M. Srinivasa Rao v. The State Of Telangana

[ 321e I HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRTY FIRST DAY OF DECEMBER TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI WRIT PETITIO N NO:20751 OF 2020 Between:

M- Srinivasa Rao, S/o M. Narasimha, Aged 50 Years,-Occ' Dy' Commercial i;offi;i o7o'ov. Commissioner of-Commercial Taxes, Abids Division Hyderabad, Telangana State.

...'ET'T.ONER AND 1, The State of Telangana, Rep. by its Principal.secretary, to the Government '

Revenue Departm6nt Secreiariit Saifabad, Hyderabad'

2. The Commlssioner of Commercial Taxes, Government of Telangana' Nampally, HYderabad.

3 i[; F;;;ieai Secretary to the Government, Revenue (Vrgilance-ll) - Oepartment State of T6langana, Secretariat, Saifahad Hvderabad' ...RESPONDENTS Peiltion under Article 226 of lhe constitution of India praying that in the circumstances stated in the affidavit filed therewith' the High Court may be pleased to issue an appropriate writ or order or Direction more particularly one in the nature of Writ of Mandamus.

A) By declaring the entire action of the respordents, particularly the entire action of the 1st respondent in issuing the present impugned order in GO Rt No 269 Rev (Vig.-ll) Dept. dated 16.10.2020 imposing a penalty of stoppage of two annual grade increments without cumulative effect wherein imposing a penalty over the petitioner inspite of recommendation from the 2nd respondent herein Le' disciplinary authority by way of report dated 28'8'2016 stating that no loss of revenue ciused to the State er-ct"iiEi-, ft*maLafide intention of the petitioner involved and report from the inquiry officer dated 19.12.2017 holding that charges are held not proved against the petitioner, is as highly illegal, arbitrary, colorable exercise of power, vindictive attitude and the very exercise of such power by the 1st respondent being an appellate authority is bad in law, contrary to provisions of

TSCS (ccA) Rules of 1991 including contrary to various judicial pronouncements in the subject matter and set-a-side or quash the same B) And Consequently, to hold that, the entire method adopted by the i st respondent in the present issue over the petitioner by usurpting the powers of disciplinary authority and ultimately imposing punishment over the petitioner vide present impugned order in G.O.Rt No. 269 Rev (Vig.-ll) Dept. dated 16.10.2020 even without taking into consideration of report of the disciplinary authority dated 28.8.2016 r/w report of the lnquiry officer dated 19.12.2017 as well as without considering the explanation dt. 1 8.6.2018 of the petitioner, representations of the petitioner dt.29.6.2020 and 9.1 .

2020 is bad in law and contrary to the provisions of ccA Rules and further direct the respondents to reconsider the entire issue in terms of statutory Rules, ccA Rules as well as judicial pronouncements in the subject matter and on that basis consider the case of the petitioner for promotion to the post of commercial rax officer w-e.f. the day on which his immediate junior was promoted, with all consequential benefits. lA NO: 1 OF 2020 Petition under lSectron 1 51 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to suspend the operation of the present impugned order in Go Rt No. 26g Rev (Vig.- ll) Dept. dated 1 6.'1 0.11020 of the j st respondent pending disposal of r/y'p.

THE HONOURABLE SMT JUSTICE T'MADHAVI DEVI w.P.NO. 207sL oF 20/20 ORDER:

In this writ petition, the petitioner is seeking a writ of mandamus to declare the action of the respondent No'I in order in G.O.Rt.No.269 Rev (Vig-II)'

issuing the imPugned Department, dated 16' lO '2O2O imposing a penalty of stoppage of two annual grade increments without cumulative effect in spite of the recommendation from the respondent No'2 by way of a report d ated 28'08'2016 stating that there was no loss of revenue caused to the State Ex-Chequer and no malafide intention of the petitioner was involved and in spite of the report from the Inquiry Officer dated 19'12'2O17 hotding that the charges are not proved against the petitioner' as illegal' arbitrary, colorable exercise of power' vindictive attitude and alsoinexercisethepowerofdisciplinaryauthoritythoughhe was an appellate authority, as illegal' arbitrary and to set aside or quash the same and direct' the respondents to grant all consequential benehts including promotion to the petitioner on par with his junior and to pass such other order or orders in the interest of justice

TMD,J w.P.No. 2o7 s] oJ 2o2o 2.

