OA NO.

920/2020 – BEFORE CAT, PB, NEW DELHI

Sh. TARUN BHATTACHARYA …...Applicant

V.

UNION OF INDIA ……...Respondent

PRAYER@PAGE 40
In view of the facts and submissions as made herein above, it is most respectfully prayed that this
Hon'ble Tribunal may graciously be pleased to:

● In light of the foregoing facts and submissions, it is humbly requested that this Hon'ble
Tribunal: quash and set aside the compulsory retirement order dated 27.09.2019
(Annexure-A-1) and the order dated 31.12.2019 (Annexure-A-2);
● Direct the respondents to immediately reinstate the applicant to the position of Dy.
Commissioner of Income Tax, with all benefits, including salary, seniority, and pay
arrears;
● May also pass any further order(s), direction(s) as be deemed just and proper to meet the
ends of justice:

INTERIM ORDER, IF ANY, PRAYED FOR:

● Pending final disposal of the OA, the operation of impugned order dated 27.09.2019 as
affirmed by on the representation made by the applicant may kindly be stayed and the
applicant be allowed to work on the post of Dy. Commissioner of Income Tax subject to
the outcome of the OA.
 LIST OF DATES and EVENTS

Date Events Annexure

08.10.1963 Date of birth of the applicant.

07.09.1967 The applicant joined Govt. Service in office of Textile

Commissioner, Kolkata.

05.12.1990 The applicant joined the post of Income Inspector in the office of
respondents by the way of direct recruitment.

09.03.1995 The applicant was promoted to the post of Income Tax Officer.

17.11.2018 The applicant was promoted to the post Asstt. Commissioner of

Income Tax and posted at Jalandhar.

18.10.2012 The applicant was promoted on the post Dy. Commissioner of

Income Tax while posted at Ludhiana.

02.04.2013 The Central Bureau of Investigation lodged an RC/FIR under

section 7/13(i)(d) read with 13(2) of the Prevention of Corruption
Act,1988.

03.04.2013 The applicant was arrested and later on,released on bail and
thereupon,the Petitioner was placed under suspension seemingly.

16.11.2016 The applicant's suspension was lifted.

During this time, the applicant received the departmental charge
sheet on 05.02.2014, to which the WSD(?) was submitted, and
the departmental inquiry remained unmoved.
As regards, criminal trial, the trial is at an advanced stage as most
of the witnesses have been examined and cross examined

27.09.2019 To avoid the completion of departmental inquiry and adopting the A-1
shortcut procedure, an impugned order of compulsory retirement @43-44
was passed retiring the applicant in exercising the power
conferred under FR 56(j).

07.10.2019 The applicant filed representation.

11.01.2020 Along with the covering letter dated 07.01.2020, the applicant A-2
was served with the order dated 31.12.2019 rejecting the @45-49
representation.
MATERIAL CONSIDERED BY REVIEW COMMITTEE :

● The compulsory retirement was done with due process of law and no injustice was done
to the applicant. It is submitted that the Inquiry Officer & Presenting Officer, both have
been appointed in the case of Disciplinary proceedings initiated against the applicant via
the charge-sheet dated 13.01.2014 issued to the applicant.

