State Of U.P. Thru Prin. Secy. Tax & ... vs Kedar Nath & Anr.
2015 Latest Caselaw 2313 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 1
 

 
Case :- SERVICE BENCH No. - 24 of 2008
 

 
Petitioner :- State Of U.P. Thru Prin. Secy. Tax & Anr.
 
Respondent :- Kedar Nath & Anr.
 
Counsel for Petitioner :- Standing Counsel
 
Counsel for Respondent :- C.S.C.,P.P. Srivastava
 

 
Hon'ble Dinesh Maheshwari,J.
 
Hon'ble Abhinava Upadhya,J.
 
(Per Dinesh Maheshwari, J.)
 
	The petitioners have preferred this writ petition against the order dated 09.01.2007 as passed by the State Public Services Tribunal, Lucknow ('the Tribunal') in Claim Petition No. 1205 of 2004 whereby, the Tribunal has disapproved and set aside the penalization order dated 09.11.2004 passed against the claimant (respondent herein), who was working as Trade Tax Officer with the petitioners. 
 
	The relevant background aspects of the matter are that the claimant-respondent, while being posted as Trade Tax Officer, Ghazipur, was served with a charge-sheet dated 31.07.2003 on the allegations that on 09.05.2003, he allowed passage of a vehicle bearing Registration No. UP-65-H-0192 which was loaded with 300 pieces of paraffin wax weighing about 15,000 kilograms without payment of trade tax resulting in a huge revenue loss to the State. It was also alleged against the respondent that he made unauthorized alterations in the yatra-sheet so as to facilitate passage of the goods without payment of trade tax. The respondent's contention had been that the alterations were made in the yatra-sheet by the Tent Munsi and that too had been of correcting the obvious mistake in the yatra-sheet where the consignee was stated to be 'M/s Bansal Industries, G-466, Road No. 9A, Vishwakarma Industrial Area, Jaunpur' although the consignee was located at 'Jaipur' and not at 'Jaunpur'. The inquiry officer did not accept the submissions of the respondent and concluded that the alterations in the yatra-sheet had been unauthorized and resulted in loss of revenue to the State of U.P. The respondent submitted a representation before the disciplinary authority against the report of the inquiry officer but the disciplinary authority agreed with the findings of the inquiry officer and proceeded to impose the punishments in the manner that the respondent was awarded a censure entry with stoppage of five increments with temporary effect for a period of five years; and further, a recovery of a sum of Rs. 1,50,000/- was also ordered against the respondent.
 
	On the matter being taken up before the Tribunal in the Claim Petition No. 1205 of 2004, the Tribunal took note of the crux of the matter and directed the presenting officer appearing on behalf of the present petitioners to verify, if the consignee M/s. Bansal Industries was a firm situated at 'Jaunpur'; and required an affidavit to be filed in this regard.
 
	The affidavit filed before the Tribunal pursuant to the directions aforesaid made it crystal clear that the entire case against the respondent was founded on a wrong premise inasmuch as there existed no such firm at Jaunpur in the State of Uttar Pradesh and the goods were in fact consigned from Calcutta for the firm situated at Jaipur in the State of Rajasthan. The stand of the respondent, directions of the Tribunal and the contents of the affidavit filed in response to such directions have been succintly indicated by the Tribunal in its impugned order dated 09.01.2007 as follows :
 
"8. 	The petitioner has contended that the Yatra Sheet was filled by the Munshi. The cuttings were done by the Tent Munshi. It was contended further on behalf of the petitioenr that no enquiry was convened whether or not the consignee M/s. Bansal Industries was at all any assessee at the place of Jaunpur. The goods were sent by one Pragati Udyog. The consignee was Bansal Industries, G-466, Road No. 9A, Vishwakarma Industrial Area, Jaipur. The whole address nwas not cut and only the district Jaipur was inserted in place of Jaunpur. It was essential to make an enquiry whether any dealer in the name of Bansal Industries was at Jaunpur or whether any Vishwakarma Industrial Area, G-466, Road no. 9A at Jaunpur. As the consignee firm was not a firm in existence at Jaunpur, there was no occasion for cutting and wrongly mentioning it as tax free goods.
 
9.	During the course of hearing, vide order dt. 12.12.06, the learned Presenting Officer was directed to verify whether the consignee Bansal industries was any firm situated at Jaunpur and the learned P.O. Was directed to file an affidavit to this effect.
 
10. An affidavit was field on 21.12.96 by Mr. Rajneesh Gupta, officiating Commissioner, Trade Tax to the effect that accoring to the consigner S/R Pragati Udyog 7/1 Babulal lane, Calcutta, the consignee was Bansal Industries, G-466, Road no. 9 Vishwakarma Industrial Area, Jaipur and there existed no such firm at Jaunpur, U.P. The invoice was also referred to which indicated that the goods were sold by Calcutta firm to M/S Bansal Industries, G0466, Road no. 9A Vishwakarma Industrial Area, Jaipur. The declared purchaser of goods was the Jaipur firm and that particular firm does not exist at Jaunpur. The invoice clearly indicates trade tax number C.S.T. no. were inspect of the Jaipur firm. There was no question of changing merely the district. It may be by mistake that Jaunpur was recorded."
 
