The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OAC) No.1584 of 2015 Pradeep Kumar Mohanty …. Petitioner Dr. J.K. Lenka, Advocate State of Odisha and Others -versus- …. Opposite Parties Mr. B. Panigrahi, ASC Mr.B.P. Tripathy, Adv. for O.P.2 CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 05.10.2023 Order No. 10. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Facts
2. Heard learned counsel for the parties. 3. The Petitioner has filed the present Writ Petition inter alia challenging the office order dtd.24.08.2013 so passed by the Government-Opposite Party No.1 and further confirmed vide order dtd.07.02.2015 under Annexure-9. 4. Learned counsel for the Petitioner contended that the Petitioner while continuing as a Financial Advisor and CAO, a proceeding was initiated against him vide Memorandum dtd.28.04.2010 under Annexure-3 with the following charges:- “Articles of Charge
Legal Reasoning
orders is before this Court in the present writ petition. 4.7. It is contended that the Tribunal while issuing notice of the matter passed an interim order on 27.10.2016 by restraining the Opposite Parties from making any recovery pursuant to the order issued under Annexures-9 & 10. 5. Mr. Panigrahi, learned Addl. Standing Counsel for the State on the other hand made his submissions basing on the stand taken in the counter affidavit so filed by Opposite Parties. It is contended that since the Petitioner during the relevant time was working as Joint Commissioner of Commercial Taxes, Sundargarh Range and he failed to discharge his responsibility as a Supervising Officer and because of that laxity, Sales Tax Officer, Rajgangpur Range managed to issue the way bill which caused financial loss to the Government, Petitioner Page 6 of 8 // 7 // has been rightly imposed with the punishment under Annexures-9 & 10 and it requires no interference. 6. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that the proceeding against the Petitioner was initiated under Annexure-3 with the charges as indicated hereinabove. This Court finds that no such charge was framed against the Petitioner fixing any responsibility in his capacity as Supervising Officer. This Court further finds that the Enquiry Officer in course of enquiry found that the present petitioner is not liable for any of the charges and the enquiry officer clearly held the concerned Sales Tax Officer, Rajgangpur solely responsible for issuance of the way bills in question. Since no such charge was ever framed against the Petitioner that he as the Supervising Officer is responsible for the loss sustained by the Government because of issuance of such way bills, this Court is of the view that ground on which the disciplinary authority differed with the finding of the enquiry officer by proposing the punishment while issuing the 2nd show cause on 14.05.2013 under Annexure-7 is not sustainable in the eye of law. 6.1. In view of such finding, this Court is of the view that no recovery can be effected from the Petitioner in terms of the order issued under Annexures-9 & 10. Accordingly, this Court is inclined to quash the order of recovery so Page 7 of 8 // 8 // indicated in the impugned order dtd.24.08.2013 under Annexure-10 and order dtd.7.2.2015 under Annexure-9. While quashing such order of recovery, this Court allows
Arguments
That, Sri Pradeep Kumar Mohanty, during his incumbency as Joint Commissioner of Commercial Taxes, Sundergarh Range, Rourkela has committed the following irregularities:- // 2 // 1. Sri Mohanty acting under the statute as the Asst. Commissioner of Sales Tax is authoried to issue way bills / accord permission for issue of way bills to the registered dealers. 2. Sri Mohanty has accorded permission for issue of way bills to M/s. Laybaa Enterprisers, TIN-21562007736 and M/s. Zeel Enterprises, TIN-21972007753 of Main Road, Rajgangpur at regular intervals during his incumbency as Asst. Commissioner of Sales Tax of Sundergarh Range. 3. Both the above named dealers have disclosed huge purchases & sales and paid very negligible amount of tax. On verification of utilization of utilization of statement of way bills submitted by the respective dealers to the office with reference to the utilization copy received from the check gate discloses wide discrepancy both in value of goods sold and kind of goods actually dispatched, which result in loss of revenue to the Government to the tune of Rs.53,66,074/-. Therefore, the following articles of charge are framed against Sri Mohanty for violation of Rule-3 of Orissa Govt. Servant’s conduct Rules, 1959. (i) properly resulting Rs.53,66,074/-. Negligence in discharging Government duty loss of Govt. revenue the tune of in (ii) Undue favour to M/s. Laybaa Enterprisers & M/s. Zeel Enterprises by way of issuing way bills at regular intervals without following the provisions of Rule-80(1)(iv) of the OVAT Rules, 2005 and the Circular NO.23138/Ct, dt.13.11.1998 issued by the Commissioner of Commercial Taxes, Orissa, Cuttack. Failure to implement statutory Rules and instructions of (iii) the higher authority. 