by the petitioner that
M/s. Shashank Polyplast Limited was
incorporated on 20th November, 1984 as a
private limited company. It became a
public limited company under Section 43A of the Companies Act, 1956 w.e.f. 9th
February, 1992. The petitioner had
resigned
from
the
directorship
of
respondent No.3 vide letter dated 20th
September, 1997.

3. It appears that there were income
tax dues of Rs.70,14,000/- outstanding
against respondent No.3. The Tax
Recovery Officer, respondent no.1, issued
a notice dated 26th March, 2002 calling
upon the petitioner to appear before him
on 3rd April, 2002 and to show cause as to
why the warrant of arrest be not issued
against the petitioner for non payment of
outstanding dues. The petitioner appeared
before the respondent No.1 on the date
fixed and explained in great detail that for
the first time on 3rd April, 1993 when he
became a director from 9th February, 1992
the respondent No.3 had already become
a public limited company under Section
43-A of the Companies Act, 1956. He
further stated that he was a director for
namesake only and had signed the
relevant forms regarding his appointment
as director on the dictates of the owners.
The recovery proceedings should have
been initiated against Sri P.K. Gupta who
was a de-facto director of the company
during all the relevant previous years.
According to the petitioner, he was not
aware about the steps taken by the
Department for recovery of the alleged
dues from the company and how the
Department has failed to recover the said
dues. Moreover, he had never signed or
filed income tax return for respondent
No.3
nor
had
ever
attended
any
assessment
proceedings.

The
Tax
Recovery Officer appeared to be not
satisfied with the explanation given by the
petitioner. He did not furnish requisite
documents/information sought by the
petitioner
and
issued
an
order
of
attachment on 5th April, 2002 under Rule
48 of the II Schedule of the Income Tax
Act attaching the residential House No.A71, Sector 30, NOIDA, which is owned
by the petitioner's wife. The notice dated
26th March, 2002 and the consequent
recovery proceedings are under challenge
in writ petition No.1502 of 2002.

4. While the aforesaid writ petition
was pending before this Court, and the
interim order was operating wherein the
operation of the notice dated 26th March,
2002
and
the
recovery
proceeding
pursuant thereto had been stayed, the
Assistant Commissioner of Income Tax,
Circle NOIDA, sent a show-cause notice
on 27th June, 2002 purporting to be under
Section179 of the Act requiring the
petitioner to show cause as to why a sum
of Rs.60,04,614/- said to be due from
M/s. Prestige Cops Limited along with
interest under Section 220 (2) be not
recovered from him. On receipt of the
notice the petitioner submitted his reply
vide letter dated 24th July, 2002 pointing
out that he was never a director of M/s.
Prestige Cops Limited and the recovery of
dues of Shashank Polyplast Limited has
been stayed by this Court. Thereafter the
respondent No.1 issued another show
cause notice dated 21st January, 2003
again purporting to be under Section 179
of the Act calling upon the petitioner to
show cause as to why a sum of
Rs.70,13,514/- due from M/s. Shashank
Polyplast
Private
Limited
be
not
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1All] Arvind Kumar Gupta V. Tax Recovery Officer, NOIDA and others
181
recovered from him along with interest
under Section 220 (2) of the Act. The
show cause notice was replied by the
petitioner vide letter dated 28th March,
2003 giving the same explanation as was
given by him to the show cause notice
dated 26.3.2002 issued by the Tax
Recovery
Officer.

The
Assistant
Commissioner of Income Tax, Circle
NOIDA, respondent no.1, however, did
not accept the explanation given by the
petitioner and passed an order on 29th
May, 2002 holding the petitioner liable to
pay dues of M/s. Shashank Polyplast Pvt.
Ltd. as mentioned in the notice, which is
under challenge in Civil Misc. Writ
Petition No.911 of 2003.

5. We have heard Sri S.P. Gupta,
learned Senior Counsel, assisted by Sri
R.P. Agarwal, Advocate on behalf of the
petitioner and Sri Shambhu Chopra,
learned
counsel
appearing
for
the
respondents.

