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R. Gopal Rao Vs. the Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1976)2MLJ508
AppellantR. Gopal Rao
RespondentThe Commissioner of Income-tax
Cases Referred and Anr. v. R. Gopal Rao W.A. No.
Excerpt:
.....the order of reversion and an order of reduction in rank, that it is well established that reversion can be only to a post which a person held earlier and that reduction also can only be to a post or class of service which the person occupied at any time..........upper division clerk by the commissioner's proceedings, dated 19th september, 1957 and was posted to income-tax office, salem. the petitioner joined the income-tax office, salem on 25th november, 1957. in may, 1959, he was transferred from salem to ooty; but he did not join duty at ooty and went on applying for leave on one ground or other. he made representations against his transfer to ooty from salem and those representations were rejected by the commissioner of income-tax, madras, kerala and coimbatore and also by the central board of revenue, new delhi. since the petitioner did not join duty at ooty and went on applying for leave for a long period, his leave was refused. even then, he failed to report for duty at ooty. thereafter, the inspecting assistant commissioner,.....
Judgment:
ORDER

G. Ramanujam, J.

1. The petitioner in both the writ petitions is one and the same person.

2. In the first writ petition he has challenged the validity of the memorandum, dated 22nd December, 1964, issued by the Commissioner of Income-tax, the respondent herein, calling upon him to show cause against the proposed punishment of compulsory retirement under Rule 15(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 within fifteen days from the date of the receipt of that memo. In the second writ petition, the petitioner has challenged the validity of the final order passed by the Commissioner of Income-tax, the respondent herein, dated 26th October, 1972 reducing the petitioner from Class III to Class IV, and directing that the petitioner will not be eligible for promotion to any higher posts for a period of three years.

3. As both the writ petitions arise out of the same disciplinary proceedings initiated against the petitioner and as the issues involved are practically the same, it is convenient to dispose of them together.

4. The petitioner was appointed as officiating lower division clerk in the Income-tax Department by an order dated 15th January, 1947 of the Inspecting Assistant Commissioner of Income-tax, Central Range, Madras. He joined duty on 8th February, 1947. Later, he was appointed as officiating steno-typist on and from 11th January, 1950 by an order dated 9th January, 1950 by the then Inspecting Assistant Commissioner, Central Range. He was confirmed as lower division clerk with effect from 1st October, 1951 by an order dated 28th December, 1951 of the Commissioner of Income-tax, Madras. Later, he was confirmed as a steno-typist with effect from 1st October, 1951 by an order dated 27th December, 1956 of the Commissioner of Income-tax. Subsequently, the petitioner was promoted as officiating upper division clerk by the Commissioner's proceedings, dated 19th September, 1957 and was posted to Income-tax Office, Salem. The petitioner joined the Income-tax Office, Salem on 25th November, 1957. In May, 1959, he was transferred from Salem to Ooty; but he did not join duty at Ooty and went on applying for leave on one ground or other. He made representations against his transfer to Ooty from Salem and those representations were rejected by the Commissioner of Income-tax, Madras, Kerala and Coimbatore and also by the Central Board of Revenue, New Delhi. Since the petitioner did not join duty at Ooty and went on applying for leave for a long period, his leave was refused. Even then, he failed to report for duty at Ooty. Thereafter, the Inspecting Assistant Commissioner, Coimbatore initiated disciplinary proceedings against the petitioner for wilfully absenting himself from duty and after due enquiry, a show cause notice was issued to the petitioner on 5th April, 1960 proposing to revert him as a steno-typist for a period of one year and to treat the period of his absence without leave as extraordinary leave. After receiving the said show cause notice, the petitioner reported for duty on 4th April, 1960 at the Income-tax Office, Ooty. He was however informed by the Inspecting Assistant Commissioner, Coimbatore that the question of permitting him to join duty will arise only after the period of his absence is regularised in the disciplinary proceedings. Thereafter, the petitioner submitted his representation on 8th April, 1960 to the show cause notice issued to him. The Inspecting Assistant Commissioner, Coimbatore, however reverted him to the substantive post of steno-typist and posted the petitioner to the Income-tax Office, Ooty. The petitioner filed an appeal against the order of reversion and the said appeal was rejected by the Commissioner of Income-tax, Madras.

