The Special Chief Secretary ... vs Sri K.V.Jagadishwar Rao,
2021 Latest Caselaw 888 AP

       IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

     HON'BLE Mr. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                               &
             HON'BLE Mr. JUSTICE C. PRAVEEN KUMAR

                    WRIT APPEAL No.335 of 2020

                     (Through Video Conferencing)

The Special Chief Secretary (Revenue)
(CT, Excise & Registration) Department,
Govt. of A.P., Secretariat Buildings,
Velagapudi, Amaravati, and others                     ... Appellants

                                 Versus

Sri K.V. JagadishwarRao, S/o. late K. Rama Murthy,
Aged about 60 years, Deputy Commissioner of
StateTax (Retd.), O/o. Joint Commissioner (ST),
Vizianagaram,R/o.H.No.124, Street No.300, M.S.N. Colony,
Vizianagaram                                        ... Respondent


Counsel for the appellants     : Mr.N. AshwarthNarayana, G.P., for
                                 Services-I

Counsel for the respondent     : Mr. R.N. Hemendranath Reddy



Date of hearing                : 02.02.2021

Date of judgment               : 17.02.2021


                              JUDGMENT

(Arup Kumar Goswami, CJ)

Heard Mr. N. Aswartha Narayana, learned Government Pleader for

Services-I for the appellants and Mr. R.N. Hemendranath Reddy, learned

counsel for the respondent.

2. This appeal is directed against an order dated 20.08.2020 passed

in W.P.No.10660 of 2020, whereby, the learned single Judge, while

setting aside Memo No.REV03-17030/1/2020/D SEC-CCT (Revenue

Commercial Tax-I) Department dated 27.05.2020, issued by the Special HCJ & CPKJ

Chief Secretary, Revenue (Commercial Taxes-I) Department, directed

the appellants herein to implement the order dated 13.05.2020 passed

by this Court in W.P.No.8268 of 2020.

3. The Special Chief Secretary to Government, Revenue (Vigilance.II)

Department, issued G.O.Ms.No.466 dated 02.11.2016, in exercise of

powers conferred under Sub-Rule (1) and (2) of Rule 24 of the Andhra

Pradesh Civil Services (Classification, Control & Appeal) Rules, 1991

(for brevity "the CCA Rules"), to the effect that disciplinary action will

be taken against the officers named therein, in a common proceedings

for granting irregular refund in the case of M/s. Gayathri Project (P)

Ltd., during the years 2005-06 to 2009-10 resulting in loss to the

Government. Common order was issued by the Special Chief Secretary

to Government, Revenue (Vigilance.II) Department, in G.O.Rt.No.1074

dated 02.11.2016, proposing to hold enquiry against the

respondent/writ petitioner, who, at the relevant point of time, was

working as Assistant Commissioner (Commercial Tax) LTU, No.II Division,

Vijayawada and enclosing thereto, amongst others, the articles of

charge, in terms of Rule 20 of the CCA Rules. In the articles of charge,

it is stated that the respondent/writ petitioner had committed grave

irregularities in grant of refund of tax to the tune of Rs.11,22,64,773/-

in respect of M/s. Gayathri Project (P) Ltd., for the period from 2007-08

and 2008-09 causing loss to the public exchequer and correspondingly

allowing pecuniary gain to an extent of Rs.7,29,90,908/-, to the dealer.

4. It is the case of the respondent/writ petitioner that the aforesaid

order dated 02.11.2016 was served on him on 29.03.2018, i.e. after

more than 17 months. He had assailed the said orders by filing HCJ & CPKJ

O.A.No.756 of 2018 before the Andhra Pradesh Administrative Tribunal

and the same was dismissed on the ground of same being premature.

Being aggrieved, he approached the High Court of Judicature at

Hyderabad for the State of Telangana and the State of Andhra Pradesh,

by filing a petition under Article 226 of the Constitution of India, which

was registered as W.P.No.16392 of 2018. An interim order was passed

on 01.05.2018 in I.A.No.2 of 2018, suspending G.O.Rt.No.1074 dated

02.11.2016. The said order reads as follows:

"In the light of the interim order granted by this Court in

a similar writ petition, W.P.No.7240 of 2018, and the

letter dated 19.11.2016 addressed by the Commissioner of

Commercial Taxes, Andhra Pradesh, to the Special Chief

Secretary to the Government of Andhra Pradesh holding in

favour of the quasi judicial authorities who ordered

refund, there shall be interim suspension as prayed for."

5. The respondent/writ petitioner, thereafter, filed another Writ

Petition, being W.P.No.8268 of 2020 before this Court in respect of non-

granting of promotion. This Court, on 28.04.2020, in I.A.No.1 of 2020,

in the said Writ Petition, passed the following order:

"This Court finds that there is a case made out on behalf

of the petitioner. Therefore, without interdicting the

whole procedure, this Court is of the opinion that the

interest of justice would be served if one post of Joint

Commissioner of Sales Tax is kept pending for a period of

two weeks from today to enable the learned Government HCJ & CPKJ

Pleader to get appropriate instructions and also to file

affidavit of the respondents."

6. Thereafter, on 13.05.2020, this Court passed the following order:

"Learned counsel for the petitioner submits that as per

the orders granted by this Court in the earlier writ

petition No.16392 of 2018, as per the seniority, the case

of the petitioner was considered for promotion and

included in the list of promotions and deferred only on

the ground of disciplinary proceedings, which were

pending against him.

