2020 (7) TMI 636 - HC - Indian Laws

Cancellation of promotion demoting the petitioner from the post of Assistant Commissioner of Taxes to the Superintendent of Taxes - gross irregularity in refund/adjustment of additional security deposited by five(5) number of coal dealers - HELD THAT - In the present case in hand, it has been held that the inquiry report holding the charges against the petitioner as proved to be perverse as the same is without any evidence. The penalty was imposed on the basis of the said inquiry report which is also liable to be set aside alongwith the order passed in the appeal. Once the said order including the inquiry report are set aside and quashed, the question of imposition of penalty on the petitioner does not arise. Admittedly the petitioner was due to be promoted which was accordingly done and subsequently the said order was cancelled due to the imposition of the minor penalty of withholding of 2(two) increments with cumulative effect. As the order imposing penalty is liable to set aside accordingly, the cancellation order is also liable to be set aside as there is no dispute at bar that the promotion of the petitioner was due at that relevant point of time. I refrain myself from further considering the submissions of the learned counsel as sufficient materials like the date on which the Departmental Promotion Committee met and the period of consideration zone of the officers and whether, the same covered the period of the allegations forming the charges for which the petitioner was imposed the penalty etc are not on record. The inquiry report dated 25.1.2010 is held to be perverse, set aside and quashed - Petition allowed.

Issues Involved:
1. Validity of the disciplinary proceedings and the penalty imposed.
2. Procedural fairness and adherence to principles of natural justice.
3. Legitimacy of the cancellation of the petitioner’s promotion.
4. Allegations of double jeopardy.
5. Validity of the appellate order.

Issue-wise Detailed Analysis:

1. Validity of the disciplinary proceedings and the penalty imposed:
The petitioner challenged the disciplinary proceedings initiated against him, which resulted in the penalty of withholding two increments with cumulative effect. The charges were based on alleged violations of Section 25 of the AVAT Act, Rule 14(3) of the AVAT Rules, and Section 9(2) of the CST Act. The inquiry officer found the petitioner guilty of gross negligence of duty, misconduct, insubordination, and breach of trust. However, the court found that the inquiry officer’s findings were based on general financial practice rather than specific violations of the statutory provisions. The court held that the inquiry officer went beyond the charges and did not provide a logical basis for his conclusions, rendering the findings perverse and based on suspicion and presumption.

2. Procedural fairness and adherence to principles of natural justice:
The petitioner was not provided with the inquiry report before the penalty was imposed, violating the principles of natural justice. The court cited the precedent set in Managing Director, ECIL Vs B. Karunakar, which mandates that the delinquent employee must receive a copy of the inquiry report before the disciplinary authority concludes on the charges. The failure to provide the report prejudiced the petitioner, as he could not defend himself against the perverse findings.

3. Legitimacy of the cancellation of the petitioner’s promotion:
The petitioner’s promotion to Assistant Commissioner of Taxes was canceled based on an Office Memorandum stating that promotion could only occur after the penalty period expired. The court found that the cancellation of promotion did not amount to double jeopardy but was a necessary consequence of the penalty. However, since the penalty and the inquiry report were set aside, the cancellation of the promotion was also quashed. The court directed the respondents to restore the petitioner’s promotion.

4. Allegations of double jeopardy:
The petitioner argued that the cancellation of his promotion amounted to double jeopardy, as both penalties of withholding increments and withholding promotion were imposed for the same charge. The court referred to the precedent in Union of India Vs K. V. Jankiram, which clarified that denial of promotion due to a penalty is not a further penalty but a consequence of the employee’s conduct. Therefore, the court did not accept the petitioner’s argument of double jeopardy.

5. Validity of the appellate order:
The appellate order was found to be short and cryptic, failing to address the grounds raised by the petitioner. The court held that the appellate authority did not apply its mind to the appeal, rendering the order improper. Consequently, the appellate order was set aside.

Conclusion:
The court quashed the inquiry report, the penalty order, and the appellate order, directing the respondents to restore the petitioner’s promotion and pass necessary consequential orders. The writ petitions were allowed, and no costs were imposed.

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