1. Instant petition is directed against order dt.20/08/207 (Ann.3) whereby petitioner was held guilty of misconduct upon conclusion of inquiry initiated U/r 16 of Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 ("CCA Rules") and was consequently inflicted with penalty of stoppage of two annual grade increments with cumulative effect. Petitioner initially joined service on having become a member of Rajasthan Commercial Taxes Service & appointed as Assistant Commercial Tax Officer in the year 1978 and promoted as Commercial Taxes Officer & Assistant Commissioner respectively in the years 1992 & 1996; and posted as Assistant Commissioner (Special Circle) Alwar on 26/11/1997. At that time, as an Assessing authority, an assessment was made by petitioner while exercising quasi judicial powers in respect of M/s RC Oil Industries ("the Firm") for assessment year 1995-96 vide order dt. 23/03/1998 taking note of exemption certificate granted to the Firm w.e.f. 13/10/1993 for seven years under Sales Tax Incentive Scheme 1989 ("Scheme, 1989"). Petitioner submits that for assessment year 1995-96 ending on 31/03/1996, the Firm (RC Oil Industry) had availed of exemption certificate and filed its quarterly return lastly on 30/06/1996 well before his posting as Assistant Commissioner, Special Circular, Alwar on 26/11/1997; and the benefit of incentive Scheme, 1989 was being already availed by assessee Firm (RC Oil Industry) as on 31/03/1996.
2. It appears that at a later stage, an audit objection was raised in respect of assessment made by various assessing Officers in the State of Rajasthan in the cases wherein benefit of exemption certificate in respect of Rajasthan Sales Tax had been given and all assessing officers are alleged to have been conveyed of audit objection that in the case of Gopal Oil Mills, vide judgment dt.23/02/95 the Apex Court had interpreted the exemption certificate under Scheme, 1989 being only confined to sales covered under Central Sales Tax Act and not to be applied to the sales on which Rajasthan Sales Tax was leviable; and taking note of audit objection raised by superior authority in the light of judgment of Apex court (supra), the petitioner as Assessing Authority proceeded to issue notice to the Firm (RC Oil Industry) for its re-assessment of the year 1995-96 and after hearing the parties, disallowed the benefit of exemption certificate qua sales being covered under Rajasthan Sales Tax Act in respect of the Firm (RC Oil Industry) while making reassessment of the year 1995-96 vide order dt.27/05/1999 - against which the Firm preferred appeal which was allowed by appellate authority vide order dt.22/11/1999 while setting aside re-assessment order dt. 27/05/1999 on the ground that in any event, as the sales tax exemption certificate having not been revoked, modified & cancelled and as the exemption having already been availed by the assessee, the exemption could not have been retrospectively withdrawn and disallowed in the assessment made of the Firm. Against the appellate order dt.22/11/1999, the Department approached the Rajasthan Tax Board by way of revision petition which was rejected vide order dt.14/05/2002 while upholding appellate order primarily on the ground that sales tax exemption being availed by the assessee could not be withdrawn under any circumstances with retrospective effect. After the assessment in respect of the firm (RC Oil Industry) made by the petitioner as an assessing authority for the year 1995-96, having attained finality (supra), petitioner was served with a memo along with charge sheet U/r 16 of CCA Rules on 27/12/2004 primarily on the premise that while assessment being made by petitioner as an assessing authority vide order dt.23/03/98 in respect of the Firm (RC Oil Industry) for the year 1995-96, the State Government was put to loss of revenue as he failed to take note of judgment of Apex Court dt.23/02/1995 & Circular dt. 19/12/1995 issued by the Department this is a gross negligence on the part of petitioner.
3. The petitioner throughout raised his objection that the order of assessment was passed by him while discharging quasi judicial powers and unless his act appears to be of gross negligence & reckless or the order being passed with a view to confer undue favour upon assessee, the charges imputed under charge sheet impugned should not have formed the basis for initiating disciplinary action for which inquiry officer held him guilty primarily on the premise that being assessing authority, it was incumbent upon delinquent to withdraw/cancel exemption granted to the assessee under incentive scheme, 1989 and only thereafter assessment could have been made and having failed to take note of judgment of the Apex Court, it was considered to be a case of gross negligence on the part of petitioner - on the basis whereof the disciplinary authority held him guilty of misconduct imputed under the charge sheet and inflicted with a penalty of stoppage of two increments with cumulative effect vide order impugned.
