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TMI Blog2020 (7) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... lty 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. - WP(C) 5469/2011, WP(C) 657/2014 - - - Dated:- 24-7-2020 - HON BLE MR JUSTICE PRASANTA KUMAR DEKA For the petitioner : Mr. P. Mahanta Advocate. For the respondents : Mr. B. Gogoi, Standing Counsel, Finance Department JUDGMENT ORDER(CAV) Heard Mr. P. Mahanta, the learned counsel for the petitioner and Mr. B. Gogoi, the learned Standing Counsel for the Finance Department, Assam. The petitioner challenges the order vide Memo No. FTX 20/2009/66 dated 22.11.2010 issued by the Disciplinar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 25 of the AVAT Act, read with Rule 14(3) of AVAT Rules and Section 9(2) of CST Act does not cover refund/ adjustment of security. The petitioner took a definite stand that security could only be refunded as per Section 50 of the AVAT Act, read with Rule 29 of the AVAT Rules, 2005 as per Form 37. Finding the written statement and the stand taken therein not satisfactory, the disciplinary authority decided to initiate the departmental proceeding against the petitioner to inquire into the charges. 4. The Inquiry Officer on completion of the recording of the evidence of the petitioner wrote to the disciplinary authority respondent No.4 vide his letter dated 1.7.2009 for providing an additional witness well conversant of the provisions of AVAT Act and Rules as some legal points were raised by the petitioner. Thereafter one Sri N. C. Sarma, Addl. Commissioner of Taxes was named as the additional departmental witness. The evidence of the petitioner was recorded on 23.6.2009, Sri Abdul Wahab (listed witness) on 9.7.2009 and the additional witness on 17.12.2009. While the matter rested thus the petitioner was served with the order dated 22.11.2010 whereby the petitioner was impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue in the charges is a continuous process for which refund is not necessary. The inquiry officer in his report gave his findings that there was no financial impropriety. In support of his contention Mr. Mahanta relies Jalaluddin Laskar Vs The State of Assam reported in 1995(2) GLR 383; Roop Singh Negi V Punjab National Bank ors reported in (2009) 2 SCC 570; (iii) The inquiry officer went beyond the charges inasmuch as the petitioner was held to have violated General Financial Practice which was not the charge /charges against the petitioner. The inquiry officer did not find any violation of statutory provisions/rules. The learned counsel relied Narinder Mohan Arya Vs United India Insurance reported in (2006) 4 SCC 713; (iv) The inquiry report was not furnished to the petitioner before imposition of penalty resulting violation of principle of natural justice and in support of his contention the learned counsel relied Union of India Vs Mohd. Ramzan Khan reported in 1991(1) SCC 588; Managing Director, ECIL Hyderabad Vs- Karunakar reported in 1993 (4) SCC 727; (v) The departmental appeal was not considered as required under the law and relied Sri S. K. Mazumd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersant with the taxation law and the subsequent deposition of the said witness stated that the petitioner was not affected inasmuch as he cross examined the said witness. The petitioner was given ample opportunity to be heard by the inquiry officer. The inquiry officer considered the evidence on record and gave his findings that the charges of gross negligence, insubordination, breach of trust were proved against the petitioner. Accordingly the disciplinary authority accepted the inquiry report and imposed the penalty. It was not necessary to give the delinquent officer any further opportunity of making representation on the penalty proposed to be imposed as per Rule 9(10) of the Assam Service (Discipline Appeal) Rules , 1964 and for the said reason the inquiry report was not served on the petitioner . In support of his contention Mr. Gogoi relies Union of India Vs Bishamber Das Dogra reported in (2009) 13 SCC 102 and submitted that the petitioner failed to state how he was prejudiced for non supply of the inquiry report. Further the appeal preferred by the petitioner was rejected as the petitioner violated the provisions of both the law and rules thereunder. 11. Mr. Gog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner violated laid down procedures under Section 25 AVAT Act and Rule 14(3) of the AVAT Rules 2005 alongwith Section 9(2) of the CST Act. The inquiry officer also took note of the deposition of the said additional witness that the amount of security deposited by traders in a particular period should be taken into assessment in that particular relevant period. Finally the inquiry officer held as follows:- (a) Charge No. 1:- It is general financial practice followed by all concerned relating to financial assessment to record any receipt during a particular year. Therefore, the Assessing Officer Shri S.P. Sarma should have recorded ₹ 4.50 lakhs receipt as deposited for the year, 2006-07 in his Assessment Order while assessing M/S Seven Sister Enterprise for the year, 2006-07. However the Assessing Officer Shri Sarma had countersigned coal challan against this amount of ₹ 4.50 lakhs in the subsequent year (2007-2008). Therefore, there was no financial impropriety. But Shri Sarma violated general financial practice for not recording ₹ 4.50 lakhs received during the year, 2006-07 in his Assessment Order for 2006-07. As such there was procedural lapse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto account the total security deposit of ₹ 14 lakhs deposited during the year, 2007-08 and thereby