Even the Government Pleader has submitted that they

have filed counter and vacate stay petition in writ

petition No.16392 of 2018 and seriously pursuing the

matter for disposal.

In view of the submissions made by the petitioner and the

urgency explained, and in view of the stay granted by the

Hon'ble court in the W.P.No.16392 of 2018, without going

to the merits of the case, there shall be interim direction

to the respondents to consider the case of the petitioner

and effect the promotion to the post of Joint

Commissioner of Sales Taxes expeditiously, within a

period of two weeks from today."

7. Thereafter, the Special Chief Secretary, Revenue (Commercial

Taxes-I) Department, passed the order dated 27.05.2020, holding that

the request of the respondent/writ petitioner for effecting promotion HCJ & CPKJ

to the post of Joint Commissioner of State Tax, was not considered

feasible.

8. In the aforesaid background, the learned single Judge, taking

note of the fact that there was positive direction in W.P.No.8268 of

2020 to effect promotion of the respondent/writ petitioner to the post

of Joint Commissioner of State Tax, passed the order, which is assailed

in the present appeal.

9. Learned Government Pleader for Services-I, appearing on behalf

of the appellants, has submitted that disciplinary proceedings are still

pending against the respondent/writ petitioner and, therefore, the

order dated 27.05.2020 was validly passed. It is submitted that an

application for vacating the order of stay passed in W.P.No.16392 of

2018, was filed and, therefore, the course of action taken by the

appellants, cannot be faulted with.

10. Learned counsel for the respondent/writ petitioner, while

supporting the impugned order, has placed reliance in the case of State

of Punjab and others v. Chaman Lal Goyal, reported in (1995) 2 SCC

750 and State of A.P. v. N. Radhakishan, reported in (1998) 4 SCC

154.

11. We have considered the submissions of the learned counsel for

the parties and perused the materials on record.

12. The letter dated 19.11.2016, as noted in the order dated

01.05.2018 passed in I.A.No.2 of 2018, is a letter from the

Commissioner of Commercial Taxes, to the Special Chief Secretary to

Government of A.P. Revenue (CT & Excise) Department. From the said HCJ & CPKJ

letter, it appears that certain recommendations were made in the

vigilance reports of Director General, to initiate disciplinary action

against some officers, including the respondent/writ petitioner, who

had refunded certain amounts in favour of work Contractors.

13. The Commissioner of Commercial Taxes requested the

Government of A.P., not to initiate any disciplinary action against the

officers, who have refunded the disputed amounts in favour of the work

contractors, pursuant to the recommendations in the Vigilance Reports

of DG, till a final decision is taken by the High Court of Judicature at

Hyderabad with regard to the correctness or otherwise of the revision

orders of the Commissioner (CT), A.P., or to issue new directions to the

Commissioner of Commercial Taxes, A.P.

14. The respondent/writ petitioner retired on 30.06.2020.

15. In Chaman Lal Goyal(supra),while a disciplinary proceeding was

pending in the facts of the case, the Hon'ble Supreme Court directed

the authorities to consider the case of the employee for promotion

without reference to and without taking into consideration the charges

or the pendency of the proceeding and to promote him immediately, if

he is found fit for promotion, providing further that promotion, if any,

effected, shall be subject to review after the conclusion of the enquiry

and in the light of the finding in the enquiry.

16. In State of A.P. v. N. Radhakishan(supra), the Hon'ble Supreme

Court was considering whether delay had vitiated disciplinary

proceedings. Ratio of the said case is not attracted in the facts and

circumstances of the present case.

HCJ & CPKJ

17. The learned single Judge had noted in the course of the order

that, in identical set of facts, a number of Writ Petitions including

W.P.No.18842 of 2017, were filed questioning the initiation of

departmental proceedings and in all such Writ Petitions, this Court had

stayed further proceedings.

18. It is admitted position that the name of the respondent/writ

petitioner was included in the panel of Deputy Commissioner of State

Tax, for promotion to the post of Joint Commissioner of State Tax for

the panel year 2019-20.

19. Though application for vacating the interim order passed

inI.A.No.2 of 2018 in W.P.No.16392 of 2018 was filed, for reasons which

may not detain us, the said application has not been disposed of and,

therefore, the interim order passed earlier continues to remain in

force. In view of suspension of disciplinary proceeding initiated vide

G.O.Rt.No.1074 dated 02.11.2016, this Court, vide order dated

13.05.2020, in I.A.No.1 of 2020 in W.P.No.8628 of 2020, directed the

respondents not only to consider the case of the respondent/writ

petitioner but also to effect promotion to the post of Joint

Commissioner of State Tax expeditiously.

20. The order dated 13.05.2020 was not assailed in any fora.On the

face of the direction contained in the order dated 13.05.2020 passed in

W.P.No.8268 of 2020, we are of the considered opinion that the order

dated 27.05.2020 was not in terms of the directions issued in the said

Writ Petition.

HCJ & CPKJ

21. In that view of the matter, we find no good ground to interfere

with the order of the learned single Judge and, accordingly, the Writ

Appeal is dismissed. No order as to costs. Pending miscellaneous

applications, if any, shall stand closed.

ARUP KUMAR GOSWAMI, CJ                           C. PRAVEEN KUMAR, J

MRR