Brief facts leading to the filing of the present writ petition are that the petitioner was appointed in Direct Recruitment zLs Assistant Commercial Tax Officer (ACTO), in the year 2OOl after participation in the selection process initiated by APPSC, Flyderabad. Subsequently, he was promoted by transfer as Deputy Commercial Tax Officer (DCTO) during the year 2OlO. It is submitted that a charge memo dated

16. 1O.2O15 w-as issued to the petitioner on the basis of the report of the Director General (Vig. & Enforcement Depart.ment), dated 04.06.12O15, framing two minor charges for rrlleged irregularity in finalizing the assessment on 24.112.2013 tor the tax period November, 2Ol2 to October, 2Ol3 ol a particular dealer and called for the explanation from the petitioner. The petitioner, though was of the opinion that rhe Central Vigilance Commission or Central Government was a third party and could dictate to the disciplinary authority, submitted his explanation on 27.ll.2Ol5i and O7.O5.2O 16 respectively, [o the respondent No.2, denying the alleged charges in toto and requested tr: drop further action in the matter. However, the respondenl. No.2 being a disciplinary authoriry, instead o[ passing of orders at his . level, sent a report enclosing the explanation of the petitioner to the respondent No. 1 vide his letter in CCT,s

7VD,J w-P-No. 2O7s1 ol2U2o Ref.No.TS/V2 122r12015, dated 28'O8'2O16' explaining the details of the case and requested the respondent No'l to take a lenient view in the matter on the ground that there was no malafldeintentiononthepartofthepetitionerwithregardto the charges framed and that there was no loss of revenue to the exchequer of the Government' It is submitted that the respondent No.

l, without considering the said explanation of ttre petitioner and the report of the respondent No'2' referred the matter to the Commissioner of Inquiries' Government of Telangana, Hyderabad, to conduct a detailed inquiry into ttre matter and the petitioner appeared before the Commissioner of Inquiries and defended his case with all the documentary evidenceandafteradetailedinquiry,theCommissionerof Inquiries submitted his report oo 19 '12 '2017 to the respondent No.l concluding that the charges against the petitioner are not proved.

In spite of the same, the respondent No'l differed with the findings of the Commissioner of Inquiries and accordingly' issued a disagreement note calling for his explanation and also as to why a suitable penalty should not be imposed' Fursuant to the said dlsagreement note, the petitioner submitted his detailed explanation on 18'06 2O 18, ventilating his grievances \1 ..

TED,J w.P.No. 2075, of 2O2o findings of the Commissioner of Inquiries and drop further action in the, matter. However, the respondent No.1 did not take any action irnmediately thereafter and after 2yz years, r_rpon the directions of this Court in W.p.No. 13g53 of 2O2O, dated lO.O9.2O2O, directing the respondents to conclude the proceedings against the petitioner within three monlls, the respondent No.1 passed the final orders i_e., impugned order dated 16. 10.2020 imposing the penalty of stoppage of two annual grade increments without cumulative effect against the petitioner. It is submitted that by virtue of the said orrler, the petitioner will be deprived of his legitimate promotion as rlTO for a further period of two years and many of his juniors w,culd be promoted as CTO.

Thus, according to the learned counsel for the petitioner', even though there was a recommendatrc,n from the respondent No.2 to drop the proceedings and the Commissioner of Inquiries has held that the charges hzrve not been proved, the action of the respondent No.l. even though he was an appellate authorit_y, in imposing the punishment, is illegal, arbitmry and assumption of the powers ,tf the disciplinary authoritSr is accordingly discriminato ry.

TtrD,.'

