IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 WP(C).No. 31757 of 2008(E) ------------------------------------------ PETITIONER(S): --------------- V.SAJI JACOB COMMERCIAL TAX INSPECTOR,CTCP , CUMBUMMETTU, (FORMERLY CTI, CTCP, KARUKUTTY) BY ADV. SRI.THAMPAN THOMAS SMT.JANCY ALEX RESPONDENT(S): ---------------------------- 1. THE SECRETARY (TAXES) GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE CONVENER DPC (LOWER) VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. THE DEPARTMENTAL PROMOTION COMMITTEE (TAXES) REP. BY ITS CONVENER, TAXES DEPARTMENT VIKAS BHAVAN, THIRUVANANTHAPURAM. 4. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT. ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.N.Ravindran, J. ===================== W.P(C).No.31757 of 2008 ===================== Dated this the 31st day of October, 2008. JUDGMENT Heard Sri. Thampan Thomas, the learned counsel appearing for the petitioner and Sri. Anu Sivaraman, the learned Government Pleader appearing for the respondents. 2. The petitioner is presently working as Commercial Tax Inspector in the Department of Commercial Taxes. He was placed under suspension on the allegation that he demanded illegal gratification from M/s. Wipro GE Health Care (P) Ltd. Later he was reinstated in service. Thereafter, by Ext.P2 order passed on 2.9.2008, the disciplinary authority, namely, the Commissioner of Commercial Taxes imposed on the petitioner the punishment of barring of one increment without cumulative effect. The period of suspension was regularised as duty for all purposes, limiting the pay and allowances to the subsistence allowance already drawn by the petitioner. Ext.P2 discloses that a minor punishment of barring of one increment without cumulative effect was imposed on the petitioner for having caused distress to the representative of M/s. Wipro GE Health Care (P) Ltd. The disciplinary authority however found that there is no truth or merit in the charge levelled against the petitioner that he had demanded illegal gratification. A reading of Ext.P2 discloses that for having discharged his duties, which WP(C) 31757/08 -: 2 :- resulted in “distress to the representative of the Company”, the petitioner has been punished. 3. Challenging Ext.P2, the petitioner has filed Ext.P3 appeal before the Secretary to Government, Taxes Department. The appeal is dated 15.10.2008 and is one made within the period prescribed in Rule 25 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. The petitioner contends that in view of the punishment imposed on him as per Ext.P2, which is under challenge in Ext.P3 appeal, the respondents are not considering his case for promotion to the next higher post of Commercial Tax Officer. 4. The grievance voiced by the petitioner is that by reason of the punishment imposed on him the respondents will not include him in the list of eligible persons to be considered for promotion to the post of Commercial Tax Officer. The petitioner submits that as the order of punishment is under challenge in the appeal evidenced by Ext.P3, and in view of the provisions contained in Rule 28(b)(i)(7) of Part II of the Kerala State and Subordinate Services Rules, the respondents are bound to consider his case also along with others when the Departmental Promotion Committee is convened for selecting officers eligible for promotion to the category of Commercial Tax Officer. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. Ext.P2 discloses that the petitioner has been punished mainly for the reason that his action WP(C) 31757/08 -: 3 :- resulted in distress to the representative of the Company. The allegation that the petitioner had demanded bribe has been found untrue. The petitioner has in Ext.P3 appeal challenged Ext.P2 order passed by the Commercial Tax Officer. Rule 31 of the Kerala Civil Services (Classification, Control and Appeal) Rules stipulates that the appellate authority shall in the case of an appeal against an order imposing penalty consider whether the facts on which the order was based have been established, whether the facts established afford sufficient ground for taking action, whether the procedure prescribed in the Rules has been complied with, whether the findings are justified and whether the penalty imposed is excessive, adequate or inadequate. The appellate authority therefore is bound to consider whether having regard to the facts and circumstances of the case, the findings rendered against the petitioner in Ext.P2 are justified or not and whether the facts established in the enquiry afford sufficient ground for taking action. In my view, there is merit in the contention raised by the petitioner that for discharging his duties honestly and in tune with the Rules, he has been punished only for the reason that his action has caused distress to the representative of the assessee. 6. In these circumstances, I dispose of the Writ Petition with a direction to the Secretary to Government, Taxes Department to consider Ext.P3 appeal and pass orders thereon after affording the petitioner an opportunity of being heard. This shall be done within two months from WP(C) 31757/08 -: 4 :- the date on which the petitioner produces a certified copy of this judgment. The first respondent shall after the appeal is disposed of, consider the case of the petitioner also for promotion to the post of Commercial Tax Officer strictly in accordance with Rule 28 (b) (i)(7) of Part II of the Kerala State and Subordinate Services Rules. P.N.Ravindran, Judge. ess 3/11