AVINASH KISHORE SAHAY  Vs UNION OF INDIA AND ORS

W.P. (C) 333/2021 Page 1 of 6
$~Supple. -47
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 333/2021 & CM APPL. 877/2021

AVINASH KISHORE SAHAY ….. Petitioner
Through: Mr.Arvind Kumar, Advocate.

versus
UNION OF INDIA AND ORS ….. Respo ndents
Through: Mr.Naginder Benipal with Mr.Harithi Kambiri, Advocates.

% Date of Decision: 11
th January, 2021

CORAM:
HON’BLE MR. JUSTICE MANMOHAN HON’BLE MS. JUSTICE ASHA MENON

J U D G M E N T
MANMOHAN , J
1. The present petition has been heard by way of video
conferencing. : (Oral)
2. Present writ petition has been filed challenging the order dated
26th
3. Learned counsel for the petitioner states that the CAT has failed
to appreciate that the charge memo issued to the petitioner is for the role
performed by him as a disciplinary authority, which admittedly is a
quasi -judicial function and therefore, it was imperative that the contents October, 2020 passed by the Central Administrative Tribunal
(hereinafter referred to as ‘ CAT’ ) whereby CAT refused to quash the
charge memo issued to the petitioner.
2021:DHC:109-DBW.P. (C) 333/2021 Page 2 of 6
of the charge memo wer e examined to ascertain whether there was any
prima facie material to show misconduct or dishonesty.
4. During the course of hearing, we have perused the articles of
charge. The same are reproduced hereinbelow:
“ ARTICLE-I
While serving as Commissioner of Income Tax,
Gandhinagar, Shri Avinash Kishore Sahay was the
Disciplinary Authority (DA) in the disciplinary proceedings
under Rule 14 and 15 of CCS (CCA) Rules, 1965 in the case of
Shri B.A. Dave, ITO. In his capacity as DA, Shri Sahay passed
an order dated 27/03/2014 exonerating the Charged Officer
(CO). The order was passed without consulting Zonal
Directorate despite there being disagreement with the Inquiry
Report wherein 2 charges were partly proved and the CO
having been convicted by the Spl. Judge of CBI Court vide
order dated 16/03/2012. Shri Sahay also questioned the
judgment of the Special Judge of CBI despite not being
competent to do so .
Thus, Shri Avinash Kishore Sahay exceeded authority by
violation of prescribed norms thereby failing to maintain
absolute integrity, devotion to duty and exhibited conduct
unbecoming of a Government servant. Thus, he violated the
provisions of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964.

ARTICLE- II
That Shri Avinash Kishore Sah ay, while serving as
Commissioner of Income Tax, Gandhinagar, passed a second
order dated 10/11/2014, once again exonerating the Charged
Officer, Shri Dave when Sahay had no administration
jurisdiction over the ITO. Mehsana as Shri Sahay was DA only
till 26/08/2014. The issue of administrative jurisdiction over a
subordinate is a factual matter. The fact that Shri Sahay held
such jurisdiction till 26.08.2014 has also been accepted by him
in his reply dated 12.06.2019 to the CFV .
Thus, by the aforesaid act s, Shri Avinash Kishore Sahay
passed an order on 10.11.2014,, i.e. at a time when he ceased
2021:DHC:109-DBW.P. (C) 333/2021 Page 3 of 6
to be the DA by virtue of transfer of the CO to the office of CIT
(Audit) who was in the new DA of the CO, thereby failing to
maintain absolute integrity, devotion to duty and exhibited
conduct unbecoming of a Government servant. Thus, he
violated the provisions of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of
the CCS (Conduct) Rules, 1964.

ARTICLE- III
That Shri Avinash Kishore Sahay, while serving as
Commissioner of I ncome Tax, Gandhinagar, passed a second
order dated 10/11/2014. Vide this order, he once again
exonerated the Charged Officer, Shri Dave. Even while
passing this order, Shri Sahay, for the second time, failed to
follow the established procedure of consult ing the Zonal
Directorate disregarding the directions contained in the Order
under Rule 29 of the CCS (CCA) Rules, 1965 and failing to
rectify the lapses/flaws discussed therein. Not only this order
was passed without jurisdiction, but also by not consulti ng the
Zonal Directorate.
Thus, by his aforesaid acts, Shri Avinash Kishore Sahay
passed an order on 10.11.2014 disregarding the directions
contained in the Order under Rule 29 of the CCS(CCA) Rules, 1965, thereby failing to maintain absolute integrity, d evotion
to duty and exhibited conduct unbecoming of a Government
servant. Thus, he violated the provisions of Rules 3(1)(i),
3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964.

