2017 (12) TMI 1583 - HC - VAT and Sales Tax

Penalty of the stoppage of four increments with cumulative effect - it was alleged that the petitioner claimed to have passed the departmental test in Local Audit Fund, with a bogus certificate - Held that - It can hardly be said that the enquiry report and the final order are vitiated by perversity. The challenge of the petitioner in the year 2012, to the order of penalty dated 10-12-2009, was also barred by limitation. Petition dismissed - decided against petitioner.

Summary

Issues Involved:
1. Appointment of the Enquiry Officer before framing charges.
2. Appointment of a second Enquiry Officer after the first Enquiry Officer's report.
3. Alleged perversity of the findings of the Enquiry Officer.
4. Appropriateness of the penalty imposed given the lack of immediate benefit to the petitioner.

Detailed Analysis:

1. Appointment of the Enquiry Officer before framing charges:

The petitioner contended that the appointment of the Enquiry Officer before framing the charges and allowing the Enquiry Officer to frame charges is contrary to Rule 20 of the Andhra Pradesh Civil Services (Conduct, Classification, and Appeal) Rules. Rule 20 outlines a series of procedural steps for imposing major penalties, including the necessity for the disciplinary authority to draw up definite articles of charge before appointing an Enquiry Officer.

However, the court noted that Rule 20(3) allows the disciplinary authority to either draw up or cause to be drawn up the articles of charges. Therefore, there was nothing wrong in the Commissioner of Commercial Taxes authorizing the Secretary to frame charges. The court acknowledged that the sequence of events was not ideal but concluded that the mere violation of the sequence did not vitiate the enquiry, as no prejudice was caused to the petitioner. Hence, the first contention was rightly rejected by the Tribunal.

2. Appointment of a second Enquiry Officer after the first Enquiry Officer's report:

The petitioner argued that after the first Enquiry Officer submitted a report without recording a positive finding of guilt, appointing another Enquiry Officer was contrary to law. The first Enquiry Officer's report indicated that the petitioner did not make the entry in his Service Register and would not have benefited from it in the immediate future. However, the report also recommended disciplinary action against both the petitioner and another employee, Mr. M. Koteswara Rao.

The court observed that the first Enquiry Officer's report was a full-fledged enquiry and that the petitioner had requested an opportunity to cross-examine the witness, which necessitated the appointment of a second Enquiry Officer. The second Enquiry Officer allowed the petitioner to cross-examine the witness and confirmed the findings of the first report. The court concluded that the appointment of the second Enquiry Officer was to benefit the petitioner and, therefore, could not be questioned. Hence, the second contention was also rejected.

3. Alleged perversity of the findings of the Enquiry Officer:

The petitioner claimed that the findings were perverse because the witness, Mr. M. Koteswara Rao, made three different statements at different times. The court noted that the discrepancies in the witness's statements were analyzed by the Enquiry Officer, who still reached a conclusion holding the petitioner responsible. The court found that once the discrepancies were noted and a conclusion was reached, there was no question of perversity. The disciplinary authority also addressed this aspect in the final order, confirming the findings based on the deposition of Mr. M. Koteswara Rao. Therefore, the third ground was rejected.

4. Appropriateness of the penalty imposed given the lack of immediate benefit to the petitioner:

The petitioner argued that since he did not stand to benefit immediately from the false entry in his Service Register, the penalty of stoppage of four increments with cumulative effect was not warranted. The court noted that the disciplinary authority had considered this fact when imposing the penalty. The final order acknowledged that the petitioner did not obtain any undue benefit from the entry but would have benefited in the future for promotion as ACTO. The penalty was deemed appropriate given the circumstances and the nature of the misconduct.

Additionally, the court noted that the petitioner challenged the penalty order dated 10-12-2009 only in 2012, claiming that it was not communicated to him. The Tribunal found that the order was communicated by registered post on 01-01-2010 and that the petitioner would have noticed the stoppage of increments. Therefore, the challenge was also barred by limitation.

Conclusion:

The court concluded that the Tribunal's judgment did not warrant interference and dismissed the writ petition. Miscellaneous petitions, if any, pending were also closed.