V.P.Nd. 20751 of 2O2O /, 3.

karned counsel for the petitioner has drawn the attention of this Court to the charges levelled against th€ petitioner and the recommendations of the respondent No'2 and the findings of the Inquiry Officer and the disagreement note issued by the respondent No'l' He placed reliance upon the following judgments in support of his contentions' l.surjitGhoshVs.Chairman&Managi''gDirector, United Commercial Bank and Othersr;

2. G.Murali Dhar Vs' Chairman & Managing Director' BCIL, HYderabad2;

3. Nagaraj Shivarao Karjagi Vs' Syndicate Bank Head OfBcer, ManiPal and Anothera;

4. K.Bheek5ra Vs' The State of Telangana and Othersa;

5. N.Rama Rao Vs' The State of Telangana and Anothers.

4.

l,earned Government Pleader for Service-Il placed reliance upon the averments made in the counter affidavit and submitted that the petitioner had passed orders in Form VAT 3O5, in his orders number in A O'No'59927' dated 24'12'2013 r AIR 1995 sc 1053 2 1996 (11 ALD 897 3 AIR 1991 sc 1507 4 w.P.No-26067 of2018, dt 02't2.2019 s w.P.Nos.27689 & 27718 of202l ' dr t I lt.2D2t

TMD,J w.P-No. 2o7sI of 2O2o in the case ,rf M/s.Sai Srinivasa Bottles private Limited, Nagole, Hyderabad, allowed ineligible input tax credit of Rs_ 10,,15,703lbased on the list furnished by the dealer on their own TIN number mentioning different dealers names and without verifying thc originar rax Invoices. It is submitted t hat the petitioner, being the quasi-judicial authority, has not taken any precaution and failed to cross-veri$r the purchases ancl simply allowed the input tax credit claimed by the dealer on the list furnished by them on their own TIN numbers while mentioning different deatrers narnes illegalty and it is against the conditions of the Go.rernment issued in the Government Memo No.267841C't'I(tl/2Ot2-8, dared tO.OZ.2Ot3, resulting in a loss of revenue to a tune of Rs. 1O,4S,7 03 / _ to tho State exchequer.

It is submitted that as per the Vigilance sche me, the V & E department has the power to enquire into any cornplaint ol corruption, misconduct, lack of integrity, or other kinds ot malpractices or misdemeanor on the part of a public siervant and he referred to Rule 12 of CCA & Conduct Rules to .submit that the Government has jurisdiction to take any action ergainst [he members of the State Services.

TUD'J W.P,!h. 20751 oI 2o2t) recommendations made in the V & E report by following due procedure and therefore, the Government examined the report submitted by the Commissioner (CT) in detail and decided to entrustthecasetotheCommissioneroflnquiries.Itisfurther submitted that after going through the inquiry report' the disciplinary authority, i.e., the Government has decided to pass a disagreement note and thereafter, after giving the petitioner reasonable opportunity of hearing, has passed the impugned order vide G.O.Rt.No.269' dated 16'10'2O2O imposing of penalty of stoppage of two annual grate increments without cumulative effect. It is submitted that it iS a minor penalty and therefore, it doesnotrequireadetailedenquiryunderRule20ofCCS(CCA) Rules.

Further, it is submitted that the appeal against the order of the disciplinar5r authority does not lie with the respondent No. 1, but it lies before the Government under the grounds mentioned therein and therefore, the petitioner has not been denied an opportunity of appeal before the respondent No'l' Furt}rer,asregardsthedelayindisposingoftheappeal,itis submitted that it was due to the pendency of j udicial proceedings before the Administrative Tribunal and this Court and is not because of any reason attributable to the respondents.

TND,J V.P,No. 20Zst of 2O2O liable to be dismissed. The learned governmen t pleaderr for the respondents thus supported ttre impugned order. 5.

