TaxTMI 
TaxTMI 
2023 (2) TMI 227
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....main charge, being Charge No. 1, of illegal refund is incorrect and frivolous based on incorrect facts and the other charges are only incidental to Charge No. 1 which cannot be the subject matter of departmental enquiry after retirement under Rule 43(b) of Jharkhand Pension Rules; (ii) In the alternative, for issuance of an appropriate writ/order/direction directing the Respondents to call Shri Vidya Bhusan Verma, Joint Commissioner of Commercial Taxes (Retired) on whose report the charges have been framed to testify the correctness of the contents of the report and charges framed on the basis of such report. (iii) In the alternative, for issuance of further appropriate writ/order/direction directing the Respondents to appoint any other neutral and fair Joint Commissioner of Commercial Taxes as Enquiry Officer. (iv) For issuance of any other appropriate writ(s)/order(s)/direction(s) as Your Lordships may deem fit and proper in the facts and circumstances of the case." 4. From perusal of the prayer of the writ petition, it appears that the petitioner has challenged the entire departmental enquiry initiated against the petitioner vide resolution No. 2829....
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....om the records that vide order dated 19.03.2010, the proceedings under Rule 43 (b) of Jharkhand Pension Rules against the petitioner was stayed. The order dated 19.03.2010 passed by this Court is quoted as under: - "The petitioner is facing disciplinary proceedings under Rule 43(b) of the Jharkhand Pension Rules in respect of certain charges enumerated in Annexure-2 to the writ petition, which is a copy of the departmental charge-sheet. It has been argued from the petitioner's side that all these charges relate to exercise of quasi-judicial powers by the petitioner and all the charges, at best, amount to wrong decision having been taken by the petitioner in quasi-judicial capacity and that none of the charges, except the charge no.6. suggests (i) extraneous consideration influencing the quasi-judicial order, or (ii) a deliberate act or (iii) the decisions taken being actuated by mala-fides. Even in the charge no.6, the involvement mentioned is only inferential. The petitioner relies upon the decisions of the Supreme Court in the case of Zunjarrao Bhikaji Nagarkar Vrs. Union of India & Others. reported in (1999) 7 SCC 409 and in the case of Union of In....
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....4.01.2010 was issued to the petitioner mentioning that the earlier enquiry officer would continue and the next date in the enquiry was fixed as 09.01.2010 and thereafter, the petitioner filed the writ petition before this Court on 30.01.2010 challenging the initiation of the entire proceedings and by virtue of order dated 19.03.2010, the proceedings under Rule 43(b) of Jharkhand Pension Rules against the petitioner was stayed. 5. The learned counsel has submitted that a counter-affidavit has been filed in the present case, wherein at paragraph 16 and 17 thereof, it has been mentioned that on the date of hearing, the petitioner had requested for physical presence of Shri Vidya Bhusan Verma, Enquiry Officer and Joint Commissioner of Commercial Taxes (Administration), Dhanbad Division, Dhanbad, but the request of the petitioner was rejected by the departmental enquiry officer. 6. However, no order of rejection of the prayer of the petitioner with regard to the examination of Shri Vidya Bhusan Verma has been placed on record either by the petitioner or by the respondents. 7. The learned counsel submits that the petitioner has a right to examine/cross-examine ....
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....no allegation of mala fide, recklessness or any misconduct or connivance of the petitioner with the assesses in whose favour refund orders were passed. 12. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court in the case reported in (1993) 2 SCC 56 Union of India vs. K. K. Dhawan) para 28 and 29. He submits that this judgment has been subsequently followed by the Hon'ble Supreme Court in the case of Union of India & Others vs. Duli Chand reported in (2006) 5 SCC 680 , para 5 to 8. 13. The learned counsel submits that in view of the aforesaid judgments, the very initiation of the departmental proceedings is apparently illegal and is fit to be quashed. 14. Although, in the written submission, it has also been stated that the departmental proceeding under Rule 43(b) of Jharkhand Pension Rules was barred by limitation prescribed in the rule itself, but, during the course of argument, learned counsel for the petitioner has given up the said point and has submitted that the other points argued by the learned counsel for the petitioner is sufficient to quash the entire departmental proceedings. Arguments of the Respondent....
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....in the written submission, it was also stated that the departmental proceeding under Rule 43 (b) of the Jharkhand Pension Rules was barred by limitation prescribed in the rule itself, but, during the course of argument, the learned counsel for the petitioner had given up the said point and had submitted that the other two points argued by the learned counsel for the petitioner are sufficient to quash the entire departmental proceedings. Consequently, at paragraph-15 of the order dated 10.11.2022, it was specifically recorded that since the learned counsel for the petitioner has not advance his argument on the point of limitation with regard to Rule 43 (b) of Jharkhand Pension Rules, learned counsel for the respondents had also not advanced any argument on the said point. Thus, this Court finds that although certain points were raised in questioning the initiation of proceedings under Rule 43 (b) of Jharkhand Pension Rules on the point of limitation, but the said plea was consciously and specifically given up by the learned counsel for the petitioner during the course of hearing and consequently, the learned counsel for the respondents also did not advance any argument on such point....
