1. This petition is directed against the order of punishment dated 26.09.2000 whereby the petitioner was ordered to be reduced in rank on the ground of misconduct.
2. The petitioner was appointed as Sales Tax Inspector(Class II) on 25.07.1973. In the year the petitioner was promoted as Sales Tax Officer (Class I) and was posted at Jamnagar with effect from 12.04.1985. The petitioner was promoted to the post of Assistant Commissioner of Sales Tax on 17.05.1989 and thereafter as Assistant Commissioner (Enforcement) on 04.06.1992.
2.1 It is the case of the petitioner that vide order dated 01.02.1996 the petitioner was suspended on the allegations that two industries viz. (1) M/s. Shreenathji Industries, Shahpur and (2) M/s. Umiya Industries, Vanthali were indulging in activities of mere billing as reported vide letter dated 08.02.1993 as well as letter dated 25.02.1993. It was alleged that the billing activities were going on for a long time and the petitioner was guilty of negligence in preventing it. On account of the said negligence there was a loss of Rs. 5,87,30,822/-. The petitioner was issued with a charge-sheet which was replied to by the petitioner.
2.2 Vide order dated 18.11.1998 the petitioner was reinstated as Assistant Sales-Tax Commissioner and was posted as Asst. Sales Tax Commissioner (Appeals) at Mehsana. Thereafter on 25.05.1999, the petitioner was informed that the Government had received the inquiry report by the Inquiry Officer and it was concluded therein that the charges alleged against the petitioner were proved. The petitioner was issued another show cause notice and was called upon to file his reply against the same. the petitioner submitted his reply on 01.06.1999. Thereafter vide order dated 26.09.200, the petitioner was imposed with a penalty of reduction in rank for a period of three years without affecting the seniority. Being aggrieved by the said penalty, the present petition is preferred.
3. Mr. Champaneri, learned advocate appearing for the petitioner submitted that the Government had issued a circular dated 27.08.1981 as to the manner in which the action should be taken and accordingly the petitioner had informed the Assistant Sales-Tax Commissioner (Administration) which would show that the petitioner had acted in accordance with the rules and not intentionally.
3.1 Mr. Champaneri further submitted that the petitioner had asked the concerned officer to give top priority for making inquiry for the ab-initio cancellation of the registration certificates which conclusively establishes that the petitioner had taken action in time and these facts were also communicated to the Director of Sales-Tax, Additional Sales- Tax Commissioner (Enforcement), Deputy Sales-Tax Commissioner (Enforcement), Ahmedabad and Deputy Sales- Tax Commissioner, Bhavnagar.
3.2 Mr. Champaneri further submitted that the Inquiry Officer has given erroneous findings and the same are required to be quashed and set aside.
4. Mr. J.K. Shah, learned AGP supported the order passed by the respondent authority and submitted that the impugned order is just and proper. He submitted that the inquiry was conducted properly and the findings of the inquiry officer for charges 1 and 2 are very clear as the petitioner himself has ab-initio cancelled the registration certificates of 37 traders.
4.1 Mr. Shah has also drawn the attention of the Court to to the fact there is admittedly a loss of more than Rs. 5 crores. However, he fairly conceded that it was not proved that the said loss was due to the petitioner only but he submitted that the financial irregularity on the part of the petitioner is proved.
4.2 Mr. Shah further submitted that there is no lacuna in the inquiry proceedings and the penalty imposed is in fact lesser as compared to the gravity of offence concerned. Mr. Shah has relied upon a decision of the Apex Court in the case of Union of India and Others vs. Manab Kumar Guha reported in (2011)11 SCC 535.
5. Having heard learned advocates for both the sides and having gone through the materials on record, it is borne out that admittedly there has been a loss of sales tax to the tune of around Rs. 5,87,30,822/-. It appears that the petitioner committed default in taking action in time and thereby has shown negligence in duties. The petitioner had ordered ab- initio cancellation of registration certificates of 37 traders but in the present case by not cancelling the registration certificates and by merely informing the Assistant Sales-Tax Commissioner (Administration) to cancel the registration number clearly raises doubt about the integrity as well as honesty of the petitioner. The loss of such a huge amount to the State Exchequer cannot be lost sight of. The petitioner has failed to show any lacuna in the inquiry proceedings.
5.1 In the case of Union of India (supra), the Apex Court has held in para 13 as under:
:13. It is well settled that the Hiugh Court while exercising the power of judicial review from the order of disciplinary authority does not act as a court of appeal and appraise evidence. It interferes with the finding of the enquiry officer only when the finding is found to be perverse. We are of the opinion that the Division Bench of the High Court erred in setting aside the order of the learned Single Judge and quashing the order of compulsory retirement. The finding recorded by the enquiry officer is based on the materials on record and on proper appreciation of evidence which cannot be said to be perverse calling for interference by the High Court in exercise of its power of judicial review.”
6. Considering the charges against the petitioner, this Court is of the view that in fact the punishment imposed is on a lower side. However, after a period of around 12 years, this Court is not inclined to substitute the findings of the disciplinary authority more particularly in a petition filed by the petitioner under Article 226. Even otherwise, in view of the aforesaid decision in the case of Union of India (supra), this Court does not find the findings recorded by the Inquiry Officer to be perverse so as to call for interference by this Court in exercise of its power of judicial review.
7. In the premises aforesaid, petition is dismissed. Rule is discharged. Interim relief, if any, stands vacated.
(K.S. JHAVERI, J.) Divya//