5. Subsequently, disciplinary proceedings were initiated against the petitioner by the Inspecting Assistant Commissioner, Coimbatore for various irregularities in his world and charges were framed at various stages and ultimately the petitioner was compulsorily retired from service by the order of the Inspecting Assistant Commissioner, dated 31st March, 1962. The petitioner's appeal to the Commissioner of Income-tax against those disciplinary proceedings was rejected. The petitioner, thereafter, filed Writ Petition No. 201 of 1963 challenging the said order of compulsory retirement dated 31st March, 1962. The said writ petition was allowed on 6th August, 1964 without going into the merits, on a technical ground that the Inspecting Assistant Commissioner, Coimbatore was not the competent authority for imposing a major penalty such as compulsory retirement, as the petitioner had been confirmed in the category of steno-typist by the Commissioner. The Income-tax Department questioned the said order in the writ petition in writ appeal No. 44 of 1965.

6. Without prejudice to the stand taken in the said writ appeal the Commissioner of Income-tax, Madras, initiated fresh enquiry proceedings. against the petitioner on the same charges on which the punishment of compulsory retirement was originally imposed on him, and the petitioner was directed to continue to be under suspension until further orders. On 6th May, 1965, the Commissioner framed the following three charges against the petitioner:

Charge I: That the said Shri R. Gopal Rao while functioning as steno-typist, Income-tax Office, Ootacamund, during the petiod of April and May, 1961, addressed the Commissioner of Income-tax, Madras, personally in his letter dated 29th April, 1961 though the contents of the letter were purely official and also couched the letter in offensive and objectionable language and thereby committed acts of indiscipline and insubordination.

Charge II: That during the above period and while functioning In the aforesaid office, the said Shri R. Gopal Rao refused to go to the Income-tax: Officer's room when called to do so.

Charge III: That during the above period and while functioning in the aforesaid office, the said Shri Gopal Rao refused to take delivery of official communications intended for him, and thereby committed acts of indiscipline and insubordination.

7. The said charges were communicated to the petitioner asking him to submit his representations before 15th June, 1965. The petitioner returned the memo of charges with certain endorsements but he neither admitted nor denied the charges It was, therefore, decided to hold an enquiry and the Appellate Assistant Commissioner, Coimbatore, was appointed as Inquiry Officer. The Inquiry Officer took up the matter for enquiry and issued a notice to the petitioner on 17th February, 1966 calling upon him to appear for the enquiry. The petitioner did not appear on the due date for the enquiry or in later dates when the matter stood adjourned. Ultimately, the Inquiry Officer proceeded with the enquiry ex parte on the basis of the materials placed before him and he submitted his report to the Commissioner of Income-tax, the Disciplinary Authority, who, after a consideration of the report of the Inquiry Officer, came to the provisional conclusion that the petitioner should compulsorily retire from service. The said provisional decision was communicated to the petitioner by a show cause notice dated 27th February, 1970 which was served on the petitioner on 2nd March, 1970. The petitioner, at that stage filed two writ petitions viz., W.P. No. 710 of 1970 and W.P. No. 711 of 1970, one for quashing the show cause notice dated 27th February, 1970 and the other to restore him to the post of upper division clerk with effect from 13th October, 1959 in pursuance of an earlier order in, Writ Petition No. 201 of 1963. The said two writ petitions, however, were dismissed on 17th March, 1970 even at the admission stage; Thereafter, the petitioner on 30th March, 1970 addressed the Disciplinary Authority enclosing a doctor's certificate dated 29th March, 1970 for four months time for filing his objections to show cause notice; but he was informed that the time could be granted only upto 30th April, 1970 and not any further. To this the petitioner by his letter dated 29th April, 1970 replied that he has filed two appeals viz., Writ Appeal No. 292 of 1970 and 293 of 1970 against the orders in the Writ Petition Nos. 710 of 1970 and 711 of 1970 and that till the disposal of the said two appeals, he was unable to file his reply to the show cause notice. He also filed a Civil Miscellaneous Petition, requesting the Court to stay the disciplinary proceedings which was, however, dismissed on 14th December, 1970. The Commissioner of Income-tax to be fair, issued another memo dated 22nd December, 1970 requiring the petitioner to show cause against the proposed penalty of compulsory retirement within fifteen days from the date of receipt of that notice. However, the petitioner continued to be reluctant to file his reply to the said show cause notice. Ultimately, the writ appeals filed by the petitioner were dismissed on 22nd April, 1971,and on the same day, a memo was again issued to the petitioner by the Commissioner to file his representations if any, within a week from the date of its receipt. The petitioner, after giving various excuses ultimately submitted his written representations on 2nd July, 1971 and 3rd July 1971. After considering the said representations, the Commissioner passed final orders on 26th October, 1972. In the present two writ petitions, the petitioner challenges the validity of the show cause notice dated 22nd December, 1964 issued by the Commissioner and also the final order dated 26th October, 1972 passed by the Commissioner, in the disciplinary proceedings initiated against the petitioner.