6. Sri S.P.Gupta, learned Senior
Counsel submitted that even if the
petitioner is treated to be a Director of
M/s.
Shashank
Polyplast
Limited
(formerly
Shashank
Polyplast
Pvt.
Limited), respondent No.3, the recovery
of income tax and other dues outstanding
against the respondent No.3 cannot be
made from the petitioner as admittedly he
became director on 3rd April, 1993 when
the said respondent No.3 had already
become a public limited company by
virtue of the provisions of Section 43-A
of the Companies Act, 1956 w.e.f. 9th
February, 1992. He, thus, submitted that
the notice to show cause dated 26.3.2002
as to why warrant of arrest should not be
issued, the attachment order dated 5th
April, 2002 attaching the House No.A-71,
Sector 30, NOIDA, district Gautam Budh
Nagar owned by the petitioner's wife as
also the order passed by the Assistant
Commissioner of Income Tax, Circle
NOIDA dated 29.5.2003 holding the
petitioner liable for the dues of respondent
No.3 under Section 179 of the Act cannot
be sustained and are liable to be quashed.
He submitted that from a perusal of the
order dated 29.5.2003 passed under
Section 179 of the Act it has nowhere
been recorded nor any finding has been
given that the tax due from a private
limited
cannot
be
recovered
and,
therefore, in its absence the recovery of
tax dues under Section 179 of the Act
from the petitioner is not permissible
under law. He referred to the following
decisions:-
1. Jagdish Jagmohandas Kapadia v.
Commissioner of Income Tax and
others, (1990) 183 ITR 143(Bom.).
2. M. Rajamoni Amma and another v.
Deputy Commissioner of Income
Tax
(Assessment)
and
others,
(1992) 195 ITR 873 (SC).
3. K.V.
Reddy
v.
Assistant
Commissioner
of
Income
Tax,
(1998) 232 ITR 306(AP)
4. Bhagwandas J. Patel v. Deputy
Commissioner
of
Income
Tax,
(1999) 238 ITR 127 (Guj.)

7. Sri Shambhu Chopra, learned
counsel for the respondents, however,
submitted that whether the petitioner was
director for namesake or otherwise under
the provisions of the Companies Act,
1956 or under the provisions of the Act,
he would be treated as a Director of
respondent No.3 and would be liable for
all the consequences which follow under
the Act. According to him, as the dues
outstanding
against
respondent
No.3
could not be recovered from the company,
the authorities have rightly taken the steps
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
182
to recover the dues from the petitioner by
resorting to the provisions of Section 179
(1) of the Act.

8. Having heard the learned counsel
for the parties we find that in paragraph 7
of the Civil Misc. Writ Petition no.1502
of 2002 the petitioner has stated as
follows:-

"That
M/s.
Shashank
Polyplast
Limited was incorporated on 20-11-1984
as a private limited company. However,
the said company became a public
company under Section 43-A of the
Companies Act, 1956 with effect from 92-1992. Thus on the date the petitioner
became a director for the company, it was
a public company and not a private
company. The company has continued to
remain a public company since then.

The
petitioner
is
annexing
hereto a copy of the duly audited
Accounts of the above company for the
Financial Year ended 31-3-1996 marked
as ANNEXURE -3, which shows that the
said company has been a deemed public
company."

9. In paragraph 9 of the writ petition
the petitioner has stated that he had
resigned from the directorship of the
respondent No.3 vide letter dated 30th
September, 1997. The averments made in
paragraph 9 of the writ petition No.1502
of 2002 are reproduced below:-

"That immediately after leaving the
employment
of
M/s.
Prestige
H.
Polycontainers Limited, the petitioner
resigned from directorship of Respondent
No.3 by his letter dated 30.9.1997, a copy
of which was sent by registered post to
the Registrar of Companies, Kanpur.

A copy of the above resignation
letter is annexed hereto marked as
ANNEXURE-4."

10. In the counter affidavit filed by
Yogendra Nath Pandey on behalf of the
respondents the reply to paragraphs 7 and
9 is contained in paragraphs 8 and 10 of
the
counter
affidavit,
which
are
reproduced below:-

"8. That the content of para 7 of the
writ petition are matters of record, and
require no specific response at this stage.

10. That the contents of para 9 of the
writ petition are denied. The petitioner
cannot absolve or exclude himself for the
liability of the company upto period
ending 31.03.1997(April 1997 to March
1998) by disassociating himself from the
Company after 30.09.97 which fact is also
not supported by any evidence or
documentary proof at all."

