Santokh Singh vs. State Of Punjab

authenticity of this order/judgment.

CWP-19088-2001 (O&M) -2- petitioner was issued show cause notice of recovery of Rs.2,77,169/-. He submitted reply to the show cause notice on 29.12.1997. Vide order dated 09.04.2001, recovery of Rs.2,77,169/- was ordered to be effected from the petitioner. He filed review petition which was dismissed on 24.10.2001. Hence, the present writ petition.

CWP-19088-2001 (O&M) -3-

to Memo No.17/2/96-PPJ/(I)/10041, dated 12.5.1997 (received under cover of letter No.1375-76/IE, dated 23.7.1997 from XEN., Kharar Const. Division, SYL., Chandigarh), calling upon the undersigned to submit written statement before your goodself against charges listed in the Statement of Allegations enclosed therewith. The charges have been framed as under:- I. Failure to submit Form 'D' in the first instance to avail of the concessional rate of Sales-Tax of 4% instead of 10%. II. Subsequent failure to ascertain correct rate of Sales-Tax leviable in respect of Govt. department. III. Delay in pointing out the irregularity to the firm leading to excess payment of Rs.2.56 lac. IV. Incurring extra expenditure of Rs.20,759/- on a/c. of 'Under Charges' of cement which you have failed to get reimbursed from the firm. First of all, I deny the above charges as I am not guilty of omission or commission in discharging my official duties which resulted in loss to the state Govt. by irresponsible conduct and mala fide intention of the suppliers. While assailing the aforesaid allegations SAHIL 2026.08.26 17:22 I attest to the accuracy and authenticity of this order/judgment.

CWP-19088-2001 (O&M) -4- leveled for the proposed action against me under Rule-8 of the Rules ibid, on the grounds as discussed hereinafter, I would like to first narrate sequence of facts of the case briefly as follows:- FACTS:

vide

Release

order No.RC/PS/IPP/Maj.Irrigation/SYL/F.21/PB/MANI KGARH-1 dated 10th April, 1987, mentioning thereon for Irrigation & Power Projects by affixing rubber stamp (Annexure '1').

Projects,

vide

their

letters No.GA-DLI/MKT/52,

dt.20.4.87

and No.W/Sales/N-II-87/1/5265, dt.10.5.87 respectively marked Annexure (2, 2-A) & 3. In addition to the price of levy cement, M/S Gujarat Ambuja Cements Ltd. claimed sales-Tax @ 12% (GST) thereon and M/S Manikgarh Cement claimed sales-tax as applicable in their respective letters referred to SAHIL 2026.08.26 17:22 I attest to the accuracy and authenticity of this order/judgment.

CWP-19088-2001 (O&M) -5- above addressed to the Supdt. Engr. Const. Circle- III, SYL Canal Project, Pb., Chandigarh. Superintending Engineer, Circle Const-III had referred the matter to Chief Engineer, SYL Canal Project alongwith Pro-forma invoice (Annexure 2, 2-A) supplied by M/S Gujarat Ambuja Cement vide Superintending Engineer letter No.4068/1-S dt.22.4.87 (Annexure-4) for obtaining sanction from Govt. for making payment for 5500 MT Cement @ Rs.852.07+12% Gujarat Sales Tax for destination. Superintending Engineer, Const. Circle-III had also made reference of other concerns M/S Manikgarh Cement Co. who had not supplied the pro-forma invoice to the representative of the Circle, but the firm subsequently supplied the pro-forma invoice dt.10.5.87 & 4878 dt.28.4.87 (Annexure-3).

vide

Chief

Engineer

letter No.912/SYL/Co-ord/8) dt.15.4.87 (Annexure 6 & 6- A). The Chief Engineer SYL again requested the Govt. for according necessary sanction for placing supply order and also making advance payments to both the firms (Rs.50 lacs to M/S Manikgarh Co. & Rs.55 lac to M/S Gujarat Ambuja, Cement) vide Chief Engineer, SYL U.O. NO.1056/Co-ord/SYL SAHIL 2026.08.26 17:22 I attest to the accuracy and authenticity of this order/judgment.

CWP-19088-2001 (O&M) -6- dt.9.5.87 (Annexure 7, 7-A 7-B). Accordingly the Govt. had accorded the approval vide Memo No.7/10/86/IPP J (6)/14081 dt.21.5.87 Annexure-8, 8-A, 8-B) for making advance payments to both the firms and funds were released accordingly.