8. The petitioner has not questioned, in these writ petitions the procedure followed by the Commissioner in conducting the disciplinary enquiry. He has, not even suggested that there was any defect in the enquiry conducted by the respondent or that the finding of the Inquiry Officer, which has been accepted by the disciplinary authority is not based on any material. The Court, has, therefore, to proceed taking it that the disciplinary enquiry conducted against the petitioner was proper and that the finding, on the basis of which the punishment has been meted out, was based on proper and relevant materials.

9. From the contentions raised by the petitioner in both the writ petitions it is seen that they are four in number:

(1) That the Commissioner is not entitled: to act as a disciplinary authority under Rule 12(4) and that the disciplinary authority which held the enquiry at the earlier stage is alone competent to conduct the enquiry.

(2) The charges which were enquired into by the Commissioner are based on the same allegations which were the subject-matter of the disciplinary enquiry at an earlier stage as a result of which the petitioner was reverted from the post of upper division clerk to his, substantive post of steno-typist and therefore, the punishment now meted out in respect of the same allegations will amount, to a double punishment.

(3) The ultimate charges framed by the Commissioner, which proceeded on the basis that the petitioner is a steno-typist while he is not are invalid and therefore any enquiry into the said' charges is equally invalid and illegal; and

(4) in any event, the reduction in rank from Class III to Class IV is illegal in that he is asked to serve in a lower post which he never held before.

10. As regards the first of the said four contentions, it is submitted by the learned Counsel for the petitioner that since the earlier disciplinary proceedings initiated by the Inspecting Assistant Commissioner have been quashed, Rule 12(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, can be invoked only by the said Inspecting Assistant Commissioner for initiation of fresh disciplinary proceedings against the petitioner which will have the effect of suspending the petitioner from the date of the original order of punishment. Rule 12(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 is as follows:

(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further order.

According to the learned Counsel for the petitioner, the disciplinary authority who decides to hold a further enquiry against the petitioner on the allegations on which the penalty of compulsory retirement was originally imposed should be the same authority, and the Commissioner's decision to hold further enquiry in this case, is therefore, without jurisdiction and will not attract the deeming provision contained in the second limb of the said rule to treat the petitioner as under suspension from the date of the original order of punishment, lam not able to agree with the learned Counsel for the petitioner in this regard. Admittedly, the original order of punishment imposed by the Inspecting Assistant Commissioner has been set aside by this Court on the ground that the Inspecting Assistant Commissioner is not the disciplinary authority and therefore the order of punishment is without jurisdiction with the observation that fresh proceedings have to be initiated by the disciplinary authority who is competent to initiate the disciplinary proceedings under the rules against the petitioner. It is not in dispute that the Commissioner of Income-tax is the competent authority to initiate the disciplinary proceedings and impose punishment on the petitioner. The said rule does not say that the authority who initiated disciplinary proceedings earlier should alone initiate fresh proceedings. The rule uses the word 'disciplinary authority' which means an authority competent to initiate disciplinary proceedings. Under the rules, there can be only one disciplinary authority and the disciplinary proceedings initiated by an authority who is not competent to do so is a nullity and therefore, the fresh proceedings can be taken only by the disciplinary authority contemplated by the rules. The interpretation sought to be placed by the learned Counsel for the petitioner on the said rule, if accepted, will make the rule purposeless and will result in an unintended immunity to a Government Servant in respect of charges for which he was punished, but the punishment has been later set aside on the ground that it has been imposed by a person who is not a disciplinary authority. The above rule consists of two parts viz., (i) a decision by the disciplinary authority to continue the proceedings and (ii) once such a decision is taken, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. In my view, it is impossible to say that Rule 12(4) contemplates that an authority who was found to be incompetent to initiate proceedings and to have no jurisdiction to initiate proceedings, should again initiate fresh proceedings under that rule.

