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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 ..... e Superintendent of Sales Tax at Damra Check Post, was issued a preliminary show cause notice dated 13.1.2009 by the Commissioner of Taxes, Assam, respondent No.4 alleging that while he was the Superintendent of Taxes, Goalpara, he committed gross irregularity in refund/adjustment of additional security deposited by five(5) number of coal dealers. During the process the petitioner allegedly violated the provisions of the Assam Value Added Tax Act, 2003(hereinafter referred as AVAT Act) and Assam Value Added Tax Rules, 2005(hereinafter referred as AVAT Rules) and the provisions of Central Sales Tax Act, 1956 ( hereinafter referred as CST Act) more particularly Section 25 of AVAT Act, 2003 read with Rule 14(3) of the AVAT Rules 2005 and Section 9(2) of the CST Act, 1956. 3. The petitioner submitted his detailed show cause reply dated 17.1.2009 denying the allegations stating specifically that he did not violate the said provisions of the AVAT Act and Rules. The respondent authorities being not satisfied with the reply issued a charge memo dated 6.4.2009 under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964. It consisted of 5 (five) charges alleging that the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Taxes, Assam. The same was rejected vide the appellate Order dated 22.3.2011. 6. The petitioner after rejection of the appeal was promoted to the post of Assistant Commissioner of Taxes vide order dated 28.3.2011 issued by the Commissioner and Secretary, Finance and Taxation Department. While the petitioner was serving in the promotional post, without any notice nor hearing the petitioner, the order of promotion dated 28.3.2011 was cancelled. The same was done on the basis of an Office Memorandum dated 17.10.1987 which provides that promotion can only be made after the penalty of withholding of increment is completed. An appeal against such cancellation was filed on 29.9.2011 by the petitioner but could not evoke any response from the respondents. Being aggrieved the petitioner filed this writ petition challenging the inquiry report, appellate order and cancellation of promotion. 7. The petitioner during the pendency of WP(C) No. 5469/2011 filed another W.P(C) No. 657/2014 against the respondent authorities for a direction to consider the case of the petitioner for promotion to the post of Deputy Commissioner of Taxes alongwith other eligible incumbents in the post of cadr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hanta relied State of Orissa Vs Dr. (Miss) Binapani Devi & ors reported in AIR 1967 SC 1269; (vii) Cancellation of promotion let to double jeopardy thereby punishing the petitioner twice for same charges as the act of cancellation specifically violates the provision of the Assam Services (Discipline and Appeal) Rules, 1964. Mr. Mahanta relies Akai Thadou vs- the North Cachar Hills reported in 1994(1) GLR 427; (viii) The office memorandum dated 17.10.1987 being in the nature of executive instruction cannot over ride statutory provision of the Assam Service( Discipline and Appeal) Rules, 1964 and the learned counsel relies State of Orissa Vs. Prasanna Kumar Saho reported in 2007 (15) SCC 129, Rajasthan State Industrial Dev. Corporation vs. - Subhash Sindi Housing reported in 2013(5) SCC 427. 9. The respondent No.2 filed an affidavit-in-opposition. Mr. Gogoi in support of the stand taken in the affidavit, wanted to project that the show cause notice was rightly issued for violation of Section 25 of the AVAT Act, 2003 and the Rule 14(3) of AVAT Rules 2005 read with Section 9(2) of the CST Act, 1956. It is submitted that this Court in WP(C) No.958/2005(M/S Akshay Coal Suppliers and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purely temporary under Regulation 4(d) of the Assam Public Service Commission in which it was specifically stated that the promotion was subject to reversion without notice and assigning any reasons thereof. 12. From the findings of the inquiry officer, the charge of misconduct as submitted by Mr. Gogoi, was proved inasmuch as there were specific violations of Section 25 of AVAT Act, 2003, Rule 14(3) of AVAT Rules 2005. Section 50 of the AVAT Act and Form 37 under Rule 29 of AVAT Rules are for refund of excess tax but not security and as such the stand of the petitioner in the written statement was of no use. Finally Mr. Gogoi submitted that there was no violation of principle of natural justice nor there was any perversity in the findings of the inquiry officer and as such the writ petition is liable to be dismissed. 13. The submissions of the learned counsel are taken into consideration. On perusal of the charge-memo it is found that there are 5(five) number of charges. The imputation against the petitioner in each of the charges are violation of statutory refund adjustment procedure of excess security /additional security as laid down under Section 25 of the AVAT Act 2003 rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 lakhs as security deposited by M/S NRI Coal Supplier for the year, 2005-06 and thereby Shri Sarma has violated the general financial practice relating accounts of particular year. However, Shri Sarma has issued coal challan limiting to Rs. 3.00 lakhs only in 2006-07, i.e. the excess amount deposited as security for the year 2005-06 and therefore, there was no financial impropriety. His gross negligence of duty has been proved, in view of the fact that he has not recorded the total receipt on security deposit amount of Rs. 21.25 lakhs for the year, 2005-06, though loss of Government revenue has not been proved. (c) Charge 3:- On examination of written statement submitted by Shri S.P. Sarma and deposition given by defence witness (Shri S.P.Sarma), prosecution witnesses and records relating to assessment made by Shri S.P Sarma for Meghalaya Mines Syndicate, for the year, 2005-06 it is seen that Shri Sarma has not recorded in his order sheet of assessment about the total receipt of security deposit amounting to Rs. 32.80 lakhs by the dealer during the year, 2005-06. He only recorded receipt of Rs. 28.00 lakhs as security deposit and thereby he violated general financial practic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les. The