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TMI Blog2023 (2) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 examinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer 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. - W.P. (S) No. 380 of 2010 - - - Dated:- 16-1-2023 - HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner : Mr. Sumeet Gadodia, learned counsel appearing on behalf of the petitioner along with Ms. Aanya, Advocate For the Respondent : Ms. Priyanka Boby, learned counsel 1. Heard Mr. Sumeet Gadodia, learned counsel appearing on behalf of the petitioner along with Ms. Aanya, Advocate. 2. Heard Ms. Priyanka Boby, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders passed by this Court from time to time and the order dated 25.09.2019, it appears that the petitioner has made allegation of bias against the enquiry officer, namely, Shri Niranjan Prasad Mandal, the then Joint Commissioner of Commercial Taxes (Administration), Santhal Pargana Division-cum-Enquiry Conducting Officer, Dumka and the relevant paragraph with regard to the said of bias has been mentioned in paragraph 22 and 23 of the writ petition, which are quoted as under: - 22. That it is stated and submitted that Respondent No. 3 is biased in the matter as a successor officer of Respondent No. 2 who had passed the actual refund orders for which charges have been framed against the petitioner. 23. That it is further stated and submitted that biasness of Respondent No. 3 in the case is manifestly clear from the fact that he has refused to drop the charges for enquiry which are, prima facie, incorrect and frivolous and he has further failed to call the necessary witness of the case. 7. On 25.09.2019, the learned counsel for the petitioner had submitted that he was relying upon paragraph 22 and 23 of the writ petition and consequently, this Court was pleased to is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner along with Ms. Aanya, Advocate. 2. Heard Ms. Priyanka Boby, learned counsel appearing on behalf of the respondents. Arguments of the petitioner 3. Learned counsel for the petitioner has submitted that the petitioner had joined the Bihar Finance Services on 19.01.1977 and ultimately, he was allocated Jharkhand cadre on 15.11.2000. On 03.10.2007, a notice was issued to the petitioner seeking an explanation on the allegations made as to why a departmental proceeding be not initiated against the petitioner for causing revenue loss to the respondents by his acts and omissions amounting to Rs. 11,95,69,692.85. The learned counsel submits that thereafter the charge-sheet was issued to the petitioner in Praptra Ka vide memo dated 13.12.2008 (Annexure-1) by referring to Rule 55 of Civil Services (Classification, Control Appeal) Rules, 1930 read with Rule 43(b) of Jharkhand Pension Rule. 4. The learned counsel submits that upon receipt of the charge-sheet, the petitioner appeared before the enquiry officer and submitted his defence with a request to call Shri Vidya Bhusan Verma J.C.C.T. (retired) to testify the contents of the report on the basis of which char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... successor officer in the office of respondent No. 2 who had passed the actual refund orders for which the charges were framed against the petitioner and biasness of respondent No. 3 is manifestly clear from the fact that he refused to drop the charges for enquiry which are prima facie incorrect and frivolous and that he did not call the necessary witness of the case for examination/cross-examination . 9. On the point of bias, learned counsel for the petitioner has relied upon the judgments passed by the Hon ble Supreme Court in the case reported in AIR 1960 SC 468 (Mineral Development Ltd. vs. State of Bihar Ors.) para 10; (2010) 2 SCC 772 (State of Uttar Pradesh Ors. vs. Saroj Kumar Sinha) para 26 and (2010) 10 SCC 539 (Mohd. Yunus Khan vs. State of Uttar Pradesh others) para 25 to 27 and also para 16. 10. The further argument of the learned counsel for the petitioner is that the petitioner had acted in exercise of quasi-judicial power for which departmental proceeding could not be initiated against him. He submits that if an erroneous order was passed by him, then the correct remedy is by way of appeal or revision to have such orders set-aside. Even assuming tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tire disciplinary proceedings is primarily based on documents and therefore, it may not be required to call Shri Vidya Bhusan Verma for examination/cross-examination. She also submits that it is not in dispute that the documents are the orders passed in the capacity of quasi-judicial authority. She also submits that had the petitioner continued to appear before the enquiry officer, appropriate order with regard to the prayer of the petitioner to call Shri Vidya Bhusan Verma for examination/cross-examination could have been passed. 17. So far as the argument of the learned counsel for the petitioner with regard to initiation of departmental proceedings though the alleged orders were in exercise of quasi-judicial powers is concerned, the respondents also rely upon the judgments reported in (1993) 2 SCC 56 (supra) and (2006) 5 SCC 680 (supra). She submits that there is no legal bar in initiating disciplinary proceedings against an officer even if the orders are passed under quasi-judicial capacity. She submits that the necessary ingredients for initiation of departmental proceedings is reflected from the charge-sheet itself. 