K. VISWANATHA PANICKER v. PRINCIPAL COMMISSIONER OF INCOME TAX-1, KOCHI and others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE EASWARAN S. WEDNESDAY, THE 26[TH] DAY OF JUNE 2024 / 5TH ASHADHA, 1946 ``` ``` OP (CAT) NO. 170 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 17.08.2023 IN OA NO.503 OF 2022 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH ``` ## _`PETITIONER(S)/APPLICANT:`_ ``` K.VISWANATHA PANICKER, AGED 63 YEARS SON 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 VASUDEVAN SOYA D.C MAHESH C.R. ELIZABETH V.JOSEPH ROJIT ZACHARIAH M.R.HARIRAJ (SR.) ``` ## _`RESPONDENT(S)/RESPONDENT 1:`_ ``` 1PRINCIPAL 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, ``` ``` OP (CAT) NO. 170 OF 2023 ``` ``` 2 ``` ``` ERNAKULAM, KOCHI, KERALA, PIN – 682018 ``` ``` BY ADVS. MANU S., DSG OF INDIA SHRI.T.C.KRISHNA, SCGC ``` ``` SRI.M.R.HARIRAJ, (SR) ``` ``` THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 26.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP (CAT) NO. 170 OF 2023 ``` ``` 3 ``` ## **JUDGMENT** ## **AMIT RAWAL, J.** 1. The present OP(CAT)No.170/2023 is directed against the decision of the Tribunal dated 17.08.2023 rendered in O.A.No.503/2022. 2. Succinctly, the facts in brief are that on superannuation petitioner retired on 30.04.2019 while working as Income Tax Officer (Technical) and Principal Commissioner of Income Tax-I, Kochi, Central Revenue Building, Kerala after rendering 38 years of service. On 22.09.2016, CBI conducted a search at his residence, seized all the documents available there and accordingly, an FIR bearing No.RC 12(A)/2016/CBI/ACB/Cochin was registered. At the time of search, certain Indian Made Foreign Liquor was found at his residence, the matter was reported to the State Excise Department and also lodged an FIR for commission of offence under Section 55(a) and 58 of the Abkari Act. On the basis of the aforementioned FIR, was placed under ``` OP (CAT) NO. 170 OF 2023 ``` ``` 4 ``` suspension on 19.10.2016. However, the suspension was revoked vide order dated 09.11.2016 Annexur-A4. 3. On 26.03.2019, CBI filed the Final Report before the Special Judge-I, CBI Court, Kaloor, for commission of offence under Section 13(2) r/w Section 13 (1) (e) of the Prevention of Corruption Act, 1988. 4. Eight(8) days before the retirement, was served with a memo of charges Annexure-A1 alleging the acquisition of disproportionate assets. According to the allegation, the memo of charges did not contain the list of documents and the witnesses relied upon by the respondents. Enquiry Officer was appointed on 18.07.2019. Repeated request was made for providing the copies of the documents relied upon by the department in support of the allegations, but was not replied. Rule 14(24) of the CCS (CCA) Rules provided that department proceedings have to be completed within six(6) months. Another ground taken in the OA was that the charge sheet was issued by incompetent person. On the basis of the aforementioned averments, following relief was claimed ``` OP (CAT) NO. 170 OF 2023 ``` ``` 5 ``` ## 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) - (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). - (iii) grant such other reliefs as may be prayed for and which this Hon’ble Tribunal deems fit to grant.” 