Telangana High Court
K.Venkateswarlu, vs The State Of Telangana on 10 July, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
1
THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No.22712 of 2017
ORDER:
This writ petition is filed seeking a Writ of Mandamus, declaring the action of 2nd respondent in imposing major punishment of stoppage of one annual grade increment with cumulative effect on the petitioner herein vide orders in CCTs Ref.No.V1/910/2009 dated 17.06.2016 and consequential confirmation orders of the 1st respondent in Memo No.20614/Vig-II(1)/2016 dated 14.03.2017 as illegal and arbitrary and contrary to the orders of Andhra Pradesh Administrative Tribunal in O.A.No.3106 of 2014 dated 29.04.2016 and consequently set aside the same.
2. Heard Mr. SannapaneniLohit, learned counsel for the petitioner, and learned Government Pleader for Revenue.
3. The case of the petitioner, in brief, as per the writ affidavit is that the petitioner while working as Deputy Commerical Tax Officer, Warangal Circle, in the erstwhile composite State of Andhra Pradesh, the then Commissioner of Commercial Taxes, Hyderabad, served Articles of Charge on the petitioner vide proceedings in CCTS Reference No.V1/910/2009 dated 28.06.2011 along with statement of imputation of misconduct in support of the charges, and list of documents, in 2 Annexures II, and III, and proposing to hold enquiry in accordance with the procedure laid down in Rule 20 of APCS(CCA) Rules, 1991 and directed him to submit explanation; that as per the articles of charge it was alleged that while he was working as DCTO, Warangal during 09.07.2008 to 11.08.2009, he showed gross negligence in duty and committed irregularities and issued misleading certificate to one dealer namely M/s AddankiVenkateswarluBeedi leaves contractor, Warangal who was on the rolls of CTO, Warangal, and that he was not a VAT dealer prior to 01.07.2008 and that he was only a TOT general deal dealer upto 30.09.2006 and that he only paid a total tax of Rs.38,510/- at 1% of Rs.38,50,920 for the quarter upto 30.09.2006 while filing TOT original returns in the month of November 2006 and that thereafter on 06.12.2008 i.e., after lapse of 2 years the said dealer appeared before the petitioner and offered to pay VAT tax i.e., the differential tax @ 3% on turnover in regard to quarter ending on 30.09.2006 already shown under general registration certificate in 2006-07; that the petitioner committed serious lapse and that the same is fortified by the certificate of CTO, Warangal dated 04.11.2008 which is silent about effective date of VAT registration of said dealer and that in those circumstances, the petitioner felt that the said dealer is VAT dealer as his turnover exceeded Rs.10,00,000/- for the months July to September 2006 and as per office order of CTO Warangal dated 30.08.2008, the DTCO is competent 3 collection authority of Profession Tax and Tax under AP VAT Act and further the collection of said Tax is within the knowledge of the then CTO, Warangal, and that the same can be evidenced from the CTOs letter dated 24.04.2009 addressed to DC(CT) Warangal and further that on the same allegation of the loss of revenue earlier a charge memo was issued and when the same was replied with all facts, the said memo was closed; that not being satisfied with the petitioner's response to the said charge memo/notice, the then CCT appointed the then Deputy Commissioner (CT), Warangal as enquiry officer and the enquiry officer submitted his report vide Rc.No.A10/101/2012 dated 02.0.2012 holding that only charge No.1 alone is proved with specific observation that there was no loss of revenue and charges II to IV are not proved; that the disciplinary authority disagreeing with the findings of enquiry officer served a disagreement factor on the petitioner stating that all charges made against the petitioner were held proved except to the extent of charge of loss of revenue due to the interest levied on dealer and accordingly vide his CCTS reference dated 29.05.2012 directed the petitioner to submit his reply and accordingly the petitioner submitted his reply/explanation to the same reiterating his earlier reply; that the then CCT vide proceedings dated 19.01.2013 imposed major punishment of stoppage of two annual grade increments with cumulative effect without appreciating the evidence on record in right perspective; and that the petitioner filed 4 appeal before the Government on 03.04.2013 and vide order in memo dated 29.10.2013, the appeal was dismissed by affirming the order of the then CCT; that questioning the punishment, the petitioner filed O.A.No.3106 of 2014 before the APAT and by judgment dated 19.04.2016 in the OA, the Tribunal has set aside the major punishment imposed vide proceedings dated 10.01.2013 of the 2nd respondent as affirmed by the 1st respondent therein vide Memo dated 29.10.2013 and remitted the matter back to the 2nd respondent for imposition of lesser punishment keeping in view the fact that the action against CTO Warangal against whom similar allegations were attributed were dropped through CCTS reference dated 14.03.2011 by specifically making an observation that no malafides are present on his part and that only negligence is attributed to the petitioner in the charges and that the respondents herein ought to have taken a lenient view in the matter of imposition of the punishment especially in the light of the fact that they have totally exonerated the CTO and further the Tribunal held that the punishment imposed is disproportional to the misconduct attributed to the petitioner; that the petitioner made a representation to the 2nd respondent vide letter dated 30.04.2016 requesting to drop the charges,; that the 2nd respondent without considering the orders of the APAT in right perspective, vide proceedings in CCTS Reference dated 17.06.2016 decided to reduce the punishment orders from withholding of stoppage of two annual grade 5 increments with cumulative effect to that of stoppage of one annual grade increment with cumulative effect without assigning any reasons other than mentioning of orders of APAT; that questioning the said orders in CCTS reference dated 17.06.2016, the petitioner filed appeal before 1st respondent on 14.09.2016 to consider his case sympathetically and to reduce his punishment to minor penalty by specifically stating that all persons involved right from CTO to the ADC have been exonerated and that the Hon'ble High Court also upheld the case of the dealer; that to the surprise of the petitioner, the 1st respondent without application of judicious mind, rejected the appeal dated 09.01.2017 and thereby affirmed the major penalty of stoppage of one annual grade increment with cumulative effect vide proceedings in Memo dated 14.03.2017; that aggrieved by the same the present writ petition is filed.
