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2016 (2) TMI 768 - GUJARAT HIGH COURT

2016 (2) TMI 768 - GUJARAT HIGH COURT - TMI - Levy / recovery of penalty form the heirs of deceased officer - Disciplinary action against the sales tax officer - failure to verify the correct address of the person sought registration at fake address - it was revealed that M/s.Umiya Industries committed an evasion of Sales Tax by practicing bogus billing activities.- Held that:- the petitioner passed away on 14.01.2008, and his heirs are on record. Nineteen years have passed since the Chargesheet .....

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ther innings, after the death of the employee. - this Court does not consider it appropriate to remand the matter to the Disciplinary Authority. - SPECIAL CIVIL APPLICATION NO. 2109 of 2002 - Dated:- 23-2-2016 - SMT. ABHILASHA KUMARI, J. FOR THE PETITIONER : MS VIDHI J BHATT, ADVOCATE FOR THE RESPONDENT : MS VACHA DESAI, ASSISTANT GOVERNMENT PLEADER C.A.V. JUDGMENT 1. By way of this petition under Article 226 of the Constitution of India, the petitioner (since deceased, through his legal heirs), .....

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16.08.1971. 2.2 One M/s.Umiya Industries (Oil Mill) had tendered an application for getting a Registration Certificate under Section 30 of the Gujarat Sales Tax Act, 1969, on 23.10.1993. The Sales Tax Officer No.II, Junagadh, forwarded the said application to the petitioner, for scrutiny. It is the case of the petitioner that on 13.11.1992, he heard the partner of M/s.Umiya Industries personally, scrutinised the documents on record and after visiting the business premises, on 14.12.1992, directe .....

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a Industries committed an evasion of Sales Tax by practicing bogus billing activities. 2.4 A Chargesheet was issued to the petitioner on 24.01.1997. The single article of charge against him was to the effect that while discharging his duties at Unit No.2, Junagadh, the petitioner, in his capacity as Sales Tax Inspector, was asked to examine the application of M/s.Umiya Industries, Vanthali, for obtaining a Registration Certificate under the local and Central Sales Tax Acts. While examining the a .....

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tate Government. Thus, the petitioner was charged with breach of subrule (1)(i) and (ii) of Rule 3 of the Gujarat Civil Services (Conduct) Rules, 1971 ( the Conduct Rules for short). 2.5 The petitioner submitted his reply to the Chargesheet, on 18.03.1997. However, as the inquiry did not proceed further, the petitioner preferred Special Civil Application No.852 of 1998. This Court, by an order dated 30.06.1998, directed the respondents to review the suspension period of the petitioner within a p .....

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firm was still functioning, whether there is any change in the type of business and whether the requisite registers have been maintained, or not. The additional charge also included the aspect that the petitioner did not conduct any verification with regard to the representations made by the firm and though the actions of the firm were found to be suspicious, the petitioner showed dereliction of duty by not initiating appropriate action against it. The petitioner gave a detailed reply to all the .....

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Notice, in detail. The Disciplinary Authority did not accept the reply of the petitioner and vide the impugned order dated 05.11.2001, imposed the penalty of deduction of ₹ 200/per month from the pension of the petitioner, for a period of five years. Aggrieved thereby, the petitioner has approached this Court by way of the present petition. 3. Ms.Vidhi J.Bhatt, learned advocate for the petitioner has submitted that as per subrule (2) of Rule 10 of the Gujarat Civil Services (Discipline and .....

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he notice only reiterates allegations No.(2), (6) and the additional charge. The Disciplinary Authority has not recorded its tentative reasons for disagreement with the findings of the Inquiry Officer. The Disciplinary Authority has exercised power in a manner not provided for in subrule (2) of Rule 10 of the Discipline and Appeal Rules, resulting in a breach of the said mandatory provisions. It is submitted that the noncompliance of the above mandatory provisions is fatal, therefore, the procee .....

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cer, is to grant the delinquent an opportunity to persuade the Disciplinary Authority not to disagree with the conclusions reached by the Inquiry Officer, for the reasons given in the Inquiry Report. Unless the Disciplinary Authority gives specific reasons for disagreement in the Show Cause Notice, it would be difficult for the delinquent to satisfactorily give reasons as to why the Disciplinary Authority ought to have agreed with the findings of the Inquiry Officer. In the absence of any ground .....