4. It is relevant to mention that upon audit objection being raised in respect of assessments made by various assessing Officers in State of Rajasthan in regard to the cases wherein benefits of exemption certificate about sales covered under Rajasthan Sales Tax Act were availed of by assessees; whereas vide judgment dt.23/02/95 in the case of M/s Gopal Oil Mills, the Apex Court observed that exemption certificate under incentive sachem, 1989 was confined only to the sales covered under Central Sales Act and would not apply to the sales on which Rajasthan Sales Tact was leviable - taking note whereof, charge sheets were issued to various assessing Officers likewise present petitioner. But in the case of one Sagarmal Choudhary holding the post of Commercial Taxes Officer on being posted in Circle Nagaur between 31/08/1998 to 24/07/2000, similar allegations were imputed vide charge sheet dt. 29/03/2007 that while having made assessments for the year 1997-98, he had not taken note of judgment rendered in the case of M/s Gopal Oil Mills; and benefit of exemption granted to the assessees (M/s Rajasthan Oil Mill, M/s Mahalaxmi Oil Industry, M/s Bajrang Bali Oil Industry) under the Scheme of 1989 w.e.f. 04/04/1994 was not admissible in terms of judgment of Apex Court in respect of sales made by assessees covered under Rajasthan Sales Tax Act and the act of Shri Choudhary was alleged to be of gross negligence, which was self same charge imputed against present petitioner, as well; and in case of Shri Choudhary, inquiry officer did not hold him guilty on the premise that Circular dt. 19/12/1995 issued by State Govt. in compliance of judgment dt.23/02/1995 of Apex Court was not within the knowledge of Shri Choudhary while assessments being made by him and he was finally exonerated vide order dt.07/09/2009.
5. Similarly in another case of Shri VK Goyal, while holding the post of Asstt. Commissioner (Commercial Taxes) he too made assessment for the year 1995-96 vide order dt. 21/02/1998 in respect of assessee (M/s Sunder Oil Industry) there was also audit objection and the allegation against him was that while exemption certificate being granted to the assessee under Scheme of 1989, judgment dt.23/02/1995 of the Apex Court was not taken note of which has resulted in causing financial loss to State Government; but in case of Shri VK Goyal, he was finally exonerated and inquiry proceedings were dropped by State Government vide order dt. 18/08/2009. Both the orders dt.07/09/2009 & 18/08/2009 exonerating Shri Sagarmal Choudhary & Shri VK Goyal who were similarly situated like present petitioner have been produced by petitioner in course of hearing and which are taken on record and marked as Ann.C/A & Ann.C/B.
Respondents have filed reply to writ petition wherein it has been averred that the assessment made by petitioner in respect of the assessee Firm (M/s RC Oil Industry) for the year 1995-96 vide order dt.23/03/1998 granting exemption on sales made after 04/04/1994 was in clear contravention of judgment dt.23/02/95 of Apex Court and due to negligence on the part of petitioner, the State Government was caused to financial loss and judgment dt.23/02/95 & circular dt. 19/12/95 issued by State Government were not taken note of by petitioner while making assessment of the assessee-Firm for the year 1995-96, which shows that he had deliberately assessed tax in wrongful manner causing loss to public exchequer. However, it is not the case of respondents that circular dt. 19/12/1995 was sent to the office of the Asstt.
6. Commissioner Commercial Taxes (Special Circle) Alwar where the petitioner was posted while the assessment was made for the year 1995-96 in respect of assessee-Firm (M/s RC Oil Industry) vide order dt.23/03/1998; and no material has been brought on record to show that there was malice or extraneous considerations on the part of petitioner while passing assessment order dt.23/03/1998 while granting exemption under incentive scheme, 1989 in favour of the Firm (M/s RC Oil Industry). This court has heard the petitioner in person and so also Officers-In-charge appeared on behalf of respondents; and with their assistance, which could have been provided to the Court in course of hearing, has examined the material on record.