CWP-19088-2001 (O&M) -7- Mohali bearing endorsement No.8278-A/3-A, dated 10.8.1987 (Copy annexure-11) with direction to release Rs.20 lac to the Manikgarh factory in the Ist instance. Accordingly a D/Draft for rs.20.00 lac alongwith despatch particulars in the prescribed order form supplied by the firm were sent to the firm vide letter No.5060/7-S/TCD dt.18.8.87 (Annexure 12, 12-A, 12-B) with CC to Superintending Engineer, Construction Circle-III S.Y.L. and others. It was duly signed under (rubber seal) of Executive Engineer, Kharar Const. Divn., SYL Canal Project, Pb., Mohali, without stipulating CST @ 10% as I had no difficulty in presuming that Sales-tax as applicable to the Govt. Deptt. would be charged by the party. The copy of the letter alongwith copy of the order form was also endorsed to Supdt. Engineer, Const. Circle-III, SYL Canal Project, Chandigarh with reference in his endorsement No.8278-A/3-A dated 10.8.87 mentioned herein. The balance amount of rupees thirty lac was advanced to the party in November, 1987 as per sanction accorded by the Govt. vide Memo No.7/10/86-/IPP J (6)/14881 dt.21.5.87. 7. As the original invoices dated 30.11.1987 and dated 31.12.1987 said to have been raised by the party for supplies of cement made during the month of November, 1987 and December, 1987 were not received, the party was asked vide Divisional Office letter NO.683-684 dt.5.3.1988 & subsequent reminder vide letter No.1519-20/7S/TCD dt.16.3.88 to furnish invoices for the supply of cement. Rajindra Place New Delhi to help in enforcing the recovery. SAHIL 2026.08.26 17:22 I attest to the accuracy and authenticity of this order/judgment.

CWP-19088-2001 (O&M) -8- The duplicate invoices No.L-193, dated 30.11.87 for Rs.16.47 lac towards supply of 1755.80 MT of cement dated L-204, dt.31.12.1987 for Rs.30.54 lac on a/c of supply of 3255.05 MT of cement were received from the party in April, 1988 vide their letter No.W/Sales/4826, dated 26.3.1988 marked Annexure-13. As per office procedure, the said invoices were sent to O/JE for verification with official records and balance advance amount after adjustment of amount of receipts. The same were received back after proper verification from Sub Divisional Office sometime in July, 1988. At this stage, it was noticed the party has charged CST @ 10% in their invoices, thereby adjusting 6% excess Sales-tax amounting to Rs.2.56 lac out of Rs.50 lac advanced to them. The matter was taken up with the party for refund of excess 6% CST collected vide my letter (Regd.) No.5041/DA/I, dated 20.9.88 Annexure-14. In this letter, the party was asked to reimburse an amount of Rs.20,759/- paid to the Railway at the destination station on account of 'Under Charges', as the terms of supply were of F.O.R. basis. During my tenure in the Kharar Division, the matter was consistently followed up with the party for the refund of excess amount adjusted from advanced deposits with them by issuing reminders bearing No.5552/DA/I dated 17.10.1988 and No.6475/DA/I dated 9.12.1988 with copy to Asstt. Development Commissioner for Cement Industries, Rajindra Place New Delhi to help in enforcing the recovery.

CWP-19088-2001 (O&M) -9- reminder NO.6474/75/DA/I dt.9.12.1988, the party vide their letter No.W/Sales/N-II-B/I/97719, dated 16.12.1988 marked as Annexure-15, referred to only refund of Rs.2.99 lac made to this office during 3/88 being the balance advance amount after adjustment of amount of their invoices dated 30.11.1987 and dated 31.12.1987 but they intentionally remained evasive to touch the issue of our refund claims on account of excess sales-tax adjusted and reimbursement of under charges paid at the destination. After my transfer on 5.6.1989, the matter was persued by my successor.

