Allahabad High Court
State Of U.P. Thru. Addl. Chief Secy. ... vs Santosh Kumar on 30 May, 2025
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2025:AHC-LKO:33453-DB Reserved on:- 07.05.2025 Pronounced on:- 30.05.2025 Court No. - 1 Case :- WRIT - A No. - 4810 of 2025 Petitioner :- State Of U.P. Thru. Addl. Chief Secy. State Tax Anubhag 1 Lko. Respondent :- Santosh Kumar Counsel for Petitioner :- C.S.C. Counsel for Respondent :- Vivek Saxena Hon'ble Attau Rahman Masoodi,J.
Hon'ble Rajeev Singh,J.
(Per Rajeev Singh, J.)
1. Heard Sri Anand Kumar Singh, learned Standing Counsel appearing for the petitioner and learned counsel for the respondent.
2. The instant writ petition is preferred by the petitioner praying as under:-
"Issue a writ, order or direction in the nature of certiorari quashing the impugned judgment and order dated 02.04.2024 passed by learned State Public Services Tribunal, Indira Bhawan, Lucknow in Claim Petition No. 36 of 2021 (Santosh Kumar Vs. State of U.P. and others)."
3. Learned Standing Counsel appearing for the petitioner has submitted that learned State Public Services Tribunal passed the impugned order in illegal and erroneous manner after relying on the decision of Hon'ble Supreme Court passed in the case of Roop Singh Negi Vs. Punjab National Bank and others reported in (2009) 1 SCC (L&S) 398 and on the other judgments, which are not applicable in the facts and circumstances of the case of the respondent as there was no illegality in the punishment order dated 26.10.2020 issued against the respondent.
It has further been submitted that the respondent was posted as Assistant Commissioner, Sector-22, Commercial Tax, Kanpur for the period from 07.08.2015 to 05.07.2019. The Department received a complaint through an undated e-mail asking therein the status of action taken against the official in relation to the earlier complaint dated 03.10.2018. An enclosed audio recording in relation to the conversation of the respondent with Mr. Suresh Singh Lodhi owner of M/s Sarvashree HighTech Industries was also provided along with the aforesaid complaint. After examining the said complaint, enclosed audio recording and other materials, the respondent was placed under suspension on 30.01.2020 by initiating departmental proceeding against him and Joint Commissioner (Corporate Cell), State Tax, Varanasi-1 was appointed as Inquiry Officer. A copy of the charge-sheet duly approved by the disciplinary authority to the Inquiry Officer in two sets for service of the same upon the delinquent respondent was issued vide letter dated 03.02.2020 by Additional Commissioner, Grade-2 (I.M.C.), Commercial Tax, Headquarter, Lucknow. In the said charge-sheet, four charges were framed as regards the misconduct of the respondent on the basis of contents of the aforesaid complaint as well as audio recording. In the said charge-sheet, it was also expected from the respondent to submit a reply before the Inquiry Officer till 20.02.2020 and in case he failed to do so, it would be presumed that he did not want to give reply; it was also expected from him to inform the Inquiry Officer whether he wants opportunity of personal hearing or not.
It has next been submitted that the delinquent employee moved an application on 17.02.2020 before the Inquiry Officer prior to last date of submission of reply requesting therein for inspection of record. The opportunity was provided to him for inspection of the relevant documents by fixing the date as 31.03.2020, but the proceeding could not be executed on 31.03.2020 as lockdown was imposed due to Pandemic COVID-19. Later on, the delinquent-respondent submitted his reply through e-mails on 09.05.2020 and 29.05.2020. The Inquiry Officer, after considering the charge-sheet, evidence annexed with the charge-sheet and the reply of the respondent, prepared an Inquiry Report dated 25.06.2020 showing therein that Charge Nos.1 and 3 are fully proved, however, Charge Nos.2 and 4 are partially proved. The respondent was asked to submit a representation by issuing a show cause notice dated 18.08.2020, in response to which, he submitted representation dated 25.08.2020. Thereafter, the disciplinary authority issued Office Memorandum dated 26.10.2020 reinstating the respondent in service with punishment of stoppage of two increments with cumulative effect. Feeling aggrieved, the respondent challenged the order dated 26.10.2020 before the State Public Services Tribunal and learned Tribunal set aside the aforesaid punishment order.
