Page 92 - GSTL_26th March 2020_Vol 34_Part 4

602 GST LAW TIMES [ Vol. 34
3. The case of the petitioner is that he is working as a Salesman in the
TASMAC shop belonging to the respondents. The impugned proceedings came
to be issued to the petitioner directing the petitioner to pay the fine and 18% GST
within a period of 7 days, failing which, the petitioner will be relieved from his
services. This order has become a subject matter of challenge in the present writ
petition.
4. Mr. Ajay Khose, Learned Counsel appearing on behalf of the peti-
tioner submitted that the second respondent has straight away passed an order
calling upon the petitioner to pay the penalty along with GST, even without giv-
ing an opportunity to the petitioner and therefore, the impugned proceedings of
the second respondent is liable to be quashed. The Learned Counsel in order to
substantiate his submission relied upon the earlier order passed by this Court in
W.P. 34379 of 2019, dated 10-12-2019.
5. The relevant portion of the order that was cited by the Learned
Counsel for the petitioner is extracted hereunder :-
“5. The Learned Counsel for the petitioner submitted that the entire
exercise that was carried out by the 3rd respondent was pre-determined
and the 3rd respondent had directed the petitioner to pay the penalty and
GST, even before the conclusion of the disciplinary proceedings. The
Learned Counsel submitted that the entire dispute pertains to the fact as to
whether, the petitioner had charged more than a maximum retail price. Un-
less the charge is proved, the petitioner cannot be directed to pay the penal-
ty and GST. That apart, the impugned order does not reflect any applica-
tion of mind.
6. Per contra, Mr. P. Arumuga Rajan, Learned Standing Counsel ap-
pearing on behalf of the respondents submitted that the petitioner was in-
dulging in selling the liquor bottle by adding an extra cost to the maximum
retail price, and thereby the petitioner was misappropriating and enriching
himself at the cost of TASMAC. The Learned Standing counsel submitted
that the respondents was not satisfied with the explanation given by the pe-
titioner, and therefore the petitioner was suspended from services. The
Learned Standing Counsel further submitted that the petitioner is liable to
repay back the amount with GST and there are absolutely no grounds to in-
terfere with the impugned order.
8. This Court had an occasion to deal with a similar issue in C.
Sankar v. The Tamil Nadu State Marketing Corporation Ltd., and Others in W.P.
No. 37 of 2019, dated 27-2-2019, and the relevant portions of the order is ex-
tracted hereunder :
7. This Court is of an opinion that any order affecting the
rights of an employee must be issued at least by providing an oppor-
tunity to the delinquent official to defend his case in the manner
known to law. As far as the other Statutes are concerned, the respond-
ents are bound to follow the procedures contemplated under the Act.
8. However, for imposing penalty and for imposing minor
punishments, the procedure of issuing show-cause notice and receiv-
ing explanations/objections are to be followed by the authorities be-
fore taking a decision and passing orders.
9. On a perusal of the impugned order itself, it is dear that no
such show-cause notice was issued to the writ petitioner.
10. The Learned Counsel appearing on behalf of the respond-
ents is also unable to establish that an opportunity was provided to the
writ petitioner before issuing the impugned order imposing penalty.
11. Under these circumstances, this Court is of an opinion
that the writ petition is fit for remand and accordingly, the impugned
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