7. Main thrust of petitioner who appeared in person and argued his case, is that in the light of judgment of Apex Court in Union of India v. KK Dhawan (1993(2) SCC 56) & Union of India v. Upendra Singh (1994(3) SCC 357), very charge sheet served & penalty inflicted upon him under the order impugned and the finding recorded by inquiry officer & disciplinary authority cannot be legally sustainable. He further submits that the finding recorded by disciplinary authority is only to the extent that judgment of Apex Court dt.23/02/1995 & circular dt.19/12/95 issued by State Govt were not taken note of by him while in discharge of duty as assessing authority and it was incumbent upon him to first revoke/cancel exemption certificate earlier granted to the assessee Firm from taxes under incentive scheme, 1989 in regard to sales covered under Rajasthan Sales Tax Act and only thereafter it was expected from him to make assessment vide order dt.23/03/1998. However, it is not the case of respondents that circular dt.19/12/1995 was ever sent to the office of Asstt. Commissioner Commercial Taxes Special Circle, Alwar where the petitioner remained posted and made assessment for the year 1995-96.
8. However, it is also not the case of respondents that prior to petitioner being posted as Asstt. Commissioner Commercial Taxes Special Circular, Alwar wherever he was earlier posted, circular dt.19/12/1995 was ever sent to his office. There is no evidence on record to show that circular dt.19/12/1995 was in the knowledge of the assessing authority (petitioner). It is also not the case of respondents that departmental representative while having appeared before the assessing authority (petitioner) has ever brought to his notice either judgment dt. 23/02/1995 or circular dt.19/12/1995 and yet he has not taken note thereof and made impugned assessment order, for which he has been charge-sheeted and the inquiry was held. At the same time, this Court would like to observe that since assessments were made by various assessing officers granting exemptions to the assessees under incentive scheme, 1989, for which indisputably, Apex Court in the case of M/s Gopal Oil Mills vide judgment dt.23/02/1995 specifically held that benefit of exemption granted under Rajasthan Sales Tax Act would not be available to the assessees having availed after 04/04/1994 and the circular was sent by the department but still other assessing officers (Shri Sagarmal Choudhary & Shri VK Goyal) being similarly situated with present petitioner were also charge-sheeted on the same premise and allegations (supra); yet in cases of afore named assessing officers, the inquiry officer has not found the charges proved on the premise that circular dt.19/12/95 was never within their knowledge and it did not appear from material on record that either of them had exercised quasi judicial powers negligently or recklessly or in order to confer undue favour to the assessee-Firms while making their assessments and taking note whereof, vide orders dt.07/09/2009 & 18/08/09 (Ex.C/A & Ex.C/B) respectively, both of them were exonerated of self same charges as imputed against present petitioner. The law on the subject has been considered by Apex Court in Union of India v. KK Dhawan (supra) wherein it has been observed that if an Officer while in exercise of quasi judicial powers acts negligently or recklessly or in order to confer undue favour on a person, disciplinary action can be taken and accordinglly the Apex Court observed ad infra:
28. Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But, we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases -
(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;
(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii) if he has acted in a manner which is unbecoming of a government servant;
(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party-,
(vi) if he had been actuated by corrupt motive however, small the bribe may be because Lord Coke said long ago "though the bribe may be small, yet the fault is great."
29. The instances above catalogued are not exhaustive. However, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated. However, Apex Court observed that instances (supra) are not exhaustive and ultimately, each case would depend upon facts of a particular case and there cannot be a strait-jacket formula that absolute rule can be postulated.