Learned State counsel has vehemently submitted that in the said inquiry, it is found that the respondent committed dereliction of duties in not canceling registration of the firm of Mr. Suresh Singh Lodhi within six months from the prescribed date. The audio recording as regards the conversation of the respondent with Mr. Suresh Singh Lodhi was transcribed and it is mentioned in the charge-sheet that the respondent was pressurizing Mr. Suresh Singh Lodhi for fulfilling his demand. It has thus been submitted that as the case laws relied by learned Tribunal are not applicable in the present case, the impugned order is liable to be set aside.
4. Learned counsel for the respondent has opposed the prayer of the petitioner. He has submitted that the date of complaint, which was annexed with the charge-sheet, is not mentioned. The alleged complaint clearly shows that it was given in the year 2019 because there is a description about one complaint which was given to Central Vigilance Commission i.e. Complaint No.122210/2019/vigilance-7. In the alleged complaint, there is reference of e-mails those were sent to the Department on 03.10.2018 and on 04.10.2018, but these complaints were never provided to the respondent.
5. The complaint received by the Department, which was part of the charge-sheet, is as under:-
"Dear Sir, We had made a complaint one month earlier regarding CORRUPTION and TAX EVASION related to Hi-Tech Industries and Mr. Santosh Kumar, A.C., Sector 22, Kanpur Zone. We have not yet received any reply regarding action taken against the ...... (please see email and attached evidence).
We have thus made R.T.I. application CCELK/R/2019/50023 regarding the same.
We have also made a formal complaint to Central Vigilance Commission via complaint No. 122210/2019/vigilance-7.
We kindly request you to do the needful and communicate what action your department has taken regarding the same.
Thanks, Aditya Apporva ...............
Dear Tax Officer.
This... Tax evasion by Hi-Tech Industries, Kanpur.
GST...
3. I had informed the department via EMAIL on October 4th 2018 (see attached email copy).
4. I can be seen via EVIDENCE attached the HiTech industries supplied me GOOD (INVOICE EWAYBILL and PHOTOGRAPH PROOF attached).
5. GST TAX EVASION of Rs. 218880 has been done with my firm (GST amount CHARGED but not paid to Government)
6. As per estimation of the designated sales tax officer Mr. Santosh Kumar, the firm has evaded taxes in Crores of Rupees.
7. Also upon my personal meeting with the Mr. Samosh Kumar in Kanpur designated TAX officer for the firm. I was assured that appropriate action shall be taken.
8. During the meeting Mr. Santosh Kumar spoke to the proprietor of Hi-tech industries Mr. Suresh Singh Lodhi and acknowledged that he was personally... and purpose fully delaying any action because Mr. Sunil Singh has been getting hint regularly. 1 have attached Audio Recording of the same taken.
9. I have since then filed an official POLICE Complaint FIR No. 787/18 dated 20-10-2018 (FIR COPY Attached).
10. BIHAR POLICE duly did their investigation and found all evidence to be TRUE and SUBSTANΤΙAL.
11. An arrest warrant of Mr. SURESH SINGH, SUNIL SINGH and SUSHIL SINGH has been issued by BIHAR POLICE under Section 409 and 420.
12. The... business and dress in Kidwainagar has be duly vacated their additional showroom and Factory and Rania, Kanpur has also been found vacated and down. They are officially announced as WANTED CRIMINALS by the ...............
As a responsible citizen it is my duty to inform you regarding the same. I also request you to inform us and assists us for the arrest of above mentioned persons.
I also request on top take immediate action against the FIRM along with the designated officer Mr. Santosh Kumar as it clearly seems that he has connived with the persons.
... and update regarding the actions taken by the... my complaint via email on 3rd October....
अभिप्रमाणित ह०अ० (अजय कुमार सिंह) डिप्टी कमिश्नर (आई०एम०सी०) वाणिज्य कर मुख्यालय, लखनऊ।"
6. Learned counsel for the respondent has further submitted that the charge-sheet issued after approval of the State Government shows that it was issued on the basis of presumption.