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that the Disciplinary Authority, while issuing the second Show Cause Notice, did not give any tentative reasons or record its own findings for disagreeing with the findings of the Inquiry Officer. If the Disciplinary Authority had anything substantial against the petitioner, it would have recorded tentative reasons and findings for disagreeing with the Inquiry Officer s report. The act of issuing the second Show Cause Notice is only a farce to show that the Disciplinary Authority has complied wi .....

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itional charge. On 5.11.2001, the Disciplinary Authority passed the penalty order of deducting ₹ 200 per month from petitioner s pension for a period of five years. In the said order, the Disciplinary Authority has simply stated that the representation made by the petitioner on 8.5.2000 to the second Show Cause Notice dated 11.4.2000, is rejected. 8. It is submitted that the findings of the Inquiry Officer were in favour of the petitioner. If the Disciplinary Authority wanted to overturn t .....

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Officer. The penalty order dated 5.11.2001 is, therefore, perverse as no reasons or evidence is discussed for rejecting the representation of the petitioner. 9. It is submitted that by way of filing an affidavitinreply the respondents have tried to justify the penalty order dated 5.11.2001, by supplying fresh reasons. That, it is settled law that the Government must defend its action on the basis of the order itself and cannot improve or justify its stand by filing a subsequent affidavit. 10. It .....

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of the Commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Otherwise, it would result in a violation of the principles of natural justice. 11. Further, Rule 12 of the Discipline and Appeal Rules, also states that the Disciplinary Authority is required to provide a copy of the advice taken from the Gujarat Public Service Commission. .....

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heirs of the petitioner may not be able to represent the case effectively. Therefore, in the interest of justice the proceedings may not be remanded back to Disciplinary Authority from the stage of the second Show Cause Notice. 13. Lastly, it is submitted that the petitioner was suspended from duty on 2.2.1996 and the suspension order was revoked on 2.9.1998. The respondent authority, while passing the penalty order has not said anything about the manner in which the suspension period is require .....

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4 SCC 153 (v) D.L.Sharma v. D.S.Shukla and or his Successor in office and Anr. Special Civil Application No. 7007 of 2001 decided on 12.12.2007 15. The petition has been opposed by Ms.Vacha Desai, learned Assistant Government Pleader. It is submitted that a huge scam was unearthed by the Collector, Junagadh, involving ten employees. After proper verification, necessary action was initiated, resulting in delay in the initiation of proceedings. However, it cannot be contended that the petitioner w .....

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are specifically stated. In the reasons for disagreement, the first line states the facts whereas the second line states the reason that sufficient care is not taken while determining the amount of surety based on the tax to be calculated annually. Therefore, the first line refers to what is done and the second line is about what ought to have been done . Thus, the reasoning is there. 18. The second reason for disagreement is about the spot inspection on 02.02.1993. It is stated that there is r .....

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its own findings as required under Rule 10(2). Moreover, as required under Rule 12, a copy of inquiry report, reasons for disagreement and a brief statement of the reasons for such non acceptance, and the advice of the GPSC were communicated, therefore, the requirements of the said rule were fulfilled. Learned Assistant Government Pleader submits that the advice of the GPSC dated 30.06.2001 was sent along with the penalty order. As the matter is an old one, due to lack of record, no specific sta .....

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r of penalty, as stated in the order. It is submitted that, as tentative reasons for disagreement have been given by the Disciplinary Authority, the impugned order ought to be confirmed. Learned Assistant Government Pleader further contends that considering the nature of the charges, the punishment imposed is just and proper and may not be interfered with. 20. Regarding the judgments cited on behalf of the petitioner, it is submitted that they merely lay down propositions of law, which have been .....

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ven his own findings. In this regard, reference may be made to subrule (2) of Rule 10 of the Discipline and Appeal Rules, which reads as follows: 10. Action on the Inquiry report: (1) ... ... ... (2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose. (3) ... ... ... (4) ... ... ... (emphasi .....

