Research › Search › Judgment

Kerala High Court · body

2004 DIGILAW 87 (KER)

K. Damodaran v. State of Kerala

2004-02-26

M.RAMACHANDRAN

body2004
JUDGMENT M. Ramachandran, J. 1. In respect of assessments made by the petitioner as Sales Tax Officer, Vythiri, for the years 1997-98 and 1998-99, the office of the Accountant General had recorded an objection that there had been a short levy of tax payable. Ext. P1 Memo of Charges had been issued on the above basis, on 30-11-2001, while the petitioner was working as Manager of the office of the Deputy Commissioner, Wayanad. 2. Explanation had been submitted by the petitioner as Ext.P2. He had pleaded that a verification had been conducted in the matter, and though the short levy pointed out by the office of the Accountant General was for Rs.2,66,494/-, the respective figures for the years 1997-98 and 1998-99 were Rs. 567/- and Rs.16,913/-. According to him, the error came to he committed in the peculiar circumstances thai the dealer had entrusted the commodity of cardamom with an auctioner who had disposed it by local sale, interstate sale and export sale and there was a failure on the part of the auctioner to collect tax on the first sale. There was no deliberate omission. Taking notice of the explanations of the petitioner, the audit objection raised by the Accountant General had been dropped as per Ext.P3 dated 03-12-2003, No further action ia seen to have been taken on the basis of the memo of charges dated 30-11-2001 thereafter. The petitioner has approached this Court with a grievance that in view of the initiation of disciplinary proceedings, his claim for promotion as Assistant Commissioner for years stands overlooked by the Departmental Promotion Committee. According to him, there was no actionable conduct from his side, the assessments had been appropriately finalised, and the files deserved to be closed, one way or the other. 3. The petitioner also refers to a communication issued by the Deputy Commissioner, Wayanad to the Deputy Commissioner, Tbimvananthapuram dated 05-08-2002, wherein it is indicated that since the assessments for the years have been revised and additionally demanded Tax collected, there was no scope to proceed further in the matter and the action may be dropped. The assessee has therefore been let off. Perhaps, according to the petitioner, this might be the reason for not pursuing further proceedings on the memo of charges. But, however, an injury has been inflicted on him in the matter of advancement of his career. 4. The assessee has therefore been let off. Perhaps, according to the petitioner, this might be the reason for not pursuing further proceedings on the memo of charges. But, however, an injury has been inflicted on him in the matter of advancement of his career. 4. The Departmental Promotion Committee had been convened on 20-05-2003. In view of the pending proceedings, the petitioner was not included in the list of candidates, who were found as fit for promotion. The petitioner had thereupon filed a representation. The Departmental Promotion Committee had again met on 02-07-2003 so as to look into the claims of the officers, who had been overlooked, but then also the petitioner had not "been granted the benefits. It is submitted by Smt.V.P. Seemanthini, learned counsel for the petitioner, that the mere issue of a charge sheet should not have precluded the inclusion of the petitioner's name in the select list. But there was no procedure followed whereunder the petitioner's claims were considered, Nor the sealed cover proceedings adopted, so that it might have been possible for him to gain the benefits in an eventuality of his being let off about the allegations. The further fact relevant is that the petitioner is to retire in June 2004. According to the counsel, this predicament also requires the Court to exercise its extra ordinary jurisdiction so as to render justice to the petitioner. 5. The counsel also referred to Government Orders whereunder a system of grant of provisional promotion is in vogue so as to enable officers to get promotions, if there is no sufficient time for considering their case by a Departmental Promotion Committee, and who are to retire in less than six months time. She points out that there are vacancies existing for accommodating the petitioner. It is not disputed that 12 juniors of the petitioner have already superseded him and promoted as Assistant Commissioners, by order dated 06-12-2003. 6. The learned Government Pleader was heard in the matter, though a counter affidavit is yet to be filed. There is no explanation forthcoming as to the delay in completing the follow up action after issuing the change sheet in November, 2001. Mr.Nandakumar submits that the disciplinary proceedings could be completed in about two months time. But the omission to adopt a sealed cover procedure is not adequately explained. 7. There is no explanation forthcoming as to the delay in completing the follow up action after issuing the change sheet in November, 2001. Mr.Nandakumar submits that the disciplinary proceedings could be completed in about two months time. But the omission to adopt a sealed cover procedure is not adequately explained. 7. In these circumstances, I think reliefs are to be moulded so that it may be possible to grant at least some marginal reliefs to the petitioner, since he is at the last phase of his career, The continuation of disciplinary proceedings after a period of hibernation for thirty months, does not appear to be a satisfactory solution. 8. The statement of allegations appended to Ext. P1 shows that the allegation was one of negligence and dereliction of duty arising therefrom. But, taking notice of the subsequent developments, and the tenor of the explanation that has been submitted, it may not be possible to assume that the petitioner was guilty of any deliberate laches or there was mala fides in the matter of his assessment. He might have committed an honest mistake, By the intervention of the office of the Accountant General, reassessment had been completed and there is no revenue loss, as far as the assessment is concerned, as at present. This is also a reason for me to hold that the petitioner is need not be pegged down and compelled to go through an enquiry in respect of the issue of negligence. Because of the passage of time and the nature of the charges, nothing worthwhile can come up as against the petitioner pursuant to Ext.P1, even if a detailed enquiry is conducted. 9. The picture that is gatherable from the files is that the Department has not seriously pursued the issue and has even suggested that further proceedings could be dropped. This was in early 2002. When the DPC met on 20-05-2003 and again on 18-10-2003, the petitioner's claims also ought to have been subjected to consideration. The presence of a charge sheet should not have interfered with a formal consideration of his claims. To this extent, he has been subjected to a treatment which was not justified. 10. The petitioner, therefore, cannot be left to the vagaries of service. ob the facts of the case, I direct that no action need be taken on Ext.P1, any more. Further actions are to be dropped forthwith. To this extent, he has been subjected to a treatment which was not justified. 10. The petitioner, therefore, cannot be left to the vagaries of service. ob the facts of the case, I direct that no action need be taken on Ext.P1, any more. Further actions are to be dropped forthwith. Appropriate proceedings are to be drawn up for withdrawing the charge sheet, The resultant position will be that the petitioner will be deemed as having no disability from being considered for promotion as Assistant Commissioner. It will be difficult to constitute DPC before the petitioner's retirement date. Taking notice of the Government Orders on the subject, I direct the second respondent to issue orders promoting the petitioner as Assistant Commissioner within one month from today, as he is to retire by 30-06-2004. This can be on a provisional basis. His entitlement for being considered for regular promotion, on the basis of his confidential records, also are to be appropriately considered expeditiously on the presumption that there was no justification for excluding him at all, at any time, on the ground that he was recipient of a charge sheet, The benefit that might have derived from consideration by an ad hoc DPC however is lost. But his entitlement for regular promotion may be appropriately determined. If this happens after his superannuation, he will be entitled to fixation of pay retrospectively, although no arrears might be payable. But, he will be also entitled to get the pensionary benefits as might be available on the basis of such fixation. The Writ Petition is disposed of as above.