A K BANERJEE Vs. DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA
LAWS(CAL)-1970-2-23
HIGH COURT OF CALCUTTA
Decided on February 18,1970

A.K.BANERJEE Appellant
VERSUS
DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA Respondents

JUDGEMENT

K.L.Roy, J. - (1.) This is an application under Article 226 of the Constitution challenging the validity of a notice to show cause why the penalty of removal from service should not be imposed on the petitioner and also of a farther order oi punishment under Rule 13(iv) of the Central Civil Services (Classification, Controrand Appeal) Rules, 1957 (hereinafter referred to as " the Rules "), with reversion of the petitioner to the next lower grade. The facts relating to the application are as follows i
(2.) The petitioner entered service in the income-tax department on the 3rd November, 1930, as a lower division clerk and thereafter by gradual promotion was ultimately promoted to the post of Income-tax Officer, class I. on the 1st April, 1959. In June, 1961, the petitioner was posted as Income. tax Officer, " B " Ward, District 24-Parganas, and was directed to 'perform the functions of an Income-tax Officer in respect of all persons or classes of persons who have not been hitherto assessed or to whom no notice "inter section 22(2) has been issued or in respect of whom no proceedings under the Income-tax Act have been started and whose principal place of business or residence was within the District of 24-Parganas. By an order dated the 21st August, 1962, in exercise of the powers conferred by Rule 12(1) of the aforesaid Rules the President placed the petitioner under suspension with immediate effect. The said order was signed by the Deputy Secretary to the Government of India, Ministry of Finance (Department of Revenue) who is respondent No. 1 to this application. By a memorandum dated 2nd January, 1963, the respondent No. 1 informed the petitioner that it was proposed to hold an enquiry against him under Rule 15 of the said Rules. The allegations on the basis of which the enquiry was proposed to be held were set out in a statement enclosed with the said memorandum and the petitioner was informed of the procedure for taking inspection and obtaining copies of the relevant documents and also for the assistance of another Government servant for conducting his defence and was required to submit the written statement of his defence by the 31st January, 1963. Along with the said memorandum a charge sheet for the following three charges was enclosed, namely : (1) that the petitioner while functioning as Income-tax Officer did not handle the assessment proceedings in a number of cases, particularly those mentioned in the statement of allegations, with ordinary care and efficiency, showed continued and deliberate negligence, carelessness and lack of integrity and devotion to duty and thus contravened Rule 3 of the aforesaid rules; (2) that the petitioner while functioning as Income-tax Officer during the period between December, 1959, and March, 1962, indirectly engaged himself in business conducted in the name of his wife, Smt. Suniti Rani Banerjee, under the style " Tatagahr " at 115, Ashutosh Mukherjee Road, Calcutta, without previous sanction of his departmental authority and thereby contravening Rule 12 of the said rules; (3) that the petitioner while functioning as Income-tax Officer during the period between April, 1957, and December, 1961: (i) Required a Vauxhall Motor Car No. WBC 7274 for Rs. 1,700 on the 2nd April, 1957, without the previous sanction of his departmental authority and, subsequently, falsely stated to the Income-tax Commissioner that the said car was purchased through a regular dealer, Messrs. Auto Cars of 53, Free School Street, Calcutta, and (ii) effected life insurance policies for Rs. 30,000 in July, 1957, in his own name for which he had to pay annual premium of Rs. 1,203.60 without reporting such transaction to his departmental authority and thereby contravened Rule 15(2) of the said Rules.
(3.) The petitioner submitted his written defence denying the charges. By an order dated 5th August, 1963, the President appointed Sri M.M. Kusari, Commissioner for Departmental Enquiries, Ministry of Home Affairs, as the enquiry officer to inquire into the charges framed against the petitioner under Rule 15 of the said Rules. This order was also signed by the first respondent. By a further order dated the 4th September, 1963, the President nominated Sri Nenumal, Inspector of Police, Central Bureau of Investigation, Calcutta, as the prosecuting officer before the enquiry authority. The order was also signed by the first respondent. By a letter dated the 10th September, 1963, the petitioner asked the enquiry officer for certified copies of the police report and of the depositions of the witnesses examined by the police during the course of the preliminary investigation. The enquiry officer replied to the aforesaid letter on the 3rd September, 1963, stating that the matters referred to in the petitioner's letter concerned the disciplinary authority and the petitioner was asked to take up the matter with such authority. By his letter dated the 1st October, 1963, the Commissioner of Income-tax, West Bengal, the respondent No. 2 herein, informed the petitioner that he could not have the preliminary police report as it was not relevant for the purpose of the enquiry. A copy of the list of documents on which the prosecution relied and a copy of the list of witnesses for the prosecution were, however, enclosed with the reply. The further request for permission to have the assistance of a lawyer to represent the petitioner's case before the enquiry officer was not acceded to. Thereafter, the petitioner submitted a list of witnesses and a list of documents on which he would rely during the course of the enquiry. By his letter dated the 19th October, 1963, addressed to the President and marked "attention Shri