5. Respondents contested the aforementioned reliefs by filing a reply Ext.P8, taken up various grounds and supported the memo of charges. 6. The case before the Tribunal was that both departmental and criminal proceedings cannot go side by side on the premise that it concededly prejudice the right of the person as there is a commonality of witnesses in the departmental as well as criminal proceedings. But the Tribunal rejected the matter vide impugned order dated 17.08.2023. ``` OP (CAT) NO. 170 OF 2023 ``` ``` 6 ``` 7. In support of the contention relied upon the judgment of Punjab and Haryana High Court in **Ishwar Singh 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) SCT 660] disposed of the writ petition by issuing direction to the department not to examine the common or identical witnesses in both the proceedings, until and unless they are examined in the criminal proceedings first as there was a perceptible apprehension of disclosing the defence. A detailed list of witnesses in both departmental and criminal cases have been given and it was found that there are about 21 witnesses which are common. 8. Sri.T.C.Krishna, learned Deputy Solicitor in Charge supported the findings of the Tribunal to contend that it is now settled law both proceedings can go side by side. But, however, when confronted with the ratio decidendi, did not dispute the same. 9. We have heard the learned counsel for the parties ``` OP (CAT) NO. 170 OF 2023 ``` ``` 7 ``` and appraised the paper book. ## 10. The judgment rendered by the Punjab and Hariyana High Court in **Ishwar Singh (supra)** reads as under: The petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution of India for issuance of a writ in the nature of certiorari, quashing order dated 16.09.2019 (Annexure P-2) passed by respondent No. 4, whereby departmental enquiry has been ordered against the petitioner, on having been falsely implicated in a criminal case bearing FIR No. 376 dated 15.09.2019 under Sections 147, 149, 323/354-8/506 of the Penal Code, 1860, Police Station at Khedki Daula, District Gurgram and subsequent proceedings and further writ of mandamus directing the respondents to held in abeyance the departmental proceedings till the final decision of criminal case. **2.** As per averments in the writ petition, in both departmental and criminal proceedings, most of the witnesses are common/identical. In case the witnesses are examined in departmental proceedings, then it will affect his right in defending the criminal proceedings. In support of the averments, reliance has been placed upon the ratio decidendi culled out by Hon'ble the Supreme Court in "Capt. M. Paul Anthony v. Bharat Gold Mines Ltd." 1999 (2) SCT 660. **3.** I have appraised paper book and of view that since few of witnesses are common/identical in both the proceedings, the Department shall not examine the common/identical witnesses, until and unless, they are ``` OP (CAT) NO. 170 OF 2023 ``` ``` 8 ``` examined in the criminal proceedings first, as there is perceptible apprehension of disclosing the defence. **4.