# The U.O.I. & Ors v. Subachan Ram Pr. Commissioner of Income Tax, Prayagraj & Anr

- **Citation:** (2022) 11 ILRA 69
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-10
- **Case number:** Writ A No. 9789 of 2022
- **Bench:** Pritinker Diwaker, Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-u-o-i-ors-v-subachan-ram-pr-commissioner-of-income-tax-prayagraj-anr-47849
- **Pages:** 7

## Headnote

Civil Law - Central Civil Services
(Conduct)Rules
3(i)(i),
3(i)(ii),
3(i)(iii),
3(i)(xviii)
3(i)(xxi):The
substance
of
the
charge
is
the
acceptance of the additional evidence -
judgment while holding the charge in
quasi judicial -first charge-sheet was
quashed by the Tribunal and also does
not dispute that the second charge-sheet
was issued on the same inspection report
on the basis of which first charge-sheet
was issued.

Writ dismissed. (E-9)

List of Cases cited:

1.U.O.I. Vs K. K. Dhawan reported in 1993 (2)
SCC 56

## Text

11 All. The U.O.I. & Ors. Vs. Subachan Ram Pr. Commissioner of Income Tax, Prayagraj & Anr. 69
Lekhpals of Meerut Development Authority
actually they should have been given pay scale
of Rs.825-1,200/- only. The petitioner was
thereafter given promotional pay scale of Tax
and Revenue Officer of the Revenue
Department of Rs. 1,350-2200/- instead of
promotional pay scale of Tax and Revenue
Officer of the Meerut Development Authority
which was only Rs.975-1,660/-. The petitioner
was again granted second promotional pay
scale
of
Naib
Tehsildar
of
Revenue
Department of Rs. 5,500-9,000/- instead of
next pay scale of Rs.4,000-6,000/- as was
admissible
for
employees
of
Meerut
Development Authority. Such pay scales were
given to the petitioner without taking sanction
from
the
Government,
therefore,
the
Department of Local Funds, Audit & Accounts
raised
an
objection
and
recommended
recovery of Rs. 07,08,502/- from the petitioner
paid in excess. In consequence of the
recommendations of the committee formed by
the Vice Chairman and Government Order
dated 20.07.2018, the Pension Payment Order
of the petitioner has been revised and the
amount paid in excess has been recovered
from his Gratuity and Leave Encashment dues.
The remaining amount is yet to be recovered,
and therefore, the recovery order has been
issued by the respondent no.3.

8. Learned counsel for the State
Respondents has argued that the Supreme
Court in the case of State of Haryana vs.
Jagdev Singh 2016 (14) SCC 267 has
permitted recovery of excess payment to
employees if at the time of pay fixation an
undertaking was given by them that the
authorities would be free to recover any excess
payment made to them when discovered
subsequently.

9. However, it is not the case of the
Meerut Development Authority that any
undertaking was sought from the petitioner or
was given by him at the time of his initial pay
fixation as far back as in 1986, when the
Revenue Department's Lekhpal pay scale of
Rs 950-1,500/- was given to him, and
consequently, next promotional pay scale of
higher pay scale were also given to him. In
view of the observations made by the Supreme
Court in the case of State of Punjab and
Others Vs. Rafiq Masih(White Washer) and
Others, AIR 2015 Supreme Court 796 and
also in the case of Thomas Daniel Vs. State of
Kerala 2022 SCC Online SC 536, wherein the
excess payment if any paid to the petitioner
due to the fault on the part of the Authority
themselves without any misrepresentation of
fraud having been played by the petitioner
cannot be now recovered from him.

10. The impugned order of recovery is
set aside. However, it shall be open for the
respondent to give him revised pension as per
the correct pay fixation by issuing revised
Pension Payment Order.

11. The Writ Petition is allowed to this
extent. The already recovered amount shall be
refunded to the petitioner within a period of
two months from the date a copy of this order
is produced before them.
----------
(2022) 11 ILRA 69
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.11.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ A No. 9789 of 2022

The U.O.I. & Ors. ...Petitioners
Versus
Subachan
Ram
Pr.
Commissioner
of
Income Tax, Prayagraj & Anr.
 ...Respondents
70 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Sri Krishna Agarawal, A.S.G.I.