11. A similar contention appears to have been put forward by the petitioner in R. Gopal Rao v. The Commissioner of Income-Tax, Madrai-21 filed by him earlier, and Ismail, J. has rejected the said contention with the following observations:

If that order was passed by a competent authority the question of that order being set aside cannot possibly arise. It is only because that order was passed by an authority not competent to do so the question of that order being set aside arose and therefore the contention of the learned Counsel for the petitioner has no sub-stance whatever in this behalf. As a matter of fact the rule creates a fiction, namely, that the Government Servant shall be deemed to have been placed under suspension by the appointing authority, and it is no answer to that fiction to say that the original order of, compulsory retirement was not passed by the appointing authority but by some other authority. Therefore, there is no substance in this contention of the learned Counsel for the, petitioner.

As against the dismissal of W.P Nos. 770 and 711 Of 1970, 'the petitioner filed. 'VV.A. Nos. 292 and 293 of 1970 which were' also, dismissed on merits on 20th April, 1971. I do not, therefore, see any merit in |he first contention of the petitioner.

12. The second contention of the learned Counsel for the petitioner is also equally without any substance. The petitioner has not established his -case that the order of reversion was by way of punishment. The department's stand all along upto the date of the passing of the impugned Order was that the order of reversion was for administrative reasons and that it is hot by way of punishment. When the petitioner specifically challenged in R. Gapal Rao v. The Inspecting Assistant Commissioner and Anr. W.P. Nos. 710 and 711 of 1970 the order of reversion dated 23rd April, 1960 from the post of upper division clerk to his substantive post of steno-typist on the ground that it offended Rule 14(4)(a) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, Veeraswami, J. as he then was, held at follows:

Actually the order of reversion gave no reason why the petitioner was reverted to his substantive post of a steno-typist. Apparently what operated in the mind of the Inspecting Assistant Commissioner' of Income-tax, who passed the order was the background of the facts relating1 to the charges and. disciplinary proceedings against the petitioner. It may be remembered that at the time of his reversion, the petitioner was only acting in the post of upper division clerk. It is possible that those facts furnished the motive and the Inspecting Assistant Commissioner of Income-tax considered that the petitioner should be reverted to his permanent post but not by way of punishment, which he had the power to do. In my view, no interference with this order is called for.

On appeal, the said view has been affirmed in The Inspecting Assistant Commissioner of Income-tax and Anr. v. R. Gopal Rao W.A. No. 44 1965, with the following observations:

The learned Counsel for the respondent has referred to the order of reversion passed earlier in 1960 from the post of upper division clerk to that of steno-typist. This order was also challenged in the writ petition. But it was held to be a valid order. There is no, appeal against that part of the order of the learned Judge by the respondent. If he wanted to challenge that finding, he ought to have taken appropriate steps. Our decision in this appeal relates only to the order compulsorily retiring1 the respondent from the post of steno-typist. We are not interfering with the order of the learned Judge holding that the reversion from the post of upper division clerk to that of steno typist cannot be interfered with.

It is, therefore, no longer open to the petitioner to raise the contention that the order of reversion was by way of punishment. Perhaps, the petitioner was emboldened to raise this contention once again in the Writ Petition No. 3749 of 1973 in view of the fact that impugned order casually mentions while stating the facts, that the order of reversion was by way of punishment. It is true that in the impugned order in paragraph 4, it is stated that there was show cause notice proposing to impose punishment by way of reversion. But in the counter affidavit filed by the respondent, it has been stated in paragraph 6 that the order of reversion dated 23rd April, 1960 reverting from his officiating post of upper division clerk to his substantive post as steno-typist was in fact an administrative reversion and not a punishment, that the reference in the narrative portion of the impugned order that the said reversion was a punishment was a mistake and that the said unfortunate mistake is regretted. The relevant file has been produced by the respondent, in support of its stand to show that the reference to the order of reversion as a punishment in the impugned Order is a manifest mistake and that the order of reversion is, in fact, an administrative one. I have perused the relevant file and it shows that the petitioner has been reverted to his substantive post as there was no vacancy in the post of upper division clerk in which he was officiating before he went on leave. The said file was also perused by the learned Counsel for the petitioner and he had no comments to make on the entries contained in the file to the effect that the petitioner was reverted to his substantive post for want of vacancy in the post of upper division clerk. I have, therefore, to accept the explanation of the respondent in the counter-affidavit for the incorrect narration of facts in the impugned order. I am, therefore, of the view that the mistaken description by the respondent of the earlier reversion as one of punishment does not affect the validity of the impugned order. Even Otherwise the impugned order reducing the petitioner to Class IV is based on the enquiry conducted in relation to different charges and not on the same charges which had been levelled against the petitioner earlier to the order of reversion. Even if the order of reversion dated 23rd April, 1960 is held to be by way of punishment, that will not prevent the disciplinary authority from punishing him in relation to other charges which were not the subject-matter of the earlier enquiry. Therefore, in any case, the punishment of reduction in rank imposed in the impugned order cannot be said to amount to a second punishment in relation to the same charges. I see no merit in this contention also.

