IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 WP(C).No. 4495 of 2009(I) ------------------------- PETITIONER(S): --------------- N.RAJAN, JUNIOR SUPERINTENDENT O/O.THE INSPECTING ASSISTANT COMMISSIONER COMMERCIAL TAXES, NEYYATTINKARA,THIRUVANANTHAPURAM BY ADV. SRI.VIJAYAN. K.U. SRI.K.N.SREEKUMAR RESPONDENT(S): --------------- 1. COMMISSIONER, COMMERCIAL TAXES & CONVENER (DPC LOWER) PUBLIC OFFICE BUILDINGS VIKAS BHAVAN.PO.THIRUVANANTHAPURAM. 2. JOINT COMMISSIONER-1 O/O. COMMISSIONER, COMMERCIAL TAXES PUBLIC OFFICE BUILDINGS VIKAS BHAVAN.PO.THIRUVANANTHAPURAM. 3. ALFRED.J.LUKOSE, SENIOR SUPERINTENDENT O/O. COMMISSIONER OF COMMERCIAL TAXES PUBLIC OFFICE BUILDINGS THIRUVANANTHAPURAM. 4. STATE OF KERALA,REPRESENTED BY SECRETARY TO GOVERNMENT,TAXES DEPARTMENT GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. MR.P.NANDAKUMAR, SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.4495/2009 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF MEMO OF CHARHES AND STATEMENT OF ALLEGATIONS NO.A7-59266/05/TX (i) DATED 05/01/2006 BY R2. P2 : COPY OF THE WRITTEN STATEMENT OF DEFENCE FILED ON 20/03/2007. P3 : COPY OF THE LETTER NO.CPA 34/04 DATED 07/08/04 TO THE MANAGER O/O. THE DEPUTY COMMISSIONER, ERNAKULAM BY HAND ON 07/08/2004 ITSELF. P4 : COPY OF PROVISIONAL SENIORITY LIST AS PER ORDER NO.GI- 17635/02/TX DATED 05/12/2006 OF ASSISTANT SALES TAX OFFICERS PUBLISHED BY R2. P5 : COPY OF MINUTES OF THE DPC HELD ON 04/07/2007. P6 : COPY OF REPRESENTATION DATED 17/10/2007 PRAYING FOR REVIEW OF the SELECT LIST PREPARED ON 04/07/2007 BEFORE R1. P7 : COPY OF REPRESENTATION MADE BY THE PETITIONER BEFORE R1 ON 24/01/2008. P8 : COPY OF REVIEW EQUEST MADE BY THE PETITIONER BEFORE R1 ON 01/11/2008. P9 : COPY OF LETTER NO.A7-59266/05/CT DATED 12/02/2008 ADDRESSED TO THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM. P10 : COPY OF ORDER NO.A8/3000/09/TX DATED 12/08/2009 ISSUED BY R1. P11 : COPY OF JUDGEMNT DATED 02/12/2009 OF THIS HONOURABLE COURT IN WPC NO.15971/09. // TRUE COPY // PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.4495 of 2009 (I) --------------------------------- Dated, this the 17th day of December, 2009 J U D G M E N T The petitioner is a Commercial Tax Inspector in the Sales Tax Department. While working at Amaravila Check Post, he was served with Ext.P1 memo of charges mainly with the allegation that while working at the check post as Sales Tax Inspector, he did not sent the check post declarations of a timber consignment from Tuticorin. He filed Ext.P2 written statement. It would appear that the matter was referred to the Vigilance and Anti Corruption Bureau. 2. Ext.P4 is the seniority list of Assistant Sales Tax Officers, in which the petitioner has been included at serial No.60 and the 3rd respondent herein is included at serial No.61 of the seniority list. Ext.P5 is the proceedings of the DPC held on 04/07/2007, which was held for promotion to the post of Commercial Tax Officer. It is stated that on account of pendency of the proceedings against him, it has been decided to supersede the petitioner. Accordingly, his immediate junior, the 3rd respondent, was included in the select list WP(C) No.4495/2009 -2- at serial No.32. According to the petitioner, subsequently, the DPC were held on 08/01/2008, 24/12/2008 & 25/06/2009 and in all the above proceedings, he was superseded for the same reason. 3. He made representations for considering his case and in fact even sought review, and none of his applications were responded. While so, the Commissioner of Commercial Taxes, himself being the Convener of the DPC, has issued Ext.P9 letter to the Director of Vigilance and Anti Corruption Bureau stating that evidence of despatch of declarations in question to Deputy Commissioner Office, Ernakulam were traced out subsequently, and therefore, the officials of the STCP Amaravila may not be held responsible for the loss of revenue occurred due to the irregular action of the Officers of Perumbavoor and Muvattupuzha. In these circumstances, it is requested to issue necessary directions to the enquiry officers in this regard to avoid unnecessary actions against the Inspectors of this Department. 4. The petitioner now submits that in view of Ext.P9, the supersession is erroneous and he is entitled for promotions at least effective from the date on which his junior was promoted as WP(C) No.4495/2009 -3- Commercial Tax Officer. 5. Counter affidavit has been filed by respondents 1 & 2, where paragraph 3 reads as under :- “3. The Deputy Commissioner (AA), Thiruvananthapuram as per DO letter dated 11/02/2008, subsequently reported that during the course of investigation he had further conducted enquiry at Commercial Tax Check Post, Amaravilla with regard to the despatch of declarations and given statement before the investigating officers. He also reported that based on the evidence of despatch of declarations to Deputy Commissioner, Ernakulam traced out subsequently, the check post officials including the petitioner Sri.N.Rajan are not held responsible for the loss of revenue occurred in this case. On the basis of the report of Deputy Commissioner (AA), Thiruvananthapuram, the Commissioner of Commercial Taxes has forwarded a letter dated 12/02/2008 to the Vigilance Department requesting to avoid unnecessary action against the Inspectors including the petitioner.” 6. From the pleadings as above, it is evident that on the basis of the proceedings, which is unsustainable even according to the 1st respondent, the petitioner's claim for promotion has been over ruled. In view of Ext.P9 and in view of paragraph 3 of the counter affidavit filed by respondents 1 & 2, he is entitled to have his grievances redressed. WP(C) No.4495/2009 -4- 7. The writ petition is therefore disposed of directing respondents to finalise the proceedings pursuant to Ext.P1 as expeditiously as possible, at any rate, within three months of production of a copy of this judgment. Having regard to the facts as above, it is also directed that the 1st respondent shall conduct an ad hoc DCP and consider the case of the petitioner for his inclusion in the select list in between serial Nos.31 & 32 of Ext.P5 and effective from the date on which the person at serial No.32 has been promoted. This shall be done as expeditiously as possible, at any rate, within two months of receipt of a copy of this judgment. The petitioner shall produce a copy of this judgment before the 1st respondent for compliance. (ANTONY DOMINIC, JUDGE) jg