M.G. Thomas, Undersecretary to the Government of India, Ministry of Finance ", the petitioner asked that instructions be issued to the authority concerned to enable the petitioner necessary access to and for the production of certain documents mentioned in the said letter. By a further letter dated the 8th December, 1963, addressed to the President, the petitioner asked for permission to utilise the assistance of Shri B.N. Bhattacharjee, Income-tax Officer, under the Commissioner of Income-tax, West Bengal I, a Central Government servant, during the entire course of the departmental enquiry before Shri M.M. Kusari. By his letter dated the 6th December, 1963, the Commissioner of Income-tax, West Bengal I, the respondent No. 2, replied to the petitioner's letter dated the 19th October, 1963, informing him that he might inspect certain documents referred to in his said letter while other documents could not be given inspection of as they were not relevant for the purpose of the enquiry. Thereafter, the enquiry was held on several dates and during the first three days namely, the 18th, 19th and 21st October, 1963, the assistance of Shri B.N. Bhattacharjee was not made available to the petitioner. Certain further demands were made by the petitioner for inspection of documents referred to by one Lyall, the then Inspecting Assistant Commissioner of Income-tax, Range V, the respondent No. 3, in his affidavit before the enquiry committee. It appears that the said B.N. Bhattacharjee was informed by a letter from the Income-tax Officer, Head Quarters, dated the 15th October, 1963, that he could not represent the petitioner before the enquiry officer. The fact of such refusal was recorded by the petitioner in his letter to the President dated 19th October, 1963, again marked " attention M.G. Thomas, Under Secretary to the Government of India." By his report dated the 11th March, 1964, the said enquiry officer held that so far as charge No. 1 was concerned the evidence did not show that the petitioner was actuated by any ulterior motive of showing undue favour to any party and/or having any personal gain. He further found that there was no doubt that the assessment cases did not receive proper care, scrutiny and attention from the petitioner but there was nothing to show the lack of integrity or deliberate and calculated negligence. By his failure to handle the assessment proceedings with proper care and efficiency which could reasonably be expected from an officer of his status, the petitioner stood guilty of lack of devotion to his duty and to that extent be had contravened the provisions of Rule 3 of the Central Civil Services (Conduct) Rules, 1955. So far as the charge No. II was concerned the officer found that it was not established. So far as the first part of the charge No. III was concerned the enquiry officer held that the petitioner had not violated the provisions of the Conduct Rules by not obtaining the previous sanction for the purchase of the car and also did not make any false statements regarding the said purchase. So far as the second part of that charge was concerned the enquiry officer found the petitioner technically guilty in not reporting the fact of his obtaining a lue insurance policy on bis own life, for Rs. 30,000 in July, 1957, and thereby contravening Rule 15(2) of the Conduct Rules but was of the opinion that such contravention was probably unintentional. In forwarding the aforesaid report of the enquiry officer, the respondent No. 1 sent a memorandum to the petitioner |Iated the 5th October, 1964, wherein it was stated that on a careful consideration of the report and in particular of the conclusions reached against the petitioner the President agreed with the findings of the enquiry officer that charges Nos. I and III(ii) were proved. The President had, therefore, provisionally come to the conclusion that Shri Banerjee was not a fit person to be retained in service and so it was proposed to impose on him the penalty of removal from service. The petitioner was given an opportunity of making representations against the penalty proposed which representations would be considered by the President. By his letter dated the 13th November, 1964, the petitioner showed cause to the President against the proposed imposition of penalty. The said letter was, thereafter, referred to the Union Public Service Commission by the President which after carefully considering the report of the enquiring officer, inter alia, agreed with his findings in respect of charges I, II and III(i) and so far as charge No. III(ii) was concerned the Commission held the petitioner guilty of contravention of Rule 15(2) of the Conduct Rules. In the light of its above findings the Commission recommended the penalty of reduction to the next lower grade for an indefinite period to be imposed on the petitioner. By an order dated the 30th August, 1965, made by and on behalf of the President after recording that the President had considered the report of the enquiry officer and the advice of the Union Public Service Commission and agreed with the same, it was ordered that the suspension of Sri Banerjee be removed and that he be reinstated from the date he resumed his duty. The President further ordered that Sbri Banerjee be punished under Rule 13(iv) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. with reversion to the next lower grade, i.e., from Income-tax Officer, class I, to Income-tax Officer, class II, for an indefinite period and that for the period of suspension Shri Banerjee would be allowed by way of pay and allowances only subsistence allowances already drawn by him. The petitioner resumed his duties on the 4th September, 1965, and continued as an Income-tax Officer, class II. This application was made and the rule obtained on the 18th January, 1966, after demand for justice had been made by letter dated the 20th December, 1965.;


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