Date: 13.10.2018
Place: Bangalore
To,
The
Inquiry Officer,
CIT
(A)-3,
Bengaluru.
Respected Sir,
Sub: The display of prejudice
and bias by the Inquiry Officer -Reg.
Ref: Your letter
dated 12.02.2018, 25.09.2018, & 12.10.2018
Ref: My letter dated 24.11.2017,
13.02.2018, 22.02.2018 & 05.10.2018
Kindly refer to the above.
This is to inform your good self that
the undersigned has perused your rejection of defence documents vide letters
dated 12.02.2018, 25.09.2018, & 12.10.2018, respectively.
In
this regard, I would like to state that your order of rejection of defence
documents was not a speaking order.
I may also submit that vide letter dated 22.02.2018 the undersigned had placed
reliance on 3.5 of Chapter XI of the
Vigilance Manual (1991 Ed) which reads as under:
Denial of
access to documents which have a relevance to the case will amount to violation
of the reasonable opportunity mentioned in Article 311 (2) of the Constitution.
Access may not, therefore, be denied except on grounds of relevancy or in the
public interest or in the interest of the security of the state. The question
of relevancy has to be looked at from the point of view of the Government
servant and if there is any possible line of defense to which the document may
be in some way relevant, though the relevance is not clear at the time when the
Government servant makes the request, the request should not be rejected. The
power to deny access on the grounds of public interest or security of State
should be exercised only when there are reasonable and sufficient grounds to
believe that public interest or security of the State will clearly suffer. Such
occasions should be rare.
It
is really unfortunate to note that in your letter dated 25.09.2018 & 12.10.2018,
you have neither referred to nor discussed this mandatory provision of
Government of India’s instructions contained in Vigilance Manual and hence your
order dated 25.09.2018 &12.10.2018 is non-speaking order and therefore does
not conform to the principle of natural justice. In this regards reliance is
placed on the Hon’ble Supreme Court
Judgement Travancore Rayon Lt. Vs Union of India 1971 AIR 862 (Copy
enclosed for your ready reference. The relevant Para’s of the said judgement
are quoted as under
Para -1: The order
made by Central Government is subject to appeal to this court under Article 136
of the Constitution. It would be impossible to this Court, exercising
jurisdiction under Article 136, to decide the dispute without a speaking order
of the authority, setting out the nature of dispute the arguments in support
thereof raised by the aggrieved party and reasonably disclosing that the
received the due consideration by the authority competent to decide the
dispute. Exercise of the right to appeal to this Court would be futile, if the
authority does not disclose the reasons in support of the decisions reached by
it. A party who at broaches the Government in exercise of a statutory right for
Adjudication of a dispute is entitled to know...what was considered by him, and
the reasons for recording a decision against him. To enable the High Court or
this Court to exercise its constitutional powers, not only the decisions, but
an adequate disclosure of materials justifying an inference that there has been
a judicial consideration of the dispute, by an authority competent in that
behalf in the light of the claim made by the aggrieved party, is necessary. If
the Officer acting on behalf of the Government chooses to give no reasons, the
right to appeal will be devoid of substance.
Para – 2: When
judicial power is exercised by an authority normally performing executive or
administrative function, this Court would require to be satisfied that the
decision has been reached after due consideration of the merits and dispute, uninfluenced
by extraneous considerations of policy and expediency. The Court insists upon
the disclosure of the reasons in support of the order on two grounds: one, that
the party aggrieved in a proceeding before High Court or this Court has the
opportunity to demonstrate that the reasons which persuaded the authority to
reject his case were erroneous: the other that the obligation to record reasons
operate as a deterrent against possible arbitrary action by the executive
authority invested with the judicial power. The appeal is allowed and order
passed by the Central Government is set aside.
From
the judgement of the Supreme Court (Supra) it is abundantly clear that no
reasons have been assigned in your letter dated 25.09.2018 in which you have
relied on your rejection of documents in letter dated 12.02.2018.
Ipso Facto your
conclusion stating that “since the above aspects do not have any
bearing on the present disciplinary proceedings in your case, so your request
for providing documents relating to Monthly DO, Cap-I and Cap-II is not
accepted.” Curiously enough, contrary to the Ratio Decidendi of the above mentioned Apex Court judgement you have not elaborated upon any reason
whatsoever before reaching your conclusion that these documents are unrelated
and have no bearing. Thus, your
rejection of defence documents is arbitrary,
without any reason and totally in violation of Supreme Court Judgement. Moreover,
your stoic silence over instruction contained in Vigilance Manual (as mentioned
above) clearly shows contempt for the rule based disciplinary proceedings.
