IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 WP(C).No. 22888 of 2009(E) -------------------------------------- PETITIONER: ------------------- K.J.VALSALAKUMARI, W/O. S. RAJAN, AGED 54 YEARS, DEPARTMENTAL MEMBER,(DEPUTY COMMISSIONER) ON LEAVE, KERALA AGRICULTURAL INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, KOZHIKODE BENCH, KOZHIKODE. BY ADV. SRI.T.RAMPRASAD UNNI. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM – 695 001. 2. THE DEPARTMENTAL PROMOTION COMMITTEE (HIGHER), COMMERCIAL TAXES DEPARTMENT, REPRESENTED BY ITS CONVENOR AND SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM – 695 001. 3. SRI. K.M. ALTHAF, RETIRED DEPUTY COMMISSIONER, RISA VILLA, KAMALESWALRAM, MANAKKAD.P.O., THIRUVANANTHAPURAM – 695 009. 4. SRI. V. MURUKESH KUMAR, JOINT COMMISSIONER (GENERAL), OFFICE OF THE COMMISSIONER, COMMERCIAL TAXES, PUBLIC OFFICE BUILDING, MUSEUM.P.O., THIRUVANANTHAPURAM – 695 001. 5. SRI. ABDUL JABBAR, JOINT COMMISSIONER, OFFICE OF THE COMMISSIONER, COMMERCIAL TAXES, PUBLIC OFFICE BUILDING, MUSEUM.P.O., THIRUVANANTHAPURAM- 695 001. W.P.(C). NO.22888/2009-E: 6. SMT. KAMALA BAI, JOINT COMMISSIONER, OFFICE OF THE COMMISSIONER, COMMERCIAL TAXES, PUBLIC OFFICE BUILDING, MUSEUM.P.O., THIRUVANANTHAPURAM – 695 001. R1 & R2 BY GOVT. PLEADER SRI. ARAVIND KUMAR BABU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.22888/2009-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE MEMO OF CHARGES VIDE NO.21400/D1/06/TD DT. 05/07/2007 ISSUED BY R.1. TO THE PETITIONER. EXT.P.2: COPY OF THE ORDER DTD. 11/07/2007 IN T.A. NO. 88/2007 OF THE SALES TAX APPELLATE TRIBUNAL. EXT.P.3: COPY OF THE REPLY TO EXT.P.1. SUBMITTED BY THE PETITIONER BEFORE THE R.1. DTD. 12/08/2007. EXT.P.4: COPY OF THE WRITTEN NOTE SUBMITTED BY THE PETITIONER BEFORE THE ENQUIRY OFFICER IN CONTINUATION OF REPLY DTD. 12/08/2007. EXT.P.5: COPY OF THE SHOW CAUSE NOTICE NO. 21400/D1/06/TD DTD. 15/07/2009 ISSUED BY THE R.1. TO THE PETITIONER. EXT.P.6: COPY OF THE ORDER NO. G.O.(RT).209/2010/TD DTD. 15/03/2010 ISSUED BY THE TAXES(D) DEPARTMENT, GOVERNMENT OF KERALA. EXT.P.7: COPY OF THE ORDER NO. G.O.(P).83/2010/TD DTD. 27/03/2010 ISSUED BY THE TAXES (D) DEPARTMENT, GOVERNMENT OF KERALA. EXT.P.8: COPY OF THE REPRESENTATION DTD. 15/07/09 MADE BY THE PETITIONER TO THE SECRETARY TO GOVERNMENT, TAXES – B DEPT., AGAINST THE ILLEGAL PROMOTION OF HER ADMITTED JUNIORS. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.22888 of 2009 (E) --------------------------------- Dated, this the 21st day of July, 2010 J U D G M E N T The petitioner is working as Deputy Commissioner of Sales Tax, and is a Member of the Kerala Sales Tax Appellate Tribunal. She aspires for promotion to the post of Joint Commissioner. According to the petitioner, as she is at serial No.1 in the seniority list, she is entitled to be promoted. 2. In 2007, Ext.P1 memo of charges was issued to the petitioner alleging that she committed the misconducts alleged therein while working as Deputy Commissioner at Kozhikkode. She submitted her written statement of defence. Subsequently, by Government Order dated 24/04/2008, the Joint Commissioner of Sales Tax was appointed as the enquiry officer. Enquiry was conducted and report was submitted finding the petitioner guilty of the charges. 3. On receipt of the report, the Principal Secretary to Government, Taxes (D) Department, issued Ext.P5 show cause WP(C) No.22888/09 -2- notice dated 15/07/2009 informing the petitioner that after examining the enquiry report, the Government have provisionally decided to impose a punishment of reduction to the lower rank. On this basis, she was called upon to show cause why the said provisional decision of the Government should not be confirmed. 