CWP-19088-2001 (O&M) -10- the seller to entitle him to a concessional rate of tax but it is mandatory that before furnishing the Declaration Form to the selling dealer, the purchaser shall fill in all the required particulars of the sales transaction in the Form and shall affix his signature and official seal in space provided in the Form under Rule-48 of the Central Sales-tax (Bombay) Rules-1957 read with the Central Sales Tax (Registration & Turnover) Rules, 1957, which inter alia provides: "A certificate in Form 'D' appended to the Central Sales Tax (Regn. & Turnover) Rules, 1957 (hereinafter referred to as the aforesaid Form 'D') may be issued for the purpose of clause (b) of Sub- section (4) of Section-8 by any officer duly authorised by the Govt. under the said clause (hereinafter referred to as the "authorised Officer"). Before issuing such certificate, the authorised Officer shall duly fill in the Certificate Form and affix his usual signature and seal in space provided in the form for that purpose. ii) Such form inter-alia contains the particulars relating to sales on which tax is leviable such as: Purchase order No., name of the issuing Deptt., Bill No., Challan No., date, material purchased quantity and amount etc. etc. It is thus, evident that the law prohibits issuance of blank declaration Form to the seller to avoid its misuse. On the other hand Pro-forma invoice has no locus standi as far the Sales-tax law is concerned. It is only meant for arranging tentative funds for purchases to be made and is like a quotation showing current price of commodities. Once statutory provision exists for SAHIL 2026.08.26 17:22 I attest to the accuracy and authenticity of this order/judgment.

CWP-19088-2001 (O&M) -11- submission of duly completed declaration Form, the conclusion of the Learned Auditors that failure to submit Form 'D' in the first instance to avail concessional rate of tax on the basis of Pro-forma invoice falls through. iii) Therefore, duly completed Form 'D' could have been issued only on the basis of final (duplicate) invoices dt.30.11.1987 and dt.31.12.1987, practically received in the Divisional Office in the month of July, 1988 as explained in para-7 ante. Nevertheless, by pointing out the discrepency to the party vide my office letter (Regd.) dated 20.9.1988 marked as Annexure-14, the burden of extra tax liability was well taken care of. iv) There is nothing in the sales tax Act or Rules Limiting the time within which the purchaser has to issue declaration Form or vice versa- the selling dealer has to obtain such Form from the purchaser. But under Rule-12 (7) read with Rule 12 (1) of the Central Sales Tax (Regn. & Turnover) Rules, 1957, the declaration Form-'D' can be furnished to the prescribed authority upto the time of assessment by the first assessing authority: provided that if the prescribed authority is satisfied that the person concerned was prevented by sufficient cause from furnishing such declaration or certificate within aforesaid time, that authority may allow such declaration or certificate to be furnished within such further time as that authority may permit. As per law laid down by various High Courts of the land, declaration Form (s) can be accepted even at the Appellate stage, if sufficient cause is shown. In SAHIL 2026.08.26 17:22 I attest to the accuracy and authenticity of this order/judgment.

CWP-19088-2001 (O&M) -12- this regard reliance may be placed on the following judgements cited as: (a) Rajeshwari Stone Polishers V/s State of A.P. (1983( 52-STC-268 (AP). (b) State of Tamilnadu V/S Arulmurugan & Co. (51- STC-381) (Mad.) (c) Bharat Engineering & Foundary Works V/s State of Madhya Pradesh and others. (57-STC-296 at 299 (MP) (d) Commissioner of Sales Tax V/s Minimax (35-STC- 388 at 392 (Bombay) Had the party responded to my Regd. letter dated 20.9.1988 (Annexure-14) or subsequent reminders issued from the Divisional Office and collected Form 'D' before final Sales Tax Assessment for the year 1987-88 or requested the Assessing Authority for extension of time to submit the requisite Forms, extra liability of Sales-Tax to the tune of Rs.2.56 lac put on us would have been thwarted. II. Subsequent failure to ascertain correct rate of Sales-Tax leviable in respect of Government Department. (i) It is not the case of purchases made by any private shopkeeper, whole-sale trader an industrialist and to my mind it is very clear that M/S Manikgarh Cement manufacturers and suppliers of long outstanding cannot bed so ignorant that the supply of levy cement to Govt. Deptt. released by the Regional Development Commissioner for Cement Industries for major Irrigation & Power Project (Satluj-Yamuna Lind Canal Project, (Punjab) on SAHIL 2026.08.26 17:22 I attest to the accuracy and authenticity of this order/judgment.