additional witness however supported the allegation of violation of the said provisions of the Acts and Rules. But there is no finding in the inquiry report regarding violation of the particular charge of violation of the specific provisions of the Acts and Rules. The inquiry officer did not even recorded the provisions of Section 25 AVAT Act, 2003, Rule 14(3) of AVAT Rules ,2005 and Section 9(2) of CST Act 1956 in his inquiry report in order to give his findings against the specific charges of violation of the provisions of Act and Rules. The inquiry officer failed to give his finding of the ingredients impregnated in the said provisions of Acts and Rules and non compliance of any of the ingredients by the petitioner in order to hold that the charges were proved against the petitioner. In the case in hand, there are contradictory evidence on record deposed by the witnesses of the department itself. Under such circumstances, the inquiry report was supposed to be much more logical before holding the charges to be proved against the petitioner. The inquiry officer instead held that the petitioner violated the general financial practice which was not the charge at all. The i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... See Central Bank of India Ltd. V. Prakash Chand Jain, AIR 1969 SC 983, Kuldeep Singh v. Commissioner of Police ." 17. If the inquiry report is considered keeping in view the aforesaid ratio it is found that the inquiry officer went beyond the charge-memo and held that the petitioner violated the general financial practice which were not the charges. As the inquiry officer failed to bring on record any specific findings in respect of violation of Section 25 of the AVAT Act 2003, Rule 14(3) of AVAT Rules 2005 and Section 9(2) of CST Act, 1956 the findings that all the charges are proved are perverse. The submission of Mr. Gogoi that this Hon'ble Court in WP(C) 968/2005(M/s Akshay Coal Suppliers & Ors vs- State of Assam) disposed of on 11.5.2005 held that the procedure envisaged under the provisions of the AVAT Act, 2003 and Rules thereunder are required to be followed cannot be considered while exercising the writ jurisdiction thereby converting this court to an appellate forum of the departmental proceeding. The inquiry officer is totally silent in that respect and for the aforesaid reason and the ratio in Narinder Mohan Arya (supra) I restrained myself from considering the submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Director, ECIL (Supra) is applied in the present factual matrix, I am convinced to hold that there was violation of the principle of natural justice as the inquiry report was required to be served on the petitioner before the disciplinary authority arrived at its conclusion even if the statutory rules do not permit the furnishing of the report or silent in that regard. Because the right to get the copy of the inquiry report before the disciplinary authority takes a decision is a right to defend against the charges. The petitioner was prejudiced as he could not take his defence before the disciplinary authority on the basis of the perverse findings in the inquiry report causing cancellation of the promotion order after imposition of the penalty. Accordingly I am unable to accept the submission of Mr. Gogoi that it was not mandatory to serve the copy of inquiry report to the petitioner and the petitioner was not prejudiced for such non supply of the inquiry report. 21. The petitioner being aggrieved by the order imposing penalty preferred an appeal before the appellate forum raising various grounds. It was disposed of vide a short and cryptic order bearing letter No. FTX 20/2009/1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withholding of 2(two) increments with cumulative effect. The said order of cancellation is also challenged in the writ petition, WP(C) 5469/2011. 24. The promotion of the petitioner was cancelled on the basis of the Govt. OM No. ABP 57/87 dated 17.10.1987 read with the order imposing the penalty dated 22.11.2010. Mr. Mahanta wanted to submit that the cancellation of promotion amounted to double jeopardy for the same charge. In support of his contention he referred Rule 7 (ii) of the Assam Services(Discipline and Appeal) Rules, 1964 which prescribes the punishment withholding of increments 'or' promotion. Both the penalty could not be imposed for the same charge. On the other hand, Mr. Gogoi submitted that as per Govt. O.M. dated 17.10.1987 in case of minor penalty of 'withholding of increments' promotion could be given effect to only after the expiry of the penalty. 25. In view of the issue raised by Mr. Mahanta, it would be proper to refer the ratio laid down by a Three Judge Bench of the Apex Court in Union of India -Vs- K. V. Jankiram etc. reported in AIR 1991 SC 2010. The Apex Court was examining the judgment passed by the Full Bench of the Central Administrative Tribunal st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plinary authority in the said case proposed to impose the penalty on the delinquent officer as "all your increments of pay henceforth will be stopped and you will not be considered for any promotional posts". In the said circumstance it was held by the learned Single Judge of this Court that the authority cannot impose the punishment of withholding of increments and promotion. Only one punishment can be imposed either withholding of increments or promotion. But the issue in the present case is whether the cancellation of the promotion order due to imposition of penalty amounted to double jeopardy. With due respect to the said decision, I would like to state that the subsequent act of cancellation of the promotion, though the petitioner was required to be heard cannot be held to be a penalty, and in fact if the ratio of the Union of India -Vs- K. G. Jankiram (Supra) is taken into consideration the same amounts to consequence of conduct. Nor it amounts to double jeopardy. Alternatively if the cancellation of promotion is not a penalty then the question of double jeopardy does not arise at all. Accordingly the submission of Mr. Mahanta in my considered opinion cannot be accepted. 27. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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