IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 4TH JANUARY 2010 / 14TH POUSHA 1931 WP(C).No. 35804 of 2009(U) ------------------------------------- PETITIONER(S): ----------------------- S.SUKUMARA PILLAI, (FORMER MANAGER, OFFICE OF THE INSPECTING ASSISTANT COMMISSIONER OF COMMERCIAL TAXES, KASARAGODE), LAKSHMI NIVAS, MOOTHALA P.O., PALLICKAL-KILIMANOOR (VIA), THIRUVANANTHAPURAM, PIN-695 604. BY ADVS. MR.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA MR.PETER JOSE CHRISTO MR.S.A.ANAND MR.RAMESH. C.R. MR.K.V.VIMAL MR.JOVY GEORGE VARGHESE RESPONDENT(S): -------------------------- 1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2. COMMISSIONER OF COMMERCIAL TAXES, COMMISSIONERATE OF COMMERCIAL TAXES, VIKAS BHAVAN P.O., PIN-695 033. 3. P.MARA PANDIYAN IAS, COMMISSIONER OF COMMERCIAL TAXES & PRINCIPAL SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. R1 & R2 BY GOVT. PLEADER MR.P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.35804/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE MEMO OF CHARGES NO.A11/55796/TX DTD. 24.4.07 OF THE COMMISSIONER OF COMMERCIAL TAXES, WITH THE STATEMENT OF ALLEGATIONS APPENDED. P2:- COPY OF THE EXPLANATION DTD. 21.6.07 SUBMITTED BY THE PETITIONER. P3:- COPY OF THE SHOWCAUSE NOTICE DTD. 21.4.08. P4:- COPY OF THE ENQUIRY REPORT DTD. 21.1.08. P5:- COPY OF THE PETITIONER'S REPLY DTD. 24.5.08 TO THE ENQUIRY REPORT. P6:- COPY OF THE ORDER NO.A11. 55796/06/CT/DTD. 17.10.08 OF THE COMMISSIONER OF COMMERCIAL TAXES. P7:- COPY OF THE MEMORANDUM OF APPEAL SUBMITTED BY PETITIONER BEFORE GOVERNMENT. P8:- COPY OF THE GOVERNMENT LETTER NO.23147/D2/08/TD DTD. 18.11.09. P9:- COPY OF THE GOVERNMENT LETTER NO.23147/D2/08/TD DTD. 14.11.2009. P10:- COPY OF THE NOTE FILE OBTAINED UNDER THE PROVISIONS OF RIGHT TO INFORMATION ACT. TRUE COPY P.A.TO JUDGE tss K.SURENDRA MOHAN, J ........................................... WP(C).NO.35804 OF 2009 ............................................ DATED THIS THE 4TH DAY OF JANUARY, 2010 JUDGMENT The petitioner, while working as Commercial Tax Inspector, was charge-sheeted on the basis of various allegations. Ext.P1 is the memo of charges and copy of his explanation is Ext.P2. Since his explanation was found to be unsatisfactory, an enquiry was conducted against him and by Ext.P6 order, the petitioner has been dismissed from service with immediate effect. It has also been ordered that the period of suspension shall be treated as duty for all purposes limiting his pay and allowances to the subsistence allowance already drawn. The petitioner challenged Ext.P6 order by filing an appeal against the same under Rule 23 of the Kerala Civil Services(Classification, Control and Appeal) Rules 1960, hereinafter referred to as the `Rules' for short. After the petitioner was heard, orders were reserved on his appeal. Thereafter, he received Ext.P8 letter by which he was informed by the Principal Secretary to Government that his case has been remitted back to the Commissioner of Commercial Taxes for disposal after Wpc 35804/09 2 conducting a fresh enquiry observing all legal formalities. On receipt of Ext.P8, the petitioner submitted a petition under the Right to Information Act and obtained a copy of the Government letter dated 14.11.2009, which is Ext.P9. Ext.P9 is a letter of the Principal Secretary to Government addressed to the Commissioner of Commercial Taxes, Thiruvananthapuram. The letter says that “ on examination it has been found that the delinquent officer had not been offered an opportunity to cross examine the witness examined as envisaged under Rule 15(7) of the Kerala Civil Services (Classification, Control and Appeal) Rules 1960 even though the delinquent requested so in his submission dated 5.9.2007 to the Enquiry Authority. No oral evidence as stipulated under Rule 15(10) Kerala Civil Services(Classification, Control and Appeal) Rules 1960 is seen included in the enquiry report. Hence I request you to conduct a fresh enquiry on this case observing all legal formalities in this regard as the Enquiry Report is unreliable and not enforceable and it is vitiated by patent irregularities”. However, Ext.P6 order dismissing the petitioner from service was not set aside. Wpc 35804/09 3 2. The petitioner has produced as Ext.P10, copy of the note file which contains the note of the officer who had heard his appeal. The note file shows that the recommendation of the officer, who heard the appeal was to set aside Ext.P6 and to remit the matter for fresh consideration of the Commercial Tax Officer. However, a noting has been made, allegedly by the Principal Secretary, observing that there is no justification to meddle with the deterrent punishment imposed. It is the case of the petitioner that it is because of the above noting that Ext.P6 order was not set aside. It is also the case of the petitioner that the appellate authority had acted under dictation of his superior authority who was the very same officer who passed Ext.P6 order and therefore the action is violative of Rule 33 of the Rules. 