Having regard to the rival contentions and the material on record, t-his Court finds that as per tJ.O.Note No' 111o7/S':r-C/99, dated o1.03.1999, the Governrnent of Andhra Pradesh, General Administration (Ser.C) Department, has issued instructions that in aJI disciplinarJ/ cases, a hnal decision on the enquiry report shall be taken b1, the concerned disciplinary authority alone and in consultation with the Andhra pradesh vigilance commission/Andhra pradesh pubric Service Commission whenever it is necessar5r as per rules and they shall n ot seek the views/remarks of the Hezrds of Departments on the reports of the Enquiry Ofhcer. Furtht:r, it is noticed that ttre respondent No.

2 has gone into the report of the Vigilance and Enforcement and after veri$ring the same , it is observed that the petitioner has passed the assessment order allowing the ineligible input tax credit from the November, 2O12 to ocrober, 2or3 in the case of M/s.sai srinivasa Bottles private Limited and against the same, the revision orders have been passed by the t)C (CT), Saroornagar division, date(l 2g.04.2016 and in accordance therewith, the CTO Saroornagar has pa.

/tr TUD'J w.P.No. 20751 oI 2O2O in TIN No-28739217498, dated effectual orders vide orders and raised the VAT demand of 30.O4.2016 in A'O'No'22931 Rs.43,46,835/- for the above tax period and the dealer has paid the balance amount of an amount of Rs'31,19,417 l- ard towards ITC as on Rs.l2,27,4lal- has been adjusted 31.12.2013 and therefore, there is no loss of revenue to the exchequer of the Government' From the above' it is noticed that the respondent No.2 has only considered the order passed by the petitioner, which has been revised by the DC and the mistake or error which has been committed by the petitioner hasbeenrevised,buthewasalsosuggestedalenientview againstthepetitioner.

TXD,J W.P-No. 2075, ol 2O2O whether the TIN number pertains to the Self TIN number or the selling dealer number and that he has mentioned the serf rIN number instead of the selling dealer TIN number, wh.ich is a gross violation. There is no comment about the hndings of the Commissioner of Inquiries that the Enquiry Officer has failed to consider the important documents before submitting his inquiry report. Therefore, this Court is of the opinion that disagreement factors havr: not been taken and have not been properly communicatr:d to the petitioner. Even though the punishment of withholding of two annual grade increments without cumulative effect is a minor penalt5r, the respondents ought to have conducted a detailed enquiry into the same as requirecl under Rule 20 of O(lS (CCA) Rules.

6.

Irr the case of Nagaraj Shivarao Karlagi. (cited supral, the I{on'ble Supreme Court has held as under: "j9.

The corresponding neu bank referred to in Section t hqs been defi.ned. und.er Section 2A of the Ac,.. to mearL a banking companA specified_ in ofumn t of the First Sclrcdttle of the Act and includes the Sgrulicate llank. Sectton 8 entpowers Lhe Gouernment to issue directions in regard to rnetters of policA but there cannot be any unifonn policg u:ith regard to d{ferent disciplinary matters and. much less th<zre conLd be ang policg in atuarding punistatgnt b the d.elirLqu<)nt ofJice..s in diferent cases. Tte punisfunent to be imposed utlte'tler nloLor or major depends upon the nattre of eut,ry

TMD'J W.P.N0. 2075 1 of 2O2o case and. the grauitg of tLe miscondud proued' The authorities taue to exerci'se their judiciat discretion hauing regard to the farlrs ord' ciratmstonces of each c:ase Theg cannot .rct und'er the dictation of tle Central Vigilarrce Comrnission or of the Centrol Gouernment' No third partg like tlrc Central Vigilance Commission or the Central Gouerrtment could dictate the disciplinary authoitg or the aryellate autfaitA as to hou theg shoutd exercise their pouer and uhat punishment they stauld impose on the delinquent officer. (See: De Smitlts Judicial Revieta of Admi strutiue Action, Fourth F'ditio.. p' 309)' The impugned directiue of the Ministry of Finanre is' therefore' ullDttA unthout jurisdiction and ploi g contrary to thE staaiory Regalations goueruing disciPlinory natters'"

7.