CWP-19088-2001 (O&M) -13- fixed price applicable to Govt. Deptt. on rate contract category under the Cement control Order and also against 'Order Form' placed by the Executive Engineer, Kharar Const. Division, SYL Canal Project (PB.) duly signed with rubber seal, is not a sale to the Govt. Deptt. eligible to tax @ 4% only. Moreover, Regional Development Commissioner for cement industries, New Delhi vide letter NO.RDC/ND/I & PP/MAJ Irri./SYL/F21/PB/2623 dt.24.4.87 with CC to both the firms (Annexure-17) has clearly stated that price of cement is fixed under cement control order by Govt. of India and no factory could charge in excess than legally permissible rates to Govt. Deptt. (ii) In the absence of any specific stipulation in the 'Order Form' marked Annexure 12-B that Sales-Tax is payable @ 10% the presumption can be that tax leviable to the Govt. Deptt. is chargeable. This presumption was further strangthened by the fact the suppliers themselves have clarified vide their letter dated 10.5.1987 marked as Annexure-3 addressed to the Superintending Engineer, Const. Circle-III, SYL Canal Project (PB), Chandigarh that sales tax as applicable would be effective for transactions made by them. As submitted above, I bonafide believed and still believe that there was sufficient material proof with the party and it was well within their knowledge that the supply of cement to the SYL Canal Project (PB) (Major Govt. Irrigation Project) does constitute a sale to the Government department. It is on account of this bonafide belief that they would be charging sales- SAHIL 2026.08.26 17:22 I attest to the accuracy and authenticity of this order/judgment.

CWP-19088-2001 (O&M) -14- tax as applicable to the Govt. Deptt., on further quary was made from them. (iii) The dealer (Seller) is not entitled to have the tax illegally collected or charging any tax in excess of what was due under the Act. Rules 9-C of the Central Sales Tax (Bombay) Rules, (as amended and as applicable to the State of Maharashtra inter alia provides: "No registered dealer shall collect any amount by way of tax under the Act or in lieu of the tax:- (a) ........................................ (b) ........................................ (c) on any transaction of sale in excess of the amount of tax payable by him on such transaction under the provision of the Act." Suit for refund of tax illegally recovered is maintainable. (iv) Moreover, as stated in paras 2 & 5 herein-above under head 'Facts' the Pro-forma invoices in Original were received by the Superintending Engineer, Const. Circle-III, Chandigarh to whom the parties letters quoting extra sales-tax Chargeable, referred to as Annexure 2 & 3 were addressed to. This office also forwarded said Pro- forma invoice in original to Superintending Engineer, Const. Circle-III for further necessary action at their end vide this office letter at Annexure-10. It is a common knowledge that before getting financiall concurrance, arranging sanction from the Government and release of L.O.C., the aforesaid documents must have been throughly examined in the office of the Superintending SAHIL 2026.08.26 17:22 I attest to the accuracy and authenticity of this order/judgment.

CWP-19088-2001 (O&M) -15- Engineer, and the Chief Engineer (Const.), S.Y.L. Chandigarh and also by the Finance & Accounts Department. It is obvious that the extra sales-tax proposed by the firms in their Pro-forma invoices was in the knowledge of the office of Superintending Engineer as well as Chief Engineer. But surprisingly it was not pointed out by any office at any stage. As soon as it came to my notice the matter was immediately taken up with both firms for refund. Instead of appreciating my action of saving the state exchequer from less, I have been chargesheeted. III- Delay in pointing out hte irregularity to the firm leading to excess payment of Rs.2,56,410/-. (i) In this connection, I respectfully submit that perusal of preceding paras-5, 6, 7 & 8 reveals my conduct that I was diligent all along in taking appropriate steps and that the procedural delay, if any, was caused notwithstanding my due deligence. As stated in para-7 ante, I took timely appropriate steps for purusing remedy till my transfer from that Division i.e. 5.6.89. (ii) It may kindly be observed that the party ignored not only my registered letter dated 20.9.1988 (Annexure 14) but also failed to take into consideration subsequent reminders intentionally as explained in para-8 here-in-before and instead they proceeded to get assessment completed without obtaining declaration form 'D'. The important point to note is that the party through informed in the year 1992 vide their letter dt.18.10.1992 marked Annexure-16, that their SAHIL 2026.08.26 17:22 I attest to the accuracy and authenticity of this order/judgment.

