TaxTMI 
TaxTMI 
2025 (8) TMI 642
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....ferring Annexure-13 to the writ petition i.e. the memo dated 07.09.2024 issued by the Secretary, Finance Department, Govt. of Tripura (Disciplinary Authority) wherein it was informed that the disciplinary authority intended to conduct an inquiry against the petitioner under Rule 14 of the CCS (CC&A) Rules, 1965 enclosing statement of articles of charge against the petitioner and submitted that on perusal of articles of charge it can be found that no separate articles of charge was formulated/framed by the disciplinary authority against the petitioner excepting a detailed canvass of the allegation set forth by the prosecution-State. In the articles of charge framed against the petitioner it is specifically mentioned that: "whereas, the alleged distortion of public records by the Superintendent of Taxes, Charge-IV, Agartala by way of overwriting '36' on '31' in the assessment order dated 28.03.2015 for the year 2006-07 had taken place during processing of the refund application on 10.01.2023;" 3.1. It was further submitted that by order/memo dated 26.07.2024 (Annexure-12 to the writ petition) the petitioner was placed under suspension. Learned Counsel further submitted th....
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....essing, appellate or revisional authority on the basis of an application or suo moto also, within 3(three) years from the date of any order passed can rectify any error apparent on the face of the record. Learned Counsel further submitted that as per Section 74(1) of the TVAT Act, 2004 if the liability of payment of tax or penalty or penal interest is increased only in that case personal hearing and reasonable opportunity of being heard be given to the person affected. Section 74(1) of the TVAT Act, 2004 is reproduced hereunder: "74(1) An assessing, appellate or revisional authority including the Tribunal may, on an application or otherwise at any time within three years from the date of any order passed by it, rectify any error apparent on the face of the record; Provided no such rectification which has the effect of enhancing the liability to pay tax or penalty or penal interest shall be made unless such authority has given notice to the person affected and has allowed him a reasonable opportunity of being heard." 3.5 It is further submitted that at the time of passing assessment order in pursuance of the direction of the revisional authority dated 19.02.2014....
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....e departmental proceeding as stated above(Annexures-10 and 13 to the writ petition). Furthermore, referring Annexure-8 i.e the communication dated 21.03.2024, Learned Counsel drawn the attention of this Court that in para 3 of the said communication it is stated that they have not received any assessment order which was passed on 28.03.2015 but surprisingly at the time of passing assessment order the representative of the concerned dealer was present. So, how it can be agitated by them that no copy of order was served upon them or they had no knowledge. Learned Counsel has again drawn the attention of this Court referring the notice dated 13.03.2024(Annexure-7 to the writ petition) issued by Sri Suman Das, Superintendent of State Tax, Charge-IV, Agartala wherein it was specifically stated that the assessment order was passed under Section 36 of TVAT Act, 2004 and M/s M.P. Khaitan was asked to make payment of Rs. 47,38,775/- as interest on delayed payment but by this time the interest has been paid by the dealer itself. Again, Learned Counsel for the petitioner referred the communication dated 11.04.2016 submitted by Mr. M. Sengupta, the then Superintendent of Taxes, Charge-IV, Agar....
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.... 11.09.2013 and later on the demand of Rs. 30,67,168/- has been adjusted with the said statutory deposited amount of Rs. 2,00,06,981/- and excess payment made by the dealer becomes Rs. 1,69,39,813/-. So, there was no question for levy of interest as raised by the audit. After that, Learned Counsel submitted that as per Sub-Rule 14(2) of the CCS(CC&A) Rules until and unless there is imputation of misconduct or misbehavior, there is no scope to initiate any departmental proceeding against a government servant. Learned Counsel also drawn the attention of this Court referring Sub-Rule 3 of Rule 14 of CCS(CC&A) Rules and submitted that in the articles of charge there is no imputation of misconduct or misbehavior. So, in absence of the charge of misbehavior and misconduct the present proceeding cannot be sustained against the petitioner and finally Learned Counsel urged for setting/quashing the order of suspension and also prayed for quashing the departmental proceeding contemplated against the petitioner. Learned Counsel further submitted that although there is very little scope on the part of this Court to look into the issues but since the errors are apparent on the face of record and....
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....nal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v. Gopi Nath & Sons [1992 Supp (2) SCC 312]. The Bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the pr....
