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TMI Blog2023 (6) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... and without following the procedure prescribed under the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991 (for short "the CCA Rules, 1991"). 3. Initially, the petitioner was appointed as Record Assistant in Commercial Tax Department on 31.10.1985 in the office of the Commercial Tax Officer, VI Circle, Vijayawada. Later, he was promoted and presently he is working as Goods and Services Tax Officer (GSTO) since 01.08.2022 in the office of Assistant Commissioner, Vijayawada. The petitioner is active member/office bearer of Employees Association. 4. The petitioner was suspended from service vide proceedings dated 23.01.2023. The main allegations leveled against the petitioner are that, the information on suppliers, payments made to them, and their bank accounts given by the ESI Director to the Intelligence Unit of Vijayawada-I Division in 2021 which was not only acted upon but also suppressed by not sharing it with other divisional JCs and other state CT Departments for verification. In cases where action was initiated by the Intelligence Unit of Vijayawada-I Division, there were inordinate delays and dilution of the cases. Despite the suppliers cancelling their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings for ventilating the grievances of the employees before the Hon'ble Governor, as such, both the show cause notice for derecognization of the Association and suspension proceedings of the petitioner are issued on the same date i.e. on 23.01.2023. The petitioner contends that, the employees who have put-forth their grievances before the Hon'ble Governor are under strong attack by the State Government by way of derecognition of the concerned Association and suspension of petitioner is to suppress their voice. Hence, the petitioner challenged the suspension proceedings File No. CTVW1-12-21/1/2023-DC-VJW1-3 dated 23.01.2023 in the present writ petition. 7. Respondent No. 3 - Joint Commissioner of State Tax, Vijayawada Division filed counter affidavit, denying material allegations, inter alia contending that, to conceal his misconduct, the petitioner is trying to connect two unrelated incidents and attempting to mislead this Court. The petitioner was placed under suspension only after conducting a discreet preliminary enquiry and final enquiry during the course of which prima facie material came to light wherein the legitimate revenues of the State got effected and the disciplinary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sly i.e., during the year 2021 the petitioner worked as GSTO in the Office of the Assistant Commissioner (ST), Samarangam Chowk Circle, Vijayawada. So far as the enquiry reports dated 16.04.2021 and 19.12.2022 are concerned not at all in relation to employment of the petitioner. More so, both the enquiries were conducted behind the back of the petitioner and till date, the petitioner is not served with any show cause notice calling for explanation or a charge memo. 12. The learned Senior Counsel would submit that the impugned orders are punitive in nature and to terrorize the employees not to express their grievances and issuance of the impugned orders is nothing but depriving the fundamental rights of the employees under Article 19(1) of the Constitution of India. The petitioner never worked at the Intelligence Unit of Vijayawada-I, more particularly, during the subject period as alleged. He would submit that without conducting both the enquiries as per the Rules contemplated under the CCA Rules, 1991 and without giving any opportunity to participate in the enquiries, the enquiry reports, on which the impugned proceedings were effected, cannot be sustained and acted upon. The imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of employment of the petitioner, as stated in the affidavit. 15. The learned Government Pleader would further submit that the Government vide Memo dated 14.07.2022 appointed OSD, Revenue Department, as an Enquiry Officer to conduct enquiry into all the aspects involved in the case of adverse report published in the newspaper against the officers and staff of the Intelligence Wing, JC (ST), Vijayawada-I Division. Accordingly, the OSD, Revenue Department, conducted enquiry and submitted an enquiry report on 19.12.2022. The Intelligence Wing of Vijayawada-I Division took up verification of 21 dealers out of 27 dealers. After verification of the returns filed by 21 dealers, show cause notices were issued in the months of March and June, 2020. However, orders were passed in January and April, 2022. The huge gap of nearly two years between the receipt of information and crystallizing the demands on suppressed turnovers watered down the very effort of taking up verification of the data because in most of these cases the orders were not served properly and only the minor part of demands raised was collected. He would also submit that out of 21 cases, 5 dealers cancelled their regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf. Judicial Review seeks to ensure fairness in treatment and not fairness of conclusion. It ought to be used to correct manifest errors of law or procedure, which might result in significant injustice; or in case of bias or gross unreasonableness of outcome. 