Counsel for the Respondents:
Sri Anil Kumar Srivastava

Civil Law - Central Civil Services
(Conduct)Rules
3(i)(i),
3(i)(ii),
3(i)(iii),
3(i)(xviii)
3(i)(xxi):The
substance
of
the
charge
is
the
acceptance of the additional evidence -
judgment while holding the charge in
quasi judicial -first charge-sheet was
quashed by the Tribunal and also does
not dispute that the second charge-sheet
was issued on the same inspection report
on the basis of which first charge-sheet
was issued.

Writ dismissed. (E-9)

List of Cases cited:

1.U.O.I. Vs K. K. Dhawan reported in 1993 (2)
SCC 56

2. Zunjarrao Bhikaji Magarkar Vs U.O.I. & others
reported in 1997 (7) SCC 409

3. V.D. Trivedi Vs U.O.I. [(1993) 2 SCC 55]

4. U.O.I. Vs R.K. Desai [(1993) 2 SCC 49

5. U.O.I. Vs A.N. Saxena [(1992) 3 SCC 124

6. S.Govinda menon Vs U.O.I. [AIR 1967 SC
1274]

7. M. S. Bindra Vs U.O.I., reported in 1998 (7)
SCC 310

(Delivered by Hon'ble Pritinker Diwaker, J.
&
Hon'ble Ashutosh Srivastava, J.)

1. Heard learned Assistant Solicitor
General of India assisted by Sri Krishna
Agrawal, learned counsel for the petitioners
and Sri Anil Kumar Srivastava, learned
counsel for the Respondent No.1

2. The present writ petition has been
filed for quashing of the judgment and
order dated 09.03.2022 passed by the
Central Administrative Tribunal, Allahabad
Bench, Allahabad, whereby and wherein
the Tribunal has allowed the Original
Application filed by the Respondent No.1
and quashed the impugned order dated
14.12.2020 bearing No.C-14011/75/2020-V
& LK and held that the applicant
therein/Respondent No.2 would be entitled
to all consequential benefits which arise out
of the quashing of the above mentioned
charge-sheet.

3. Learned Assistant Solicitor General
of India submitted that the Tribunal failed
to consider the fact that the charge-sheet
was issued in view of the gravity of the
violation of the Central Board of Direct
Taxes Circular while passing the order in
the
capacity
of
the
Commissioner
(Appeals). The learned Senior counsel
contended that the act of the Respondent
No.1 in the capacity of the Commissioner
(Appeals) even though in his quasi-judicial
capacity, clearly falls within the meaning of
misconduct as construed under Central
Civil Services (Classification, Control and
Appeal) Rules, 1965, and is covered by the
judgment rendered by the Apex Court in
the case of Union of India Vs. K. K.
Dhawan, wherein the Apex Court has held
that any act or conduct either in the judicial
or quasi-judicial capacity, which is contrary
to the established law or rules, could invite
action under the relevant disciplinary rules
and the person concerned would be liable
for the disciplinary action. The learned
Senior Counsel further submitted that the
allegation against the Respondent No.1, as
mentioned in the Article of charges are
serious in nature causing financial loss to
the Government. The Charge No.1 of the
article of charge clearly establishes that the
11 All. The U.O.I. & Ors. Vs. Subachan Ram Pr. Commissioner of Income Tax, Prayagraj & Anr. 71
Respondent No.1 gave the tax remission to
the party in litigation contrary to the CBDT
Circular which expressly prohibited giving
benefit
of
sales
promotion
to
the
pharmaceuticals companies and further
points out that so far as second article of
charge is concerned, the Respondent No.1
deliberately reduced number of shares
below 10% held by one Anand Sagar in the
Assessment Year
2011-12
by
taking
additional evidence. The learned Senior
Counsel submitted that the Enquiry Officer
was already appointed and the right course
available with the Respondent No1. was to
face the enquiry and absolve himself during
the course of the proceedings.