4. Learned counsel for the petitioner while making submissions on the lines of the writ affidavit would submit that the orders of imposing major penalty is contradiction to the observations made by APAT in the order dated 29.04.2016 in OA No.3106 of 2014; that there is no illegality in collecting tax from the said dealer on 06.12.2008 and that the same was done under genuine and bonafide impression and belief that the said dealer is VAT dealer and that collection of said tax amount is in the interest of revenue to the State; that there is no loss to state exchequer in revenue due to the interest levied on the said dealer and therefore the 6 2ndrespondent is not justified either in law or on facts in imposing major punishment of stoppage of one annual increment with cumulative effect against the petitioner; that there is no evidence to show that the petitioner collected the said Tax and issued certificate with malafide intention to impose such major punishment; that as per Section 14 of the AP VAT Act 2005 read with Section 2(4) of the AP VAT Rules, credit of input tax shall be admissible only on the strength of the original copy of tax invoice in prescribed format and not on the strength of the kind of certificate issued by petitioner which is nothing but a cash certificate; that none of the allegations made against the petitioner in the articles of charge would amount to lack of integrity and unbecoming of government servant; that the respondents passed the impugned orders in contradiction to the observations made by the Tribunal in OA No.3106 of 2014 dated 29.04.2016 wherein it was specifically observed that malafides are absent on the petitioner's part and that only negligence is attributed in the charges; and that the imposition of major punishment of cumulative stoppage of one annual grade increment is disproportionate to the charges leveled against the petitioner.
5. Learned Government Pleader for revenue while drawing attention to the charges leveled against the petitioner, and also the order passed by the Tribunal, and the impugned orders dated 17.06.2016 of the 2nd respondent, and 14.03.2017 of the 1st respondent, would submit that the 7 respondents have appreciated the matter in proper perspective and imposed lesser punishment against the petitioner, and the said orders do not suffer from any illegality or impropriety as alleged and therefore there is no merit in the writ petition.
6. Having considered rival submissions, and perusing the material on record, the charges leveled against the petitioner, and also the orders passed by the Tribunal in OA No.3106 of 2014 dated 29.04.2016, it is pertinent to note that the petitioner was charged with four articles of charge. The purport of the charges is that the petitioner has shown negligence to his duties and committed irregularity while issuing cash receipt dated 06.12.2008 for Rs.1,15,529 for the tax pertaining to the year 2006 in respect of M/s AddankiVenkateswarlu, Beedi Leaves contractor who is on the rolls of CTO, when an appeal filed by M/s AddankiVenkateswarlu is pending before the authorities, so as to help him in the said appeal. The enquiry officer who was the then Deputy Commissioner (CT) enquired into the matter and held that only charge No.1 was proved, and the other charges as not proved. The disciplinary authority has putforth a dissent note and held that all charges as proved and imposed major punishment of stoppage of two increments with cumulative effect and the same was affirmed by the appellate authority. The petitioner preferred Original Application before the Tribunal in OA No.3106 of 2014, and the Tribunal vide order 29.04.2016 adjudicated the 8 matter after hearing both the parties and also considering the counter affidavit filed before the Tribunal and held that the petitioner should have enquired with the CTO before accepting the tax paid by the dealer as to whether he can receive that amount and issue receipt for the same, however without doing so he accepted the amount and remitted it to the Government account, and that the petitioner could not understand the motive behind the tax paid by the dealer against whom the appeal is pending. It is further pertinent to note that the Tribunal had observed that malafides are lacking on the part of petitioner and further the CTO was totally exonerated for the similar charges, and therefore the punishment of stoppage of two annual increments with cumulative effect is shockingly disproportionate, and remitted the matter back to the 2nd respondent for taking a lenient view by imposing a lesser punishment keeping in view that the action against CTO, Warangal against whom similar allegations were attributed were dropped through CCTS reference No.VI/910/2009-II dated 14.03.2011. Pursuant thereto, the 2nd respondent vide impugned order dated 17.06.2016 imposed the punishment of stoppage of one annual increment with cumulative effect and the same was affirmed by the 1st respondent vide impugned order dated 14.03.2017. It may be noted that vide the impugned order dated 17.06.2016, it can be seen that the enquiry officer gave a finding that the petitioner did not verify whether 9 the dealer was on the rolls of the department and issued the certificate that is supposed to be issued by VAT administrating authority and though the petitioner collected differential tax and issued certificate in good faith in the interest of Government revenue, it caused the appellate authority to allow appeal instead of remanding the matter to the assessing authority and therefore the charge No.1 was proved against the petitioner; and the other three charges were held to be not proved. It can be seen from the order dated 29.04.2016 passed by the Tribunal in OA No.3106 of 2014, that there are no malafides on the part of the petitioner, and therefore the punishment of stoppage of two annual grade increments with cumulative effect is shockingly disproportionate, more so when the respondent authorities have totally taken a different view in the case of CTO by dropping the charges and exonerating him.
7. Accordingly, the writ petition is allowed, setting aside the impugned order of the 2nd respondent dated 17.06.2016, as affirmed by the order of 1st respondent, dated 14.03.2017. No costs. Miscellaneous petitions, pending if any, shall stand closed.
_____________________________ Justice Nagesh Bheemapaka 10th July, 2024 ksm