Op (Cat)/170/2023 Of K.viswanatha Panicker v. Principal Commissioner Of Income Tax-1

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MR. JUSTICE EASWARAN S. WEDNESDAY, THE 26 DAY OF JUNE 2024 / 5TH ASHADHA, 1946 AGAINST THE ORDER/JUDGMENT DATED 17.08.2023 IN OA NO.503 OF 2022OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH PETITIONER(S)/APPLICANT: K.VISWANATHA PANICKER, AGED 63 YEARSSON OF THE LATE K.P.NAIR, RETIRED INCOME TAX OFFICER, OFFICE OF THE PRINCIPAL COMMISSIONER OF INCOME TAX-1, KOCHI, C R BUILDING, I.S.PRESS ROAD, KOCHI- 682 018, RESIDING AT HOUSE NO. 17/126, SOWBHAGYA, NIRAVATH ROAD, MARADU P O, ERNAKULAM, KERALA, PIN – 682304 BY ADVS.REKHA VASUDEVANSOYA D.CMAHESH C.R.ELIZABETH V.JOSEPHROJIT ZACHARIAHM.R.HARIRAJ (SR.) RESPONDENT(S)/RESPONDENT 1: 1 PRINCIPAL COMMISSIONER OF INCOME TAX-1,KOCHI, CENTRAL REVENUE BUILDING, I.S. ROAD, ERNAKULAM, KOCHI, KERALA, PIN – 682018 2COMMISSIONER OF INCOME TAX (ADMN AND TPS), O/O THE PRINCIPAL COMMISSIONER OF INCOME TAX-1, KOCHI, CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, ERNAKULAM, KOCHI, KERALA, PIN – 682018 3P.K.SENTHIL KUMAR, ADDITIONAL COMMISSIONER OF INCOME TAX, INTERNATIONAL TAXATION, KOCHI, GROUND FLOOR, C.R.BUILDING, I S PRESS ROAD, ERNAKULAM, KOCHI, KERALA, PIN – 682018 BY ADVS.MANU S., DSG OF INDIASHRI.T.C.KRISHNA, SCGC SRI.M.R.HARIRAJ, (SR) THIS OP (CAT) HAVING BEEN FINALLY HEARD ON26.06.2024, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: BEEN FINALLY HEARD ON OP (CAT) NO. 170 OF 2023 JUDGMENT AMIT RAWAL, J. 1.The present OP(CAT)No.170/2023 is directedagainst the decision of the Tribunal dated 17.08.2023rendered in O.A.No.503/2022. 2.Succinctly, the facts in brief are that onsuperannuation petitioner retired on 30.04.2019 whileworking as Income Tax Officer (Technical) and PrincipalCommissioner of Income Tax-I, Kochi, Central RevenueBuilding, Kerala after rendering 38 years of service. On22.09.2016, CBI conducted a search at his residence, seizedall the documents available there and accordingly, an FIRbearing No.RC 12(A)/2016/CBI/ACB/Cochin was registered.At the time of search, certain Indian Made Foreign Liquor wasfound at his residence, the matter was reported to the StateExcise Department and also lodged an FIR for commission ofoffence under Section 55(a) and 58 of the Abkari Act. On thebasis of the aforementioned FIR, was placed under OP (CAT) NO. 170 OF 2023 suspension on 19.10.2016. However, the suspension wasrevoked vide order dated 09.11.2016 Annexur-A4. 3.On 26.03.2019, CBI filed the Final Report beforethe Special Judge-I, CBI Court, Kaloor, for commission ofoffence under Section 13(2) r/w Section 13 (1) (e) of thePrevention of Corruption Act, 1988. 4.Eight(8) days before the retirement, was servedwith a memo of charges Annexure-A1 alleging the acquisitionof disproportionate assets. According to the allegation, thememo of charges did not contain the list of documents andthe witnesses relied upon by the respondents. Enquiry Officerwas appointed on 18.07.2019. Repeated request was madefor providing the copies of the documents relied upon by thedepartment in support of the allegations, but was not replied.Rule 14(24) of the CCS (CCA) Rules provided that departmentproceedings have to be completed within six(6) months.Another ground taken in the OA was that the charge sheetwas issued by incompetent person. On