In PC Joshi v. State of UP (2001(6) SCC 491) Union of India v. Duli Chand (2006(5) SCC 680) & Govt. of Tamilnadu v. KN Rama Murthy (1997(7) SCC 101), Apex Court examined the matters on the basis of test laid down in earlier decision in Union of India v. KK Dhawan (supra) having been consistently followed. However, in Zunjar Rao Bhikaji Nagarkar v. Union of India (1999(7) SCC 409), a contrary view was taken by Apex Court but it was observed by Apex Court in a latter decision in Union of India v. Duli Chand (supra) that the decision in Union of India v. KK Dhawan (supra) being of larger Bench, would prevail over judgment of two Judges Bench in Zunjar Rao Bhikaji Nagarkar v. Union of India (supra) where the Court reverted back to earlier view where disciplinary action could be taken against an officer discharging judicial/quasi judicial functions only where there was an element of culpability involved. In the instant case, indisputably, judgment dt.23/02/1995 of Apex Court in M/s Gopal Oil Mills (supra) was not taken note of by present petitioner while making impugned assessment for the year 1995-96 vide order dt. 23/03/1998; and as observed (supra), it was never the case of respondents that judgment dt.23/02/95 or circular dt.19/12/1995 was ever brought to the notice by departmental representative while having appeared before assessing authority (present petitioner) who still had not taken note while making impugned assessment vide order dt.23/03/1998. In absence whereof, there was no prima facie material available on record before the inquiry officer or disciplinary authority which may hold that petitioner acted negligently or recklessly while in exercise of quasi judicial powers or had omitted prescribed conditions necessary for exercise of quasi judicial powers. In the light of what has been observed (supra), case of petitioner at the best could be considered either under circumstances No.(ii) or (iv) catalogued by Apex Court in Union of India v. KK Dhawan (supra) as the case may be. It is true that circumstances catalogued by Apex Court (supra) are not considered to be exhaustive and each case has to be examined on its own facts but still there was no prima facie material placed, which may show that the petitioner was reckless or acted negligently while in exercise of statutory powers in making impugned assessment which has been made subject matter of inquiry under order of penalty impugned. It is also not the case of respondents that the petitioner exercised quasi judicial powers in order to confer undue favour on a person (assessee-Firm M/s RC Oil Industry) or has made the assessment in question with some ulterior motive. It has further to be kept in mind that it was conduct of the officer in discharge of his duties which alone could be looked into and not the correctness or illegality of his decision which could be made subject matter of disciplinary inquiry. In the instant case, this fact also cannot be ruled out that against re-assessment made by petitioner after adjudication vide order dt.27/05/1999 disallowing certificate of exemption earlier granted to the Firm (M/s RC Oil Industry), the assessee Firm approached the appellate authority by way of appeal which was allowed vide order dt.22/11/99 while setting aside re-assessment order dt. 27/05/1999 and the revision petition preferred by the Department was also dismissed by Tax Board vide order dt.14/05/2002. Thus the premise of holding petitioner guilty was that before assessment was made, it was incumbent upon him to first revoke certificate of exemption granted earlier to the assessee under incentive scheme, 1989 in absence whereof, financial loss was caused to public exchequer, which was never accepted at any stage by appellate & revisional authority and it has further strengthen the plea of petitioner that exemption was granted by his predecessor in office and once benefit was availed by the assessee Firm, which could not have been revoked with retrospective effect and that plea was accepted through out; in such circumstances, it can in no manner be held from material on record that the petitioner acted either negligently or recklessly while discharging his statutory duties as quasi judicial authority while passing order of assessment which was made subject matter of inquiry in instant case. Taking note of principles laid down by Apex Court in the cases (supra), in the opinion of this Court, the findings recorded by inquiry officer are totally vitiated for want of any legally acceptable or relevant evidence to support the charges of misconduct and in absence of any evidence, the conclusions reached by inquiry officer affirmed by disciplinary authority also stand vitiated. Consequently, writ petition succeeds and is hereby allowed. Order dt.20/08/2007 (Ann.3) is quashed & set aside and the petitioner is entitled for consequential benefits and accordingly, pendente instant petition, if petitioner has been superseded due to penalty inflicted vide order dt. 20/08/2007 which stands set aside (supra), the respondents are directed to review and consider his candidature for promotions from the date his juniors were considered & promoted, with all consequential benefits permissible under law. All exercise to comply with directions (supra) be made within three months. No order as to costs.