Karnataka High Court
Sri Suresh Kumar, I R S vs M/S Xl Health Corporation India Pvt Ltd on 21 December, 2018
Author: G.Narendar
Bench: G. Narendar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE G. NARENDAR
WRIT PETITION No.52307/2018 (T-RES)
BETWEEN:
SRI SURESH KUMAR, I.R.S.
S/O. SHRI K.M. KUMAR
COMMISSIONER OF CENTRAL TAX, GST
BENGALURU NORTH COMMISSIONERATE,
NO.59, HMT BHAWAN, GROUND FLOOR
BELLARY ROAD,
BENGALURU - 560 032. ... PETITIONER
(BY SRI L.M. CHIDANANDAYYA, ADVOCATE)
AND:
1. M/S. XL HEALTH CORPORATION INDIA PVT. LTD.,
A COMPANY REGISTERED UNDER
THE COMPANIES ACT 1956
REPRESENTED BY ITS AUTHORISED SIGNATORY
MR. DEEPAKA TULUPULE
HAVING ITS OFFICE AT
ABACUS CENTRE, NO.54,
1ST MAIN, III PHASE, J.P. NAGAR
SARAKKI INDUSTRIAL AREA
BANGALORE - 560 078.
2. UNION OF INDIA
REPRESENTED BY THE SECRETARY FINANCE
DEPARTMENT OF REVENUE
GOVERNMENT OF INDIA, NORTH BLOCK,
NEW DELHI - 110 001.
3. DEPUTY COMMISSIONER
SERVICE TAX, DIVISION-III
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SERVICE TAX-I, COMMISSIONERATE
1ST FLOOR, TRAFFIC AND TRANSIT
MANAGEMENT CENTRE
BMTC BUS STAND COMPLEX,
BANASHANKARI,
BANGALORE - 560 070.
4. COMMISSIONER OF SERVICE TAX (APPEALS)
TRAFFIC AND TRANSIT MANAGEMENT CENTRE
BMTC BUILDING, NO.9, 4TH FLOOR
ABOVE BMTC BUS STAND
DOMLUR, BENGALURU - 560 071. ... RESPONDENTS
(BY SRI SANKEERTH VITTAL, ADVOCATE FOR R-1; SRI JEEVAN
J. NEERALAGI, ADVOCATE FOR R-2 TO R-4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
RECALL/REVIEW THE ORDER DATED 22.10.2018 PASSED BY
THIS HON'BLE COURT IN W.P.NO.37514/2017 TO THE EXTENT
OF IMPOSING PENALTY OF RS.1.00 LAKH ON THE PETITIONER
PAYABLE FROM THE PERSONAL ACCOUNT OF THE PETITIONER
AND OBSERVATION OF THIS HON'BLE COURT THAT THE
PETITIONER IS A THREAT TO THE SOCIETY.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The instant writ petition is preferred by the petitioner who was discharging the duties as Commissioner (Appeals) and that one such order passed by him in discharging his duties, came up for consideration before this Court in W.P.No.37514/2017(T-RES). During the interregnum, the -3- petitioner was transferred to a different place and prior to his transfer, he has prepared the parawise remarks.
2. During the course of hearing, the co-ordinate bench noticed that the issue had already been dealt with by the CESTAT and was pleased to set aside the findings rendered by the petitioner in OIA Nos.165-177/2016 dated 1.2.2016 and for the subsequent period involving the same set of facts, the petitioner is said to have adopted the same reasoning which, earlier had been disapproved by the Tribunal (CESTAT) and that even after having examined the order of the Tribunal, he did not find any reason to apply his mind and to follow the said order while passing the order in original. It was also brought to the notice of this Court that the finding of the Tribunal has attained finality and no appeal either before this Court or before the Apex Court has been preferred.
3. That after the transfer of the petitioner, another officer Sri Prashant Kumar Jha, Joint Commissioner (Legal) prepared the statement of objections dated 21.10.2017 -4- and in para 7 it was pleaded that "there were no new facts which necessitated going through the rigmarole or formality of hearing and is nothing but time wasting tactics being adopted by the petitioner'.
4. It is this statement which raised the concern of the Court, that judicial discipline with regard to binding nature of the orders of the higher forum, was being thrown to the winds and this Court was constrained to form an opinion that the petitioner has adopted a callous, negligent and disrespectful attitude and the same ought to be taken note off and ought to be addressed.