● The applicant was compulsory retired keeping in mind the criteria regarding the age
stated in the OM No. 25013/1/2013 Estt (A) dated 21.03.2014 an officer can be
compulsorily retired anytime after attaining 50 years of age. Further in addition to the
above the DOPT vide OM No. 25013/03/2019-Estt.A-IV dated 28-08-2020 vide para 6 of
the OM has with regard to the age has clarified as under
“Government may, at any time after a Government servant has attained the age of 50/55
years or completed 30 years of service, as the case may be, retire him prematurely in
public interest. However, non adherence to the time-lines as indicated in para 4 above
due to certain administrative exigencies shall not take away the powers of Appropriate
Authority to pre-maturely retire a Government servant under FR 56(j), 56(1) and Rule 48
of CCS (Pension) Rules, 1972. Therefore, review of a Government servant for the
purposes of these Rules can be undertaken even after he has attained the age of 50/55
years in cases covered by FR 56 (j) or after he has completed 30 years of qualifying
service under FR 56(1)/Rule 48 of CCS(Pension) Rules, 1972.”
● The conditions of FR 56(j) were met in this case since the Review Committee's
recommendations were duly accepted by the relevant authority. As a result, once the
competent body has determined that the officer's compulsory retirement is in the public
interest, it has complete authority to do so. The public interest requires that persons
holding government positions conduct themselves in a professional manner. The
petitioner held a high-ranking and sensitive job in the Income Tax Department. It would
have been detrimental to the public interest and general administration to keep him in
such a position when his integrity is questioned.
In this regard, the Hon'ble Supreme Court in Union of India v. Colonel J.N Sinha, 1970
(2) SCC 458 held that "9....in certain key post public interest may require that a person of
undoubted ability and integrity should be there”
● It is argued that the Government of India has the unfettered power to dismiss any
government employee in the public good. As a result, the Applicant was compelled to
retire in the public interest under FR 56(1), based on the Government's subjective
satisfaction. As a result, the applicant was not required to be informed of the grounds. In
compulsory retirement instances, the aspect of natural justice is not attracted. In this
regard, the Hon'ble Supreme Court's ruling in Baikuntha Nath Das and Anr. v. Chief
Distt. Medical Officer, Baripada and Anr., dated 19/02/1992 (1992 AIR 1020 1992
SCR (1) 836), in which the following was held:"We are concerned mainly with the
question whether a facet of principle of natural justice audi alteram partem is attracted
 in the case of compulsory retirement. In other words, the question is whether acting upon
undisclosed material is a ground for quashing the order of compulsory retirement. Since
we have held that the nature of the function is not quasi-judicial in nature and because
the action has to be taken on the subjective satisfaction of the Government, there is no
room for importing the said facet of natural justice in such a case, more particularly
when an order of compulsory retirement is not a punishment nor does it involve any
stigma." Therefore, after considering all the material available on record against the
Applicant, it was a considered view on the basis of material on record that there was
sufficient cause for the purpose of meeting the essential 19716 provisions of Rule 56(1).
● The comprehensive citation of comments and gradings in the applicant's APAR is not
significant, it is contended, because he was not retired on the basis of ineffectiveness or
unfavourable entries in his APARS. The officer had been dismissed due to a lack of
trustworthiness and misbehaviour.
It is further argued that under paragraph 13 of DoPT OM dated 27.06.1986, no employee
should be retired on grounds of ineffectiveness if he is retiring on superannuation within
a year. It also specifies that this order applies only when an employee is being considered
for retirement on the basis of ineffectiveness, not on the basis of questionable integrity.
The same clause was reaffirmed in a DOPT OM dated March 21, 2014, in which
paragraph 5(a) expressly specifies that government personnel whose integrity is
questioned shall be retired (without exceptions).The case of the Applicant, being a case
of doubtful integrity, is covered under above DoPT OMs.

REVIEW COMMITTEE FINDINGS:

The committee considered the following facts and circumstances of the case: -

● The Income Tax Department had carried out Search & Seizure operations at various
premises of M/s. Oasis Group of companies.

● The Income Tax Returns of directors of the company and their family members for last 7
years were transferred to the Income Tax Department, Ludhiana for re-assessment.

● The Applicant allegedly called up the complainant on phone and informed that he and his
family members were likely to face heavy tax penalty and demanded a bribe of Rs. 10
Lakh for reducing the penalty.

● Tax demands of approximately Rs. 35 Lakh were raised by the Applicant vide orders
dated 21.03.2013 in the case of the complainant and his family members.
 ● The complainant again met the Applicant and after negotiation, the Applicant reduced the
bribe demand to Rs. 6 Lakh.

● The Applicant was allegedly found using services of Shri Ashw Kumar Gupta, a
Chartered Accountant for receiving the bribe from the tax-payer on his behalf.

● The Applicant was allegedly apprehended by CBI and the bribe money of Rs. 6 Lakh
were recovered from Shri Ashwani Kumar Gupta Chartered Accountant who had
received the bribe amount on his behalf.

● Hand wash of Shri Ashwani Kumar Gupta with sodium cart 2025 Solution had turned
pink allegedly indicating that he had accepted phenolphthalein treated currency notes.

POINTS IN REJOINDER:

