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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(1983)2MLJ478
AppellantR. Gopal Rao
RespondentThe Commissioner of Income-tax
Cases ReferredH.L. Mehra v. Union of India and Ors.
Excerpt:
- .....on 26th october, 1972, reducing the petitioner from his substantive post of steno-typist to the rank of class iv, with a direction to join duty as class iv employee in the income-tax office at ooty. the order further stated that the petitioner shall not be eligible for promotion to any higher post for a period of three years. the petitioner filed writ petition no. 2079 of 1972 against the show cause dated 22nd december, 1964, issued to him. writ petition no. 3749 of 1983 was filed challenging the final order passed by the commissioner on 26th october, 1972, reducing him to the rank of class iv employee with direction to join duty as class iv employee at ooty.3. the main contentions of the petitioner in both the writ petitions are:1. the disciplinary authority who decides to hold a.....
Judgment:

P. Venugopal, J.

1. The writ petitioner is the appellant before this Court. A number of disciplinary proceedings were initiated against the writ petitioner by the Income-tax Department, and the writ petitioner, in turn, filed a number of writ petitions and writ appeals in this Court, with the result, there has been a tortuous and prolonged litigation between the parties lasting over a period of nearly 21 years.

2. The writ petitioner was appointed as Officiating Power Division Clerk in the Income-tax Department, by an order of the Inspecting Assistant Commissioner, Central Range, Madras on 15th January, 1947. He joined duty on 8th February, 1947. He was appointed as Officiating Steno-Typist on 11th January, 1950, by the Inspecting Assistant Commissioner, Central Range and he was then confirmed as Lower Division Clerk with effect from 1st October, 1951, by an order of the Commissioner of Income-tax, dated 28th December, 1951. Later he was confirmed as Steno-typist with effect from 1st October, 1951, by an order of the Commissioner, Income-tax, dated 27th December, 1956. Subsequently the petitioner was promoted as Officiating Upper Division Clerk and was posted to the Income-tax Office, Salem, where he joined duty on 25th November, 1957. In May, 1959 the petitioner was transferred from Salem to Ooty. He did not join duty at Ooty and went on applying for leave on one ground or other. All his representations against his transfer were rejected. The petitioner, without joining duty at Ooty went on applying for lease for long period. This leave was refused. Even then the petitioner failed to report for duty at Ooty. Then the first disciplinary proceedings were initiated by the Inspecting Assistant Commissioner of Coimbatore, on a charge that he wilfully absented himself from duty. A show cause notice was issued to the petitioner on 5th April, 1960, proposing to revert him as Steno-typist for a period of one year and to treat the period of his absence without leave as extraordinary leave. The petitioner submitted his representation on 8th April, 1960, to the show cause notice issued to him. The Inspecting Assistant Commissioner then passed an order reverting the petitioner to the substantive post of Steno-typist and posted him to the Income-tax Office, Ooty. Then the second disciplinary proceedings were initiated against the petitioner by the Inspecting Assistant Commissioner, Coimbatore, for various1 irregularities in his work 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, 1963. As the petitioner's appeal to the Commissioner of Income-tax failed, he filed a Writ Petition No. 301 of 1963 challenging the order of compulsory retirement. The petition was allowed on the ground that the petitioner was confirmed in the category of Steno-typist by the Commissioner of Income-tax and the Inspecting Assistant Commissioner was not, therefore, competent authority for imposing a major penalty like compulsory retirement. The Income-tax Department filed Writ Appeal No. 44 of 1965 against the order passed in the writ petition. During the pendency of the writ appeal, the Commissioner of Income-tax initiated the third disciplinary proceedings against the petitioner on the same charges on which the punishment of compulsory retirement was originally imposed on the petitioner. On 22nd December, 1964, the Commissioner of Income-tax issued a show cause notice invoking Rule 12(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter to be referred to as CCS (CCA) Rules, 1957), and passed the interim suspension order with retrospective effect from 31st March, 1.962. On 6th May, 1965, the Commission framed the following further three charges against the petitioner:

Charge No. 1.--That the said Shri R. Copal Rao while functionings Steno-Typist, Income-tax Office, Ootacamund during the period 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 No. 2.--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 No. 3.--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.