11. Thus, the fact that the
respondent
No.3
became
a
public
company on 9th February, 1992 is not
being disputed by the respondents. The
present outstanding dues of respondent
No.3 which is sought to be recovered
from the petitioner under Section 179 of
the Act relates to the Assessment Years
1983-84 to 1990-91 and 1992-93. It is for
the period prior to induction of the
petitioner as director in respondent No.3company i.e. prior to 3rd April, 1993.

12. Section 179 of the Act under
which the petitioner has been saddled
with the liability of the outstanding dues
of respondent No.3 reads as follows:-

"S.179. Liability of directors of
private company in liquidation-(1)
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1All] Arvind Kumar Gupta V. Tax Recovery Officer, NOIDA and others
183
Notwithstanding anything contained in
the Companies act, 1956 (1 of 1956),
where any tax due from a private
company in respect of any income of any
previous year or from any other company
in respect of any income of any previous
year during which such other company
was a private company cannot be
recovered, then, every person who was a
director of the private company at any
time during the relevant previous year
shall be jointly and severally liable for the
payment of such tax unless he proves that
the non-recovery cannot be attributed to
any gross neglect, misfeasance or breach
of duty on his part in relation to the affairs
of the company.

(2) Where a private company is
converted into a public company and the
tax assessed in respect of any income of
any previous year during which such
company was a private company cannot
be recovered, then, nothing contained in
sub-section (1) shall apply to any person
who was a director of such private
company in relation to any tax due in
respect of any income of such private
company assessable for any assessment
year commencing before the 1st day of
April, 1962."

13. In the case of Union of India v.
Manik Dattatreya Lotlikar, (1988) 172
ITR 1 (Bom) the Bombay High Court has
held that Section 179, prior to its
amendment, for the first time provided
that the directors of a private limited
company in liquidation would be liable
jointly and severally with the company for
payment of arrears of tax and there was
no corresponding provision in the Indian
Income-tax Act, 1922. This section,
foisting liability on the directors of a
private limited company, operated only in
the cases of a private company in
liquidation prior to October 1, 1975, and
subsequent to that date, the provisions are
extended
to
all
private
companies,
whether in liquidation or not, and to
companies
converted
into
public
companies in respect of the period during
which they were private companies.
Section 179 is a departure from the
provisions of the Companies Act, where a
director is not personally liable for the
company's debts unless the Company
Court finds him guilty of misfeasance or
of any other wrong. Section 179 imposes
a vicarious liability on the directors of
private limited companies, even though a
private limited company is a separate
entity. The liability is co-extensive with
the company and the director is liable
only in respect of arrears of tax for the
assessment year when he was functioning
as a director.

14. For invoking the provisions of
Section 179 (1) of the Act for thrusting
upon the director the vicarious liability, it
is a sine qua non that the Assessing
Officer must record a finding that the tax
due from the company cannot be
recovered from the company. In the
absence of such a finding, the Assessing
Officer has no jurisdiction to invoke
section 179(1) of the Act as held by
Andhra Pradesh High Court in the case of
K.V. Reddy (supra), the Gujarat High
Court in the case of Bhagwandas J. Patel
(supra) and the Madras High Court in the
case of C. Rajendran and another v.
Income Tax Officer, (2002) 253 ITR
139.

15. In the case of M. Rajamoni
Amma (supra) the Apex Court has held
that where the company has become
deemed public company by virtue of
Section 43-A of the Companies Act, 1956
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
184
with effect from October 1, 1975 and
arrears sought to be recovered relate to
Assessment Years 1977-78 to 1982-83
obviously, the company being a public
company, the proceedings against the
directors for recovery of the tax due from
the company cannot be taken, and
certainly not proceeded with under
Section 179 of the Income Tax Act, 1961.

16. The Apex Court has further held
that they need hardly say Article 265 of
the Constitution clearly prohibits any
attempt to recover taxes except under the
authority of law.

17. In the case of Jagdish
Jagmohandas
Kapadia
(supra)
the
Bombay High Court has held that in the
absence of an order under Section 179 of
the Act passed legally, it was not open to
the Income Tax Officer or the Tax
Recovery Officer to issue a demand
notice to the petitioner and/or to take
further proceedings n pursuance thereto
and the demand notice was illegal and
without jurisdiction.

18.