Consequently the bias and the prejudice is the charged officer is writ large on
both the letters dated 12.02.2018 & 25.09.2018.
As
far the issue of the relevance of the defence document is concerned Vigilance
manual has clearly laid down that “it should be perceived from the view of
charged officer and his defence.” For this proposition I am placing
reliance on the Hon’ble Supreme Court
Judgement in the case of M V Bijlani Vs
Union of India Case no. Appeal 8267of 2004 (Copy enclosed for your ready
reference) and the relevant Para is reproduced as under:
Para – Inquiry
Officer performs a quasi-judicial function, who upon analysing the documents
must arrive at a conclusion that there have been preponderance of probability
to prove charges on the basis of materials on record. While doing so, he cannot
take consideration of irrelevant fact. He cannot refuse to consider the
relevant facts. He cannot shift the burden of proof.
From the perusal of the above
mentioned judgement it is apparent that the Highest Court of the Land has
observed that “He (inquiry officer) cannot refuse to consider the relevant facts. He
cannot shift the burden of proof.” Thus it is apparent that even the
Apex Court judgement and its Ratio
Decidendi is being violated in your order through which you have rejected
the request of defence documents. I am also quoting the relevant portion of the
Vigilance Manual again for your ready reference, which reads as under:-
The question of relevancy has to be looked at
from the point of view of the Government servant and if there is any possible
line of defense to which the document may be in some way relevant, though the
relevance is not clear at the time when the Government servant makes the
request, the request should not be rejected. The power to deny access on the
grounds of public interest or security of State should be exercised only when
there are reasonable and sufficient grounds to believe that public interest or
security of the State will clearly suffer. Such occasions should be rare.
Perusal of the Article of Charges in
the case of undersigned clearly shows that it has been alleged in these charges
that the undersigned has not sought the approval of the Additional Commissioner
of Income-tax, while passing the scrutiny assessment orders in search
assessments. It defies logic as to how Monthly DO, CAP-I and CAP-II which were
submitted by the undersigned to his Additional Commissioner of Income-tax were
not relevant.
The inquiry officer vide letter dated
12.02.2018 & 25.09.2018 rejected the charged officer request without a
speaking order by drawing a conclusion that “A perusal
of the above letters shows that the basic purpose of seeking such documents is
to prove that the action needs to be taken against some other officers also,
who failed to discharge their duty of monitoring and guiding the AO. Another
stated purpose for seeking these documents is to show that Addl.CIT was aware
of your work and had total knowledge of what you were doing on regular basis.
Since the above aspects do not have any direct bearing on the present
disciplinary proceedings in your case, so your request of providing this
document is not accepted.” The inquiry officer is
fully aware that the vigilance proceedings has been initiated against the
undersigned vide CVC OM No.
015/ITX/011/301272 Dated 03.12.2015 and DGIT(V)SZ/COM/18/08 dated 05/08/2015.
The inquiry officer is totally aware
that in the same letter vide CVC OM No. 015/ITX/011/301272 Dated
03.12.2015 and
DGIT(V)SZ/COM/18/08 dated 05/08/2015 in unequivocal term has charged the
role of Additional Commissioner where the vide Para 2(iii) as “The role of
Additional Commissioner/Joint Commissioner, the immediate administrative
superior of Sh. S S Hari Rao, then DCIT Central Circle II also needs to be
examined from the point of view of failure to ensure proper assessments in
these search cases. As mentioned above there are instructions of the CBDT in
this regards and part of the instructions whether or not there are
instructions, it is the fundamental duty of an Additional Commissioner in the
Central Range to monitor and supervise the assessment made by the assessing
officer working under him. Prima facie the Addl. CIT failed in performing such
duty of monitoring and guiding the AO, resulting in these poor assessments.
Further the refunds incorrectly issued on account of determination of lower
income in the assessments u/s 153A/153C compared to original to assessments
also must have been approved by the Addl. CIT/CIT concerned. CBDT may identify
the person concerned for his explanation and take the matter to a logical
conclusion.”