4. The learned counsel for the
Respondent No.1 contended that the
Central Administrative Tribunal has passed
a just and legal order. He further contended
that the Respondent No.1 was earlier issued
charge-sheet on the basis of the same
inspection report which was quashed by the
Tribunal in Original Application No.1466
of 2020 (Subachan Ram Vs. Union of India
& Others) vide judgment and order dated
24.12.2020. Issuing second charge-sheet on
the basis of the same inspection report on
the verge of the retirement is clearly
malicious.

5. Heard learned counsel for the
parties and perused the record.

6. We find from the records that the
Respondent No.1 was issued a charge
memo on 09.09.2020 while serving as
Principal Commissioner of Income Tax at
Prayagraj, for committing misconduct as
the then Commissioner of Income Tax
(Appeal) - 4, Mumbai. The said chargesheet was assailed before the Central
Administrative Tribunal, Allahabad, and
the Tribunal vide judgment and order dated
24.12.2020 quashed the said charge-sheet
technically
and
allowed
the
original
application filed by the Respondent No.1.
Thereafter, before 15 days of his retirement
i.e. 14.12.2020, the second charge-sheet
was issued to the Respondent No.1 on the
basis of the same vigilance inspection
report on which the first charge-sheet was
issued. The charge-sheet was assailed
before the Tribunal, which allowed the
original application and quashed the
charge-sheet dated 14.12.2020, against
which present writ petition has been filed.

7. The learned Senior Counsel, ASGI
submits as under:-

(i)
The
Tribunal
committed
mistake
in
entertaining
the
original
application though the same was not
maintainable
before
the
Central
Administrative Tribunal, Allahabad.

(ii)
The
Tribunal
failed
to
consider the ratio of the judgment of the
Apex Court rendered in Union of India Vs.
K. K. Dhawan reported in 1993 (2) SCC
56.

(iii) The Tribunal
failed
to
appreciate the fact that charges leveled in
the article of charges and therefore, it
should have refrained from quashing the
charge-sheet under judicial review.

(iv) Lastly, it is submitted that the
respondent is charged for violation of Rules
3(i)(i), 3(i)(ii), 3(i)(iii), 3(i)(xviii) and
3(i)(xxi) of the Central Civil Services
(Conduct) Rules, 1964. Therefore, if the
conduct of the respondent could be brought
within the scope of the Rules, immunity
from the disciplinary action cannot be
claimed.

8. In light of the above discussions,
we
proceed
to
examine
the
said
contentions. So far as the Contention No.1,
72 INDIAN LAW REPORTS ALLAHABAD SERIES
regarding maintainability of the original
application is concerned, Rule-6 of the
Central
Administrative
Tribunal
(Procedure) Rules, 1987, provides for the
place of filing of the original application.

"6. Place of filing applications.--

(1)
An
application
shall
ordinarily be filed by an applicant with the
Registrar of the Bench within whose
jurisdiction--

(i) the applicant is posted for the
time being, or

(ii) the cause of action, wholly or
in part, has arisen :

Provided that with the leave of
the Chairman the application may be filed
with the Registrar of the Principal Bench
and subject to the orders under section 25,
such application shall be heard and
disposed of by the Bench which has
jurisdiction over the matter.

(2) Notwithstanding anything
contained in sub-rule (1) persons who
have ceased to be in service by reason of
retirement, dismissal or termination of
service may at his option file an
application with the Registrar of the
Bench within whose jurisdiction such
person is ordinarily residing at the time of
filing of the application. "

9. Rule 6 of Sub Rule 2, provides that
person, who has ceased to be in service by
reason of retirement may at his option file
and application with the Registrar of the
Bench within whose jurisdiction such
person is ordinarily residing at the time of
filing of the application. In the instant case
the Respondent No.1 is residing in District
Ballia, State of U.P., within the jurisdiction
of the Tribunal, and as such the contention
that
the
original
application
is
not
maintainable, merits no consideration.