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....nflicting the major punishment or the minor punishment is to be adopted." Learned Advocate General further referred another citation of the Hon'ble Supreme Court of India in V.P. Gidroniya vs. State of Madhya Pradesh reported in (1970) 1 SCC 362 wherein in para Nos.6 and 7 Hon'ble the Apex Court observed as under: "6. Three kinds of suspension are known to law. A public servant may be suspended as a mode of punishment or he may be suspended during the pendency of an enquiry against him if the order appointing him or statutory provisions governing his service provide for such suspensions. Lastly he may merely be forbidden from discharging his duties during the pendency of an enquiry against him which act is also called suspension. The right to suspend as a measure of punishment as well as the right to suspend the contract of service during the pendency of an enquiry are both regulated by the contract of employment or the provisions regulating the conditions of service. But the last category of suspension referred to earlier is the right of the master to forbid his servant from doing the work which he had to do under the terms of the contract of service or the provisions ....
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....ontended that the Appeal Rules which governed him and which must be held to have continued to govern him in view of the guarantee contained in Article 314 provided for suspension as a penalty only and that there was no provision anywhere in any rule or statute immediately before January 26, 1950 on which date the Constitution came into force, providing for suspension otherwise than as a penalty. Therefore it was not open to the Governor to suspend him in the manner in which he did so in the present case, though it was not denied that he could be suspended pending criminal proceedings provided the suspension was as a penalty under Rule 49 of the Appeal Rules; on the other hand mere suspension pending a criminal case not inflicted as a penalty was not provided at all by the Rules or the statute governing the appellant immediately before January 26, 1950. Therefore when the Governor proceeded to suspend him under Rule 7(3) of the Discipline Rules, he violated the guarantee contained in Article 314. The appellant also contends that as it was not open to any authority to suspend him except as a punishment immediately before January 26, 1950, Rule 7 of the Discipline Rules which provides....
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.... a member of the Secretary of State's Services had a right of appeal even where he was suspended during a departmental enquiry there was a provision in the Discipline Rules for a memorial to the President (see Rule 20) and that in the opinion of the High Court gave a right as similar to the right existing before January 26, 1950 as the changed circumstances permitted. The High Court therefore dismissed the petition. The appellant then applied for a certificate which was granted; and, that is how the matter has come up before us. 11. The general principle therefore is that an employer can suspend an employee pending an enquiry into his conduct and the only question that can arise on such suspension will relate to the payment during the period of such suspension. If there is no express term in the contract relating to suspension and payment during such suspension or if there is no statutory provision in any law or rule, the employee is entitled to his full remuneration for the period of his interim suspension; on the other hand if there is a term in this respect in the contract or there is a provision in the statute or the rules framed thereunder providing for the scale ....
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.... Referring the same, Learned Advocate General again submitted that at this stage there is no scope to entertain the writ petition filed by the petitioner. It was submitted that since the departmental proceeding is still pending for adjudication before the inquiring authority so, the grounds referred by Learned Counsel for the petitioner may be well placed to the respective inquiring authority and if thereafter, the petitioner feels to be aggrieved/dissatisfied with the order of the inquiring authority in that case scope shall be there to the petitioner to approach this Court. 7. Heard both the sides at length. 8. As already stated, to resist the writ petition, the respondents have filed their counter affidavit to which the petitioner again filed rejoinder. 9. There is no dispute on record that the petitioner is placed under suspension and the suspension order still exists. There is also no dispute on record that the authority of the department has issued memo dated 07.09.2024 by which the petitioner was informed that authority has decided to conduct inquiry against him with articles of charge which is under challenge before this Court. It is not the case of the writ pet....
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....el for the petitioner but since the petitioner himself were not attached to any of the aforesaid charges on that relevant point of time so, prima facie it appears that the memo dated 07.09.2024 issued by the respondents authority was misconceived and not supported by any cogent materials on record. As already stated since the State-respondents by their counter affidavit could not dispute anything regarding the documents submitted by the petitioner as annexures, so, prima facie it appears that there was error apparent on the face of record. 13. Furthermore, although it is the settled position of law that there is very least scope on the part of a Writ Court to entertain such issues like departmental proceedings in absence of any procedural irregularities/lapses but, here in the case at hand the proceeding is not yet been commenced fully, only the memo and articles of charge have been supplied to the petitioner and probably the inquiring authority is contemplating to record the evidence of the witnesses within a short span of time. Furthermore, on bare perusal of Annexure-9 i.e. the communication of one Sanjay Khaitan being the representative of M/s M.P. Khaitan it appears that th....