Ram Sewak Rana … v. 1. State of Jharkhand through its Chief Secretary, Ranchi. 2. Principal Secretary, Commercial Tax
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 3177 of 2019 Ram Sewak Rana … … Petitioner Versus 1. State of Jharkhand through its Chief Secretary, Ranchi. 2. Principal Secretary, Commercial Tax Department, Govt. of Jharkhand, Ranchi. Joint Secretary, Commercial Tax Department, Govt. of Jharkhand, Ranchi. 3. … … Respondents ------ CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ Mr. A.K. Sahani, Advocate : : Mr. Manish Mishra, GP-V For the Petitioner For the Respondents Mr. Raunak Sahay, AC to GP-V ----- 17 / 19.07.2024 Heard the learned counsel for the parties. 2. The petitioner has challenged the Notification contained in Memo No. 1121 dated 19.03.2019 by which 10% of his pension for ten years has been withheld under the garb of Rule 43(b) of the Jharkhand Pension Rules. The facts 3. The petitioner was appointed on 3.6.1987 as Commercial Tax Officer. He was promoted as Assistant Commissioner and thereafter to the post of Deputy Commissioner, Commercial Taxes Department on 14.09.2000 and 25.3.2009 respectively. The disputed service tenure of the petitioner which gave rise to filing of the present writ petition is in between 2006-07 when the petitioner was working as Deputy Commissioner, Commercial Taxes Department at Deoghar. It is alleged that while determining the tax for the financial year 2006-07, the petitioner has wrongly determined and allowed several claims pertaining to Input Tax Credit without JVAT-402 forms, which is one of the mandatory provisions of the Jharkhand Value Added Tax Rules, 2005, which resulted into a loss of Government exchequer to the tune of Rs. 3,45,198.85 paise. Levelling this allegation, memo of charge in Prapatra-Ka was framed and departmental proceeding was directed to be initiated against the petitioner by the resolution dated 12.11.2012. Explaining the reasons for exoneration 1 from the charges, it was stated in the reply of the petitioner that as per the provisions of the Jharkhand Value Added Tax Rules, 2005 or the Jharkhand Value Added Tax Rules, 2006, there was no provisions which casts upon the duty of the Assessing Authority to asses tax on the basis of JVAT 402 forms and the entire allegation has been levelled only due to misreading and misinterpreting of the provisions of the said Rules. It was also pleaded in the reply that dates of applications for Form-401 by the traders was within the stipulated period as per the said Rules. It was also referred in the reply that in several cases, the appellate authority assessed the taxes only on the
Legal Reasoning
basis of JVAT 401 forms. Not founding the reply satisfactory, enquiry proceeding was started and finally, the inquiry officer submitted his report on 6.6.2014 holding therein that the charges levelled against the petitioner were not proved. It was in categorical terms stated by the enquiry officer that no loss was caused to the Government exchequer and it was only a technical mistake. However, thereafter no notice or punishment order was issued and in the meantime, the petitioner stood retired on 31.12.2016. The respondent-authority again vide letter contained in memo no. 4063 dated 9.10.2015 directed the inquiry officer to revisit the matter on the point of loss caused to the Government exchequer. Again the inquiry officer submitted his report vide letter no. 190 dated 5.2.2016 that no loss was caused to the State exchequer. The inquiry officer was asked to clarify his finding on certain aspects by letter dated 6.5.2016, which was also replied by the inquiry officer vide letter no. 1697 dated 6.12.2016. After examining the matter, the Disciplinary Authority issued a show cause notice on 06.02.2017, which was also replied by the petitioner on 03.03.2017. Further, to examine the matters and verifying the earlier assessments done by the petitioner at different places, two Men Departmental Committee was constituted vide memo no. 4222 dated 20.11.2017. The report of the committee was also submitted vide memo no. 4494 dated 13.12.2017. Thereafter, second show cause notice contained in Memo No. 2988 dated 5.10.2018 was issued under the provisions of Rule 43(b) of the Jharkhand Pension Rules. The petitioner submitted his reply on 21.10.2018 requesting the Department to take a legal opinion on the issue. However, without 2 considering the same, the impugned punishment withholding of 10% pension for ten years has been awarded to the petitioner. 4. Mr. A.K. Sahani, learned counsel appearing for the petitioner assiduously assails the impugned order mainly on two fold grounds. Firstly, on the ground that there is clear cut stipulation in Rule 43(b) itself that the State Government has the right of withholding a pension or any part thereof, if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct or to have caused pecuniary loss to the Government. In the present case, there is no pecuniary loss caused on the alleged misconduct on the part of the petitioner, as has been proved in a full fledged departmental proceeding. Learned counsel submits that the enquiry officer in clear terms has returned his findings that no loss was caused at the hands of the petitioner, though there is some mistake in view of the provisions of the Jharkhand Valued Added Tax Rules, 2005 and 2006. The inquiry officer was again directed to revisit the enquiry report and upon re-appraisal of the enquiry report, once again the inquiry officer submitted the same findings that no loss was caused to the State Exchequer for the alleged misconduct on the part of the petitioner. Hence, the impugned order taking shelter of the provisions of Rule 43(b) is not applicable to the facts and circumstances of the present case. 5. The second limb