18. Arguments concluded. 19. Post this case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort submitted by Shri Vidya Bhushan Verma, Joint Commissioner of Commercial Taxes (Retired) contained in letter No. 292 dated 03.10.2007, the petitioner, the then Deputy Commissioner of Commercial Taxes was prima facie found responsible and guilty for illegal refund of tax of Rs. 11,95,69,692.85 made to different dealers dealing in coal. II. The revise returns of registered coal dealers of the circle were accepted even after expiry of the prescribed period without any cogent basis. In this connection, the directions issued by the Additional Commissioner of Commercial Taxes contained in letter No. 875 dated 26.03.2004 was ignored. III. The original order of assessment was passed after due scrutiny of books of accounts and the same facts were rejected in the revised assessment order upon remand. IV. No steps were taken to file a revision against the appellate order to safeguard the interest of revenue. V. Upon remand, no new facts were presented by the dealers but the nature of sale itself was changed merely on the basis of revise return and consequently, the reassessment order was not based on any cogent material. As a consequence of such revised assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 95,69,692.85 to different dealers dealing in coal. 15. This Court finds that the allegations against the petitioner are very serious. However, it is required to be examined as to whether the petitioner could be proceeded in departmental proceedings for having exercised his powers while acting as a quasi-judicial authority. It is also important to note that out of the aforesaid allegations, the exercise of power in quasi-judicial proceedings is only in relation to passing of the orders of reassessment upon remand and consequent issuance of notices for excess payment (refund orders) but rest are the allegations relate to exercise of powers/omissions to exercise powers by the petitioner in administrative capacity being the officer posted in the revenue circle. 16. At the time of passing of the interim order dated 19.03.2010 whereby the proceeding against the petitioner was stayed, the petitioner had relied upon two decisions of the Hon ble Supreme Court reported in (1999) 7 SCC 409 (Zunjarrao Bhikaji Nagarkar Vs. Union of India and Ors.) and (1993) 2 SCC 49 (Union of India and Anr. Vs. R.K. Desai). 17. In the judgment reported in (1993) 2 SCC 49 (supra), the allegations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtant to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases: (i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty; (ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty; (iii) if he has acted in a manner which is unbecoming of a Government servant; (iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers; (v) if he had acted in order to unduly favour a party; (vi) if he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n being that of a larger Bench would prevail. The decision in Nagarkar case therefore does not correctly represent the law. . 22. Thus, this Court is of the considered view that this case has to be considered in the light of the law laid down by the Hon ble Supreme Court in the case of K.K. Dhawan (supra) followed by Duli Chand (supra). These two judgements have been relied upon by both the parties at the time of the final hearing of this case. 23. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Since the departmental proceeding is pending, no prejudice will be caused to either party if Shri Vidya Bhushan Verma is permitted to be examined/cross-examined by the department / petitioner. In case, Shri Vidya Bhushan Verma has superannuated, then also it will not be difficult for the respondents to trace him and ask him to appear for his examination/cross-examination and the examination/cross-examination of Shri Vidya Bhushan Verma will essentially depend upon his availability for such purpose. 27. Accordingly, 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jan Prasad Mandal were posted as Joint Commissioner of Commercial Taxes (Admn.), Dhanbad Division, Dhanbad from 9.5.2007 to 4.7.2008 and from 5.7.2008 to 14.12.2009, respectively. No revision order of refund cases was passed by the incumbents, namely, Sri Singh and Sri Mandal, as the orders were made by an officer of the same rank. This refund order can be filed within the prescribed time for revision before the revisional forum, which as per the charges was not done either by the petitioner or by Sri Ramesh Chandra Singh, the then Joint Commissioner of Commercial Taxes (Admn.), Dhanbad Division, Dhanbad. 41. That it may be stated that Sri Niranjan Prasad Mandal, the then Joint Commissioner of Commercial Taxes (Admn.), Dhanbad Division, Dhanbad has been appointed as departmental enquiry officer to enquire into the matter of apparent illegal refund of Rs. 11,95,65,692.85 paise by the petitioner according to the report submitted by Sri V. B. Verma. There is absolutely nothing on record to show that Sri Mandal is not a neutral and impartial departmental enquiry officer. 42. That it may be stated that the matter of illegal refund is related to 661 records of 51 dealers concer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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