the basis of theaforementioned averments, following relief was claimed Eight(8) days before the retirement, was served OP (CAT) NO. 170 OF 2023 before the Tribunal: Eight(8) days before the retirement, was served OP (CAT) NO. 170 OF 2023 before the Tribunal: (i)declare that the disciplinary proceedings initiated against the applicant pursuant to Annesure-A1 are liable to be kept in abeyance till the disposal of C.C.No.1/2019 on the files of te CBI Court, Kochi-I (Kaloor, Ernakulam)against the applicant pursuant to Annesure-A1 are liable to be kept in abeyance till the disposal of C.C.No.1/2019 on the files of te CBI Court, Kochi-I (Kaloor, Ernakulam) (ii)direct the respondents to keep in abeyance all proceedings of the departmental enquiry initiated against the applicant pursuant to Annexure-A1 till the disposal of C.C.No.1/2019 on the files of the CBI Court, Kochi-I (Kaloor, Ernakualam).proceedings of the departmental enquiry initiated against the applicant pursuant to Annexure-A1 till the disposal of C.C.No.1/2019 on the files of the CBI Court, Kochi-I (Kaloor, Ernakualam). (iii)grant such other reliefs as may be prayed for and which this Hon’ble Tribunal deems fit to grant.”which this Hon’ble Tribunal deems fit to grant.” 5.Respondents contested the aforementioned reliefsby filing a reply Ext.P8, taken up various grounds andsupported the memo of charges. 6. The case before the Tribunal was that both departmental and criminal proceedings cannot go side by sideon the premise that it concededly prejudice the right of theperson as there is a commonality of witnesses in thedepartmental as well as criminal proceedings. But theTribunal rejected the matter vide impugned order dated17.08.2023. OP (CAT) NO. 170 OF 2023 6 7. In support of the contention relied upon thejudgment of Punjab and Haryana High Court in IshwarSingh v. State of Haryana (2019 SCC Online P&H 3402)whereby, relying upon the ratio decidendi culled out in Capt.M. Paul Antony V. Bharat Gold Mines Ltd. [1999 (2) SCT660] disposed of the writ petition by issuing direction to thedepartment not to examine the common or identicalwitnesses in both the proceedings, until and unless they areexamined in the criminal proceedings first as there was aperceptible apprehension of disclosing the defence. A detailedlist of witnesses in both departmental and criminal cases havebeen given and it was found that there are about 21witnesses which are common. 8.Sri.T.C.Krishna, learned Deputy Solicitor in Chargesupported the findings of the Tribunal to contend that it isnow settled law both proceedings can go side by side. But,however, when confronted with the ratio decidendi, did notdispute the same. 9.We have heard the learned counsel for the parties OP (CAT) NO. 170 OF 2023 and appraised the paper book. 10.The judgment rendered by the Punjab andHariyana High Court in Ishwar Singh (supra) reads asunder: The petitioner has invoked the jurisdiction of thisCourt under Article 226 of the Constitution of India forissuance of a writ in the nature of certiorari, quashing orderdated 16.09.2019 (Annexure P-2) passed by respondent No.4, whereby departmental enquiry has been ordered againstthe petitioner, on having been falsely implicated in a criminalcase bearing FIR No. 376 dated 15.09.2019 under Sections147, 149, 323/354-8/506 of the Penal Code, 1860, PoliceStation at Khedki