for assailing the impugned order is on the ground that once the inquiry officer held that the charges were not proved against the petitioner, the impugned penalty ought not to have been imposed without assigning reasons for differing with the findings recorded by the inquiry officer. Learned counsel submits that the disciplinary authority ought to have differed with the findings of the enquiry report, but before arrival at final conclusion, the reasons for tentative difference ought to have been supplied to the petitioner, so that the petitioner could submit the effective reply. However, in the present case, the disciplinary issued the second show cause notice on 5.10.2018 asking the explanation on the points / charges, which is beyond the memo of charge dated 12.11.2013. The disciplinary authority asked the petitioner that the department has constituted a committee to examine the various assessments made by the 3 petitioner on previous occasions while he was posted at different places and it was found that the claims of the similar nature, the petitioner adopted different measures in allowing ITC claims and thereby caused a loss to the tune of Rs. 14,50,759.00 to the Government Exchequer. At this stage, learned counsel submits that the alleged report has no relevancy at all on the ground that the same was the subject matter of the charge sheet, followed by a full fledged enquiry and any report in absence of the petitioner while the petitioner was not in service is not tenable in the eyes of law. Learned counsel submits that the Statute provides that a particular thing should be done in the manner prescribed for it and not in any other
Decision
way. Hence, he prays that the impugned order is fit to be quashed and set aside and the writ petition is fit to be allowed by granting all the reliefs as prayed for by the petitioner. 6. On the other hand, Mr. Manish Mishra, learned counsel appearing for the respondents submits that the memo of the charge was framed against the petitioner on 12.11.2013, though for the charges relating to the year 2005-06. Thereafter, the enquiry was conducted and the inquiry report was submitted on 6.6.2014. Since the inquiry officer has not returned his findings on the right perspective and he has opined the punishment of warning to be inflicted upon the delinquent, which is contrary to the settled norms of the departmental proceeding, the disciplinary authority once again directed the enquiry officer to revisit the enquiry on the point of loss caused to the State Exchequer. Again the inquiry officer concurred the same findings and thereafter, another enquiry was constituted to examine the acts relating to tax assessment made by the petitioner at different places and after appreciating the entire materials, it would come to light that the petitioner has adopted different method in assessment of the several traders which has caused loss to the State exchequer to the tune of Rs. 14,50,759.00. In the meantime, the petitioner stood superannuated. The State Government had no option, but to issue notice to the petitioner under Rule 43(b) of the Jharkhand Pension Rules, which empowers the competent authority to convert the departmental proceeding which was initiated before superannuation into a proceeding under Rule- 43(b) of the Bihar Pension 4 Rules, as also it envisages continuation of departmental proceeding for the purposes of proving of the charges against the Government servant. Learned counsel for the State accordingly, submits that there is no illegally in the impugned order, as there is huge loss to the State Exchequer for the misconduct committed by the petitioner. Learned counsel submitted that no case is made out for any interference in the impugned order. Findings of the Court. 7. Having heard the learned counsel for the parties and upon perusal of the records, it appears that the petitioner was punished under the provisions of Rule 43(b) of the Jharkhand Pension Rules. First, it would be more useful to quote the provisions of Rule 43(b) of the Pension Rules, which are as under:- “43. (a) xx xx xx xx xx xx. (b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty or grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re- employment after retirement. Provided that - (a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; (b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed. 8. From a plain reading of the said Rules, it is crystal clear that punishment of withholding or withdrawal of a pension or any part of it, whether permanently or for a specified period, can be ordered only in case 5 it is found, during the course of departmental or judicial proceedings that the incumbent is guilty of grave misconduct or he is guilty of having caused pecuniary loss to the Government during his service period. 9. In the present case, in a full-fledged departmental enquiry, the finding was returned by the inquiry officer that no loss was caused to the misconduct committed by the petitioner, as the taxes have already been recovered from the traders. The disciplinary authority having not satisfied with the findings returned by the inquiry officer, again directed the enquiry officer to revisit the enquiry on the point of loss of revenue. Yet again the findings were returned by the inquiry officer that as the taxes have already been recovered, no case of loss of revenue appears to be made out against the petitioner, as is evident from the letter dated 05.02.2016 and 20.4.2017 brought on record as Annexure- 14 and Annexure-6 respectively to the writ petition. The inquiry officer is not an officer unknown to the tax matters; rather, he was in the rank of Joint Commissioner, Commercial Taxes Department. Once again, the Disciplinary Authority having not satisfied with the report of the inquiry officer dated 06.06.2014, a departmental committee consisting of two members was constituted for examination and verification of all the assessments made by the petitioner in earlier point of time at different places. As per report of the committee dated 13.12.2017, which has been brought on record as Annexure-G to the counter affidavit, second show cause notice was issued under the provisions of Rule 43(b) which resulted into the impugned punishment order. 