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2023 (2) TMI 227 - HC - VAT and Sales TaxValidity of Departmental Eqquiry agaisnt the Revenue officer - Jurisdiction - Refund claim - Whether the departmental proceedings could have been initiated against the petitioner for his alleged act or omission relating to exercise of his powers in the matter of passing orders of assessment/reassessment/refund of taxes to the dealers of coal companies? - Doctrine of Bias - HELD THAT - Upon perusal of the allegations levelled against the petitioner, this Court finds that the charge No.-I was the consequence of the various acts and omissions alleged in charge Nos. II to VII and each of the charge in charge no. II to VII are distinct and relate to different stages in the matter of assessment/reassessment and refund of taxes. One of the main allegations levelled against the petitioner is that upon remand by the appellate authority, the petitioner allowed the change of the nature of sale without there being any cogent material and solely on the basis of revised return. There can be no doubt that the nature of sale has a direct bearing on the rate of tax and it is alleged that such action resulted in issuance of huge refund orders by the petitioner. Considering the nature of allegations levelled against the petitioner, this Court is of the considered view that on the face of the allegations made against the petitioner, there is prima facie material to show recklessness or misconduct in discharging of his official duty and that the petitioner did not act appropriately to safeguard the interest of revenue and had acted negligently and did not abide by the prescribed conditions for exercise of statutory powers which included acceptance of revised return without cogent material to change the nature of sale, which resulted in passing of the orders showing excess payment. This was coupled with the allegation that those refunds were further initiated by the petitioner although the refund applications for refund more than Rs.20,000/- were required to be filed before the Joint Commissioner and not before the assessing authority in terms of the Rules. The plea of examination/cross-examination of Shri Vidya Bhushan Verma on the basis of whose report it is stated that the departmental proceedings were initiated against the petitioner - HELD THAT - The stand of the respondents is that the petitioner has not been prejudiced by not examining Shri Vidya Bhushan Verma who had prepared a report which was based on official records. The petitioner has not been able to demonstrate before this Court as to how the petitioner has been prejudiced by non-examination of Shri Vidya Bhushan Verma. However, this Court is of the considered view that the departmental proceedings is still pending on account of interim order passed by this court way back in the year 2010 and there is no harm if Shri Vidya Bhushan Verma is examined at the enquiry proceedings. This Court finds that the petitioner filed the present writ petition on 30.01.2010 challenging the initiation of enquiry proceedings against the petitioner vide resolution No. 2829 dated 13.12.2008. The respondents have not been able to point out any order rejecting the plea of the petitioner for production of Shri Vidya Bhushan Verma for examination. It is directed that the respondents will take all appropriate steps to examine/cross-examine Shri Vidya Bhushan Verma in the departmental enquiry and the official records which are the basis of allegations made against the petitioner be made available to the petitioner for inspection and for cross-examination of Shri Vidya Bhushan Verma. It has been stated in para 43 of the counter affidavit dated 19.04.2010 that all the relevant documents have been provided to the petitioner during the course of departmental proceedings but no rejoinder has been filed to deny or dispute the averments made in the counter affidavit. The entire allegations against the petitioner is based on official records resulting in passing of quasi-judicial orders of assessment/reassessment/refund etc. and as long as those records are available, no prejudice will be caused to the petitioner by not examining Shri Vidya Bhushan Verma for testifying and verifying the details of the report submitted by him. Alleged bias of the enquiry officer -Respondent no.3 against the petitioner - HELD THAT - No rejoinder has been filed to the aforesaid counter affidavit filed by the respondents. The aforesaid statement made in the counter affidavit clearly reveal that the enquiry officer namely, Sri Niranjan Prasad Mandal, the then Joint Commissioner of Commercial Taxes (Admn.), Dhanbad Division, Dhanbad was posted at Dhanbad only for a period from 5.7.2008 to 14.12.2009 i.e., after the alleged events/incidents involving the petitioner was already over. This Court is of the considered view that although allegation of bias has been made but the allegations are not substantiated by any material or conduct of the inquiry officer in order to create any impression of bias against the petitioner, even remotely. The petitioner is directed to appear before the Respondent no.1 on 20.02.2023 for needful and shall fully cooperate for expeditious conclusion of the disciplinary proceedings - Interim order dated 19.03.2010 is vacated.
Issues Involved:
1. Legality of initiating departmental proceedings against the petitioner under Rule 43(b) of Jharkhand Pension Rules. 2. Petitioner's right to examine/cross-examine Shri Vidya Bhushan Verma. 3. Alleged bias of the enquiry officer against the petitioner. Detailed Analysis: 1. Legality of Initiating Departmental Proceedings: The petitioner challenged the initiation of departmental proceedings against him under Rule 43(b) of Jharkhand Pension Rules, arguing that the main charge of illegal refund was frivolous and based on incorrect facts. The petitioner contended that the charges related to his quasi-judicial functions, and thus, disciplinary action was not warranted. The court examined the allegations, which included accepting revised returns without cogent basis, not filing revisions against appellate orders, and initiating refund applications contrary to the rules. The court referred to the Supreme Court judgments in *K.K. Dhawan* and *Duli Chand*, which allow disciplinary action for recklessness or misconduct in quasi-judicial functions. The court found that the allegations against the petitioner indicated prima facie material for recklessness or misconduct and held that the initiation of departmental proceedings was not illegal. The court emphasized that the petitioner could present his defense during the departmental inquiry. 2. Petitioner's Right to Examine/Cross-Examine Shri Vidya Bhushan Verma: The petitioner requested to examine/cross-examine Shri Vidya Bhushan Verma, whose report formed the basis of the charges. The respondents did not provide any order rejecting this request. The court noted that the departmental proceedings were primarily based on official records and that the petitioner had not demonstrated how he was prejudiced by the non-examination of Shri Vidya Bhushan Verma. However, the court directed the respondents to take appropriate steps to examine/cross-examine Shri Vidya Bhushan Verma and make available the official records for the petitioner's inspection and cross-examination. This direction was given to ensure fairness in the proceedings. 3. Alleged Bias of the Enquiry Officer: The petitioner alleged bias against the enquiry officer, Shri Niranjan Prasad Mandal, arguing that he was biased as a successor officer who refused to drop the charges and did not call necessary witnesses. The court referred to the principles governing the 'doctrine of bias' and found that the allegations were not substantiated by any material or conduct of the enquiry officer. The court observed that the enquiry officer was posted after the alleged events and concluded that there was no impression of bias against the petitioner. However, the court allowed the respondents the option to appoint another enquiry officer or presenting officer to continue the departmental enquiry. Conclusion: The writ petition was disposed of with the following directions: - The initiation of departmental proceedings against the petitioner was held to be legal. - The respondents were directed to examine/cross-examine Shri Vidya Bhushan Verma and provide the petitioner access to official records. - The allegations of bias against the enquiry officer were dismissed, but the respondents were allowed to appoint a new enquiry officer if deemed necessary. The court directed the respondent authorities to conclude the departmental proceedings within six months from the receipt of the order and vacated the interim order dated 19.03.2010. The petitioner was instructed to appear before the respondent on 20.02.2023 and cooperate fully for the expeditious conclusion of the disciplinary proceedings.
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