The inquiry officer is also fully
aware that the institutional mechanism in Income-tax Department has the monthly
statutory reporting system between various levels of authority only through
CAP-I, CAP-II & Monthly DO for work and disposal. The inquiry officer
turning a blind eye to the above fact, also not taking any initiative to the
observation of CVC on one hand and then denying the charged officer the defence
documents in support of the full knowledge of the Additional CIT of the
assessment proceedings on the other, raises serious concern to the fairness,
transparency and impartiality of the inquiry proceedings.
Similarly the evidence showing the
circulation of the guidelines of the CBDT to the Additional CIT and to the
undersigned, which is the lynchpin of all the charges is stated to be “not
traceable and hence cannot be supplied.” It is reprehensible to note as
to how in the absence of the evidence of the circulation of the CBDT guidelines
the Charge of not following the same can be substantiated by the prosecution. It
is also not comprehensible to the undersigned when all the charges allege
violation of Rule 3(1)(i) of CCS Conduct Rules 1964 relating to lack of
integrity, then how come the column of integrity in the APAR is not relevant
for the defense of the undersigned in his disciplinary proceedings.
During the year 2006-07, the charged
officer was neither issued a memorandum for any of the issues raised in the Articles
of Charge nor any memorandum for any misdemeanour, misconduct or lack of
integrity issue in his entire career from the date of joining the service;
instead the charged officer was always rated as OUTSTANDING in the APAR till 2005-06, clearly shows that there was
no mens
rea while disposing work in his
official capacity. The inquiry officer act of denial for any copies of
memorandum issued by the Additional CIT, Central Circle-Range -2, Bangalore for
the year 2006-07 has led to the act of suppression of fact that neither
memorandum for any misdemeanour, misconduct or lack of integrity issue by charged
officer existed during the year for which articles of charge were framed nor
for any act in the earlier years. The reality would remain that the charged
officer’s “INTEGRITY WAS BEYOND DOUBT”
meaning impeccable character and integrity all along his work in Indian Revenue
Service.
Last but not the least, your letter
dated 12.02.2018 also refers to the factum of remedial action taken in various
cases will not have any bearing is also totally farfetched, in as much as, the
various articles of charges allege that assessment orders passed by the
undersigned were erroneous as well as prejudicial to the interest of revenue even
on those cases where no action were undertaken by the CIT under Section 263. In
fact the main plank of the defence of the undersigned also refers to the issue
of no action under Section 263 by the CIT will naturally tantamount to any
jurisprudence that there cannot be any case of erroneous assessment order on
the part of the undersigned.
From the above facts it becomes clear
that “the CONSTITUTIONAL LAW is
screaming that “defence documents must be given to charged officer”, the Vigilance Manual is screaming that “the
question of relevancy has to be looked at from the point of view of the
Government servant and the request should not be rejected”, the Apex Court is screaming that “there
must be a speaking order and defence document must not be denied”, the
charged officer is repeatedly pleading for defence what is legally due but the
inquiry officer action of rejecting crucial defence documents again and again speaks
of contempt for law, display of total arbitrariness, prejudice, bias and total lack
of fairness.
As your honour has chosen to ignore
all my requests including the one made on 05.10.2018 and has categorised disciplinary
proceedings in my case as one of the rare case in which the request of defence
document is rejected, it is all the more transparently evident that you have
decided against all the cannons of law and hence displayed prejudice and bias
against the undersigned.
In view of the facts, circumstances
and the case laws of the Apex Court mentioned herein above, I
have reason to believe that the disciplinary proceedings in my case are being
reduced to farce as against to hold the same in accordance of
provisions of the CCS (CCA) Rules, Vigilance Manual and the judgement of the
Apex Court. If the defence document legally available to the charged officer is
difficult in accessing from the inquiry officer, then the question of fairness,
transparency and justice is the least the charged officer can expect out of
this proceeding led by the inquiry officer. Therefore, I have been left
with no option but to request to the Disciplinary Authority to
change the inquiry officer in my case, if your good self still maintain
that all the defence documents requisitioned by the undersigned should be
denied as happened earlier.
Accordingly this is the last and final
request to supply all the defence documents and in case these are again
rejected then I shall be approaching the Disciplinary Authority for the change
of inquiry officer for displaying prejudice and bias, vindicating no hope of
fairness, transparency and justice in my vigilance proceeding.
Thanking you.
Yours
faithfully,
Sd/-
(Sanghi
Sri Hari
Rao)
CC to:-
1.
The Under Secretary to the Govt. Of India
(V&L)
2.
The Addl. CIT (Vigilance), Bangalore
3.
The Presenting Officer, the DCIT Central
Circle 2(2) Bangalore.
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