The said charges were communicated to the petitioner asking him to submit his representations before 1.5th June, 1965. The Appellate Assistant Commissioner, Coimbatore, was appointed as Inquiry Officer. As the petitioner did not appear before the Appellate Assistant Commissioner, he proceeded with the enquiry ex parte and submitted his report to the Commissioner of Income-tax the disciplinary authority. The disciplinary authority, after consideration of the report of the inquiry officer, came to be provisional conclusion that the petitioner should be compulsorily retired 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 filed two writ petitions, W.P. Nos. 710 of 1970 and 711 of 1970, one for quashing the above 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. The two writ petitions were dismissed at the admission stage on 17th March, 1970. The petitioner filed two appeals against the order dismissing the writ petitions at the admission stage and requested the Court to stay the disciplinary proceedings. The petition for stay was dismissed on 14th December, 1970. The Commissioner of Income-tax thereafter issued another memo., dated 22nd December, 1970, requiring the petitioner to show cause against the proposed penalty of compulsory retirement. The petitioner did not file his reply to the show cause notice. The writ appeals filed by the petitioner came to be dismissed on 22nd April, 1971. On the same day, another memo was issued to the petitioner by the Commissioner of Income-tax to file his representations within a week. The petitioner ultimately submitted his representations on 2nd July, 1971 and 3rd July, 1971. After considering the representations, the Commissioner passed the final orders on 26th October, 1972, reducing the petitioner from his substantive post of steno-typist to the rank of Class IV, with a direction to join duty as Class IV employee in the Income-tax Office at Ooty. The order further stated that the petitioner shall not be eligible for promotion to any higher post for a period of three years. The petitioner filed Writ Petition No. 2079 of 1972 against the show cause dated 22nd December, 1964, issued to him. Writ Petition No. 3749 of 1983 was filed challenging the final order passed by the Commissioner on 26th October, 1972, reducing him to the rank of Class IV employee with direction to join duty as Class IV employee at Ooty.

3. The main contentions of the petitioner in both the writ petitions are:

1. 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 without jurisdiction and will not attract the deeming provision in the second limb of Rule 12(4) of the CCS. (CCA.) Rules.

2. The charges which were inquired into-by the Commissioner were based on the same allegations which were the subject-matter of the disciplinary inquiry at the 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 this order of reversion was by way of punishment, and offends Rule 14(4)(a) of the C.C.S. (C.C.A.) Rules.

3. He was holding a Class III post and the reduction in rank from Class III to Class IV is illegal and the direction to serve in a lower post which the petitioner never held, is unsustainable in law.

4. The learned single Judge of this Court who heard the writ petitions, rejected all the contentions by holding.

(1) Rule 12(4) of C.C.S. (CCA.) Rules uses the word 'disciplinary authority' which means an authority competent to initiate disciplinary proceedings, the disciplinary proceedings originally initiated by the Inspecting Assistant Commissioner is by an authority who is not competent to do so and is a nullity and hence fresh proceedings can be taken only by the Commissioner who is the competent disciplinary authority. Rule 12(4) cannot contemplate 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. The proceedings initiated by the Commissioner under Rule 12(4) and the retrospective order of suspension passed by him, are both valid.

(2) A perusal of the relevant files showed that the petitioner was 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, and the order of reversion was for administrative reasons and not by way of punishment. The same contention was raised by the petition in Writ Petition No. 201 of 1963 and this Court held that the order of reversion was not by way of punishment and this has also been confirmed in appeal. It is, therefore, no longer open to the petitioner; to raise the contention that the order of reversion was by way of punishment. 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 are not the subject-matter of the earlier enquiry. The impugned order reducing the petitioner to Class IV is based on the inquiry conducted in relation to different charges and not on the same charges on the basis of which the petitioner was retired from the post of Upper Division Clerk to his substantive post of Steno-typist, and the impugned order, cannot, therefore be challenged.