As
already
mentioned
hereinbefore that there was no order under
Section 179 of the Act when the notice to
show cause as to why the warrant of arrest
be not issued to the petitioner was issued.
The notice to show cause as to why
warrant of arrest be not issued had been
issued on 26.3.2002 whereas the order
under Section 179 of the act has been
passed on 29.5.2003. Thus, the notice
dated 26.3.2002 is itself illegal and
without
jurisdiction
and
is
hereby
quashed. Further, it is an admitted case of
the Income Tax Department that the
petitioner was made a director only on 3rd
April, 1993 and the outstanding tax dues
of respondent No.3 relates to Assessment
Years 1983-84 to 1990-91 and 1992-93
i.e. when the petitioner was not even a
director of the respondent No.3, thus, the
recourse to Section179 (1) of the Act
could not have been taken at all.
Moreover, it is also an admitted position
that the respondent No.3 became a
deemed
public
company
under
the
provisions of Section 43-A of the
Companies Act, 1956 with effect from 9th
February, 1992. Thus, in view of the
decision of the Apex Court in the case of
M.
Rajamoni
Amma
(supra)
the
outstanding tax dues of respondent No.3
which relates prior to 9th April, 1992 can
not be recovered under Section 179(1) of
the Act from the petitioner.

19. In view of the foregoing
discussion, we are of the considered
opinion that the order passed under
Section 179 of the Act is contrary to the
well settled principles discussed above
and therefore, cannot be sustained. It is
hereby quashed. However, it will be open
to the Income Tax Department to recover
the outstanding amount of tax from the
company or its directors who were there
at the relevant time.

20. In this view of the matter, both
the writ petitions succeed and are
allowed. However, the parties shall bear
their own costs.
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1All] Arvind Kumar Gupta V. Tax Recovery Officer, NOIDA and others
185
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2004

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No.10545 of 1998.

Laxman Singh

...Petitioner
Versus
The Director General, Railway Protection
Force (RPF), Railway Board, New Delhi
and others

 ...Respondents

Counsel for the Petitioner:
Sri A.B. Singh

Counsel for the Respondents:
Sri Tarun Verma
Sri Anand Kumar
Sri J.S. Pandey
S.C.

Constitution of India-Art. 226-Railway
Protection Force Rules, 1987-Rr. 155,
156, 157-Removal from Service-Absence
without leave-Disciplinary proceedingsEnquiry-Neither any procedural fault nor
any mistake in fact finding by enquiry
officer-Petitioner's guilt proceed-Which
was rightly affirmed by disciplinary
authority-Removal
rightly
passed
unishment
not
disproportionate-No
interference called for.

Held: Para 10

Undisputedly,
there
is
neither
any
procedural fault nor any mistake in the
fact finding arrived at by the inquiry
officer, where the guilt against the
petitioner was proved, which has rightly
been
affirmed
by
the
competent
authority/disciplinary authority. In the
facts and circumstances, the competent/
disciplinary authority has rightly passed
the order of removal of the petitioner
from service. This Court is unable to
make analysis or to draw any inference
in respect of mitigating the quantum of
punishment
on
the
ground
of
disproportionality, as there is nothing,
which shocks the conscience of the
Court,
therefore,
this
Court
is
not
inclined
to
invoke
its
extraordinary
discretionary jurisdiction under Article
226 of the Constitution to make any
interference in the fact finding arrived at
by the disciplinary authority.
Case law discussed:
2002 (3) ESC All. 256
(2003) 2 UPLBEC 1496
(1994) 3 UPLBEC 1597
JT 99 (1) SC 319
2001 (4) AWC 2976
2003 (1) ESC Cal 421
2002 (1) ESC All 327
2002 (1) ESC All 361
(2004) 2 UPLBEC 1461
(2004) 2 UPLBEC 1469
AIR 1996 SC 736

(Delivered by Hon'ble R.B. Misra, J.)

1. Heard Sri A.B. Singh, learned
Counsel for the petitioner, and Sri Tarun
Verma,
learned
Counsel
for
the
respondents.

2. In this petition prayer has been
made for quashing the impugned order
dated 31.10.1995 passed by the Divisional
Security
Commissioner,
Railway
Protection Force, Varanasi terminating
the service of the petitioner on the
allegations of absence from duty without
proper intimation and also for overstaying
without
sanctioned
leave
without
sufficient cause.

3. It appears that the petitioner was
appointed in the Railway Protection
Special Force (hereinafter in short called
as 'RPSF') on 01.05.1967 and he was
transferred to Railway Protection Force
(hereinafter in short called as 'R.P.F.') on
05.09.1981. As per his service record,
during tenure of his service in R.P.S.F.