** It is made clear that in case, the petitioner is found to be delaying in cross- examination of same set of the witnesses in the criminal proceedings, this order will not come in the way of the Department to examine the said witnesses. **5.** With the aforesaid observations, the present writ petition stands disposed of.” 11. In **Paul Antony V. Bharat Gold Mines Ltd. (1999 KHC 461)** the Supreme Court also had stayed the departmental proceedings till the common witnesses in both cases are allowed to be cross examined in the criminal case. The list of the common witnesses in this matter reads as under: |**WITNESSES**|**DESIGNATION**|**POSITION IN**<br>**MEMO OF**<br>**CHARGES**<br>**(ANNEXURE A1)**<br>**(PAGE 58)**|**POSITION IN**<br>**CBI FINAL**<br>**REPORT**<br>**(EXHIBIT P3)**| |---|---|---|---| |Rajeeth P.C.|General Manager<br>HR, SFO<br>Technologies Pvt.<br>Ltd.|No.1|No.117 at<br>Pg.267| |K.T.Mohanan|Chartered<br>Accountant and<br>Treasurer of<br>Ernakulam<br>Karayogam|No.2|No.75 at Pg.<br>262| ``` OP (CAT) NO. 170 OF 2023 ``` ``` 9 ``` ||||| |---|---|---|---| |Sabareenath R.|Accounts<br>Executive, Bhima<br>Jewels|No.3|No.70 at Pg.<br>261| |Swami<br>Gurusavidh<br>Jnan Thapaswi|Santhigiri<br>Ashramam|No.4|No.97 at Pg<br>265| |C.S.Jayadevan|Accountant, A.<br>Geeri Pai<br>Jewellers|No.5|No.71 at Pg<br>261| |Prashob<br>Veluthakkal|Director and CTO,<br>Focaloid<br>Technologies|No.6|No.62 at Pg<br>260| |Rakesh<br>Gopinath|Accounts Officer,<br>Kerala Cars Pvt.<br>Ltd.|No.7|No.66 at Pg.<br>261| |Sunil Kumar|Proprietor,<br>Yeskay Builders|No.8|No.54 at Pg.<br>259| |Dince K.N.|AAO, LIC Branch<br>Office|No.9|No.39 at Pg.<br>258| |Subeesh T.S.|Assistant<br>Manager, PNBHFL|No.10|No.41 at Pg.<br>258| |Colleen Petriz|Branch Head, Jain<br>Housing and<br>Construction Ltd.|No.11|No.44 at Pg.<br>259| |Rajitha|Sr.Manager<br>(Finance), Mini<br>Muthood Nidhi<br>Kerala Ltd.|No.12|No.13 at Pg.<br>255| |Sanu.T.S.|Branch<br>Mananger, Bank<br>of India|No.13|No.4 at Pg. 254| ``` OP (CAT) NO. 170 OF 2023 ``` ``` 10 ``` |Baiju<br>Balakrishnan|Deputy Manager,<br>Customer<br>relations, HDFC<br>Life|No.14|No.40 at Pg.<br>258| |---|---|---|---| |Bibin Baby|Self Employed|No.15|No.53 at Pg.<br>259| |Davis T.L.|Sales in charge,<br>Valavi & Co.|No.16|No.80 at Pg.<br>263| |Sreelakshmi<br>Gopinath J|Assistant<br>Manager, Federal<br>Bank|No.17|No.16 at Pg.<br>255| |Johnson K.<br>John|Proprietor,<br>Karingattil<br>Travels|No.18|No.81 at Pg.<br>263| |T.I.Antony|Branch Manager,<br>Canara Bank|No.19|No.24 at Pg.<br>256| |K.S. Sunil Dath|Managing<br>Partner, National<br>Transport<br>Company|No.20|No.55 at Pg.<br>260| |Mahesh K. Nair|S.K.Builders|No.21|No.52 at pg.