10. The second contention that the
Tribunal did not consider the ratio as laid
down in K.K. Dhawan's Case also merits
no consideration in as much as the decision
in K K. Dhawan (Supra) was taken note of
by the Apex Court in the case of Zunjarrao
Bhikaji Magarkar Vs. Union of India &
others, decided on 06.08.1999, reported in
1997 (7) SCC 409 and the Apex Court
observed as under:-

"In Union of India vs. K.K.
Dhawan [(1993) 2 SCC 56) respondent was
working as Income Tax Officer. A charge
Memorandum was served on him that it
was proposed to held an inquiry against
him under Rule 14 of the Central Civil
Services
(Classification,
Control
and
Appeal) Rules, 1965. In the statement of
article of charge framed against him, it was
alleged that he completed assessment of
nine firms in "an irregular manner, in
undue haste and apparently with a view to
conferring undue favour upon the assesses
concerned". An application filed by the
respondent against the proposed action was
allowed by the Central Administrative
Tribunal and it was held that orders passed
by the respondent as Income Tax Officer
were quasi judicial and could not have
formed the basis of disciplinary action.
Charge Memorandum was, thus, set aside.
The question before this Court was whether
an
authority
enjoyed
immunity
from
disciplinary proceedings with respect to
matters decided by him in exercise of quasi
judicial functions. After examining the
early decisions of this Court in V.D. Trivedi
vs. Union of India [(1993) 2 SCC 55];
Union of India vs. R.K. Desai [(1993) 2
SCC 49]; Union of India vs. A.N. Saxena
[(1992) 3 SCC 124]and also in S. Govinda
menon vs. Union of India [AIR 1967 SC
1274] this Court held as under :
11 All. The U.O.I. & Ors. Vs. Subachan Ram Pr. Commissioner of Income Tax, Prayagraj & Anr. 73

"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;

(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".

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."

11. Thus, it is not in dispute that the
disciplinary
proceedings
cannot
be
initiated, however, for to ram an Officer
with the label "doubtful integrity" as sought
to be raised by the learned Assistant
Solicitor General of India, as summed up in
Point No.(iii) and (iv), there should be
some evidence or material to reach at such
a conclusion. In M. S. Bindra Vs. Union of
India, reported in 1998 (7) SCC 310, the
Apex Court has held as under:-

"The appellant was served with
an order of compulsory retirement. His
challenge to this order did not find favour
with the Central Administrative Tribunal.
On appeal to this Court it was observed
that judicial scrutiny of any order imposing
premature
compulsory
retirement
is
permissible if the order is rather arbitrary
or mala fide or if it is based on no
evidence. Then this Court observed as
under :

"While viewing this case from the
next angle for judicial scrutiny, i.e., want of
evidence or material to reach such a
conclusion, we may add that want of any
material is almost equivalent to the next
situation that from the available materials,
no reasonable man would reach such a
conclusion. While evaluating the materials,
the authority should not altogether ignore
the reputation in which the officer was held
till recently. The maxim "nemo firut repente
turpissimus" (no one becomes dishonest all
of a sudden) is not unexceptional but still it
is a salutary guideline to judge human
conduct, particularly in the field of
74 INDIAN LAW REPORTS ALLAHABAD SERIES
administrative law. The authorities should
not keep their eyes totally closed towards
the overall estimation in which the
delinquent officer was held in the recent
past by those who were supervising him
earlier. To dunk an officer into the puddle
of "doubtful integrity", it is not enough that
the doubt fringes on a mere hunch. That
doubt should be of such a nature as would
reasonably
and
consciously
be
entertainable by a reasonable man on the
given material. Mere possibility is hardly
sufficient to assume that it would have
happened. There must be preponderance of
probability for the reasonable man to
entertain doubt regarding that possibility.
Only then there is justification to ram an
officer with the lable "doubtful integrity".

12. Rule 3 (i) of the Central Civil
Services (Conduct) Rules, 1964 states that
every government servant shall at all time:-

(i) maintain absolute integrity;

(ii) maintain devotion to duty;
and

(iii)
do
nothing
which
is
unbecoming of a Government servant.