26. These principles are succinctly elucidated by a three-judge Bench of this Court in B.C. Chaturvedi v. Union of India (1995) 6 SCC 749 p. 12) in the following extract: a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether Rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical Rules of Ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicatory powers has a right to know the evidence to be used against him. This principle is firmly established and recognized by this Court in Dhakeswari Cotton Mills Ltd. v. Commissioner of Income Tax, West Bengal (1955) 1 SCR 941). However, disclosure not necessarily involves supply of the material. A person may be allowed to inspect the file and take notes. Whatever mode is used, the fundamental principle remains that nothing should be used against the person which has not brought to his notice. If relevant material is not disclosed to a party, there is prima facie unfairness irrespective of whether the material in question arose before, during or after the hearing. The law is fairly well settled if prejudicial allegations are to be made against a person, he must be given particulars of that before hearing so that he can prepare his defence. However, there are various exceptions to this general rule where disclosure of evidential material might inflict serious harm on the person directly concerned or other persons or where disclosure would be breach of confidence or might be injurious to the public interest because it would involve the revelation of official secrets, inhibit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous to the wide range of sensitive information that the investigation report submitted Under Regulation 9 may cover, ranging from information on financial transactions and on other entities in the securities market, which might affect third-party rights. The report may contain market sensitive information which may impinge upon the interest of investors and the stability of the securities market. The requirement of compliance with the principles of natural justice cannot therefore be read to encompass the right to a roving disclosure on matters unconnected or as regards the dealings of third parties. The investigating authority may acquire information of sensitive nature bearing upon the orderly functioning of the securities market. The right of the noticee to disclosure must be balanced with a need to preserve any other third-party rights that may be affected." 19. In reply, the learned Senior Counsel would submit that the petitioner(s) are not discharging their duties at subject Intelligence Wing for the alleged period 2020-2021, which posts are not meant for collection of tax and he had been discharging duties during the subject period at other than tax collection units, as suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 20 as far as may be. (2) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation of submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant. (3) The disciplinary authority shall consider the representation, if any, submitted by the Government servant and record its findings before proceeding further in the matter as specified in the sub-rules (4) and (5) below. (4) If the disciplinary authority having regard to its findings on all or any of the articles of charge is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the circular issued by the Central Vigilance Commission (CVC), if any enquiry or anyaction is proceeded by the disciplinary authority basing upon anonymous letters/complaints by third parties or news reports, the authority under obligation to issue prior notice to concerned delinquents before any enquiry/action. The detailed enquiries were already conducted and basing upon the enquiry reports, the present impugned orders were passed. In these circumstances, the suspension of the petitioner from service does not warrant, since the entire enquiry was already completed. The said ratio was laid down by the Hon'ble Supreme Court as well as this Court in the following decisions on which the learned Senior Counsel for the petitioner placed reliance. 24. In M.Paul Anthony case, the Hon'ble Apex Court observed as under: "29. Exercise of right to suspend an employee may be justified on facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by "suspension syndrome" and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse which has often resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority should also take into account all available material as to whether, in a given case, it is advisable ((2013) 16 SCC 147, (1994) 4 SCC 126, AIR 1964 SC 787) to allow the delinquent to continue to perform his duties in the office or his retention in office is likely to hamper or frustrate the inquiry. (Ashok Kumar Aggarwal's case). Ordinarily, an order of suspension is passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated, and the nature of the evidence placed before it, on application of mind by the disciplinary authority. (Ashok Kumar Aggarwal; Bimal Kumar Mohanty29)." 26. As seen from the impugned order, it is crystal clear that no show cause notice and no charge memo were issued to the petitioner to submit his explanation and no opportunity was given to him to participate in the enquiries said to have been conducted by the respondents. The fact remains that the enquiries were not conducted as per the CCA Rules, 1991 without complying the procedure as contemplated under Rule 20 of CCA Rules, 1991. The subject inquiries were conducted purely basing upon newspaper reports published in the year 2021, the news report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive exigencies, but due to the enquiry reports which are unknown to the petitioner, the impugned proceedings were issued for other reasons particularly as punitive measure only. In view of the facts and circumstances as stated supra, the judgments relied on by the learned Government Pleader are not applicable to the case on hand. 30. In view of the foregoing discussion and the law laid down by the Hon'ble Apex Court as well as this Court in the judgments relied on by the learned Senior Counsel for the petitioner, I am of the opinion that the respondents did not follow due process of law before issuing the impugned orders, which would attract the principle of malice in law as the impugned order was not based on any real factor germane and it was based upon the allegations made against a unit of Department in a news item published in a Telugu Newspaper on 04.04.2021. Admittedly, the petitioner never discharged his duties at the subject unit and his duties do not at all relate to collection of tax as alleged. 31. In the `result, W.P.No. 2893 of 2023 is allowed, declaring the action of the 2nd respondent in issuing impugned proceedings vide File No. CTVW1-12021/1/2023-DC-VJW1-3 date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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