Wp/5806/2010 Of The Chief Commissioner Of Income Tax (Admn) v. S.b.ramesh,Income Tax Officer (Retired)

HON’BLE SRI JUSTICE GODA RAGHURAMANDHON’BLE SRI JUSTICE R.KANTHA RAO W.P.NO.5806 OF 2010 DATED: 30.06.2010 BETWEEN: The Chief Commissioner of Income Tax(Admn.) And another .. Petitioners And S.B.Ramesh and another .. Respondents HON’BLE SRI JUSTICE GODA RAGHURAMANDHON’BLE SRI JUSTICE R.KANTHA RAO W.P.NO.5806 OF 2010 ORDER: (Per Hon’ble Sri Justice Goda Raghuram) The Chief Commissioner of Income Tax (Administration),Hyderabad and the Union of India have filed this fundamentallymisconceived writ petition against the order dated 09.02.2010 ofthe learned Central Administrative Tribunal, Hyderabad Bench(The Tribunal) in O.A.No.1059 of 2009. 2. The respondent now a retired Income Tax Officerapproached the Tribunal for a direction to the second petitionerherein to pay him the retirement benefits as per the earlier order,dated 14.05.1999 of the said respondent (visiting him with thepenalty of compulsory retirement under the CCS (CCA) Rules 11(V) 1965 while sanctioning retirement terminal benefits underRule 40 of the CCS (Pension) Rules, 1972) without reducing thequantum of pension due to him including gratuity etc; to releaseprovisional pension; for further direction to the first petitionerherein to promote him as a Group-A Income Tax Officer with effectfrom 21.03.1991; and to extend all the consequential benefits onsuch promotion. 3. By the order impugned, the O.A.No.1059 of 2009 was partlyallowed directing the petitioners herein to forthwith restore theprovisional pension with retrospective effect from the date ofconviction and continue to pay the same till conclusion of thejudicial proceedings. The Tribunal directed that so far as the otherbenefits (other than the provisional pension) are concerned, theapplication is dismissed and the applicant required to awaitconclusion of judicial proceedings. The Tribunal further directedthat the order with regard to payment of provisional pension shallbe complied with by the petitioners herein within 15 days from thedate of receipt of copy of its order. 4. The relevant and factual matrix wherefrom the lis arose, maybriefly be stated: The first respondent was visited with the punishment ofcompulsory retirement on proven allegations of misconduct by anorder of the competent authority dated 14.05.1999. Consequentlyhe was retired on 19.05.1999. Thereafter on 23.06.1999 it wasrevealed “that the petitioner was involved in misappropriation ofrefund order books, had misused the same and unauthorizedwithdrawal of purported refunds of value of Rs.1,00,08,123-00ps,occurred. The CBI went into the matter and eventually laid chargesheet in C.C.No. 8 of 2001 before the Special Judge for CBICases, Hyderabad.” 5. It is stated by Sri B.Narasimha Sarma, learned standingcounsel for Income Tax that C.C.No.8 of 2001 is pending. Whileso, the respondent was found involved another refund order dated The first respondent was visited with the punishment ofcompulsory retirement on proven allegations of misconduct by anorder of the competent authority dated 14.05.1999. Consequentlyhe was retired on 19.05.1999. Thereafter on 23.06.1999 it wasrevealed “that the petitioner was involved in misappropriation ofrefund order books, had misused the same and unauthorizedwithdrawal of purported refunds of value of Rs.1,00,08,123-00ps,occurred. The CBI went into the matter and eventually laid chargesheet in C.C.No. 8 of 2001 before the Special Judge for CBICases, Hyderabad.” 5. It is stated by Sri B.Narasimha Sarma, learned standingcounsel for Income Tax that C.C.No.8 of 2001 is pending. Whileso, the respondent was found involved another refund order dated 05.10.1999, misused by the first respondent involving an amountof Rs.2,97,97,900=00ps. It is further stated by the learnedcounsel for the petitioner that the amount of Rs.2,97,97,000/- wasnot encashed as an interdictory order was passed by thecompetent authority before encashment. In respect of thisalleged misconduct of the respondent Crime No.20 of 1999 wasregistered and eventually the first respondent was prosecuted inC.C.No.336 of 2000 ending in his conviction by the Special Courtby judgment dated 06.09.2005. On the basis of this judgment, anotice was issued by the competent authority proposingwithdrawal of hundred percent pension and an order dated27.12.2007 was passed visiting the first respondent with thepenalty of withdrawal of full pension. Thereafter, by the orderdated 01.10.2007 the appeal preferred by the first respondent(against the conviction in C.C.No.336 of 2000) was allowed inCriminal Appeal No.328 of 2005 and the first respondent wasacquitted. Thereagainst the CBI filed Criminal Appeal No.593 of2008, which is stated to be pending before this Court. 6. In the factual scenario stated above, the first respondentapproached the Tribunal for payment of the entire pension. Thelearned Tribunal by the order impugned granted limited relief to theextent recorded above. 7. The singular contention urged by Sri Sarma, learned counselfor the petitioner to impeach the order of the Tribunal is that thefirst respondent did not in specie challenge the order dated27.12.2006 visiting him with the penalty of withdrawal of fullpension. The learned counsel would however though equivocallyconcede the position that in view of the 1[st] respondent’s acquittal in Criminal Appeal No. 328 of 2005 and the said order not havingbeen suspended by this Court in Criminal Appeal No. 593 of 2008,the order of conviction is inoperative and that conviction was thesolitary basis for the withdrawal of the full pension of the 1[st]respondent. 8. In the circumstances above, the order of the learnedTribunal is impeccable and warrants no interference by this Courtunder Article 226 of the Constitution of India. We are unable toappreciate the hypertechnical stance of the petitioners regardingthe absence of a formal challenge to the order dated 27.12.2006. The order dated 27.12.2006 substantially and exclusively rests onthe conviction of the first respondent. That conviction now havingsuffered eclipse due to the appellate order, the order of withdrawalof pension cannot survive. 9. For the aforesaid reasons, the writ petition is dismissed. The interim order of suspension dated 12.03.2010 standsdissolved. There shall be no order as to costs. _____________________ GODA RAGHURAM,J __________________ R. KANTHA RAO,J Date:30.06.2010Kvrm/ccm HON’BLE SRI JUSTICE GODA RAGHURAMANDHON’BLE SRI JUSTICE R.KANTHA RAO W.P.No. 5806 of 2010 Date:30.06.2010