(3) The word 'reversion' connotes 'return to the original post or place' and the word 'reduction' has no such connotation, and, therefore, reduction in rank extends even to a rank which the officer concerned never held. Rule 13 of the C.C.S. (C.C.A.) Rules, enables the disciplinary authority to impose a penalty or 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.

5. On these findings the learned single Judge dismissed the Writ Petition No. 3743 of 1973. As Writ Petition No. 3079 of 1972 was filed against the show cause notice dated 22nd December, 1960, the learned single Judge held that the writ petition has become infructuous in view of the fact that final order imposing the punishment has been passed on 26th October, 1972, and it has been upheld in Writ Petition No. 3949 of 1973. Against this order of the learned single Judge, dismissing both the writ petitions the petitioner has filed the present two writ appeals.

6. When the Inspecting Assistant Commissioner, Coimbatore, passed orders on 31st March, 1962, compulsorily retiring the appellant from service, the appellant filed Writ Petition No. 210 of 1963 and this Court allowed the writ petition holding that the appellant was confirmed in the category of Steno typist by the Commissioner and the Inspecting Assistant Commissioner is not, therefore, the competent authority for imposing the punishment of compulsory retirement. There was an appeal to this Court. During the pendency of the appeal, the Commissioner of Income-tax initiated fresh enquiry against the appellant on the same charges on which the punishment of compulsory retirement was imposed earlier by the Inspecting Assistant Commissioner and passed an order of suspension under Rule 12(4) of C.C.S. (C.C.A.) Rules, 1957, by which the appellant was deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal.

7. The appellant, appearing in person, strenuously contended that the deemed order of suspension passed by the Commissioner on 28th December, 1964, to take effect from the date of original order of compulsory retirement on 31st March, 1962, can be passed under Rule 12(4) of the C.C.S. (C.C.A.) Rules, only by the Inspecting Assistant Commissioner who originally initiated the disciplinary proceedings and not by the Commissioner who initiated fresh disciplinary proceedings on the same charges consequent to the order passed by this Court in Writ Petition No. 201 of 1963 setting aside the order of compulsory retirement, dated 31st March, 1963. The contention has to be rejected for the following three reasons:

1. Rule 12(4) of the C.C.S. (C.C.A.) Rules 1957, is as follows: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 enquiry 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.

8. While interpreting Rule 10(4) of the C.C.S. (C.C.A.) Rules, 1965. which corresponds to Rule 12(4) of C.C.S. (C.C.A.) Rules 1957, the Supreme Court in H.L. Mehra v. Union of India and Ors. : [1975]1SCR138 , held that the two conditions to be satisfied for passing the deeming order of suspension with retrospective effect are:

(a) the order of dismissal must be set aside in consequence of a decision of a Court of law;

(b) The disciplinary authority must decide to hold a fresh enquiry on the allegations on which the order of dismissal was originally passed.

9. In the instant case, the order of compulsory retirement passed by the Inspecting Assistant Commissioner, Coimbatore was set aside by this Court in Writ Petition No. 201 of 1963 and was confirmed in appeal. The enquiry initiated by the Commissioner consequent to the order passed by this Court in Writ Petition No. 201 of 1963 is in respect of the same charges on which the order of compulsory retirement was passed by the Inspecting Assistant Commissioner, Coimbatore. As the two conditions required to be fulfilled for passing the order of suspension under Rule 12(4) are satisfied in the instant case, the deemed order of suspension passed by the Commissioner on 23rd December, 1964 with retrospective effect, is perfectly valid. (2) Courts generally set aside the order of dismissal if it is not passed by the competent authority, or there is violation of the principles of natural justice; or the procedure followed is not in accordance with the prescribed Rules. It is to meet such contingencies that Rule 12(4) provides that if the competent authority initiates fresh enquiry proceedings on the charges, the order of suspension should be deemed to take effect from the date of the original order of compulsory retirement, which was set aside by the Court. This is precisely what has happened in the present case, and the deemed order of suspension passed by the Commissioner on 23rd December, 1964, under Rule 12(4) has to be, therefore upheld.