4. According to the petitioner, the proceedings initiated as Ext.P5 show cause notice is illegal and is violative of the principles of natural justice. It is contended that the purpose of initiating disciplinary action culminating in the enquiry report and Ext.P5 show cause notice was only to prevent her from earning promotion to the post of Joint Commissioner, which she is otherwise entitled to. It is on these allegations, the writ petition has been filed with a prayer inter alia to quash Exts.P1 and P5, and also Ext.P7 effecting promotion to some of the persons, who according to the petitioner, are juniors to her. 5. At the stage of admission, this Court granted an interim order dated 12/08/2009 staying further proceedings pursuant to Ext.P5, and the interim order continues as on date. 6. Thus at present, the disciplinary proceedings initiated WP(C) No.22888/09 -3- against the petitioner stands at the stage of Ext.P5 show cause notice and the matter has not been finalised. As already noticed, the case of the petitioner is that the whole proceedings are motivated to ensure that she does not earn promotion to the higher post of Joint Commissioner. Going by Rule 28 of the General Rules, an Officer, against whom proceedings are pending, is also entitled to be considered for promotion adopting sealed cover proceedings and the sealed cover is to be terminated depending upon the outcome of the disciplinary proceedings. Therefore, in view of the fact that further proceedings pursuant to Ext.P5 have not been finalised, all that is needed in this writ petition is to direct the authorities to finalise the proceedings pursuant to Ext.P5 in accordance with law, and that if DPC has already been held and the petitioner has not been considered for promotion, to consider her case adopting sealed cover proceedings as provided under Rule 28 of the General Rules. 7. Insofar as the completion of disciplinary proceedings are concerned, it is seen from Ext.P5 that the respondents have accepted the findings in the enquiry report and proposed to impose WP(C) No.22888/09 -4- punishment on the petitioner on a provisional basis. This was without furnishing a copy of the enquiry report on the petitioner or giving her any opportunity to make her representation against the findings of the Enquiry Officer. This is clearly illegal and therefore, further action in that regard will have to be taken and, on that basis, disciplinary proceedings will have to be finalised. 8. Considering the above facts, the following directions are issued:- (1) I direct that Ext.P5 show cause notice dated 15/07/2009 issued to the petitioner enclosing the report submitted by the Enquiry Officer will be treated as a notice calling upon the petitioner to submit her representations against the findings of the Enquiry Officer and it will be open to the petitioner to file her representation in the matter within two weeks from today. (2) It is directed that if such a representation is received from the petitioner within the time specified above, the 1st respondent shall consider the report of the Enquiry Officer in the light of the representation made by the petitioner. On such consideration, if the findings in the report are accepted and further proceedings are WP(C) No.22888/09 -5- proposed, further action shall be continued against the petitioner in accordance with the Rules and the same shall be completed as expeditiously as possible, at any rate, within two months thereafter. (3) In the meanwhile, it is also directed that if DPC for promotion to the post of Joint Commissioner has already been held and the petitioner's case has not been considered, a review DPC will be conducted and her case will be considered by adopting sealed cover proceedings, which will be terminated depending upon the outcome of the proceedings pursuant to Ext.P5. (4) It is also clarified that in the meanwhile, it will be open to the Department to consider the case of the petitioner for temporary promotion, in terms of Rule 31(a) of the General Rules. The petitioner shall produce a copy of this judgment before the 1st respondent for compliance. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg