Gauhati High Court
Siba Prasad Sharmah vs The State Of Assam And Ors on 24 July, 2020
Equivalent citations: AIRONLINE 2020 GAU 245
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/18
GAHC010108282011
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 5469/2011
1:SIBA PRASAD SHARMAH
S/O- LT. UPENDRA NATH SHARMAH, R/O- HOUSE NO. 46, NEAR
DISNEYLAND SCHOOL, KHANAPARA, GHY- 22.
VERSUS
1:THE STATE OF ASSAM AND ORS
REP. BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM, FINANCE
TAXATION DEPTT., DISPUR- 781006.
2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
FINANCE TAXATION DEPTT.
DISPUR- 781006.
3:THE DY. SECY. TO THE GOVT. OF ASSAM
FINANCE TAXATION DEPTT.
DISPUR- 781006.
4:COMMISSIONER OF TAXES
ASSAM
KAR BHAWAN
DISPUR- 781006.
5:ADDL. COMMISSIONER OF TAXES
KAR BHAWAN
DISPUR- 781006.
6:DISPLINARY AUTHORITY
REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
FINANCE TAXATION DEPTT.
KAR BHAWAN
DISPUR- 781006.
7:ENQUIRY OFFICER/ADDL. SECY. TO THE GOVT. OF ASSAM
Page No.# 2/18
FINANCE DEPTT.
DISPUR- 781006
Advocate for the Petitioner : MR.N DUTTA
Advocate for the Respondent : MR. B GOGOI(SC, F.DEPTT.)
Linked Case : WP(C) 657/2014
1:SIBA PRASAD SARMAH
S/O LT. UPENDRA NATH SHARMAH
R/O H/NO.46
NEAR DISNEYLAND SCHOOL
KHANAPARA
GHY-22
VERSUS
1:THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
FINANCE TAXATION DEPARTMENT
DISPUR
GHY-6
2:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
FINANCE TAXATION DEPARTMENT
DISPUR
GHY-6
3:THE DY. SECRETARY TO THE GOVT. OF ASSAM
FINACE TAXATION DEPARTMENT
DISPUR-06
4:THE COMMISSIONER OF TAXES
ASSAM
KAR BHAWAN
DISPUR
GHY-6
Advocate for the Petitioner : MR.A PHUKAN
Page No.# 3/18
Advocate for the Respondent : MR. B GOGOI(SC
F.DEPTT.)
BEFORE
HON'BLE MR JUSTICE PRASANTA KUMAR DEKA
For the petitioner : Mr. P. Mahanta
Advocate.
For the respondents : Mr. B. Gogoi,
Standing Counsel, Finance Department
Date of hearing : 15.07.2020
Date of judgment : 24.07.2020
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 Disciplinary Authority imposing punishment on him withholding two
increments with cumulative effect, the letter dated 22.3.2011 by the Govt. of Assam
rejecting the appeal of the petitioner and the letter of cancellation of promotion dated
14.9.2011 issued by the Govt. of Assam demoting the petitioner from the post of Assistant
Commissioner of Taxes to the Superintendent of Taxes.
2. The petitioner while serving as the 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
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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 petitioner while working as the Superintendent
of Taxes, Goalpara had not followed the refund/ adjustment procedure of excess security/
additional security as laid down under Section 25 of AVAT Act read with Rule 14 (3) of AVAT
Rules and Section 9(2) of the CST Act. Accordingly he was charged with gross negligence of
duty, misconduct, insubordination and breach of trust resulting in loss of State revenue. The
statement of allegations alongwith list of documents and witnesses were annexed to the
charge memo. One Sri Abdul Waheb, Deputy Commissioner of Taxes Dhubri Zone, Dhubri
was the witness listed for the department.
3. The petitioner against the charge memo dated 6.4.2009 submitted his written
statement on 13.4.2009. He denied all the charges and specifically it was stated that 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
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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 imposed the penalty of
withholding of 2(two) increments with cumulative effect. Before imposition of the penalty the
petitioner was not served with the inquiry report nor he was given the opportunity for hearing
by the authority. The inquiry report was furnished alongwith the order of imposition of
penalty.
5. The petitioner on 22.2.2011 preferred an appeal to his Excellency, the Governor of
Assam through the Commissioner 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 cadre of Assistant Commissioner keeping his seniority intact vis-à-
vis the original gradation list in the cadre of Superintendent of Taxes. After issuance of Rule,
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the WP(C) 657/2014 was ordered to be listed alongwith the present W.P(C) 5469/2011 and
both the writ petitions are taken up for disposal by this common order.
8. Mr. Mahanta assailed the impugned inquiry report and the other orders on the
following grounds:-
(i) There was no violation of the law referred in the charge-memo;
(ii) Perversity, as the listed witness of the department in his evidence specifically stated there
was no violation of law by the petitioner as alleged in the charge-memo. The other witness, Sri
N.C.Sarma admitted the fact that the security, non refunding of which is the core issue 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.
