IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.8375 of 2008 ==================================================== 1. MEENA DEVI, WIFE OF CHANDESHWAR CHOUDHARY, 2. TENIA, DAUGHTER OF CHANDESHWAR CHOUDHARY 3. SONY, DAUGHTER OF CHANDESHWAR CHOUDHARY. 4. PRAVEEN KUMAR, SON OF CHANDESHWAR CHOUDHARY 5. MANISH KUMAR, SON OF CHANDESHWAR CHOUDHARY. ALL RESIDENTS OF RAMESHWARAM COLONY, II LANE, ABOVE AVENTIS PHARMA, BARIATU ROAD, RANCHI 834009. Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER CUM PRINCIPAL SECRETARY, COMMERCIAL TAX DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. For the petitioner : Mr. S.R. Sharan, Advocate. For the State : Mr. Rabindra Kr. Priyadarshi, AC to AAG-I. ==================================================== 04. 13.07.2011 Re :- I.A. No.4253 of 2011 During the pendency of the writ petition, writ petitioner Chandeshwar Choudhary left for his heavenly abode on 30.03.2011 leaving behind heirs and legal representatives, as indicated in paragraph-1 of the interlocutory Application No. 4253 of 2011. 2. Let the name of the writ petitioner be expunged from the array of parties and his heirs and legal representatives, as indicated in Paragraph-1 be substituted. 3. I.A. No. 4253 of 2011 is, accordingly, disposed of. 2 4. Heard learned counsel for the petitioners and the State. 5. Husband of petitioner no.1 at the relevant time served as Deputy Commissioner cum Incharge of Khagaria circle. This writ petition has been filed against the notification of the State Government dated 11.01.2008, Annexure-1 whereunder after conclusion of the departmental proceeding initiated against the husband of petitioner no.1 pursuant to charge sheet dated 12.9.2006, Annexure-4 to this application he has been punished by subjecting him to punishment of compulsory retirement from service. Perusal of charge sheet, Annexure-4 would indicate that 4 charges were levelled against the husband of petitioner no.1 alleging irregularities made in connection with the assessment proceedings taken against M/s Sampat Lal Jain, Mill Road, Khagaria bearing Registration No.KG 31(R)/KG 422(C) for the assessment years 2000-2001, 2002-2003 and 2003-04. Under charge nos.2 and 3 allegation was made that while proceeding with ex parte assessment of the aforesaid dealer under Sub-Section-(3) of Section 17 of the Bihar Finance Act husband of petitioner no.1 3 increased the gross turn over amount by five times, although there was no basis for such exorbitant increase of the GTO amount. Under charge no.4 allegation was made that on account of ill motive against the aforesaid dealer husband of petitioner no.1 did not assess the dealer in connection with transactions made under the Central Sales Tax Act for the assessment years 2002-03, 2003-04. Charge no.5 relates to the allegation that the dispatch register of the circle was kept blank so as to use the blank space in course of time for issue of the antedated demand note and thereby the reliability of the demand register became suspect. The 6th charge levelled against the husband of petitioner no.1 is that to investigate the allegation made against the husband of petitioner no.1 by the dealer an internal enquiry was ordered in which petitioner was asked to appear before the Internal Enquiry Officer in the circle office on 13.06.2005 but petitioner absented himself from the circle office on 13.6.2005 and thereby did not cooperate with the Internal Enquiry Officer. 6. Disputing the aforesaid charge husband of 4 petitioner no.1 filed his written defence before the Enquiry Officer dated 20.11.2006 Annexure-5. The Enquiry Officer having considered the written defence as also having examined the records of the assessment proceeding taken against the dealer including the dispatch register submitted enquiry report dated 28.11.2006, Annexure-6 whereunder charge no.1 was not found proved but the other charges i.e. charge nos.2 to 6 were found proved with reference to the contents of the records of the assessment proceeding taken against the dealer M/s Sampat Lal Jain including the blank entries in the dispatch register of the circle. In the light of the findings recorded in the enquiry report husband of petitioner no.1 was served with second show cause notice dated 7.12.2006 and 20.03.2007 asking him to show cause as to why he be not punished in the light of the findings recorded by the Enquiry Officer. In response whereto husband of petitioner no.1 submitted his show cause reply dated 16.12.2006 and 27.03.2007 again reiterating the same defence which he had taken before the Enquiry Officer. In regard to the findings recorded while proving charge nos.2 and 3 5 husband of petitioner no.1 submitted that ex parte assessment was made during the financial years 2002- 03 and 2003-04 as the dealer never appeared with the books of account and he had no option but to proceed ex parte. In this connection, it was further submitted that as the proceeding was conducted ex parte it was the discretion of the Assessing Officer to have revised the gross turn over amount and if the same was enhanced by five times, it cannot be said that such enhancement was result of any bias or malice against the dealer. In this connection, husband of petitioner no.1 also stated that as the dealer was also liable to pay CST in connection with the interstate transaction made by him while revising the gross turn over by five times the interstate transaction made by him was also included. As regards charge no.4 that he did not complete the assessment of the dealer with respect to assessment years 2002-03, 2003-04 under the Central Sales Tax Act it was submitted by the husband of petitioner no.1 that he had given instruction to the office to put up the record for completing such assessment but as the office did not put up the record, 6 he could not proceed with such assessment as he has already included the amount of CST while increasing the gross turn over amount for the BST under Sub- Section(3) of Section 17 of the Bihar Finance Act. As regards the allegation of keeping blank coloum in the issue/dispatch register of the circle, husband of petitioner no.1 submitted that others who were entrusted to maintain the dispatch register in the circle, it was their responsibility to maintain the same without keeping any space blank in the register and he cannot be held responsible for omission of his subordinate(s) not to maintain the dispatch register without keeping any space blank in the register. As regards charge no.6 that husband of petitioner no.1 did not cooperate with the Internal Enquiry Officer by absenting himself from the circle office on 13.06.2005 it was submitted by the husband of petitioner no.1 that he had no information to be available in the circle office on 13.06.2005. The second show cause reply was considered by the Commissioner, Commercial Taxes, who under note dated 11.01.2007 recommended that husband of petitioner no.1 be let off by punishing him with 7 censure. Aforesaid recommendation of the Commissioner, Commercial Taxes was placed before the Departmental Minister, who under note dated 19.01.2007 asked to put up the file with the details of any other irregularity committed by the husband of petitioner no.1. In the light of the instruction dated 19.01.2007 of the Departmental Minister file was again put up before him on 29.01.2007 with endorsement that husband of petitioner no.1 is not reported to have committed irregularity earlier, the Departmental Minister under note dated 13.02.2007 considering the seriousness of the charges directed that the file be examined for imposing the punishment of compulsory retirement on the husband of petitioner no.1. In the light of the direction of the Hon’ble Minister file was again put up before him on 20.02.2007. Under note dated 20.9.2007 the Hon’ble Minister agreed with the proposal at page 39/T, whereafter the file was sent to the Hon’ble Chief Minister and after his approval the impugned notification dated 11.01.2008 compulsorily retiring the husband of petitioner no.1 was issued. 7. The order of compulsory retirement 8 having been passed in the light of the findings of the Enquiry Officer, which is based on the records of the assessment proceeding taken against the dealer including the fact that blank space was found in the issue/dispatch register of the circle, I do not see any illegality in the punishment notification. The writ petition is dismissed, however, before parting with this order, I would like to direct that the arrears of suspension allowance of the husband of petitioner no.1 as also pensionary and other benefits payable to him be released forthwith, if not already released. Rajesh/ ( V. N. Sinha, J.)