4.1. It is contended that the Petitioner denying the allegations filed his written statement of defence and the enquiry officer after conducting the enquiry submitted the enquiry report under Annexure-5 on 31.01.2013 with the following findings:- “FINDINGS From the above exhibits it is ascertained that as per the provision of rule 80(1)(iv) of the OVAT Rules, 2005, in the present case, the Sales Tax Officer, Rajgangpur Assessment Unit, Rajgangpur was the issuing authority in the case of the dealers under reference. The dealers used to make application the STO, Rajgangpur Assessment Page 2 of 8 // 3 // Unit, Rajgangpur, in form VAT 409 along with the utilization Statement in Form VAT 403 along with the copies of the way bills utilized by them, which were earlier issued to them. After due verification from the records available, the STO, Rajgangpur Assessment Unit, Rajgangpur order for issue of way bills to the applicant dealers. The way bills are issued to the dealer on payment of prescribed fee, which is also collected by the STO, Rajgangpur Assessment Unit, Rajgangpur. As per the letter no.IX (VI)26/2009/19062/CT dtd.08/11/2012 issued by the office of the CCT(O) the Delinquent Officer was never authorized to issue way bill nor was authorized to accord permission for issue of way bills. Further in regard to the circular no.23128/CT dtd.13/11/1998, it has been instructed that “Strict watch on issue of way bills, declaration forms and issue of amendments in registration is also called for (in addition to watch on returns and admitted tax) to suspect possibility of fraudulent activates which can be checked before issue of fresh way bills/declaration forms to the dealers not paying commensurate admitted tax. When the utilized way bills are received from check gate it should be sorted out dealer wise(current way bills to be sorted first) and be cross verified at random with the fourth copy of the way bills submitted by the dealer at the time of furnishing way bill account. A close study of the above circular it is seen that the instruction have been issued to the Officer who has been authorized to issue of way bills to the registered dealers. It was the duty of the officer issuing way bills for necessary verification and examination, since the way bills are issued by the issuing authority, in the present cases of the dealers, the STO, Rajganpur Assessment Unit, Rajgangpur, is the issuing authority and the returns are also received in the office of the STO, Rajgangpur Assessment Unit, Rajgangpur, the utilized way bills are also received by him from the check gates and also the necessary verification and examination are also conducted by him. This facts are evident from the exhibit no. B, C, D, E & F. At no point of time the Delinquent Officer has issued the way bills or accorded permission for issue of way bills. Further from the letter no. IX (VI) 26/2009/19062/CT dtd.08/11/2012 it is crystal clear that neither the Delinquent Officer was authorized to issue way bill or to accord permission to issue of way bills nor the Delinquent Officer has at any time issued way bill to the dealers and also nor accorded any permission for issue of way bills. In regard to the exhibit no. D & E concerning to VATIS software, it is ascertained that when the Delinquent Officer was post as JCCT, Sundargarh range, Rourkela, the Sundargarh Range office was not connected with the Rajganpur Assessment Unit, Rajgangpur. It was only from 30/11/2009 the Rajgangpur Assessment Unit was connected with the VATIS software. Hence the same is not applicable in the present case against the Delinquent Officer. Now in regard to the charge of negligence in discharging Government duty properly resulting in loss of Govt. Revenue, the same is not maintainable since the Delinquent Officer has not issued any way bills nor accorded permission for issue of way bills to the impugned dealers and hence, the Delinquent Officer cannot be saddled with the consequent loss to the Government for issue of such way bills. The negligence, if any, was on the part of the issuing authority i.e. the STO, Rajgangpur Assessment Unit, Page 3 of 8 // 4 // Rajgangpur only. Further, it may be mentioned here that before allotting code No. To the concerned farms, the D.O. should have verified all the relevant documents/ records regarding issue of way bills. But the D.O. has acted upon without verifying relevant documents / records as a result of which Government has to sustained huge loss. In regard to the second charge i.e. undue favour to M/s. Laybaa Enterprisers and Zeel Enterprisers by way of issuing way bills at regular intervals without following the provisions of Rule 80(1)(iv) of the OVAT Rules, 2005 and the circular No.23128/CT dated 13.11.1998 issued by the CCT(O), Cuttack, the same is not tenable in the light of the above discussions and in the light of Rule 80(1)(iv) of the OVAT Rules, Circular No.23128/Ct dated 13.11.1998 and in the light of the fresh notification No.4169/CT/III(XII)/2006 dated 08.02.2006 which superseded the earlier notification regarding issue of way bills, letter No.IX(VI) 26/2009/19062/Ct dated 08.11.2012, Exhibit No.C.D.E.