IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FIFTEENTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE P.SWAROOP REDDY WRIT PETITION NO : 11109 of 2009 Between: 1 The Government of Andhra Pradesh, rep. by its Principal Secretary, Revenue (Vit.I) Department, A.P. Secretariat, Hyderabad. 2 The Commissioner of Commercial Taxes, Government of Andhra Pradesh, Hyderabad. 3 The Deputy Commissioner of Commercial Taxes, Secunderabad Division, Hyderabad. 4 Deputy Commissioner of Commercial Taxes, Panjagutta Division, Hyderabad. 5 Commercial Taxes Officer, Khairthabad Circle, Hyderabad. ..... PETITIONER(S) AND B. Poornachandra Rao, O/o. The Commissioner of Commercial Taxes, Khairthabad Circle, Hyderabad. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction more particularly one in the nature of Writ of Certiorari calling for the records relating to the orders of the Hon'ble A.P. Administrative Tribunal passed in O.A.No.844/2007 dated 27.01.2009 as being erroneous, illegal and unreasonable and quash the same. Counsel for the Petitioner: GP FOR SERVICES II Counsel for the Respondent: Mr.Badana Bhaskar Rao The Court made the following : ORDER: (Per Sri V.Eswaraiah, J.) The respondent while working as Senior Assistant in the office of the Commercial Tax Officer, Sultan Bazar Circle, Hydrabad, was placed under suspension by an order dated 3.12.1998 passed by the Deputy Commissioner of Commercial Taxes, Secunderabad Division, on the ground that the collected sales tax arrears from the dealers and made short remittances into the S.B.H, Gruhakalpa Branch, and given original tax paid challans to the dealers by adding actual amount received from them and the following two charges were framed against him: “1. that he while working as Sr. Asst. in the O/o. the CTO Sultan Bazar handling assessment section had indulged in embezzlement in remittance of taxes in 36 cases involved an amount of Rs.2,99,152/- paid by certain dealers in Sultan Bazar Circle. He has unauthorizedly collected tax arrears from the dealers and remitted short payment in the SBH, Gruhakalpa Branch and given original tax paid challans to dealers by adding actual amounts received from the dealers by tampering figures and words in original challans. 2. that he entered tax payments in A2 ledger and also credited the payments at time of final assessment which did not find place in the CPR of DCTO Sultan Bazar Circle or in the Bank scrolls.” The Assistant Commissioner (CT), Panjagutta Division was appointed as enquiry officer to inquire into the said charges. The enquiry officer conducted enquiry and submitted his report in Rc.No.DP/1694/04, dated 31.3.2006, to the Deputy Commissioner (CT), Secunderabad Division, with regard to the aforesaid charges. As per the enquiry report it was found that the total embezzled amount in remittance of taxes are in 36 cases involving an amount of Rs.2,99,152/- and an amount of Rs.2,81,042/- has been remitted subsequent to the suspension of the respondent and hence the actual embezzled amount is Rs.2,81,042/- only. Accordingly, the enquiry officer recorded the following findings: 1. “It is submitted that during the tenure of Sri Mohd.Tajuddin, Dy.Commercial Tax Officer, Sultan Bazaar Circle, this case was happened, Sri Mohd. Tajuddin, DCTO, Sultan Bazar retired from service and he expired during 2004. He was the main person who can explain the facts in detail. He was the complaint against Sri B.Poornachandra Rao to the CTO, Sultan Bazaar Cirlce in 1998. The complaint is the most important person from whom only I can extract the facts fully and correctly. 2. It is submitted that the second important person i.e., the then CTO, Sultan Bazaar Circle i.e., Sri M.Linga Murthy who had reported the matter to the superiors, Sri M.Linga Murthy also retired from service. I have enquired about him but he has shifted his residence. 3. It is also submitted that embezzlement amount was paid by the dealers. The entire amount embezzled was made good into Government Account. Hence, there is no loss of revenue. 4. It is submitted that the individual was working as Sr.Asst., and he was not handling any office cash and he was not authorized to collect the taxes from any dealers. 5. It is submitted that in my enquiry, none of the dealers given complaint against Sri B.Poornachandra Rao, Sr.Asst., towards remittances of taxes and no body has produced any acknowledgements/Receipts to show that the individual had collected the taxes from them. 6. It is submitted that it is a well-known fact that credit is to be given by the assessing authority but not Assessment Clerk. 7. It is submitted that by seeking the handwriting on the challans one cannot suspect that he had collected the taxes from the dealers. Remitter signature is most important. By misquoting the different circle names the DTO staff cannot accept that challan. A challan can be filed by any person. 8. It is submitted that on the complaint from the CTO, Sultan Bazaar Circle, a criminal case was filed in December, 1998 on the same charges but the individual was acquitted from the case. 9. It is submitted that this is a long pending case pertaining to the incident occurred in 1998. 10. Here in this case, mistake is not only on the clerk but also shows lack of proper supervision of the officer. The DCTO did not supervise the staff properly. The lower staff would follow the instructions of the Officer. The Officer is the main person, who handle the entire office having higher responsibility and he was the only person who attested the Assessment Orders and attested entries in A2 Ledgers. But, the individual has even though stating that the statement was obtained under threat and coercion and admitted his fault on 25.11.1998 before CTO, Sultan Bazaar Circle which needs a punishment.” Based on the enquiry report, a show cause notice dated 27.4.2006 has been issued. The respondent submitted his reply on 18.5.2006. The Deputy Commissioner (CT), Secunderabad Division passed orders in Proceedings No.AM/557/98, dated 22.1.2007, by stating that the reply submitted by the respondent is not satisfactory and the charges are proved against him and imposed penalty of reduction to lower post permanently. Questioning the said order, the respondent filed O.A.No.844 of 2007 before the Andhra Pradesh Administrative Tribunal. The Tribunal by order dated 27.1.2009 held that the Deputy Commissioner of Commercial Taxes did not consider the representation made by the respondent and simply obeyed the orders of the Government and imposed the punishment of reduction to lower post permanently without applying his mind, which is not in accordance with the Rules. The authority has to impose the punishment after passing speaking order and discussing in detail the representation of the respondent/applicant and also the enquiry report. But the Deputy Commissioner of Commercial Taxes has imposed the penalty without passing any speaking order and simply influenced by the order of the Government dated 6.1.2007, which directed for imposition of penalty of reduction in lower post, which is against the known principles of law and accordingly the Tribunal set aside the order dated 22.1.2007. The Tribunal also held that the respondent is entitled to continue as Senior Assistant and also for consequential benefits including promotion if he is otherwise suitable. Aggrieved by the said order of the Tribunal, this writ petition has been filed by the Department. The learned Government Pleader appearing for the petitioners submits that the Tribunal having observed that the punishment order was not a speaking order, the punishment order would have been set aside by remanding the matter to the disciplinary authority, but erroneously set aside the punishment order without remanding the same. We have heard both the learned counsel appearing for the respective parties. The Tribunal observed that the punishment order dated 22.1.2007 is not a speaking order as the representation made by the respondent and the findings of the enquiry report were not at all considered and dealt with, the Government have no manner or any concern in issuing the order dated 6.1.2007 when the disciplinary proceedings are pending before the disciplinary authority. Therefore, we are also of the opinion that without any reference to the order of the Government dated 6.1.2007 the disciplinary authority has to independently apply his mind in relation to the enquiry report and the reply filed by the respondent and pass appropriate orders in accordance with law. Accordingly, we set aside the order of the Tribunal dated 27.1.2008 in O.A.No.844 of 2007, so also the proceedings of the Deputy Commissioner of Commercial Taxes dated 22.1.2007 and remand the matter to the Deputy Commissioner of Commercial Taxes, Secunderabad Division, to consider afresh the reply of the respondent submitted pursuant to the show cause notice with reference to the enquiry report and pass appropriate orders in accordance with law, within a period of three weeks from the date of receipt of a copy of this order. The writ petition is allowed to the extent indicated above. No order as to costs. _________________ V.ESWARAIAH, J. _________________ P.SWAROOP REDDY, J. 15.6.2009 kpr