Mazumdar Vs Union of India reported in 1982(1) GLR 664;
(vi) The respondent passed unilaterally the order of cancellation of promotion. The said
administrative order has civil consequences on the petitioner and was required to be heard
before passing the order of cancellation of promotion. Having not done so there was violation of
principle of natural justice and Article 311 of the Constitution of India. In support of his
contention, Mr. Mahanta 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)
Page No.# 7/18
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 ors. Vs State of Assam) upheld the provision of
refund of excess security before adjustment which in the present case, the petitioner
without refunding the excess security in a particular financial year adjusted the same in the
subsequent financial year against the provisional tax assessment. It was his contention that
the AVAT Act, 2003 does not envisage for advance collection of tax. Additional security
collected through proper challan are required to be adjusted against tax liability and the
excess additional security could be adjusted against future additional security but at the
option of the dealer only not otherwise.
10. Mr. Gogoi admitting the fact of the request of the inquiry officer for an additional
witness conversant 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.
Page No.# 8/18
11. Mr. Gogoi in support of the cancellation of the promotion of the petitioner relied the
O.M No. ABP. 57/87 dated 17.10.1987 wherein it is stated that in case of withholding of
increments, promotion could be made only after the period of penalty expired. In the case of
the petitioner due to oversight he was promoted and once it came to the notice of such
erroneous promotion order, same was cancelled. The question of double jeopardy does not
arise. The promotion order was 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
read with Rules 14(3) of AVAT Rules 2005 and Section 9 (2) of the CST Act, 1956. Due to
said violation the petitioner was charged with gross negligence of duty, insubordination,
misconduct and breach of trust causing loss to Government revenue.
14. I have perused the inquiry report. The inquiry officer against each charges took note of
the evidence and the written statement of the petitioner denying the charge of violation of
any provisions of Acts and Rules. He also considered the deposition of the listed witness Sri A.
Waheb wherein it was stated that the petitioner did not violate any provisions of Act and
Rules while assessing the dealers. Further Sri N. C. Sarma, the additional witness in his
evidence stated that the petitioner violated laid down procedures under Section 25 AVAT Act
Page No.# 9/18
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 Rs.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 Rs 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 Rs. 4.50 lakhs received during the year,
2006-07 in his Assessment Order for 2006-07. As such there was procedural lapse in recording
the assessment order.
In view of above circumstances the charge relating to gross negligence of duty and mis-conduct
has been proved.
(b)Charge No.2 :-
On going through written statement submitted by Shri S. P. Sarma and recorded statement of
witness for prosecution and relevant case record relating to assessment of Dealer M/s NRI Coal
Supplier by Shri S. P Sarma, Supdt. Of Taxes, it can be concluded that Shri Sarma willfully did
not record total receipt of Rs. 21.25 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 practice
not recording total receipt of Rs 32.80 lakhs during the year, 2005-06, in his order sheet. It
Page No.# 10/18
seems he willfully kept the amount of Rs 4.00 lakhs outside assessment for the year 2005-06
though the amount was deposited during the year, 2005-06. Therefore, the charge of gross
negligence of duty and breach of trust have been proved.
(d)Charge No.4:-
On examination of written statement submitted by Shri S. P. Sarma and deposition given by Sri
S.P.Sarma, Sri A. Wahab and Shri N. C. Sarma, including relevant records of assessment of O.M.
Fuels and Assessment Order Sheet for the year, 2007-08, it appears that Shri S.P. Sarma has not
taken into account the total security deposit of Rs. 14 lakhs deposited during the year, 2007-08
and thereby he willfully kept Rs 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 Rs.19.75 lakhs by
challans during the year, 2005-06. The Assessing Officer (Shri S.P.Sarma) did not record Rs 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 financial
improperty as Shri Sarma has issued coal challan limiting Rs 4.50 lakhs in the subsequent
year(2006-07)."
15. The petitioner was charged with misconduct, negligence , insubordination, loss of
Government revenue and breach of trust due to violation of Section 25 of the AVAT Act, 2003,
Rule 14(3) of AVAT Rules 2005 and Section 9(2) of the CST Act, 1956. The petitioner denied
such violation against each and every charges. Mr. A. Waheb, the listed witness of the
department supported the stand of the petitioner that there were no violation of provisions of
Acts and Rules. 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
Page No.# 11/18
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
inquiry officer went beyond the charges which he cannot do.
16. The inquiry officer without discussing the relevant provisions of the Acts and Rules
merely on surmises held that the charges were proved against the petitioner. The said
findings in my considered opinion are merely on suspicion and presumption as the inquiry
officer could not pin point the specific violation of the ingredients specified under the
provisions of the Acts and Rules in order to satisfy the conditions for misconduct,
insubordination, breach of trust etc. In Narinder Mohan Arya Vs United India Insurance Co.