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..... 20,000/-, the assessee has to submit the application before the Joint Commissioner, but against this Rule action was initiated by the petitioner by accepting the refund application at the circle level which also reflected involvement of the petitioner. VII. The basic responsibility of the officer posted in the revenue circle is revenue collection and ignoring this responsibility, the petitioner had not acted in the interest of revenue. The arguments of the parties recorded in the order dated order dated 10.11.2022 have been quoted above. The 1st point for consideration - Whether the departmental proceedings could have been initiated against the petitioner for his alleged act or omission relating to exercise of his powers in the matter of passing orders of assessment/reassessment/refund of taxes to the dealers of coal companies. 14. Upon perusal of the allegations levelled against the petitioner, this Court finds that the charge No.-I was the consequence of the various acts and omissions alleged in charge Nos. II to VII and each of the charge in charge no. II to VII are distinct and relate to different stages in the matter of assessment/reassessment and refund of....
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.... actions were taken by the respondent actuated by any corrupt motive or to oblige any person on account of extraneous considerations. The Hon'ble Supreme Court was of the view that in these circumstances, merely because such orders of refund were made, even assuming that they were erroneous or wrong, no disciplinary action could be taken as the respondent was discharging quasi-judicial function. It was held that if any erroneous order had been passed by him, the correct remedy is by way of an appeal or revision to have such orders set aside. 18. In another judgement reported in (1999) 7 SCC 409 (supra), it was held that a wrong interpretation of law cannot be a ground for misconduct and it would be a different matter altogether if it is deliberate and actuated by mala fides. It was also held that negligence in quasi-judicial adjudication is not carelessness, inadvertence or omission, but a culpable negligence. In the facts of the said case, it was held that when penalty is not levied, the assessee certainly benefits, but it cannot be said that by not levying penalty, the officer has favoured assessee or shown undue favour to him. There has to be some basis for the disciplinary a....
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....r is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated." 20. In another judgment reported in (2006) 5 SCC 680 (Union of India and Ors. vs. Duli Chand), the view taken by the Hon'ble Supreme Court in the case reported in (1993) 2 SCC 56 (supra) has been upheld and the judgment passed in Zunjarrao Bhikaji Nagarkar Vs. Union of India reported in (1999) 7 SCC 409 was held not a good law. 21. The findings of the judgment reported in (2006) 5 SCC 680 (supra) recorded at para 5 to 9 are as follows: "5. The law on the subject was considered in extenso in the three-Judge Bench decision of Union of India v. K.K. Dhawan wherein it was noted that the view that no disciplinary action could be initiated against an officer in respect of judicial or quasi-judicial functions was wrong. It was further said that the officer who exercises judicial or quasi-judicial powers acting negligently or recklessly could be proceeded against by way of disciplinary action. The Court listed six instances when such action could be....
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....thority in terms of the Rules. This Court finds that the nature of allegations involved in the present case clearly falls within the enumerated instances mentioned in para 28 of the judgement passed in the case of K.K. Dhawan (supra) where disciplinary proceedings in connection with exercise of powers of quasi-judicial powers have been held to be permissible. 24. Considering the nature of allegation against the petitioner in the light of the aforesaid judgments passed by Hon'ble Supreme Court in the case of K.K. Dhawan (supra) and also Duli Chand (supra), this Court is of the considered view that there has been no illegality in initiation of departmental proceeding against the petitioner. 25. However, it is made clear that it will be open to the petitioner to put forth all defence open to him in the departmental inquiry which will be considered on their own merits. The 2nd point for consideration - the plea of examination/cross-examination of Shri Vidya Bhushan Verma on the basis of whose report it is stated that the departmental proceedings were initiated against the petitioner. 26. As per the petitioner, he had filed a petition seeking cross-examination of Shri Vidya ....
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....rejoinder has been filed to deny or dispute the averments made in the counter affidavit. 28. The aforesaid direction has been passed in spite of the fact that at this stage it appears that primarily, the entire allegations against the petitioner is based on official records resulting in passing of quasi-judicial orders of assessment/reassessment/refund etc. and as long as those records are available, no prejudice will be caused to the petitioner by not examining Shri Vidya Bhushan Verma for testifying and verifying the details of the report submitted by him. The 3rd point for consideration - alleged bias of the enquiry officer -Respondent no.3 against the petitioner. 29. It has been held by the Hon'ble Supreme Court in the judgment reported in (1959) SCR Supp. 1319 and followed in the judgment reported in AIR 1960 SC 468 (Mineral Development Ltd. v. State of Bihar) that the principles governing the 'doctrine of bias' vis-a-vis judicial tribunals are well-settled and they are: (i) no man shall be a judge in his own cause; (ii) justice should not only be done but manifestly and undoubtedly seem to be done. 30. The learned counsel of the petitioner has sp....
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....it filed by the respondents. The aforesaid statement made in the counter affidavit clearly reveal that the enquiry officer namely, Sri Niranjan Prasad Mandal, the then Joint Commissioner of Commercial Taxes (Admn.), Dhanbad Division, Dhanbad was posted at Dhanbad only for a period from 5.7.2008 to 14.12.2009 i.e., after the alleged events/incidents involving the petitioner was already over. 33. This Court is of the considered view that although allegation of bias has been made but the allegations are not substantiated by any material or conduct of the inquiry officer in order to create any impression of bias against the petitioner, even remotely. Accordingly, the judgements relied upon by the petitioner on the point of bias do not apply to the facts and circumstances of this case. 34. However, it is observed that the matter has remained pending before this Court for a long time and accordingly, it will be open to the respondents to appoint another enquiry officer and/or presenting officer to continue with the departmental enquiry against the present petitioner. 35. As a cumulative effect of the aforesaid considerations with regards to the three-point formulated above, this....