7. The relevant part of the charge-sheet is as under:-
"शिकायत में उल्लिखित तथ्यों के अनुरूप, आप द्वारा श्री सुरेश सिंह लोधी (सर्वश्री हाईटेक इण्डस्ट्रीज, कानपुर के फर्म स्वामी) से वार्ता में व्यापारी के पक्ष में उसके विरुद्ध की जाने वाली कार्यवाही को विलम्बित किया गया। फर्म सर्वश्री हाईटेक इण्डस्ट्रीज, 133/O/54 डी-1 सब्जी मण्डी, किदवई नगर, कानपुर के द्वारा माह जुलाई-2017 का जी०एस०टी०आर०-3बी दिनांक 22.05.2018 को एवं माह जुलाई-2017 के जी०एस०टी०आर०-1,माह अगस्त-2017, सितम्बर-2017 व अक्टूबर-2017 के जी०एस०टी०-3बी दिनांक 23.05.2018 को विलम्ब से दाखिल किये गये है एवं माह नवम्बर-2017 से माह अगस्त-2018 तक के जी०एस०टी०आर० 3बी / जी०एस० टी०आर०-1 भी देय तिथि, तक दाखिल नहीं किये गये थे। विलम्ब से दाखिल किये गये रिटर्न एवं दाखिल नहीं किये गये रिटर्न के सम्बन्ध में आपके द्वारा समयान्तर्गत कार्यवाही न करते हुये विलम्ब से कार्यवाही दिनांक 17.12.2018 को एक साथ की गयी। साथ ही आपके द्वारा व्यापारी के पंजीयन निरस्तीकरण की कार्यवाही भी विलम्बित की गयी। उक्त कार्यवाही से शिकायती पत्र में उल्लिखित तथ्यों की पुष्टि होती है। इस प्रकार आपके द्वारा अपने कार्य एवं दायित्वों का निष्ठापूर्वक निर्वहन नही किया गया है।"
8. Learned counsel for the respondent has next submitted that it is admitted case of the Department that the charge-sheet was provided to the respondent and reply to the said charge-sheet was asked from the respondent to be submitted by 20.02.2020. On 17.02.2020, a request was made by the respondent to the Department for providing inspection of the relevant documents, which was allowed. Thereafter, the date i.e. 31.03.2020 was fixed for inquiry proceeding, but due to COVID-19 pandemic as there was lockdown in the country, the proceeding could not be proceeded. Later on, the respondent submitted his reply to the charge-sheet through e-mails on 09.05.2020 and 29.05.2020. During the time of pandemic COVID-19, the inquiry report dated 25.06.2020 was prepared by the Inquiry Officer in utter violation of the provisions of Rule 7(iv) of U.P. Government Servant (Discipline and Appeal) Rules, 1999 and without taking into consideration the law laid down by Hon'ble Supreme Court in the case of Roop Singh Negi Vs. Punjab National Bank and others (supra) as well as the law laid down by this Court in the case of Naresh Singh Vs. State of U.P. and others reported in 2013 (1) ESC 429 (Allahabad)(DB)(LB), which clearly provides that in the departmental inquiry, mere production of the documents is not enough, the contents of the documentary evidence must be proved by examining the witnesses, and in absence of the examination of any such witness in support of the contents of the documents relied on by the Inquiry Officer in support of the charges leveled against the delinquent, the findings recorded by the Inquiry Officer against the delinquent on the basis of these documents are not sustainable.
It has also been submitted by learned counsel for the respondent that the Department failed to establish it's case as it is undisputed fact that Goods and Services Tax (GST) Act was implemented in the month of July, 2017 and the Commissioner of the Department also issued a circular directing the officials not to take coercive steps against the firms/businessmen and also pursue them for submission of returns accordingly. Reference of the said circular dated 12.10.2017 issued by Headquarter is also mentioned in the reply in response to the Charge No.1, but neither it was dealt by the Inquiry Officer nor by the Punishing Officer.
Submission of learned counsel for the respondent was that the alleged complaint was given in the year 2019, but the date of the alleged complaint is not mentioned in the entire proceeding. Reference of earlier emails dated 03.10.2018 and 04.10.2018 is mentioned in the said complaint, but the same was also not provided. It is admitted case of the Department that as the returns for the period from July, 2017 to March, 2018 were not submitted by M/s Sarvashree HighTech Industries, Kanpur, the firm was informed about the same, in response to which, the proprietor of the firm informed that he forgot the e-mail ID and password, hence, GSTR-3B was not submitted. In this connection, he was called to appear in the office for updation of e-mail ID and password carrying with him his PAN Card and an application for request of updation. Mr. Sunil Singh s/o Mr. Suresh Singh Lodhi owner of M/s Sarvashree HighTech Industries appeared in the office and he was instructed how to update an ID and its password, as such, the same was updated on 06.04.2018 by the respondent. The businessman submitted returns for the months i.e. July, 2017, August, 2017, September, 2017 and October, 2017 in between 22.05.2018 to 23.05.2018.