CWP-19088-2001 (O&M) -16- sales-tax assessment upto 1988 is completed yet they have not disclosed the exact date of the Assessment Order passed by the Assessing Authority for the year 1987-88. Obviously, my letter dated 20.9.1988 (Annexure-14) referred to herein must have been received by them, much earlier then passing of the valid assessment order by the Assessing Authority. (iii) It is not disputed that assessment for the year 1987- 88 might have been completed by the year, 1992 as informed by the party but as per normal practice it can never be completed before the receipt of my registered letter dated 20.9.1988 i.e. within a short span of six months time from the date of filing last quarterly sales-tax return for the year 1987-88 by the 30th April, 1988. Even for argument sake, if it is presumed that proceedings for assessment for the year 1987-88 were initiated within that period, it does not mean that the assessment itself was completed and final order of assessment was made in regard to the said assessment year within a period of six months. Therefore, the date of passing Assessment order is crucial for determining the exact position to rebut the plea of the party, which they have tactfully avoided. Further, as per law assessment can be made only once at the end of the assessment year and not every time a return is filed. (iv) It may also be noticed that sales-tax deposited alongwith sales-tax Returns with sales-tax Authorities is 'Provisional' till final assessment order is passed by the Assessing Authority because the duty of the Assessing Authority is not merely to SAHIL 2026.08.26 17:22 I attest to the accuracy and authenticity of this order/judgment.

CWP-19088-2001 (O&M) -17- improve tax that is lawfully eligible but also to give the assessee the benefit of any reduction or exemption that may become due to him upon facts actually found to be true by the Assessing Authority at the time of assessment, whether or not out of ignorance or mistake of the assessee. What it conveys is that the amount of sales-tax even if deposited with the Maharashtra Government, as alleged in the statement of allegations annexed to the Charge-sheet under reply, does not give any right to the party to withhold the amount of sales- tax illegally excess recovered inspite of my pointing out the lacuna in September, 1988, in case final assessment order for the year 1987-88 is not passed by the Competent Authority which I am confident, should have not been passed by that time as explained in foregoing para-(iii). (v) The right course for the party was to request the Assessing Authority at the time of assessment for rectifying the defect by furnishing the requisite Form 'D' after obtaining from the Division or atleast should have made an application to the Sales Tax Authorities on receipt of my registered letter dated 20.9.1988 to that effect producing alternative evidence that the subject sale was to the Govt. of Punjab for Irrigation Project. An honest attempt by the party could not have deprived of the benefit of concessional rate of tax. Mere communication by the party that their sales-tax assessment for the year 1987-88 is completed, that too after a lapse of four years of having come to know of the irregularity, will not absolve them of the responsibility which they failed to discharge SAHIL 2026.08.26 17:22 I attest to the accuracy and authenticity of this order/judgment.

CWP-19088-2001 (O&M) -18- honestly and it does not invalidate our claim on account of excess recovery of tax that accrues from the date when they were specifically pointed out. This fugitive nature of the party smacks of outright mala fide intention. Under the given circumstances leading to misrepresentation by the party, it is doubtful if full payment of 10% CST recovered on the instant transactions has actually gone to State Revenue. It may kindly be appreciated that my diligence and appropriate steps with full responsibility to realise excess sale-tax amount wrongly adjusted by the party became infructuous because of in-different attitude against all business ethics rather bad intention of the party. (vi) On the final refusal of the firm (Annexure-16) to refund the amount on account of excess sales tax fraudulently adjusted by them at their own level out of the advance payment, the firm should have been sued in the court of law by the department, which was, of course, the duty of the then Executive Engineer, Kharar Construction Division, Mohali. (vii) It may also be brought out that in a similar & parallel case, a lump sum advance payment was made to M/S Gujrat Ambuja Cement Ltd. by the Executive Engineer, Rajpura Mechanical Division, SYL under Const. Circle-III (Annexure-8b & 11) for which Kharar Const. Division was made consigne (Pl. refer para 2 ante). This firm had also charged the sales tax @ 12% in its bills/invoices out of the advance payment. On the receipt of these invoices, I had immediately taken up the matter with this firm also for refund of excess sale-tax charged (8% vide Annexure-18 & 19. In response to our SAHIL 2026.08.26 17:22 I attest to the accuracy and authenticity of this order/judgment.