10. However, the fact remains that as per the report of the Committee, it was found that due to misconduct, the petitioner has caused loss to the State exchequer to the tune of Rs. 14,50,459.18 in reassessing the taxes. The report further reveals that out of the said amount, Rs. 7,97,235.78 has already stood recovered / adjusted and for rest of the amount, further recovery is under process. Even if this report is found to be true for a moment, it can be said that no loss was caused to the Government on the part of the petitioner, as the recovery process is a continuing process. This report was submitted by the Committee on 13.12.2017 and it is rightly contented by the learned counsel for the petitioner that the petitioner at that 6 time was not in service and such report was prepared behind the back of the petitioner. 11. It is also the contention of the learned counsel for the petitioner that the petitioner was punished for a charge which was not mentioned in the memo of charge for which a full-fledged departmental proceeding was conducted. From perusal of the memo of charge vis-à-vis second show cause notice, it can safely be said that both are different. In the memo of charge, it was alleged that seven traders were given tax benefit without determination of JVAT 402 forms, which caused loss to the tune of Rs.3,45,198.85 to the Government, but in the second show cause, it was alleged that after examination of 27 files relating to re-assessment tax order, it was found that a loss to the tune of Rs. 14,50,459.18 was caused to the Government exchequer. Admittedly, the reassessment relating to seven traders as per memo of charge was enquired into, in which the petitioner has fully participated, but as per the charge levelled in second show cause notice relating to 27 files, the matter was not enquired into in presence of the petitioner. This is also a ground to assail the impugned order. 12. Even otherwise, the impugned order is not tenable in the eyes of law, in view of the settled propositions in the case of Punjab National Bank & Ors. Vs. Kunj Bihari Misra, reported in (1998) 7 SCC 84, wherein the Hon’ble Apex Court has settled the legal propositions in paragraph-19 thereof that once the inquiry officer held that charges against the petitioner are not proved, the disciplinary authority 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 inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. The principles of natural justice require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. 7 13. In the present case, no such settled procedure has been adopted. The disciplinary authority after revisiting the enquiry report of the inquiry officer and after the findings returned by a departmental committee, issued second show cause notice making out a case of loss of revenue, though the respondent authorities did not succeed in revisiting the enquiry, as it has come again on the record that no loss was caused to the Government exchequer. Hence, on this ground also, the impugned order suffers from illegality and infirmity which cannot be sustained in the eyes of law. 14. Thus, one of the essential ingredients of Rule 43(b) of the Jharkhand Pension Rules, required to be fulfilled for inflicting punishment is that the delinquent should be guilty of having caused pecuniary loss to the State exchequer, by his misconduct or negligence during his service period, is non-existent in the present facts of the case. The impugned order does not comply with the provisions of Rule 43 (b) of Jharkhand Pension Rules to the effect that for inflicting punishment under the said Rules, it is necessary to come to a conclusion of grave misconduct on the part of the delinquent or pecuniary loss having been caused to the Government on account of the misdeeds of the delinquent. The act of the petitioner is not come with the purview of ‘grave misconduct’, which is also one of the essential ingredients of Rule 43(b); as it has come in the enquiry report itself that due to technical error, this mistake has been occurred. Even though the re-assessment order passed by the petitioner is an appealable one. 15. In this context, the Hon’ble Patna High Court in case of Md. Fakhruddin Vrs. the State Of Bihar & Ors., reported in 2001 (3) PLJR 687 has clearly observed that without affording any opportunity of hearing and without coming to a definite finding that employee has been found guilty of grave misconduct or has caused pecuniary loss to the Govt., no order for withholding or withdrawing of pension can be passed. Here, in the present case, no case of pecuniary loss to the Government has been made out by the respondents and hence, withholding of 10% pension is not permissible. 8 16. For the foregoing discussions, this Court is of the view that the impugned order of punishment contained in Memo No. 1121 dated 19.3.2019 suffers from total non-application of mind and does not furnish any reason so as to warrant infliction of punishment on the petitioner. Hence, the impugned order dated 19.3.2019 is hereby quashed and set aside. The respondents are directed to refund the recovered amount, if any, to the petitioner, at the earliest, preferably within a period of twelve weeks from the date of receipt of a copy of this order. 15. Resultantly, the writ petition is allowed. R.Kr. (Dr. S. N. Pathak. J.) 9