Daula, District Gurgram and subsequentproceedings and further writ of mandamus directing therespondents to held in abeyance the departmentalproceedings till the final decision of criminal case. 10.The judgment rendered by the Punjab andHariyana High Court in Ishwar Singh (supra) reads asunder: The petitioner has invoked the jurisdiction of thisCourt under Article 226 of the Constitution of India forissuance of a writ in the nature of certiorari, quashing orderdated 16.09.2019 (Annexure P-2) passed by respondent No.4, whereby departmental enquiry has been ordered againstthe petitioner, on having been falsely implicated in a criminalcase bearing FIR No. 376 dated 15.09.2019 under Sections147, 149, 323/354-8/506 of the Penal Code, 1860, PoliceStation at Khedki Daula, District Gurgram and subsequentproceedings and further writ of mandamus directing therespondents to held in abeyance the departmentalproceedings till the final decision of criminal case. 2. As per averments in the writ petition, in bothdepartmental and criminal proceedings, most of thewitnesses are common/identical. In case the witnesses areexamined in departmental proceedings, then it will affect hisright in defending the criminal proceedings. In support of theaverments, reliance has been placed upon the ratiodecidendi culled out by Hon'ble the Supreme Court in "Capt.M. Paul Anthony v. Bharat Gold Mines Ltd." 1999 (2) SCT660. 3. I have appraised paper book and of view that sincefew of witnesses are common/identical in both theproceedings, the Department shall not examine thecommon/identical witnesses, until and unless, they are examined in the criminal proceedings first, as there isperceptible apprehension of disclosing the defence. 4. It is made clear that in case, the petitioner is foundto be delaying in cross- examination of same set of thewitnesses in the criminal proceedings, this order will notcome in the way of the Department to examine the saidwitnesses. 5. With the aforesaid observations, the present writpetition stands disposed of.” 11.In Paul Antony V. Bharat Gold Mines Ltd. (1999 KHC 461) the Supreme Court also had stayed thedepartmental proceedings till the common witnesses in bothcases are allowed to be cross examined in the criminal case.The list of the common witnesses in this matter reads asunder: 12.we are of the view that no flexible grounds can bemade out for allowing both departmental and criminalproceedings or otherwise as each case requires to beconsidered in its own facts as there is a perceptible OP (CAT) NO. 170 OF 2023 apprehension that the departmental enquiry would prejudicethe delinquent's defence at the criminal trial. Thus, we modifythe order of the Tribunal and dispose of the petition byissuing directions that the department shall not examine thecommon or identical witnessess until and unless they areexamined in criminal proceedings first, owing to theperceptible apprehension of disclosing the defence. It is madeclear that in case the petitioner is found to be delaying tocross examine the same set of witnesses in criminalproceedings, this judgment will not come in the way ofdepartment to examine the said witnesses. With the aforementioned observations, petition standsallowed. Sd/- AMIT RAWALJUDGE Sd/- EASWARAN S.JUDGE APPENDIX OF OP (CAT) 170/2023 PETITIONER ANNEXURES Annexure A1TRUE COPY OF THE MEMORANDUM F.NO.CIT-1/CHN/VIG/2018-19DATED18.04.2019ISSUED BY THE FRIST RESPONDENT ISSUEDALONG ITS ENCLOSURES. 