ARTICLE- IV
That Shri Avinash Kishore Sahay, while serving as
Commissione r of Income Tax, Gandhinagar, failed to initiate
proceedings under Rule 19, in the capacity as DA in the case
of Shri Dave’s Disciplinary Proceedings. Shri Sahay ought to
have involved the provisions of Rule 19 which is mandatorily
warranted since he was aware of the conviction order passed
by the Special Judge, CBI and the said Shri B.A. Dave, having
intimated the office of the CCIT, Ahmedabad -2 about his
conviction for the first time on 10/07/2014 through CIT.
Gandhinagar which is after a period of more than two years
2021:DHC:109-DBW.P. (C) 333/2021 Page 4 of 6
after the actual conviction . The claim by Shri Sahay about the
Charged Officer having intimated about his conviction vide
letter dated 30.04.2012 is without any sustainable corroborative evidence. Besides, in his reply dated 12.06.2019
to th e Calling For Version, Shri Sahay has stated that he
joined Gandhinagar in July, 2014. The posting profile of Shri
Sahay, available on the portal which is accessible to the Officers of the Department on ‘www.irsofficersonline.gov.in’ reflects data which is contrary. As per the said profile, Shri
Sahay joined as CIT, Gandhinagar on 01
st
5. Keeping i n the aforesaid serious charges, this Court is of the view
that the following observation of the Supreme Court in Union of India
& Others Vs. K.K. Dhawan (1993) 2 SCC 56 is attracted to the present
case: – July, 2013.”
(emphasis supplied)
28. Certainly, therefore, the officer who exercises judicial or
quasi -judicial powers acts negligently or recklessly or in
order to confer undue favour on a person is not acting as a
Judge . Accordingly, the contention of the respondent has to
be rejected. It is important to bear in mind that in the present
case, we are not concerned with the correctness or legality of
the decision of the respondent but the conduct of the
respondent in discharge of his duties as an officer. The
legality of the orders with reference to the nine assessments
may be questioned in appeal or revision under the Act. But
we have no doubt in our mind that the Government is not
precluded from taking the disciplin ary action for violation of
the Conduct Rules. Thus, we conclude that the disciplinary
action can be taken in the following cases:
(i) Where the officer had acted in a manner as would
reflect on his reputation for integrity or good faith or
devotion to duty;
(ii) if there is prima facie material to show recklessness
or misconduct in the discharge of his duty;
2021:DHC:109-DBW.P. (C) 333/2021 Page 5 of 6
(iii) if he has acted in a manner which is unbecoming of
a Government servant;
(iv) if he had acted negligently or that he omitted the
prescribed cond itions which are essential for the
exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party;
(vi) if he had been actuated by corrupt motive, however
small the bribe may be because Lord Coke said long ago
“though the bribe may be small, yet the fault is great
6. Consequently, we are of the view that the charge memo is
warranted in the facts an d circumstances of the present case and it has
neither been issued without jurisdiction nor in the absence of any
established procedure . In fact, n one of the exceptions stipulated in the
afore said judgment is attracted to the present case , as admittedly, the
petitioner was aware of the conviction of the charged officer by the C BI
Court while exonerating him, even when, he was not his disciplinary
authority. ”.

29. The instances above catalogued are not exhaustive.
However, we may add that for a mere technical violation or
merely because the order is wrong and the action not falling
under the above enumerated instances, discip linary action is
not warranted. Here, we may utter a word of caution. Each
case will depend upon the facts and no absolute rule can be
postulated.
(emphasis supplied)
7. Accordingly, the present writ petition being bereft of merit is
dismissed.
8. It is, however, clarified that the IO shall decide the matter
without being influenced by any observations made by this Court.
9. Accordingly, the present petition bereft of merits is dismissed.
2021:DHC:109-DBW.P. (C) 333/2021 Page 6 of 6
10. The order be uploaded on the website forthwith. Copy of the
order be also forwarded to the learned counsel through e -mail.

MANMOHAN, J

ASHA MENON, J
JANUARY 11, 2021
TS

2021:DHC:109-DB