TMI Blog2021 (7) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... more than one way. Despite the same, respondent without any more proceeded to issue registration relying upon the recommendation made by the Inspector. Therefore, abdication of duty, failure to perform duty in the manner provided is writ clear in this matter. The tribunal allowed the application and set aside order of punishment only on the ground that allegation against respondent did not amount to misconduct. The reason assigned by tribunal is that Section 10 of the KST Act vested discretion in the Registering Officer about conduct of enquiry and as the officer in this case had got the application particulars verified through the Inspector, who recommended for registration, his decision to issue registration was taken in good faith, which cannot be termed as misconduct - It was also observed that disciplinary authority cannot presume that failure of respondent to verify documents before registration resulted in the dealer indulging in malpractice. The ground that the allegation against respondent did not amount to misconduct does not carry any merit, so also, finding that the charge is not distinct or definite - further in the instant case, respondent was a Commercial Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm No.1 as required under Rule 9(6) of the Karnataka Sales Tax Rules, 1957 (hereinafter referred to as KST Rules ). Due to his omission, the State was unable to recover tax from the assessee. This constituted misconduct under Rule 3 of Karnataka Civil Services (Conduct) Rules, 1966. 3. The respondent filed his reply; not satisfied with the same, Disciplinary Authority ordered holding of departmental enquiry against respondent and appointed Enquiry Officer. After following prescribed procedure, Enquiry Officer submitted a report holding respondent/employee guilty of misconduct. After giving opportunity on the enquiry report and considering the representation submitted by respondent, the Disciplinary Authority passed an order dated 20.06.2007 inflicting punishment of stoppage of one annual increment with cumulative effect under Rule 8 (iii) of CCA Rules. Departmental appeal preferred against order of punishment was also dismissed on 08.07.2009. 4. Aggrieved by the said order, respondent/employee filed Application No.4996/2009 before the Karnataka State Administrative Tribunal, Bengaluru. The application came to be allowed by order dated 18.11.2016 by setting aside the punishm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine in the service causing serious effect in the maintenance of law and order. 7. Learned counsel further submitted that Section 10 (1) of KST Act stipulates a minimum turnover of not less than ₹ 2.00 lakhs in a year for a dealer to get himself registered under the Act. However, respondent herein issued registration certificate to assessee even before commencement of business. She further submitted that Section 10-A (2) of the KST Act, mandates appropriate enquiry by registering authority and only on satisfaction about correctness of particulars mentioned in the application and same being in order, proceed to issue registration. However, respondent in this case by merely relying upon the recommendation made by Inspector, issued registration. Admittedly, same is contrary to the stipulation of law. Failure to adhere to express stipulations of law amounts to misconduct. Commission of misconduct, was held established in departmental enquiry. However, Tribunal on erroneous interpretation set-aside the punishment, hence, sought for quashing the order of Tribunal. 8. On the other hand, learned counsel for respondent opposed the writ petition and sought to justify the order p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y applicant in Form No.1 mandated under Rule 9(6) of KST Rules, and also failing to follow directions in the Circular issued by Commissioner. 13. In the statement of imputations, it is specifically mentioned that respondent failed to compare copies of family ration card, rent agreement etc., with their originals. That registration was issued even though applicant had not yet commenced business; that there was failure to notice that initial capital mentioned was ₹ 15,000/-. But, rent agreement produced mentioned payment of advance amount of ₹ 15,000/- leaving no capital available for business. It was further stated that registration was issued even before assessee obtained license from Agricultural Produce Market Committee and registration under the Shops and Commercial Establishments Act 14. In the reply submitted to articles of charge, respondent stated that application for registration submitted by assessee was replete with all mandated particulars. The applicant had enclosed copy of rent agreement and ration card. It was attested by two registered traders and applicant was introduced by Sri. Prakash Bhat, Sales Tax Practitioner. The application was referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 10. .. .. (6) The Registering authority receiving the application shall, if he is satisfied after making such inquiry as he thinks necessary, that the particulars contained in the application are correct and complete, register the dealer and grant him a certificate of registration in Form 2 after the same is duly countersigned by the Joint Commissioner of Commercial Taxes and also a copy of such certificate for every place business within the State other than the principal place of business mentioned therein. Such certificate shall be held by the dealer subject to the provisions of the Act and these Rules and to the restriction and conditions specified in that certificate. 19. From a careful perusal of above provisions, emphasis on the dealer to have commenced business prior to making application for registration cannot be lost sight of. From the enquiry report, it is seen that, applicant had mentioned date of commencement of business as 01.04.1999, which was reported by the Inspector to be incorrect. Respondent, who was the responsible officer, was required to have taken hint to make further enquiry even from the report submitted by the Inspector. 20. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion against respondent did not amount to misconduct. The reason assigned by tribunal is that Section 10 of the KST Act vested discretion in the Registering Officer about conduct of enquiry and as the officer in this case had got the application particulars verified through the Inspector, who recommended for registration, his decision to issue registration was taken in good faith, which cannot be termed as misconduct . Therefore, tribunal held that charge is neither definite nor distinct as required under Rule 11(3)(i) of the CCA Rules. The tribunal also took note of the observations of the Hon ble Supreme Court in i) Union Of India Vs. J Ahmed reported in 1979(2) SCC 286; ii) Ravi Yeshvanth Bhoir Vs. District Collector, Raigad Ors. 2012(4) SCC 407; iii) Zunzarrao Bhikaji Nagarkar Vs. Union of India Ors. 1999(7) SCC 409 and iv) Ananth Kulkarni Vs. Y.P. Education Ors. 2013 (6) SCC 515. It was also observed that disciplinary authority cannot presume that failure of respondent to verify documents before registration resulted in the dealer indulging in malpractice. 28. In view of the discussion made above, the ground that the allegation against r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion the scope and object of the statute which is being construed. An act which is detrimental to public interest would be misconduct . Considering the scope and purpose of the Act and the Rules, it is held that respondent failed to perform duty cast on him to cause enquiry and verification of completeness and correctness of the statements in the application and therefore, same constituted misconduct . 33. Unlike in Zunzarrao Bhikaji Nagarkar s case, respondent in this case has not contended that the error on his part occurred due to his mistaken understanding of any law. 34. In Ananth Kulkarni s case, the Hon ble Supreme Court held that departmental enquiry cannot be sustained unless there are specific definite and clear charges. In the instant case, it is held that charge against respondent is clear, distinct and definite. Therefore, none of the decisions taken note of by the tribunal justify the impugned order passed by it. 35. Lastly, reference to or reliance upon rule 181 whereunder the function of verification of particulars in the application for registration is assigned to the Commercial Tax Inspector under the Karnataka Value Added Tax Rules, do not avail to res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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