3. The very same contentions were raised by the appellant in Writ Petition Nos. 710 and 711 of 1970, and they were rejected by this Court and confirmed in appeals. The appellant is, therefore, barred by the principles; of res judicata from raising the very same contention in these appeals.

10. The next contention urged by the appellant is that the reversion order reverting him from the post of Upper Division Clerk to his substantive post of Steno-Typist is by way of punishment and offends Rule 14(4) of the C.C.S. (C.C.A.), Rules, 1957. A learned single Judge of this Court, after factual verification from the relevant files, had come to the conclusion that the appellant was 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, and the order of reversion was for administrative reasons, and not by way of punishment. Secondly, the very same contention was raised by the appellant in Writ Petition No. 201 of 1963 and this Court held that the order of reversion was not by way of punishment and this was confirmed in appeal. The appellant is, therefore, barred by the principles of res judicata from raising the very same contention in these appeals. Thirdly, the impugned order reducing the rank of the appellant to Class IV is based on the enquiry conducted in relation to different charges and not on the same charges on the basis of which the appellant was reverted from the post of Upper Division Clerk to his substantive post of Steno-typist. So, even if for any reason the order of reversion is to be held to be by way of punishment, that will not prevent the disciplinary authority from passing the impugned order in relation to other charges which are not the subject-matter of the earlier enquiry. Thus on any view of the matter, the contention urged by the appellant has to be rejected.

11. The last contention urged by the appellant is that he was holding a Class III post and the reduction in rank from Class III to Class IV is illegal. In the decision reported in S.K. Srivastava, v. Union of India and Ors. (1971) 2 S.L.R. 453, the Delhi High Court has held:

The word 'rank' as used in Article 311(2) of the Constitution has not been defined. But it is well-established that the words 'dismissal, removal and reduction in rank' have a technical significance due to the special meanings attached to them historically from the very beginning. The meaning so attached to the word 'rank' is that it is a class or a grade of service...

This is why the Central Civil Services (Classification, Control and Appeal) Rules, 1965 classified all the Central Civil Services and the Central Civil posts into four classes one below the other as Class I, Class II, Class III and Class IV.

Reduction in rank means the degradation in rank or status of the officer, directed by way of penalty. It thus involves two elements:

(a) a reduction in the physical sense, relating to his classification as a Government servant;

(i) such degradation or demotion must be by way of penalty.

12. In enumerating the major punishments to be imposed on Government employees, Rule 13(iv) of the C.C.S. (C.C.A.) Rules, 1957 provides for reduction to a lower service grade, or post or to a lower time-scale, or to a lower stage in a time-scale. The reference to punishment by way of reduction to a lower service or grade in Rule 13(iv) is a clear indication to show that reduction in rank by way of penalty can certainly take within its ambit reduction from Class III post to Class IV post. It cannot be stated that the reduction in rank should be only to a post held by the appellant at some point of time. The plea that the appellant never held a Class IV post at any point of time and hence there can be no reduction in rank to a Class IV post by way of penalty, unduly restricts the scope of Rule 13(iv) not warranted by a plain reading of the Rule. The plea of the appellant equates 'reduction in rank' to 'reversion'. Reduction in rank and reversion are not synonymous. A reversion of a civil servant shall be to a post held by him earlier. But reduction in rank of a civil servant by way of penalty need not necessarily be to a post held by him earlier. Hence the plea of the appellant that the reduction in rank to Class IV post not held by him at any time is illegal, cannot be accepted.

13. Writ Appeal No. 281 of 1981, is against the order passed in Writ Petition No. 2079 of 1972, which was filed against the show cause notice, dated 23rd December, 1964. As the show cause notice has become infructuous in view of the fact that final orders have been passed and confirmed by this Court, this appeal has to he dismissed as having become infructuous.

14. In the result, both the appeals are dismissed, in the circumstances, without costs.


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