<br>259| 12. we are of the view that no flexible grounds can be made out for allowing both departmental and criminal proceedings or otherwise as each case requires to be considered in its own facts as there is a perceptible ``` OP (CAT) NO. 170 OF 2023 ``` ``` 11 ``` apprehension that the departmental enquiry would prejudice the delinquent's defence at the criminal trial. Thus, we modify the order of the Tribunal and dispose of the petition by issuing directions that the department shall not examine the common or identical witnessess until and unless they are examined in criminal proceedings first, owing to the perceptible apprehension of disclosing the defence. It is made clear that in case the petitioner is found to be delaying to cross examine the same set of witnesses in criminal proceedings, this judgment will not come in the way of department to examine the said witnesses. With the aforementioned observations, petition stands allowed. **AMIT RAWAL JUDGE** Sd/- **EASWARAN S. JUDGE** nak ``` OP (CAT) NO. 170 OF 2023 ``` ``` 12 ``` ## _`APPENDIX OF OP (CAT) 170/2023`_ ## _`PETITIONER ANNEXURES`_ |_`Annexure A1`_|_`TRUE COPY OF THE MEMORANDUM F.NO.CIT-`_| |---|---| ||_`1/CHN/VIG/2018-19`_<br>_`DATED`_<br>_`18.04.2019`_| ||_`ISSUED BY THE FRIST RESPONDENT ISSUED`_| ||_`ALONG ITS ENCLOSURES.`_| |_`Annexure A2`_|_`TRUE`_<br>_`COPY`_<br>_`OF`_<br>_`OFFICE`_<br>_`ORDER`_| ||_`F.NO.11/ESTT/CC-CHN DATED 2015-16 DATED`_| ||_`4.06.2015 OF THE 1ST RESPONDENT`_| ||_`ENCLOSING THE GOVERNMENT OF INDIA`_| ||_`INSTRUCTION F.NO.HRD/CM/102/28/ 2013-`_| ||_`14/917 DATED 05.05.2015`_| |_`Annexure A3`_|_`TRUE`_<br>_`COPY`_<br>_`OF`_<br>_`THE`_<br>_`ORDER`_| ||_`F.NO.PRCC-CHN/VIG-II/01/VKP/2016-17`_| ||_`DATED 19.10.2016 OF THE 2ND RESPONDENT.`_| |_`Annexure A4`_|_`TRUE`_<br>_`COPY`_<br>_`OF`_<br>_`THE`_<br>_`ORDER`_| ||_`F.NO.PRCC-CHN/VIG-II/01/CBI/VKP/2016-17`_| ||_`DATED 09.11.2016 OD THE 2ND RESPONDENT.`_| |_`Annexure A5`_|_`TRUE COPY OF THE REPLY DATED 30.04.2019`_| ||_`FILED BY THE APPLICANT TO ANNEXURE-A1.`_| |_`Annexure A6`_|_`TRUE`_<br>_`COPY`_<br>_`OF`_<br>_`THE`_<br>_`ORDER`_| ||_`F.NO.CIT-1/CHN/VIG./2018-19`_<br>_`DATED`_| ||_`18.07.2019 OF THE 1ST RESPONDENT.`_| |_`Annexure A7`_|_`TRUE`_<br>_`COPY`_<br>_`OF`_<br>_`THE`_| ||_`NOTICE.F.NO.CONF/IO/KVP/2019-20`_<br>_`DATED`_| ||_`04.09.2019 OF THE 3RD RESPONDENT.`_| |_`Annexure A8`_|_`TRUE COPY OF THE WRITTEN OBJECTION`_| ||_`DATED 26.04.2021 SUBMITTED BY THE`_| ||_`APPLICANT BEFORE THE 3RD RESPONDENT`_| |_`Annexure A9`_|_`TRUE COPY OF THE GOVERNMENT OF INDIA`_| ||_`LETTER F.NO.C-14010/3/2011-AD.V DATED`_| ||_`24.02.2011.`_| |_`Annexure A10`_|_`TRUE COPY OF THE REPRESENTATION DATED`_| ``` OP (CAT) NO. 170 OF 2023 ``` ``` 13 ``` ``` 17.05.2021 SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT. ``` ``` Annexure A11TRUECOPYOFTHELETTER F.NO.CONF/IO/KVP/2019-20DATED 28.07.2021 0F THE 3RD RESPONDENT. Annexure A12TRUE COPY OF THE REPRESENTATION DATED 03.08.2021 SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT. Annexure A13TRUECOPYOFTHELETTER F.NO.CONF/IO/KVP/2019-20DATED 09.11.2021 OF THE 3RD RESPONDENT. Annexure A14TRUE COPY OF THE REPRESENTATION DATED 15.12.2021 SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT. Annexure A15TRUECOPYOFTHELETTER F.NO.CONF/IO/KVP/2019-20DATED 23.08.2022 VOF THE 3RD RESPONDENT. Annexure A16TRUECOPYOFTHELETTER F.NO.CONF/IO/KVP/2019-20DATED 29.08.2022 OF THE 3RD RESPONDENT. Annexure A17TRUE COPY OF THE REPRESENTATION DATED 04.09.2012 SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT ALONG WITH THE LIST OF PROVISIONAL DEFENCE DOCUMENTS. Annexure