17.05.2021 SUBMITTED BY THE APPLICANTBEFORE THE 3RD RESPONDENT. Annexure A14TRUE COPY OF THE REPRESENTATION DATED15.12.2021 SUBMITTED BY THE APPLICANTBEFORE THE 3RD RESPONDENT.15.12.2021 SUBMITTED BY THE APPLICANTBEFORE THE 3RD RESPONDENT. Annexure R1TRUE COPY OF THE OFFICE LETTER DATED13.05.2019.13.05.2019. Annexure R2TRUE COPY OF THE RELEVANT EXTRACT OFDOPT'S INSTRUCTION DATED 02.01.2014.DOPT'S INSTRUCTION DATED 02.01.2014. With the aforementioned observations, petition standsallowed. Sd/- AMIT RAWALJUDGE Sd/- EASWARAN S.JUDGE APPENDIX OF OP (CAT) 170/2023 PETITIONER ANNEXURES Annexure A1TRUE COPY OF THE MEMORANDUM F.NO.CIT-1/CHN/VIG/2018-19DATED18.04.2019ISSUED BY THE FRIST RESPONDENT ISSUEDALONG ITS ENCLOSURES. 17.05.2021 SUBMITTED BY THE APPLICANTBEFORE THE 3RD RESPONDENT. Annexure A14TRUE COPY OF THE REPRESENTATION DATED15.12.2021 SUBMITTED BY THE APPLICANTBEFORE THE 3RD RESPONDENT.15.12.2021 SUBMITTED BY THE APPLICANTBEFORE THE 3RD RESPONDENT. Annexure R1TRUE COPY OF THE OFFICE LETTER DATED13.05.2019.13.05.2019. Annexure R2TRUE COPY OF THE RELEVANT EXTRACT OFDOPT'S INSTRUCTION DATED 02.01.2014.DOPT'S INSTRUCTION DATED 02.01.2014. Annexure R3TRUE COPY OF THE CIRCULAR DATED18.01.2016.18.01.2016.Exhibit P1TRUE COPY OF THE ORIGINAL APPLICATIONALONG WITH THE ANNEXURES (O A NO.ALONG WITH THE ANNEXURES (O A NO. ERNAKULAM Exhibit P11 TRUE COPY OF THE LETTER F NO.CONF/IO/KVP/2023-24 DATED 05.10.2023ISSUED BY THE 3RD RESPONDENTCONF/IO/KVP/2023-24 DATED 05.10.2023ISSUED BY THE 3RD RESPONDENT Exhibit P12TRUE COPY OF THE REPRESENTATION DATED05.10.2023 SUBMITTED BY THE APPLICANTTO THE PRINCIPAL CHIEF COMMISSIONER OFINCOME TAX (CCA), ERNAKULAM ALONG WITHTHE POSTAL RECEIPT AND ACKNOWLEDGMENTCARD05.10.2023 SUBMITTED BY THE APPLICANTTO THE PRINCIPAL CHIEF COMMISSIONER OFINCOME TAX (CCA), ERNAKULAM ALONG WITHTHE POSTAL RECEIPT AND ACKNOWLEDGMENTCARD Exhibit P15TRUE COPY OF THE LETTER NO. PR CC-CHN /VIG.II /08 /CBI /KVP /2016-17/2023-24 DATED 10.10.2023 ISSUED BY THEDEPUTY COMMISSIONER OF INCOME TAX (HQ)(ADM) ALONG WITH THE RELEVANT PAGES OFTHE GAZETTE NOTIFICATION AS ISSUED TOTHE PETITIONER.CHN /VIG.II /08 /CBI /KVP /2016-17/2023-24 DATED 10.10.2023 ISSUED BY THEDEPUTY COMMISSIONER OF INCOME TAX (HQ)(ADM) ALONG WITH THE RELEVANT PAGES OFTHE GAZETTE NOTIFICATION AS ISSUED TOTHE PETITIONER. Exhibit P16TRUE COPY OF THE LETTER F NO.P301/PR.CCIT/MISC./RESIGNATION/2023-24/14024 DATED 26.10.2023 ISSUED BY THEJOINT COMMISSIONER OF INCOME TAX (HQRS-PERS) DELHIP301/PR.CCIT/MISC./RESIGNATION/2023-24/14024 DATED 26.10.2023 ISSUED BY THEJOINT COMMISSIONER OF INCOME TAX (HQRS-PERS) DELHI Exhibit P17TRUE COPY OF THE NOTICE NO.F.NO.CONF/IO/KVP/2024-25DATED12.04.2024 ISSUED BY THE 3RD RESPONDENTF.NO.CONF/IO/KVP/2024-25DATED12.04.2024 ISSUED BY THE 3RD RESPONDENT Exhibit P18 TRUE COPY OF THE REPRESENTATION DATED17.04.2024 SUBMITTED BY THE PETITIONERBEFORE THE 3RD RESPONDENT17.04.2024 SUBMITTED BY THE PETITIONERBEFORE THE 3RD RESPONDENT Exhibit P19 TRUE COPY OF THE LETTER NO.F.NO.CONF/IO/KVP/2024-25DATED18.04.2024 ISSUED BY THE 3RD RESPONDENTTO THE PETITIONER RESPONDENT EXHIBITS EXHIBIT R1(A)TRUE COPY OF THE RELEVANT PAGES OF THECCS (CCA) RULES, 1965EXHIBIT R1(B)TRUE COPY OF THE RELEAVNT PAGE OF THEEXHIBIT EXHIBIT P5 NARRATING THEDISCLAIMER