        In view of the above, the Tribunal clearly came to the conclusion that the charges against the claimant (respondent) were fundamentally baseless and there was nothing on record to indicate that any interpolation was carried out either by the claimant or by someone under his instructions. The Tribunal, therefore, found that the order of punishment was unsustainable and proceeded to set aside the same while allowing the claim petition with costs. The Tribunal concluded and ordered as under:
 
"11.	In the aforementioned circumstances, the very basis of various charges framed against the petitioner had no foundation to stand. There is no material on record which indicates that interpolation was done either by the petitioner or by some one under his instructions. In the circumstances, no charges stand proved against the petitioner and that being so, the punishment awarded by the order impugned cannot be sustained.
 
O R D E R  

The claim petition is allowed and the order impugned dt. 9.11.04 is quashed. The order dt. 2.9.05 by which the petitioner's representation was dismissed is also accordingly quashed. The amount, if any, recovered in pursuant of the aforementioned order should be refunded to the petitioner with interest @ 10% p.a. The costs of the petition is assessed at Rs. 1000/-only."

Questioning the order aforesaid, the learned Standing Counsel appearing for the petitioners has strenuously argued that when the Tribunal did not find any illegality or infirmity in the inquiry proceedings, it was not justified in dealing with the matter as if sitting in appeal and in recording a finding on facts different than that recorded by the disciplinary authority.

Having given thoughtful consideration to the submissions made and having examined the record, we find no reason to consider interference in this matter.

True it is that ordinarily, in the disciplinary matters, the Tribunal or the Court would not be entering into the process of re-appreciation of evidence but then, in a given set of facts and circumstances, the Tribunal/Court is not debarred from examining the record and particularly to seek correct facts. The present one had been a peculiar case where the respondent had been maintaining right from the beginning that the consignee was located at 'Jaipur' within the State of Rajasthan and there was no such address of 'Vishwakarma Industrial Area, G-466, Road no. 9A' at 'Jaunpur' within the State of Uttar Pradesh. The inquiry officer and the disciplinary authority simply proceeded to rely on the fact that the name of place 'Jaunpur' in the yatra-sheet was scored out and was substituted by Jaipur but unfortunately, nobody at any level in the department took any botheration to find out if it were a case of bona fide alteration and if there existed any such firm at the given address at Jaunpur in the State of Uttar Pradesh.

Looking to the peculiarity of circumstances, the Tribunal had rightly posed the basic question to the presenting officer appearing on behalf of the petitioners and asked for an affidavit on verification, if the consignee M/s. Bansal Industries was a firm situated at Jaunpur? The inquiry thereafter revealed the fundamental baselessness of case against the respondent because the consignor was found to be a firm at Calcutta and the consignee was found to be "M/s Bansal Industries, G-466, Road no. 9A, Vishwakarma Industrial Area at Jaipur" (in the State of Rajasthan); and it was also categorically found that there existed no such firm at Jaunpur in the State of U.P.

The aforesaid revelation of facts is sufficient to find that the department had been absolutely reckless in foisting the disciplinary proceedings on the respondent and even in the proceedings, none of the authorities bothered to look at the very fundamental of the factual aspects.

Even when the Courts and the Tribunals proceed with the self-imposed restrictions of not ordinarily dealing with the finding of facts in relation to disciplinary proceedings, they cannot simply ignore the fundamental perversity in, or baselessness of, the disciplinary proceedings like the present case where the proceedings had no foundation at all and where the proceedings were conducted in an entirely irresponsible manner and basic facts were not even enquired into. The Courts and Tribunals refrain themselves from entering into the findings of facts on the ordinary assumption that the departmental authorities shall be responsible enough to correctly examine and appreciate the facts. However, when it comes out that the departmental authorities had not looked at the very basic facts, the Tribunal cannot be faulted in entering into the factual aspects and disapproving the order passed against the employee after finding the correct facts, which unquestionably appear on the face of the record.

In an overall comprehension of the matter, we are satisfied that it would have been a travesty of justice in this case if the Tribunal had not taken care to look at and enquire into the very fundamental facts. We are satisfied that the Tribunal has rightly exercised its jurisdiction and has rightly set aside the order passed against the respondent after finding that the proceedings had been entirely baseless and had been concluded without regard to the basic correct facts.

Hence, when the order passed by the Tribunal neither suffers from any jurisdictional error nor from any perversity, no case for interference is made out.

The writ petition fails and is, therefore, dismissed.

Order Date :- 15.9.2015

Om.

[Abhinava Upadhya, J.]  [Dinesh Maheshwari, J.]