Ltd reported in (2006) 4 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 concept of fair play in action is the basis. [See
Sawai Singh V. State of Rajasthan (5) The enquiry officer is not permitted to travel beyond the
charges and any punishment imposed on the basis of a finding which was not the subject
matter of the charges is wholly illegal. [See Director (Inspection & quality Control) Export
Inspection Council of India & Ors. Vs. Kalyan Kumar Mitra & Ors. (6) Suspicion or presumption
Page No.# 12/18
cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere
with the findings of the fact of any tribunal or authority in certain circumstances. [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
submission of Mr. Gogoi.
18. The disciplinary authority on the basis of the said enquiry report imposed penalty of
withholding two increments with cumulative effect. The respondent No.4 as the disciplinary
authority while passing the impugned order dated 22.11.2010 held that all the charges
related to violation of provisions of laws and rules and the inquiry officer found all the
charges proved. The disciplinary authority accordingly imposed the penalty. The disciplinary
authority, if it is not the inquiring authority under Rule 9 sub Rule (9) of the Assam Services
(Discipline 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
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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 employee to prove his innocence and a breach of the
principles of natural justice. In Union of India -Vs- Bishamber Das Dogra (Supra) it was held
that in case the inquiry report had not been made available to the delinquent employee it
would not ipso facto vitiate the disciplinary proceeding unless the delinquent employee
established that real prejudice was caused to him by not furnishing the inquiry report to him.
In the present case, the inquiry report was admittedly served on the petitioner alongwith
the order of penalty passed by the disciplinary authority but not before passing the penalty
order. If the said ratio of Managing 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 20/2009/132 dated 22.3.2011 which is reproduced
Page No.# 14/18
hereinbelow:-
"GOVERNMENT OF ASSAM
FINANCE(TAXATION)DEPATMENT
nd
NO.FTX.20/2009/132 Dated Dispur, The 22 March,2011
READ: The appeal petition dated 21.2.2011 submitted by Shri Siba Prasad Sarma, Superintendent
of Taxes under Rule 15 of Assam Services(Discipline & Appeal) Rules, 1964 and show cause issued to
the Delinquent Officer vide No. NO.FTX.20/2009/17 dated 6..4.2009 and reply to the show cause by
Delinquent Officer vide No. 63, dated 18.4.2009.
ALSO READ: The report of the Inquiry 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 its mind and passed the order. On perusal of the appellate order it is not at all discernible that the appellate authority applied its mind. Accordingly same is liable to be set aside.
23. The petitioner was promoted to the post of Assistant Commissioner of Taxes vide notification No.FTX 178/2000/Pt-III/232 dated 28.3.2011 after the appeal preferred by him Page No.# 15/18 was disallowed vide order dated 22.3.2011. Subsequently vide notification No. FTX 178/2000/Pt-III/249 dated 14.9.2011 the said promotion order was cancelled. The said cancellation was done on the basis of the Govt. O.M No. ABP 57/87 dated 17.10.1987 read with the order issued vide No. FTX 20/2009/66 dated 22.11.2010 inflicting penalty of 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 striking down two provisions of the Government of India (Department of Personnel and Training) Memorandum dated January 30, 1982 on the subject of promotion of officers in whose case "the sealed cover procedure"
had been followed but against whom disciplinary/court proceedings were pending for a long time as stipulated in clause 3(iii) of the said memorandum. The Tribunal held that when an employee is imposed with a penalty as a result of the disciplinary proceedings there should be a Review 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 Page No.# 16/18 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 illegal and unjustified. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct.
26. Mr. Mahanta the learned counsel for the petitioner referring the provision of Rule 7 of the Assam Services (Discipline and Appeal) Rules, 1964 stated that both the penalties of withholding of increment or withholding of promotion cannot be imposed at a time and in support of the same he referred to the decision of this Hon'ble Court in Akai Thadou (supra). In the said decision the issue was imposition of punishment under Rule 7(ii) of Assam Services (Discipline and Appeals) Rules, 1964 which prescribes the penalties withholding of increments or promotion. The disciplinary 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 Page No.# 17/18 of Mr. Mahanta in my considered opinion cannot be accepted.
27. Here 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. 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 the order vide notification No.FTX 178/2000 Pt.III/249 dated 14.9.2011 cancelling the promotion of the petitioner vide order bearing notification No. 178/2000 Pt. III/237 dated 28.3.2011 is also set aside and quashed. The respondents are directed to restore the promotion of the petitioner in terms of notification No.FTX/2000 Pt III/237 dated 28.3.2011 and pass necessary consequential order/orders to that effect. In view of the order passed in WP(C) No. 5469/2011 no further directions is required to be passed in WP(C) 657/2014 inasmuch as the relief sought therein the said writ petition is consequential to the outcome of WP(C) No. 5469/2011.
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29. The writ petitions accordingly are allowed. Interim order if any, stands vacated. No costs.
JUDGE Comparing Assistant