13. The third contention advanced by the petitioner is that the charges have been framed against the petitioner om the basis that he is a steno-typist while-he is not, and therefore neither the-charges nor the punishment imposed: therefor can be valid. It is not in dispute that the substantive post held by the petitioner was steno-typist. By an order of reversion dated 23rd April,, 1960 the petitioner was reverted torn his officiating post of upper division clerk to his substantive post of steno-typist and therefore, on the date when the fresh charges came to be framed' against the petitioner by the competent disciplinary authority, the petitioner was; only a steno-typist. The charges or the punishment against the petitioner therefore cannot be said to be vitiated for the reason alleged by the petitioner. Even assuming that there is a wrong description of the petitioner as a steno-typist, that will not affect either the validity of the proceedings or the punishment imposed therefor by the disciplinary; authority if they are otherwise valid under the Rules. I do not, therefore see-any merit in the above contention.

14. As regards the fourth contention the learned Counsel for the petitioner submits that the petitioner was recruited, only as a member of Class 1JI services' and that therefore he cannot be reverted to Class IV of which he was never a member. According, to the learned Counsel for the petitioner, the reduction can only be to a post which the petitioner held earlier at any point of time; but he cannot be reverted to a post which he never held at any time before in Class IV which is menial service. In effect, what the learned Counsel says is that there is no difference between the order of reversion and an order of reduction in rank, that it is well established that reversion can be only to a post which a person held earlier and that reduction also can only be to a post or class of Service which the person occupied at any time beforvie. Though this contention appeared at the first blush somewhat attractive, I do not find any support for the same from any rulings and the learned Counsel was unable to cite any authority in support of his plea that an Order of reduction should be equated to an order of reversion. Though the word 'reduction' in rank is comprehensive enough to include a reversion to a louver post, it cannot be taken to be synonymous. Reduction cannot always be equated to reversion. Reversion to a lower post is one form of reduction in rank. In my view, the expression 'reduction in rank', covers a wider field than reversion, to a lower post. It is true, the word 'reversion' always connotes 'a return to the original post or place'. But, the word 'reduction' has no such limitation and therefore, reduction in rank extends even to a rank, which the officer concerned never held. The word 'reduction' normally connotes, the 'state of being reduced, diminution, 'subjugation'. Article 311 of the Constitution of India dealing with the major punishments refers to a dismissal, removal or reduction in rank. Rule 13(iv) to (vii) of the Central Civil Services (Classifications, Control and. Appeal) Rules, 1957 with which we are concerned refer to the following major punishments.

13. (iv) reduction to a lower service grade, or post, or to a lower time-scale, or to a lower stage in a time-scale;

(v) compulsory retirement;

(vi) removal from service which shall not be a disqualification for future employment;

(vii) dismissal from service which shall ordinarily be a disqualification for future employment.

The expression 'reduction to a lower service, grade or post,' cannot be equated in my view to the expression 'reversion to a lower service cadre or post' as contended for by the petitioner. I am not able to agree with the contention of the learned Counsel for the petitioner that the word 'reduction' his been used in the sense of reversion'. On the other hand, there is an indication that the word 'reduction' has not been used in the restricted sense. In the latter part of the said Rule 13 the word 'reversion' his been specifically used vide Explanation (iv) and (v) to the said Rule 13. Where a statutory provision uses two different expressions the normal rule of interpretation is that they cannot be deemed to have, been used synonymously, Rule 13, as it stands, in my view, enables the disciplinary authority to impose a penalty of reduction in rank not only to a lower post which the concerned civil servant held earlier but even to a lower post which he did not hold at any point of time. Therefore, the fourth contention of the petitioner also cannot be accepted.

15. Writ Petition No. 3749 of 1973 fails and is dismissed on merits.

16. W.P. No. 2079 of 1972 haying been filed against the show cause notice, dated 22nd December, 1964, it has become infructuous in view of the fact that the final order imposing punishment has beer passed on 26th October, 1972 which is the subject-matter in W.P. No. 3749 of 1973. Hence W.P. No. 2079 of 1972 is dismissed as infructuous.

17. In the result, both the writ petition are dismissed. There will be no order as to costs.


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