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and its own findings on such charge. 23. It is settled law that the findings recorded by the Disciplinary Authority while disagreeing with the findings recorded by the Inquiry Officer, are to be tentative in nature, as has been laid down by the Apex Court in several judgments. 24. In Yoginath D.Bagde v. State of Maharashtra And Another (supra), the Supreme Court has held as below: 29. We have already extracted Rule 9(2) of the Maharashtra Civil Services (Discipline & Appeal) Rules, 1979 whi .....

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into Rule 9(2) and it has to be held that before disciplinary authority finally disagrees with the findings of the Inquiring Authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the Inquiring Authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent office r the "TENTATIV .....

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relied upon on behalf of the petitioner, the same principle of law has been reiterated in the following manner: 14. In Ram Kishan case disciplinary proceedings on two charges were initiated against Ram Kishan. The enquiry officer in his report found the first charge not proved and the second charge was partly proved. The disciplinary authority disagreed with the conclusion reached by the enquiry officer and a show cause was issued as to why both the charges should not be taken to have been prove .....

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sagree with the conclusions reached by the enquiry officer for the reasons given in the enquiry report of he may offer additional reasons in support of the findings by the enquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show cause on the basis of which the findings of the enquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the concl .....

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ce have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opport .....

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thers (supra), the Supreme Court has held as below: 18. Even if the enquiry officer had, in his first report, proceeded on surmises and conjectures as was observed by the High Court, the disciplinary authority could disagree with the said finding but it was, therefor, required to record its reasons. No reason was recorded. SubRules (2) and (3) of Rule 10 aim at achieving the same purpose. If sufficient materials are not available on record, a direction for holding a further enquiry may be issued .....

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ings but even, therefor, he is required to record reasons in support thereof. The requirement of subrule (2) or subrule (3) having not been complied with, the enquiry officer could not have arrived at a different finding. The High Court unfortunately did not consider this aspect of the matter. 19. When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedures laid down under subRules are required to be strictly followed. It is now well set .....

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ab National Bank And Others v. Kunj Behari Misra (supra), similar principles of law have been propounded. 28. From the principles of law enunciated in the abovequoted judgments of the Supreme Court, read with the provisions of subrule (2) of Rule 10 of the Discipline and Appeal Rules, it can clearly be deduced that in the event that the Disciplinary Authority disagrees with the findings of the Inquiry Officer, it is incumbent upon it to record tentative reasons for such disagreement and to provi .....

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uch an opportunity of hearing would be ineffective and inadequate and more in the nature of an empty formality, giving the impression of an outward compliance with the principles of natural justice, even when the spirit and substance of such compliance is missing. 29. Per contra, it has been argued on behalf of the respondentState that the reasons for disagreement have been stated in the impugned order, inasmuch as the first line of the Show Cause Notice dated 11.04.2000, contains the grounds fo .....

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d article of charge has merely been reiterated and it has been stated that the petitioner did not take sufficient care in determining the surety amount based on the estimated annual tax. These can hardly be stated to be tentative reasons for disagreement with the findings of the Inquiry Officer, which are based on voluminous evidence discussed in the Inquiry Report. In fact, no tentative reasons have been given by the Disciplinary Authority in support of the conclusion arrived at, that the petit .....

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titioner has not cancelled the Registration Certificate issued to the businessman by taking steps under the Sales Tax Regulations and has, thus, indirectly helped the businessman for his billing activities and shown a serious dereliction of duty which raises doubts upon his integrity. 32. The above statements are more in the nature of conclusions rather than tentative findings or reasons for disagreement with the findings of the Inquiry Officer. It is not the conclusion that the Disciplinary Aut .....

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with, as no reasons have been recorded. It is clear that the Disciplinary Authority has failed to communicate the reasons for disagreement, as laid down by the Supreme Court in the abovequoted judgments. 34. The net result of the above discussion is that, due to the lack of tentative reasons being communicated to the petitioner, he is unable to make a representation addressing those specific reasons. The opportunity of hearing granted to the petitioner can hardly be called effective or adequate .....

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linary Authority. 36. Having arrived at the above conclusion, this Court does not consider it appropriate to deal with the contention regarding the nonPage communication of the advice of the GPSC before passing the impugned order. At this stage, it only remains to be decided whether the matter is to be remitted back to the Disciplinary Authority, for fresh hearing from the stage of the issuance of the reasons for disagreement, or not. 37. On this aspect of the matter, learned counsel for the pet .....

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