● The review committee cannot prejudge the judicial outcome of a pending matter in
Courts of Law.@Pg-3
● The Respondent did not consider the ACRs/APARs while arriving at the
conclusion.@Pg-3
● The significance of section-153D of the Income Tax Act,1961 is ignored by the
Respondent.Further, it is stated that the applicant had no jurisdiction and power to make
changes in the assessment orders of the complainant.The applicant is just a scapegoat,the
strings are being pulled by his superior i.e. Additional CIT,Central
Range,Ludhiana.@Pg-6
● In para 10 of the preliminary submission,the respondent mentions “Employment
Contract”.No copy of the same has been placed on record.
● Even though as per the respondent compulsory retirement is not a penalty but the reality
is different.The applicant was hounded out of his office without any retirement benefits
normally given on date of retirement.
● @15.It has been submitted by respondents that compulsory retirement is not a penalty in
law because the applicant is entitled to all retirement benefits. However, CIT (TDS) while
passing the order of pension withdrew payment of gratuity till the conclusion of DP.
Thus, how come that this compulsory retirement made the applicant entitled to all
retirement benefits. If the compulsory retirement has to, in law, be free of punitive nature,
the DP should be treated as automatically dropped and full retirement benefit, in the true
sense of the term, should be given.
● It is a matter of record that the CBI case is pending in Court. It is also a matter of record
that the Inquiry Officer has, in his letter dated 14.09.2020, admitted that the proceedings
with the Memorandum of charges dated 13.01.2014 stands "already inordinately delayed"
 and thus deserves to be withdrawn. Since respondents have accepted what is on record in
respect of the applicant, as correct, there is no case with the respondents to retire the
applicant under FR 56(j) and he has a very strong case for reinstatement to the post in
service.
● It is a fact on record that the Inquiry Officer in his letter dated 14.09.2020 has admitted
that inquiry proceedings are "already inordinately delayed" and the Presenting Officer
vide her letter dated 04.09.2020,arbitrarily changed the annexure number of list of
witnesses as mentioned in the Memorandum of Charges dated 13.01.2014 and also
reduced the number of witnesses with a caveat in her covering letter that she may
increase/decrease the number of witnesses during inquiry. Letters of both Inquiry Officer
and Presenting Officer along with the submissions to both authorities by the applicant are
enclosed herewith as Annexure -. In view of their letters/submissions on record of the
applicant, the Memorandum of Charges dated 13.01.2014 deserves to be
withdrawn/cancelled by the respondents.
● The respondents have admitted that what is on record is accepted as correct. It is a fact
on record that the Inquiry Officer in his letter dated 14.09.2020 has admitted that inquiry
proceedings are "already inordinately delayed" and the Presenting Officer vide her letter
dated 04.09.2020,arbitrarily changed the annexure number of the list of witnesses as
mentioned in the Memorandum of Charges dated 13.01.2014 and also reduced the
number of witnesses with a caveat in her covering letter that she may increase/decrease
the number of witnesses during inquiry. Letters of both Inquiry Officer and Presenting
Officer along with the submissions to both authorities by the applicant are enclosed
herewith as Annexure - In view of their letters/submissions on record of the applicant, the
Memorandum of Charges dated 13.01.2014 deserves to be withdrawn/cancelled by the
respondents.
● That it is submitted that in respect of rejoinder to reply to the ground (A) to (Q), the
respondent, instead of addressing the specific grounds of Appeal parawise, firstly rejected
all summarily, casually and unilaterally which shows total absence of application of mind
and then went on to repeat the same general comments which were made earlier. @In one
place, reliance was sought to be made on the Hon'ble Supreme Court judgement in the
case of S. Ramachandra Raju Vs. State of Orissa [1994 SUPPL. (2) SCR 828 [Copy
enclosed vide Annexure - ], @. In this case, the respondents have indulged in
cherry-picking out of the judgement and out of context.
● That it is submtited that after playing hypocrisy throughout, at the fag end of its
submission, it has been admitted that no infirmity could be found out in the entire service
career and that the compulsory retirement was prompted by doubtful integrity which
itself is a vague term and cannot be exactly defined.
● The respondents mischievously sought to misread the judgement of Hon'ble Supreme
Court to conclude that in the case of compulsory retirement, the victim is not entitled to
equity and natural justice.
● The respondents have stated that "doubtful integrity" and "misconduct" led to the issue of
order under FR 56(j) against the Applicant. As far as any misconduct on the part of the
Applicant is concerned it is to be noted that various types of misconduct are covered
under CCS(Conduct) Rules and none have been made applicable on the Applicant except
to initiate Disciplinary Proceedings on the basis of wrong facts forwarded to the
Disciplinary Authority by the CBI authorities.
● In so far as relating to the allegations of "doubtful integrity" levelled against the
Applicant, it is to be stated that the allegations are denied and baseless.The APAR of the
applicant makes it very clear that the integrity of the applicant cannot be doubted.The
past APAR’s should have been considered.
● The respondent conveniently closed their eyes to the fact that DP are pending against the
applicant since 2014 and if the said DP were initiated without "sufficient evidence" then
what is the rationale for Disciplinary Authority to keep it pending and also take action
under FR 56(j). Further, it is pertinent to note that this judgement of Hon'ble Supreme
Court(Ramachandra Raju V. State of Orissa) is in favour of the applicant if the
operative part of the judgement is read in its entirety. @Pg-25
● It is settled law that when the Government resorts to compulsorily retire a Government
servant, the entire record of service, particularly, in the last period of service required to
be closely scrutinized and the power would be reasonably exercised.
● Now coming to the question of 'Doubtful integrity', it appears that its genesis lies in the
mistaken trap exercise by CBI, purportedly against me, done on 02.04.2013. Now, this
exercise is nothing but a conspiracy, hatched firstly through collusion among CBI, Satish
Sood, an assessee cum-complainant and Ashwani Kumar Gupta, a Jalandhar based
C.A. and secondly among CBI, CVC and Income Tax Department (ITD).