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2007 DIGILAW 228 (PAT)

Hem Chandra Mishra v. State Ofbihar

2007-02-01

AFTAB ALAM, REKHA KUMARI

body2007
Judgment 1. Heard Mr. Basant Kumar Choudhary, counsel for the appellant and Mr. Advocate General representing the State. 2. This appeal arises from the judgement and order by a learned single judge by which the writ petition being CWJC No. 312 of 2004 filed by the appellant against the punishment order passed against him by the disciplinary authority was dismissed. 3. The appellant-writ petitioner was posted at the material time as Assistant Commissioner, Commercial Taxes, Bhagalpur. He was proceeded against on a number of charges. At the end of the proceeding he was awarded some punishments vide notification no. 375, dated 18.5.2002. The punishments given to the petitioners are that (i) for the period of suspension he would not be entitled to anything beyond subsistence allowance, (ii) he would not be considered for promotion for three years and (iii) and for the next five years he would not be put on any administrative or sensitive post. 4. The petitioner preferred an appeal against the order of punishment. The appeal was dismissed by notification, dated 15.10.2004. He then came to this court in CWJC No. 312 of 2004 which was dismissed by the writ court on 30.6.2005. This appeal is filed against the judgment and order of the writ court. 5. Mr. Choudhary strongly argued that the charges of which the petitioner was held guilty were unsustainable on admitted facts. There was, therefore, no reason to subject the petitioner to any punishment. 6. The matter relates to the issuance of a "No Objection Certificate" by the petitioner in favour of a registered dealer engaged in the manufacture and sale of country liquor. With regard to the issuance of the No Objection Certificate a number of charges were framed against the petitioner. In the departmental enquiry charges 2 and 3 were held proved and charge no. 1 partly proved. The rest of the charges were not established against the appellant. 7. Charge no.1 was that though on 11.4.2001 the appellant sought instructions from the head-quarter about issuance of the No Objection Certificate to the concerned dealer and though a reply in that regard was sent to him by the head quarter on 26.4.2001, he issued the No Objection Certificate in the dealers favour on 25.4.2001. The second charge was that though according to the dealer himself there were dues against him of over Rs. The second charge was that though according to the dealer himself there were dues against him of over Rs. 60 lacs, the petitioner granted him the No Objection Certificate. The third charge was that the amount of the advance taxes deposited by the dealer for the year, 2001-02 was adjusted against his dues of Rs. 57.95 lacs appertaining to the period 1997-98 and similarly the amount of advance taxes for the year, 1999-2000 was adjusted against his sales tax liability of Rs. 2.81 lacs for the period 1998-99 for the purpose of granting the No Objection Certificate to the dealer. 8. Mr. Choudhary submitted that the petitioner indeed asked for instructions from the head quarter about granting No Objection to the dealer on 11.4.2001 but before any instructions could be received, the dealers appeal pending before the appellate authority was allowed on 20.4.2001. The demand raised by the department was set aside and the matter was remitted for fresh adjudication. This materially changed the basic facts and there was no longer any need to wait for instructions from the headquarter. The appellant, therefore, issued the No Objection Certificate to the dealer on 25.4.2001 before receipt of the instructions from the headquarter, dated 26.4.2001. 9. As regards the other two charges Mr. Choudhary submitted that the dealer had a very large turn over and he deposited the sum of Rs. 1.1 crore on 24.4.2001 by way of abundant caution. The No Objection Certificate was granted to him only after the deposit of Rs. 1.1 crores. 10. The Advocate General, on the other hand, submitted that the dues of about Rs. 1.63 crores arising from the notification, dated 21.5.1997 creating, for the first time, the liability of sales tax on country liquor was undeniable against the dealer. Out of this large liability of about Rs. 1.63 crores he deposited only Rs. 1.1 crore by cheque on 24.4.2001. The petitioner issued the No Objection Certificate on 25.4.2001 even though the amount was credited to the Govt. Treasury on 30.4.2001. The balance dues of Rs. 60 lacs was admittedly deposited by the dealer on 1.6.2001. 11. The Advocate General pointed out that the petitioner had himself rejected the dealers application for grant of No Objection Certificate twice in the month of April and he had finally asked for instructions from the headquarter on 11.4.2001. Treasury on 30.4.2001. The balance dues of Rs. 60 lacs was admittedly deposited by the dealer on 1.6.2001. 11. The Advocate General pointed out that the petitioner had himself rejected the dealers application for grant of No Objection Certificate twice in the month of April and he had finally asked for instructions from the headquarter on 11.4.2001. On 26.4.2001 the headquarter had directed him to verify the accounts and to report whether or not there was actually any dues against the dealer. Instead of waiting for and complying with the instructions from the headquarter the petitioner issued the no objection certificate hurriedly. 12. In view of the submissions made by Mr. Choudhary we have gone through the enquiry report and we find that there was no infirmity in the departmental enquiry. The enquiry officer considered at length the petitioners defence in respect of the different charges and all the materials adduced before him both by the departmental representative and the appellant-writ petitioner. On a consideration of the entire materials he found and held that while the first charge was only partly established the second and third charges against him were established fully. On a consideration of the enquiry report the disciplinary authority passed the order of punishment. 13. On hearing counsel for the parties, we are of the view that the findings in the enquiry report were properly arrived at after considering all the relevant materials. The writ court rightly rejected the petitioners writ petition and there is no reason to interfere in the matter. This appeal is dismissed.