Further, in the case of K'Bheekya Vs' The State of Telangana and Others (cited supral, the learned sing'le judge has observed as under:

'A perusol oJ Rule 21(2) of tlrc CCA Rt es indicates that tle disciplinary authoritg alone hns to disagree uith the findings of tle enqtiry ofpr' The State Gouemm.ent itself can initiate tle disciplinary proccedings against its emplogees' But no Pou'er is rrested- urith the Gouentment to disagree u-'ith the rtndings of tle enqliry officer. ThereJore, te impugfted' m'emo daled 3 5'2018 iss;.lr,d blJ the 1st respondent disagreetng tltith the findings of tle enqtiry offcer is uithout @'npeten'e an'd antrary to Rute 21(2) oI the CCA Rules and hene' tlw same is liable to be set oside'" 8Further, in N'Rama Rao (cited' suprol ' lhe learned single judge has observed as u{rder:

t2 7YD|t W.P.rIo. 2o7st of 2O2o "6. lEomed. counsel for the petitioners h,,s conte'nded thqt the enqtairy olficer l:r:s held tlnt the charges are not prttued and gaue a specif.c finding ttnt the charges leueled agatnst all th.e delinquent officers were not found guiltg of tle sand charge. But strangelA, the di,sciplirnry autlaitg lutd imposed a major punishment uide proceedings dt.O7-08-2O21 Luherein the penaltg of stoppoge of tuo increments urith cutnuldtiue effect is imposed on the petitioners uhiL:h is corttrqry to the lau laid. doun by tlrc Hon'ble SUpreme t:ourt repofied tn Lau Nigam u. Cltqirtnan and. Managing Director, I.T.I. Linited. reported in AIRONLINE 2006 SC 34,?, utherein the Supreme Court has held as under: 'The <arrclusion oJ tJ@ High Court uas tnntrary to lhe consisten, ueu tdken bg thi.

s Court t]1at in clEe tfu, ,llsciphnary autharitg dillers with tle uiera taken bg tfui inquiry oJfic.er, he rs bound ta giue d noti.e settirlg out hi:; tetltotiue (:otblusions to the appellant. h is onlg afier heartngr tlTe appeLLqrt that the discblinary authoritg t oul.d. at aj,!. driue at a final fuLling of guilt. Tllereafre.

9.

ln vicu, of the same, this Court is also satislied that the Governrnent has not issued a proper disagreement n.ote and the disciplinary authority, as well as the appellate authority, have not considered the contentions of the petitioner in. proper perspective but have decided that the petitioner has cornmitted misconduct and has imposed punishment. This Court is therefore satisficd that the punishment is not justihed in this matter. Ac,:ordin gly, the Writ petition is allowed and the \ .-.

TUD,.'

w.P.I{o. m751 of 2om respondents are therefore directed to pass appropriate orders of promotion to the petitioner on par with his juniors and also grant all consequential benefits to the petitioner expeditiously, preferably within a period of two (2) months from the date of receipt of a copy of this order.

10. Accordingly tlle writ petition is allowed. There shall be no order as to costs.

1 1. Miscellaneous petitions, if any, pending in this w,rit petition, shall stand closed.

SD/. K. AMMAJI ASSISTANT REGISTRAR // / //TRUE COPYII ECTION OFFICER To The Principal Secretary, to the Govemment Revenue Department Secretariat Saifabad, Hyderabad, State of Telangana. - The Commiisioner of Commercial Taxes, Government of Telangana, Nampally, Hyderabad.

The Principai Secretary to the Governrnent, Revenue (Vigilance-ll) Department State of T6langana, Secretariat, Saifab-l9..Hyderabad. One CC to SRI ARVIND KUMAR KATA, Advocate [OPUC] iwo CCs to GP FOR SERVICES-Il, High Court for the State of Telangana, at Hyderabad. [OUT] Two CD Copies 0t PSK.

CJP

HIGH COURT DATED:3111212024

ORDER

!i:a)r.4/- )A WP.No.20751 of 2020 ( dl'( o 2 B tit zll:5 * * k-) oE;r41,;"

ALLOWING THE WRIT PETITION WITHOUT COSTS {u It'

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