CWP-19088-2001 (O&M) -19- correspondence with the firm, they had refunded the excess sales tax amounting to Rs.2,25,538/- vide cheque No.F-3/290093 dt.30.6.89 (Annexure- 20). So the sales-tax laws are very clear that no dealer (seller) can charge excess sales-tax illegally whether or not out of ignorance or mistake or otherwise. IV. Incurring extra expenditure of Rs.20,759/- on a/c of 'Under Charges' of cement which you have failed to get reimbursed from the firm. (i) 'Under Charges' are collected by railway authorities at the destination railway station on any consignment towards short freight charged or paid at the starting railway station and the goods are not allowed to remove unless all railway dues are cleared. On the other hand, as per the Railway Rules., the goods on arrival if not cleared within 'Free Time' allowed by the Railway attract heavy demurrange & wharfage charges. In order to save huge amount on demurrange and wharfage, under charges amounting to Rs.20,759/- were paid. (ii) Since the supply of cement by M/S Manikgarh cement was on F.O.R. destination railway station basis, the party was asked vide my office letter No.5041/DDI, dated 20.9.1988 (Annexure-14) to reimburse the amount of under charges paid, the matter was followed up by issuing subsequent reminders during my stay over there. It may, therefore, be noticed that the matter for refund of under charges was presued contantly with the party. But if the party flatly turned down our request to refund the amount of under charges after SAHIL 2026.08.26 17:22 I attest to the accuracy and authenticity of this order/judgment.

CWP-19088-2001 (O&M) -20- four years on the plea stated in their letter dated 18.10.1992 (Annexure-16) received in Kharar Divn. after my transfer, I failed to understand as to how I am held responsible on refusal of the party to reimburse the amount. Rather the firm should have been sued in the court of law by the then Executive Engineer incharge. V. Penal action as proposed U/R-8 of Punjab Civil Service (Punishment & Appeal) Rules, 1970 on the grounds set out in the charge sheet under reply is unjustified & against facts when I have acted bonafide with due diligence and full responsibility to release the Government dues which could no be materialised because of bad intention of the party. VI. The above submissions are without prejudice to one another and in addition to one another. I also crave leave to amend, forego or to add to any further submission or submissions during personal hearing and before final decision is taken, if considered necessary. VII. I also wish to be heard in person before final decision.”

CWP-19088-2001 (O&M) -21-

CWP-19088-2001 (O&M) -22- Maharashtra Government. Consequently the Government paid Rs. 2,56,410 in excess. Further, an amount of Rs. 20,759/- was also paid as under charge, therefore, the Govt. incurred loss of Rs.2,77,169/-. When the Govt. asked the company to refund the amount, the company stated that as the Form 'D' had not been sent on time, therefore, the sales tax has been charged @ 10% You audited the accounts at the end of the financial year 1987-

CWP-19088-2001 (O&M) -23- responsible for causing loss amounting to Rs. 2,77,169/- to the Government. The Governor of Punjab, in exercise of his powers is hereby pleased to order recovery under Rule 5 of The Punjab Civil Services (Punishment and Appeal) Rules, 1970 from Sh. Santokh Singh, Executive Engineer (Retd.). The amount i.e. Rs. 2,77,169/- (Two lacs seventy seven thousand one hundred sixty nine rupees) be recovered from his gratuity, salary etc. etc.”

CWP-19088-2001 (O&M) -24- 2002(2) SCT 915, decided on 20.12.2001 is reproduced as under:- “22. After having heard the learned counsel for both the sides and carefully perusing the decisions relied upon by the respondents, we are unable to agree with the contentions put forward by the learned counsel for the respondents. The question is as to whether and if so, why the procedure of holding a regular enquiry should be adopted in a case where the chargesheet is issued under Rule 7 for imposing a major penalty, but ultimately a SAHIL 2026.08.26 17:22 I attest to the accuracy and authenticity of this order/judgment.