(iv) commit himself to and uphold
the supremacy of the Constitution and
democratic values;

(v)
defend
and
uphold
the
sovereignty and integrity of India, the
security of the State, public order, decency
and morality;

(vi)
maintain
high
ethical
standards and honesty;

(vii) maintain political neutrality;

(viii) promote the principles of
merit, fairness and impartiality in the
discharge of duties;

(ix) maintain accountability and
transparency;

(x) maintain responsiveness to the
public, particularly to the weaker section;

(xi) maintain courtesy and good
behaviour with the public;

(xii) take decisions solely in
public interest and use or cause to use
public resources efficiently, effectively and
economically;

(xiii) declare any private interests
relating to his public duties and take steps
to resolve any conflicts in a way that
protects the public interest;

(xiv) not place himself under any
financial or other obligations to any
individual or organisation which may
influence him in the performance of his
official duties;

(xv) not misuse his position as
civil servant and not take decisions in order
to derive financial or material benefits for
himself, his family or his friends;

(xvi) make choices, take decisions
and make recommendations on merit alone;

(xvii) act with fairness and
impartiality and not discriminate against
anyone, particularly the poor and the
under-privileged sections of society;

(xviii)
refrain
from
doing
anything which is or may be contrary to
any law, rules, regulations and established
practices;

(xix) maintain discipline in the
discharge of his duties and be liable to
implement
the
lawful
orders
duly
communicated to him;

(xx) maintain confidentiality in
the performance of his official duties as
required by any laws for the time being in
force,
particularly
with
regard
to
information, disclosure of which may
prejudicially affect the sovereignty and
integrity of India, the security of the State,
strategic, scientific or economic interests of
the State, friendly relation with foreign
countries or lead to incitement of an
offence or illegal or unlawful gain to any
person;
11 All. Amit Kumar Vs. State of U.P. & Anr.
75

(xxi) perform and discharge his
duties
with
the
highest
degree
of
professionalism and dedication to the best
of his abilities.

13. The substance of the charge is the
acceptance of the additional evidence and
judgments given by him while holding the
charge in quasi-judicial nature and that too
in the year 2016-17. The learned Senior
Counsel is unable to point out the illegality
in
the
finding
recorded
by
the
Administrative
Tribunal
under
the
impugned order and also do not dispute the
fact that first charge-sheet was issued on
09.09.2020 and the same was quashed by
the Tribunal
in
Original Application
No.466 of 2020 and also does not dispute
the fact that the decision arrived at by the
Respondent No.1 while discharging his
function as Commissioner of Income Tax
(Appeal) - 4, Mumbai, were upheld by
higher forum and also does not dispute the
fact that the second charge-sheet was issued
on the same inspection report on the basis
of which first charge-sheet was issued.

14. We are of the opinion that issuing
the second charge-sheet on the same set of
facts, in itself is malicious and that too at
the verge of retirement for an event which
was four year old. Thus, we are not inclined
to interfere in the judgment and order
passed by the Tribunal allowing the
original
application,
quashing
the
impugned charge-sheet and granting the
Respondent No.1 all the consequential
benefits. Accordingly, the writ petition fails
and is, accordingly, dismissed.

15. No order as to costs.
----------
(2022) 11 ILRA 75
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2022

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ A No. 12229 of 2022

Amit Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Gyan Prakash

Counsel for the Respondents:
C.S.C.

Civil Law - The U.P. Recruitment of
Dependants
of
Government
Servants
Dying in Harness -Rule 5: The death of the
late mother of the petitioner- his father was
already
employed
the
St.
Government
-
presently receiving pension from the St.
Government -compassionate appointment to be
given where the other spouse of the deceased is
not
already
employed
in
the
Central
Government
or
the
St.
Government
or
otherwise.

Petition dismissed. (E-9)

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel for
the respondents.

2. By this petition, the petitioner has
prayed for the following relief:-

"(I) A Writ, order or direction in
the nature of certiorari quashing the order
dated 21.5.2022 passed by the respondent
No.2 (Chief Medical Officer, Firozabad).

(II) A Writ, order or direction in
the nature /of of mandamus directing the