&F. From all the above documents, it is crystal clear that the D.O was neither responsible for the issue of way bills nor the verification of any record in relation to issue of way bills. Thereby the Delinquent Officer was not in a position to give any undue favour to both the dealers, it was only STO, Rajgangpur Assessment Unit, Rajgangpur was responsible for all the acts to be done as per the above rules and circulars. Hence, the allegation on this count is not maintainable and fit to be dropped. In regard to the third charge i.e. failure to implement statutory rules and instructions of the higher authority. The same is also not maintainable since the Delinquent Officer, as is ascertained from the submission made by the Delinquent Officer as well as the Prosecution, and the exhibits B, C, D, E &F, the D.O has never acted against the provision of rule 80(1)(iv) of the OVAT Rules nor disobeyed the instruction of the Higher Authority i.e. Exhibit-“C”, since both the Exhibits is for the STO, Rajgangpur Assessment Unit, Rajgangpur since the STO, Rangangpur Assessment Unit was the issuing authority of both the dealers and not the Delinquent Officer. Hence, the same is not sustainable and fit to be dropped. It is evident during the inquiry that the D.O has followed procedures adopted by his predecessor to issue way bill without verifying the facts which causes loss to ex-chequer”. 4.2. It is contended that the Petitioner after submission of the enquiry report was issued with the 1st show cause and while making his reply under Annexure-6, Petitioner made a prayer to exonerate him from the charges as nothing was found against him by the Enquiry Officer. However, Opposite Party No.1 without proper appreciation of the report submitted by the enquiry officer Page 4 of 8 // 5 // and the reply to the 1st show cause so submitted under Annexure-6 issued the 2nd show cause on 14.05.2013 under Annexure-7 by differing with the finding of the enquiry officer and by proposing the following punishment. “1. Censure. 2. Rs.2,68,303 (Rupees Two lakhs sixty eight thousand three hundred three) only may be recovered in monthly installment of Rs.10,000/- i.e. (5% of the estimated loss of Government revenue to the tune of Rs.53,66,074/-)” 4.3. It is contended that the ground on which Opposite Party No.1 differ with the finding of the enquiry officer is not sustainable, as no such charge was framed against the Petitioner while initiating the proceeding in question under Annexure-3 with regard to responsibility of the Petitioner as Supervising Officer being the Joint Commissioner of Commercial Taxes. 4.4. It is contended that since no such charge was framed while initiating the proceeding under Annexure-3 and Petitioner also did not get any opportunity to disprove any such charge, the ground on which Opposite Party No.1 differed with the finding of the enquiry officer while issuing the 2nd show cause under Annexure-7 is not sustainable in the eye of law. 4.5. It is further contended that the Petitioner on receipt of the 2nd show cause submitted his reply on 24.05.2013 under Annexure-8 inter alia indicating therein that since the enquiry officer found fault with the concerned Sales Tax Officer with regard to the issue of way bills and no Page 5 of 8 // 6 // charge having been proved against the Petitioner, the proposed punishment is not sustainable. 4.6. However on the face of the finding of the Enquiry Officer and the reply submitted by the Petitioner to the 2nd show cause, Opposite Party No.1 passed office order dtd.24.08.2013 under Annexure-10 by directing recovery of an amount of Rs.2,68,303/- from the monthly salary of the Petitioner @ Rs.10,000/- per month along with imposing punishment of censure. The order passed on 24.08.2013 under Annexure-10 was further confirmed by the self-same authority vide order dtd.07.02.2015 under Annexure-9. Petitioner accordingly challenging both the
Decision
the Writ Petition. 8. With the aforesaid observations and directions, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Oct-2023 17:39:58 Page 8 of 8