IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 WP(C).No. 29110 of 2008(M) -------------------------------------- PETITIONER(S): ---------------------- N.G. VIMAL KUMAR, COMMERCIAL TAX OFFICER (AUDIT ASSESSMENT, ALAPPUZHA. BY ADV. SRI.O.D.SIVADAS RESPONDENT(S): ------------------------- 1. THE COMMISSIONER, DEPT. OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 2. GOVERNMENT OF KERALA REP. BY SECRETARY TO GOVERNMENT, TAXES (D) DEPARTMENT, THIRUVANANTHAPURAM. 3. THE CONVENER DEPARTMENT PROMOTION COMMITTEE, COMMERCIAL TAXES DEPARTMENT, THE SECRETARY (TAXES) DEPARTMENT, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER SMT.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 29110/2008-M APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROCEEDINGS DATED 28/04/2005 ISSUED BY THE INTELLIGENCE OFFICER, (CI), COMMERCIAL TAXES, ALPPUZHA. EXT.P2: COPY OF THE PROCEEDINGS DATED 12/09/2005 ISSUED TO THE DEALER. EXT.P3: COPY OF THE PROCEEDINGS DATED 09/12/2005 ISSUED BY THE PETITIONER. EXT.P4: COPY OF THE ORDER DATED 17/05/2006 ISSUED BY TH DEPUTY COMMISSIONER, COMMERCIAL TAXES, ALAPPUZHA. EXT.P5: COPY OF THE ORDER DATED 05/02/2007 ISSUED BY THE 1ST RESPONDENT. EXT.P6: COPY OF THE CHARGE MEMO WITH STATEMENT OF ALLEGATION DATED 17/08/2008. EXT.P7: COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 09/11/2007. EXT.P8: COPY OF THE ORDER DATED 28/12/2007 ISSUED BY THE 1ST RESPONDENT. EXT.P9: COPY OF THE APPEAL PETITION DATED 04/02/2008 SUBMITTED TO THE 2ND RESPONDENT. EXT.P10: COPY OF THE ORDER DATED 20/06/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P11: COPY OF THE MEMO DATED 26/06/2008 ISSUED BY THE 3RD RESPONDENT. EXT.P12: COPY OF THE REPLY DATED 29/08/2008 ISSUED BY THE 1ST RESPONDENT. EXT.P13: COPY OF THE REPLY DATED 15/11/2005 SBMITTED BY THE DEALER. EXT.P14: COPY OF THE APPEAL FILED BY THE PETITIONR BEFORE THE 3RD RESPONDENT DATED 07/10/2008. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Rs/ V.GIRI, J. ------------------------- W.P.(C).No.29110 of 2008 ------------------------- Dated this the 24th day of March, 2009. JUDGMENT The petitioner, who was a Commercial Tax Officer, had passed an order against the assessee on the premise that there was a wilful attempt to evade tax on the part of the assessee. 2. The order imposing penalty was taken up in a statutory revision before the Deputy Commissioner. The imposition of penalty was sustained, but the quantum was reduced, as is evidenced by Ext.P4. The correctness of Ext.P4 order was taken up in suo motu revision under Section 37 of the Kerala General Sales Tax Act. Finding that the order of the Deputy Commissioner was prejudicial to the revenue, the same was set aside and the matter was remanded to the Assessing Authority. It is not clear whether a fresh order has been passed. In the meanwhile, Ext.P6 memo of charges was issued to the petitioner asking him to show cause why disciplinary action should not be initiated. A detailed representation Ext.P7 W.P.(C).No.29110 of 2008 :: 2 :: was filed by the petitioner. But, Ext.P8 order was passed by the disciplinary authority and according to the petitioner, this was without hearing him. Though an appeal was filed, the appellate order was equally unsustainable and the same was challenged in Ext.P9 before the Government. By Ext.P10 order, the Government dismissed his appeal. Exts.P8 and P10 are challenged in this writ petition. 3. A counter affidavit has been filed by the first respondent. The assertion made by the petitioner that he was not heard before an order was passed remains uncontroverted in the counter affidavit. In the result, the writ petition is allowed. Exts.P8 and P10 are quashed. It is made clear that it is competent to the disciplinary authority to pass fresh orders, after notice to the petitioner and after hearing him. In the meanwhile, the petitioner's claim for promotion shall be considered, by deeming that there were no disciplinary proceedings pending against him. If a representation is filed by the petitioner in W.P.(C).No.29110 of 2008 :: 3 :: this regard before the Commissioner within one month from today, he shall look into the matter and pass appropriate orders, in the matter of whether disciplinary action should again be taken against the petitioner or not. If the Commissioner decides that disciplinary action need not be taken against the petitioner, then it shall be deemed that the petitioner was entitled to be promoted, as if there were no disciplinary proceedings pending against him during the relevant period. Sd/- (V.GIRI) JUDGE sk/ //true copy//