CWP-19088-2001 (O&M) -25- minor punishment is imposed. If we go through the Scheme for holding an enquiry under Rule 7, we find that elaborate procedure has bee prescribed by Rule 7. Sub- rule (1) of rule 7 provides that no order of imposing a major penalty shall be passed against a person to whom the rules apply, unless he has been given a reasonable opportunity to show cause against the action proposed to be taken in regard to him. Sub-rule (2) requires the grounds, on which the action is proposed to be taken, shall be reduced to the form of a definite charge or charges and it should be communicated in writing to the persons charged together with a statement of allegations. He should also be called upon to submit his explanation for defence, if any. If the explanations are not found to be satisfactory, then enquiry shall be held at which the evidence shall be heard with regard to the charges as are not admitted. The chargesheeted employee has to be given an opportunity to cross-examine the witnesses. He should be permitted to give evidence and also to examine witnesses on his side. Therefore, we find from this elaborate procedure that the chargesheeted employee will have an opportunity to explain at the initial stage itself when he submits the reply to the chargesheet as to why no action is necessary to be taken against him. Only if his explanation is not accepted, then an enquiry has to be held by giving him opportunity to take part in the enquiry as provided for in the rules. A copy of the report of the Enquiry Officer has to be furnished to the chargesheeted employee, if he is found guilty, and if the disciplinary authority accepts it and proposes to impose the punishment on him, then, the chargesheeted employee will get a further opportunity to urge that the finding of guilt on one or more of charges is not warranted by the evidence on record, and therefore, SAHIL 2026.08.26 17:22 I attest to the accuracy and authenticity of this order/judgment.

CWP-19088-2001 (O&M) -26- he should not be held guilty on such of those charge, on the basis of the enquiry report for the reasons to be mentioned by him, and also to plead that a particular punishment should not be awarded to him. Whereas, in a case where the chargesheet is served under Rule 8 for the imposition of only minor penalty, the chargesheeted employee will be served with the chargesheet, and will get an opportunity to make his representations or submit his explanation against the same. He will have only one opportunity not only to say that he should not be held guilty by accepting his explanation, and that a particular punishment should not be imposed upon him. The chargesheeted employee has to anticipate the likelihood of his being punished with one of the penalties and also to make the written representation with regard to the same, as he will not get any further opportunity to make any further written representation in writing. It may be that he can be given a personal hearing also, but that will not be an effective substantute for a written representation. But, in a case where the chargesheet is issued under Rule 7 for imposition of a major penalty, the petitioner need not assume while replying to the chargesheet that he will be held guilty, and can await the receipt of the copy of the enquiry report, to make his further submissions. Therefore, if a chargesheet is issued under Rule 7 for the imposition of a major penalty, but after receiving the explanation from the chargesheeted employee and considering the same, the disciplinary authority imposes a minor punishment, the petitioner will he deprived of the opportunity to make further representation as mentioned above, and will thus be prejudiced, unless the disciplinary enquiry, as contemplated under Rule 7 is held and completed. SAHIL 2026.08.26 17:22 I attest to the accuracy and authenticity of this order/judgment.

CWP-19088-2001 (O&M) -27-

CWP-19088-2001 (O&M) -28- enquiry, it will not be in a position to punish the chargesheeted employee, but still, for its own reasons wants to impose some punishment on him, them the disciplinary authority will choose to adopt the methodology of dropping the procedure contemplated under Rule 7, and simply state that the explanation of the chargesheeted employee has been considered, and impose a minor punishment. This is not the object of having two different sets of procedures in the from of Rule 7 and Rule 8. The object of prescribing these rules for holding disciplinary proceedings is to protect the chargesheeted employee from arbitrary and capricious exercise of power by disciplinary authority and from unjust and illegal punishments. These Rules are intended to safeguard the rights of such chargesheeted employee and to comply with the principles of natural justice.

CWP-19088-2001 (O&M) -29- I.D. Gupta's case, and that of the Calcutta High Court in M.M. Dutta's case (cited supra), in so far as they hold that even in a case where the chargesheet is issued for imposing a major penalty, the disciplinary authority can still, without holding an enquiry under the relevant Rule for imposing a major penalty, impose a minor penalty. To that extent, we hold that they are not good law. We also hold that the decision of the Hon'ble Supreme Court in Shadi Lal's case is not applicable to the facts of the cases our hand.

CWP-19088-2001 (O&M) -30- along with interest @9% per annum from the date it is recovered till it is refunded.

(SUDEEPTI SHARMA) Saahil/Ayub JUDGE Whether speaking/reasoned : Yes/No Whether reportable

: Yes/No SAHIL 2026.08.26 17:22 I attest to the accuracy and authenticity of this order/judgment.