5. By order dated 24.9.2018, this Court had granted opportunity to review the same by filing a correct affidavit. Despite lapse of one month, no such affidavit nor apology has been tendered either by the concerned Officer or from the department and this Court was constrained to observe adversely during the course of hearing and at that stage, the department appears to have sought for time to have the affidavit filed which adjournment was denied by this -5- Court. While allowing the writ petition, this Court was pleased to impose exemplary costs quantifying at Rs.1 lakhs to be paid by the petitioner from out of his personal funds and failure to deposit the same within one month as stipulated in the order, the Ministry of Revenue was directed to take needful discipline action against the said officer.
6. The petitioner has preferred this Writ petition being aggrieved by the portion of the direction in so far as imposing costs and in the event of failure to initiate disciplinary action.
7. Heard the learned counsel for the petitioner and the learned counsel for the respondents - Department and private respondents.
8. Today, the learned counsel for the petitioner filed into court an affidavit of the petitioner. The same is taken on record. It is contended by the learned counsel for the petitioner that the petitioner was wholly unaware of the pendency of the proceedings and nature of proceedings -6- subsequent to his transfer. It is deposed that the petitioner was not aware of the sentiments expressed by the Court nor was it ever intimated to him and that if he had been made known of the sentiments expressed by the Court, he would have taken immediate corrective steps and he further states that he has the highest regards for the order/direction issued by this Court. That at no point of time, he has ever intended to commit any defiance of the orders of this Court. He contends that neither the department nor the counsel appearing on behalf of the department have ever conveyed the sentiments of the Court. Hence he was not aware of the developments. It is contended that no notice was issued to him by this Court nor was he heard before passing strictures against him and imposing costs. He has placed reliance on the ruling of the Apex Court in the case of STATE OF KARNATAKA VS PUBLIC CONCERN FOR GOVERNANCE TRUST AND OTHERS, (2007)3 SCC 587 to contend that the Courts must afford an opportunity of hearing to the concerned person before passing strictures against them. He places -7- reliance on the observations made in para 20 of the order which reads thus:
20. In our view, the observations and strictures made by the High Court and extracted in paragraphs supra certainly reflect on the functioning of the office of the Chief Minister and day-to-day discharge of the duties of the Chief Minister. As rightly pointed out by learned Solicitor General, after the endorsement 'please put up', is made the file may or may not be approved by the department concerned and it is clear that the said notations are not approval of the contents of the representation and in our view, no other meaning could be taken. The observations/strictures made and the inference drawn by the High Court from the notation 'please put up' made by the Chief Minister are not warranted and are required to be expunged as rightly contended by learned senior counsel for the State of Maharashtra. The High Court has, in our view, erred in holding that by making a notation 'please put up' the applicants had blessings of the then Chief Minister. In our opinion, the civil appeal at the instance of the State of Maharashtra is maintainable inasmuch as the observations and strictures made by the High Court shall affect the working and functioning of the office of the Chief Minister of the State of Maharashtra. The submission of learned senior counsel for the first respondent that the first respondent had learnt that these averments had been made on the basis of the recommendations by the Chief Minister or other high functionaries acting at his behest and that all the rules and norms had been disregarded by CIDCO as a consequence of such recommendations as absolutely no -8- basis whatsoever. The grievances expressed against the then Chief Minister is nothing but imaginary. Except making the endorsement 'please put up' the Chief Minister has not played any other role. The observations and strictures passed by the High Court against the then Chief Minister behind his back and without calling for an explanation from him is wholly illegal, incorrect and unwarranted and that the remarks made by the High Court against the then Chief Minister was most uncharitable and not called for.
9. The contentions raised on behalf of the petitioner is not controverted by the counsel for the respondents and a perusal of the records also does not indicate as to whether any notice was sent to the petitioner or that he was put on notice or that he was aware of the sentiments expressed by this court. The said observations rendered without affording opportunity to the petitioner are required to be struck off in the light of law stated supra. Accordingly it is struck off. Further direction in para 9 of the order imposing cost of Rs.1 lakhs to be payable by the petitioner out of his personal funds is recalled.
10. In this view of the matter, the writ petition is disposed of in view of the law laid down by the Apex Court -9- as stated supra. Accordingly, the observations/strictures passed by this Court in para 5 of its order stating that "5. Firstly, in the impugned order, the first appellate authority throwing to the winds, the principles of judicial discipline and binding order passed by higher appellate forum, not only reiterated his own stand, which were set aside by the Tribunal but the same is sought to be defended by the Department with the aforesaid words quoted above. The total callous, negligent and disrespectful behavior shown by the Departmental authorities in this court should not be tolerated at all. It is this kind of lack of judicial discipline which if it goes unpunished, will lead to more litigation and chaos and such public servants are actually a threat to the society" is expunged. The writ petition is disposed off in the above terms.
There shall be no order as to costs.
Sd/-
JUDGE nm