he willfully kept ₹ 10.50 lakhs deposited as security for the year, 2007-08 outside the assessment for the year, 2007-08. Therefore the charge of gross negligence of duty and mis-conduct has been proved. (e) Charge of No. 5:- On scrutiny of above deposition from defence and prosecution also scrutiny of assessment order for the year, 2005-06 in respect of M/S A. K. Enterprise it can be summarised that there was procedural lapse on the part of Assessment Officer, while assessing the Dealer M/S A.K. Enterprise for the year, 2005-06. The dealer has duly deposited an amount of ₹ 19.75 lakhs by challans during the year, 2005-06. The Assessing Officer (Shri S.P.Sarma) did not record ₹ 4.50 lakhs received as security for the year, 2005-06, in his assessment order dtd. 14.12.2007. As discussed above it is general financial practice to record of receipt in a particular year on the receipt side of the account which Shri S.P Sarma assessing officer had not followed. Therefore, the charges of gross negligence of duty has been proved though there was no financia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 713 , the Apex Court laid down the manner to examine the findings of the inquiry officer when questioned before a civil court or a writ court as follows:- Para 22.............. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it, it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. [ See State of Assam Anr. V. Mahendra Kumar Das Ors. (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [See Khem Chand V. Union of India and State of Uttar Pradesh v. Om Prakash Gupta, (3) Exercise of discretionary power involves two elements (i) Objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. [See K.L. Tripathi V. State of Bank of India. (4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... line and Appeal) Rules 1964 is mandated to consider the records of inquiry and give its finding on each charge. But on perusal of the order imposing penalty, the disciplinary authority did not discuss any of the charges and merely accepted the findings of the inquiry report. 19. Mr. Mahanta submitted that the inquiry report was not delivered to the petitioner for which he could not raise before the disciplinary authority about the perversity in the findings of the inquiry officer and the same amounted to violation of principle of natural justice. The said submission is objected by Mr. Gogoi. 20. In Managing Director, ECIL Vs B. Karunakar(supra) a larger Bench of the Apex Court held that when the inquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the inquiry report before the disciplinary authority arrives at its conclusion in respect of the guilt or innocence of the employee with regard to the charge leveled against him. The said right is the part of the employee s right to defend himself against the charges leveled against him. Denial of the said right as held, amounts to denial of reasonable opportunity to the emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nquiry Officer and the order No. FTX.20/2009/132 dated 21.11.2010 imposing penalty of withholding 2 increments with cumulative effect under Rule 7 of Assam Services (Discipline Appeal) Rules, 1964. ORDER The claim of appellant, Shri Siba Prasad Sarma, Superintendent of Taxes regarding inflicting of major penalty upon him is not correct because withholding of increments is a minor penalty. The charges of gross negligence of duty in all 5(five) charges framed against him have been proved. Therefore, the Governor of Assam regrets its inability to entertain the appeal petition submitted by Shri Siba Prasad Sarma, Superintendent of Taxes. Sd/-Sanjay Lohiya Commissioner Secretary to the Govt. of Assam Finance(Taxation) Department . 22. The appellate authority failed to take note of the grounds nor discussed the same which in my considered opinion is not proper. The right of appeal is prescribed in the Assam Services (Disciple and Appeal) Rules 1964 and as such a statutory one and it is also the duty of the appellate authority to dispose of the same in a manner which gives an indication in its express form that the appellate authority had applied it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w DPC as on the date when the sealed cover procedure was followed and the review DPC should consider the findings in the sealed cover as also the penalty imposed otherwise, not giving effect to the findings in the sealed cover when a penalty is imposed amounts to double jeopardy. The said finding was set aside by the Apex Court after holding that an employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case is to be treated differently. There is therefore, no discrimination when in the matter of promotion, he is treated differently. When an employee is held guilty and penalized and is, therefore, not promoted at least till the date on which he is penalized, he cannot be said to have been subjected to a further penalty on that account. While considering an employee for promotion and if the promotion committee takes into consideration the penalties and denies him the promotion such denial is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner 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. So, 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. 28. Accordingly in view of the discussions the inquiry report dated 25.1.2010 is held to be perverse, set aside and quashed. Consequently the order vide Memo No. FTX 20/2009/ 66 dated 22.11.2010 imposing penalty by the respondent No.4 as the disciplinary authority and order bearing No.FTX 20/2009/32 dated 22.3.2011 passed by appellate authority are set aside and quashed. Further th ..... 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