Learned counsel for the respondent has also submitted that the notice for cancellation of registration of the firm was issued on 26.07.2018, thereafter, registration was cancelled on 20.08.2018 in accordance with the law. The Assessment Order u/s 62 of G.S.T. Act was passed by the respondent-officer on 17.12.2018.
Learned counsel for the respondent has submitted that witness in relation to the audio recording as regards the conversation occurred between aforesaid two persons was never produced before the Inquiry Officer. It was obligatory on the part of the Department to proceed in accordance with provisions of Rule 7(iv) of U.P. Government Servant (Discipline and Appeal) Rules, 1999 and the law laid down by Hon'ble Supreme Court in the case of Roop Singh Negi Vs. Punjab National Bank and others (supra).
9. A specific question was asked from learned Standing Counsel about the date, on which, the alleged email was received. But, in response to the same, he was unable to specify the date.
10. We have considered the submissions of learned counsel for the parties and gone through the contents of the order passed by U.P. Public Services Tribunal on 02.04.2024, the punishment order dated 26.10.2020, the charge-sheet, reply given by the respondent to the charge-sheet, the alleged undated email complaint, the inquiry report dated 25.06.2020, the notice dated 18.08.2020 as well as the representation submitted before the appointing authority against the inquiry report.
11. We find that it is undisputed fact that the date of the complaint in question is not discussed by the Department either in the charge-sheet or in the inquiry report. In the said complaint, there is a reference of complaint dated 03.10.2018 as well as 04.10.2018 but admittedly those were not provided to delinquent employee. The alleged complaint does not reveal the date and time as to when the conversation was taken place. It is evident from the record that G.S.T. Act was implemented in July, 2017 and the circular dated 12.10.2017 was also issued by the Commissioner, G.S.T. regarding not to take any coercive step against the businessmen. In the present case, detailed returns were filed by Mr. Suresh Singh Lodhi (proprietor of M/s Sarvashree HighTech Industries) and his registration was cancelled by the respondent-officer on 20.08.2018. As a result, proceedings u/s 62 of G.S.T. Act were initiated and issued assessment order by imposing fine of Rs. 32,29,451/- vide order dated 17.12.2018. It is also evident from the Inquiry Report that despite a request of the respondent neither personal opportunity of hearing was provided to him nor department provided any witness to prove its case by the Inquiry Officer and the Inquiry Report was prepared during the pandemic COVID-19. Rule 7(vii) of U.P. Government Servant (Discipline and Appeal) Rules, 1999 as well as the law laid down by Hon'ble Supreme Court in the case of Roop Singh Negi Vs. Punjab National Bank and others (supra) states that once the delinquent employee denied the charges, the Inquiry Officer shall proceed to call the witnesses to prove the contents of the documents. Paras 14, 15 and 23 of the judgement passed in the case of Roop Singh Negi Vs. Punjab National Bank and others (supra) are as under:-
"14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.
15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.
23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."
12. It is also evident that the charge-sheet was issued on the basis of presumption with the averment that "असिस्टेन्ट कमिश्नर, वाणिज्य कर खण्ड-22, कानपुर के पद पर तैनाही अवधि के दौरान वर्ष 2018-19 में आपके विरुद्ध श्री आदित्य अपूर्व द्वारा भ्रष्टाचार की शिकायत के साथ प्रेषित ऑडियो रिकार्डिंग में वार्तालाप के श्रवण पर आप द्वारा उत्तर प्रदेश सरकारी सेवक आचरण नियमावली, 1956 का उल्लंघन किया जाना प्रतीत होता है।"
13. With above observations, we are of the view that the Tribunal has rightly appreciated the evidence/material available on record. Therefore, there is no illegality in the order of the Tribunal.
14. Accordingly, the writ petition being misconceived stands dismissed.
Order Date :- 30.05.2025 Arpan