R1TRUE COPY OF THE OFFICE LETTER DATED 13.05.2019. Annexure R2TRUE COPY OF THE RELEVANT EXTRACT OF DOPT'S INSTRUCTION DATED 02.01.2014. Annexure R3TRUE COPY OF THE CIRCULAR DATED 18.01.2016. Exhibit P1TRUE COPY OF THE ORIGINAL APPLICATION ALONG WITH THE ANNEXURES (O A NO. ``` ``` OP (CAT) NO. 170 OF 2023 ``` ``` 14 ``` ``` 180/00503/2022) FILED BY THE PETITIONER ON THE FILES OF THE HONOURABLE TRIBUNAL. Exhibit P2TRUE COPY OF THE FIR NO. RC 12(A)/2016/CBI/ACB/COCHINDATED 22.09.2016 LODGED BY THE CBI Exhibit P3TRUE COPY OF THE FINAL REPORT FILED BY THE CBI BEFORE THE HONOURABLE SPECIAL JUDGE-1, CBI COURT, KALOOR Exhibit P4TRUE COPY OF THE D O F NO. HRD/CM/102/3/2009-10/(PT)/1102DATED 02.07.2013 ISSUED BY THE DIRECTORATE OF INCOME TAX Exhibit P5TRUE COPY OF THE RELEVANT PAGES OF THE CHAPTER 5 OF THE MANUAL OF OFFICE PROCEDURE 2019 OF THE INCOME TAX DEPARTMENT Exhibit P6TRUE COPY OF THE APPLICATION DATED 13.09.2023 SUBMITTED BY THE PETITIONER TO THE CENTRAL PUBLIC INFORMATION OFFICER. Exhibit P7TRUE COPY OF THE LETTER F.NO. PCIT-1/CHN/TECH/RTI/2023-24DATED 18.09.2023 ISSUED BY THE CENTRAL PUBLIC INFORMATION OFFICER Exhibit P8TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN O A NO. 180/00503/2022 ON THE FILES OF THE HONOURABLE TRIBUNAL. Exhibit P9TRUE COPY OF THE ORDER DATED 17.08.2023 OF THE HONOURABLE TRIBUNAL IN O A NO. 180/00503/2022 Exhibit P10TRUE COPY OF THE JUDGMENT DATED 30.09.2023 IN SESSIONS CASE NO. 957/2019 OF THE HONOURABLE COURT OF THE II ADDITIONAL ASSISTANT SESSIONS JUDGE, ``` ``` OP (CAT) NO. 170 OF 2023 ``` ``` 15 ``` ## _`ERNAKULAM`_ ``` Exhibit P11TRUE COPY OF THE LETTER F NO. CONF/IO/KVP/2023-24 DATED 05.10.2023 ISSUED BY THE 3RD RESPONDENT ``` ``` Exhibit P12TRUE COPY OF THE REPRESENTATION DATED 05.10.2023 SUBMITTED BY THE APPLICANT TO THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX (CCA), ERNAKULAM ALONG WITH THE POSTAL RECEIPT AND ACKNOWLEDGMENT CARD ``` ``` Exhibit P13TRUE COPY OF THE REPRESENTATION DATED 09.10.2023 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT Exhibit P14TRUECOPYOFTHELETTERF NO.CONF/IO/KVP/2023-24 DATED 17.10.2023 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER 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 THE DEPUTY COMMISSIONER OF INCOME TAX (HQ) (ADM) ALONG WITH THE RELEVANT PAGES OF THE GAZETTE NOTIFICATION AS ISSUED TO THE PETITIONER. ``` ``` Exhibit P16TRUE COPY OF THE LETTER F NO. P301/PR.CCIT/MISC./RESIGNATION/2023-24/ 14024 DATED 26.10.2023 ISSUED BY THE JOINT COMMISSIONER OF INCOME TAX (HQRS- PERS) DELHI Exhibit P17TRUE COPY OF THE NOTICE NO. F.NO.CONF/IO/KVP/2024-25DATED 12.04.2024 ISSUED BY THE 3RD RESPONDENT Exhibit P18TRUE COPY OF THE REPRESENTATION DATED 17.04.2024 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ``` ``` OP (CAT) NO. 170 OF 2023 ``` ``` 16 ``` ``` Exhibit P19TRUE COPY OF THE LETTER NO. F.NO.CONF/IO/KVP/2024-25DATED 18.04.2024 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER ``` ``` RESPONDENT EXHIBITS ``` ``` EXHIBIT R1(A)TRUE COPY OF THE RELEVANT PAGES OF THE CCS (CCA) RULES, 1965 ``` ``` EXHIBIT R1(B)TRUE COPY OF THE RELEAVNT PAGE OF THE EXHIBIT EXHIBIT P5 NARRATING THE DISCLAIMER ```