3. The counsel for the petitioner contended that Rule 31 of the Rules lay down the manner in which an appeal has to be considered by the appellate authority. Since the consideration of the appeal preferred by him was not in compliance with Rule 30(1), Ext.P6, P8, and P9 are all unsustainable in law, it is contended. At any rate, since Ext.P8 and P9 have been issued directing fresh consideration of the Wpc 35804/09 4 appeal, Ext.P6 has no foundation to exist and therefore the same is required to be set aside. 4. The learned Government Pleader opposed the contentions of the learned counsel for the petitioner pointing out that as per Rule 31 (e)(ii) of the Rules, the Government has ample powers to remit the case to the authority that imposed the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case. Therefore, even while sustaining Ext.P6, Government had adequate powers to direct a fresh enquiry to be conducted. 5. I have heard Sri.S.P.Aravindakshan Pillay, learned counsel for the petitioner and learned Senior Government Pleader. 6. As per Ext.P6, the petitioner has been dismissed from service on the basis of an enquiry. Exts.P8 and P9 clearly show that the appellate authority was not satisfied with the manner in which the enquiry was conducted. The Appellate authority felt that the enquiry did not satisfy the requirements of the principles of natural justice. Therefore, the appellate authority has directed the Commissioner of Commercial Taxes to conduct a fresh enquiry into the allegations Wpc 35804/09 5 against the petitioner. Inasmuch as a fresh enquiry has been directed to be conducted by the appellate authority, it cannot be disputed that Ext.P6 order imposing the major penalty of dismissal on the petitioner cannot continue to be in force. In the facts and circumstances of the case, appellate authority ought to have set aside Ext.P6 order imposing punishment on the petitioner, while finding that the enquiry conducted into the allegations against him was not legal or sustainable. Therefore, the appellate authority erred in passing Exts.P8 and P9 proceedings without formally setting aside Ext.P6 order. Though by implication Ext.P6 order appears to have been set aside, unless Ext.P6 is formally set aside, the right of the petitioner for reinstatement into service would not be available to him. A similar situation had come up for consideration before a Division Bench of this court in the decision reported in Rajan V. Sub Divisional Inspector of Post Offices (2002(1) KLT SN Page 55 Case No.66). In the said decision, this court has observed as follows:- “Once the appellate authority set aside the order of punishment and directed de novo enquiry, the consequence Wpc 35804/09 6 is that the petitioner is deemed to be in service from the date of Ext.P1, the first order by which he was put off duty, to the date of Ext.P4, the second order by which he was put off duty again. We agree with the contention of the petitioner and during the said period, he should be treated as on duty and therefore entitled to all consequential benefits”. Therefore, the petitioner is also entitled to claim the benefits of the above decision on the setting aside of the order dismissing him from service. 7. Since a fresh enquiry into the allegations against the petitioner has already been directed to be conducted as per Ext.P8 and P9, I do not propose to consider the question as to whether the appellate authority was competent to pass the proceedings under challenge. The question as to whether the petitioner is guilty of the allegations against him shall be decided after the fresh enquiry that is ordered to be conducted against him. For the present, it is sufficient to Wpc 35804/09 7 clarify that Ext.P6 order is no longer in force and has no foundation to exist. In the result, Ext.P6 is quashed and the writ petition is allowed. The petitioner shall be entitled to reinstatement in service and to other consequential benefits. The necessary consequential orders shall be issued in this regard, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. K.SURENDRA MOHAN, JUDGE lgk