# M/s Vehalana Steels & Alloys P.Ltd v. State of U.P. and others

- **Citation:** (2008) 1 ILRA 261
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-02
- **Case number:** Civil Misc. Writ Petition No. 1820 (Tax) of 2007
- **Bench:** Sushil Harkauli, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-vehalana-steels-alloys-p-ltd-v-state-of-u-p-and-others-41040
- **Pages:** 3

## Headnote

Constitution of India-Art. 226-Principle
of
Natural
Justice-Provisional
assessment-notice
issued
based
on
survey report-copy of enquiry report not
given as being confidential documentheld-once inference given in show cause
notice-can not be said to be confidential.

Held: Para 5 & 6

The present case also where assessment
is proposed by the authority based on a
survey and the report submitted on the
basis of the said survey, the authority
before acting upon such report is bound
to disclose the said report to the person
concerned otherwise it would amount to
take
a
decision
without
disclosing
adverse
material
to
the
person
concerned.

In our view the aforesaid decision of the
assessing authority cannot be sustained.
There does not appear any logical reason
to hold the report of the DC SIB to be
confidential
and
accordingly-for
not
supplying the same, if it is proposed by
the department to rely upon that report
in the provisional assessment.
Case law discussed:
AIR 1979 SC-1237, AIR 1978 SC-851, AIR
1991 SC-471, AIR 1994 SC-1074

## Text

1 All] M/s Vehalana Steels & Alloys P.Ltd. V. State of U.P. and others
261
with the efficiency of administration to
provide employment to the candidates of
any reserved category in contravention of
the mandate of Article 335 of the
Constitution.

13. In view thereof, as the
reservation is provided for physically
handicapped persons, though horizontal in
nature, he/she must secure minimum
qualifying marks as fixed by the authority
concerned. The appellant-petitioner who
has failed to achieve the said benchmark
as she secured 36 percent marks while
qualifying marks had been fixed as 55
percent,
would
be
denied
further
consideration in view of the provisions of
Article 335 of the Constitution of India. It
is not the case of the appellant-petitioner
that any other physically handicapped
person securing lesser marks than her, is
being permitted consideration any further.

14. The Special Appeal lacks merit
and is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2008

BEFORE
THE HON'BLE SUSHIL HARKAULI, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 1820 (Tax) of
2007

M/s Vehalana Steels & Alloys Pvt. Ltd.

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Aloke Kumar

Counsel for the Respondents:
S.C.
Constitution of India-Art. 226-Principle
of
Natural
Justice-Provisional
assessment-notice
issued
based
on
survey report-copy of enquiry report not
given as being confidential documentheld-once inference given in show cause
notice-can not be said to be confidential.

Held: Para 5 & 6

The present case also where assessment
is proposed by the authority based on a
survey and the report submitted on the
basis of the said survey, the authority
before acting upon such report is bound
to disclose the said report to the person
concerned otherwise it would amount to
take
a
decision
without
disclosing
adverse
material
to
the
person
concerned.

In our view the aforesaid decision of the
assessing authority cannot be sustained.
There does not appear any logical reason
to hold the report of the DC SIB to be
confidential
and
accordingly-for
not
supplying the same, if it is proposed by
the department to rely upon that report
in the provisional assessment.
Case law discussed:
AIR 1979 SC-1237, AIR 1978 SC-851, AIR
1991 SC-471, AIR 1994 SC-1074

(Delivered by Hon'ble Sushil Harkauli. J.)

1. It is alleged by the petitioner that
after the survey on 12.7.2007 by the team
of
the
Respondent-Department,
the
petitioner was called upon by the Deputy
Commissioner (SIB) Trade Tax, Muzaffar
Nagar (hereinafter referred for short as
DC SIB) for producing the accounts,
which the petitioner claims to have
produced. The petitioner also claims to
have participated in the proceedings
before
the
said DC SIB. Further,
according to the petitioner, the DC SIB
submitted a report as a result of the said
inquiry, whereafter notice for provisional
assessment has been issued to the
262 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
petitioner. The petitioner further submits
that despite request of the petitioner copy
of the report submitted by the DC SIB has
not been supplied to the petitioner. The
prayer in this writ petition is to restrain
the provisional assessment proceedings
till the supply of the said report of the DC
SIB.

2. We have heard the learned
counsel for the petitioner and the learned
Standing Counsel.

3. There are only two possibilities
namely either that some part of the said
report of the DC SIB will be relied upon
in
the
provisional
assessment
proceedings; or that the report will be
ignored in the sense that no part of it will
be considered in those proceedings.

4. In the event of the first of the
aforesaid two possibilities, the report or
its part will constitute material adverse to
the petitioner which is proposed to be
relied upon, either by itself or coupled
with other facts and/or circumstances, for
recording findings against the petitioner.
In any case it may influence the mind of
the Authority making the provisional
assessment. Therefore the principles of
natural justice would require that such
material must be disclosed to the
petitioner before it is used against the
petitioner. In Mazharaul Islam Hashmi
Vs State of U.P. and another reported in
AIR 1979 SC 1237, the Apex Court has
held that other person must know what he
has to met in that case. In Mohinder
Singh
Gill
Vs
Chief
Election
Commissioner, New Delhi reported in
AIR 1978 SC 851, it was held that a
person likely to suffer civil consequences
is entitled to the report, which is being
relied upon to take a decision against him.
Again in respect of the departmental
inquiry, a three Judges Bench of the Apex
Court in Union of India and others Vs
Mohd. Ramzan Khan AIR 1991 SC 471
held that copy of the inquiry report which
is taken into consideration by the
disciplinary
authority
must
be
communicated to the delinquent employee
before final decision is taken by the
disciplinary
authority
otherwise
his
decision would be in violation of the
principles
of
natural
justice.
The
correctness of the Apex Court decision in
the case of Mohd. Ramzan (supra) came
to be considered by a Constitution Bench
in Managing Director E.C.I.L. Vs B.
Karunakar reported in AIR 1994 SC
1074 and affirming the same it was held
that "before the disciplinary authority
comes
to
its
own
conclusion,
the
delinquent employee should have an
opportunity to reply to the inquiry
officer's finding".

5. Though the aforesaid law was in
respect of the proceedings arising out of a
disciplinary matter, in our view the
dictum would apply to all such cases
where an order passed is likely to cause
civil consequences whether judicial, quasi
judicial or administrative. However, the
said requirement may be checked by
legislature
by
making
appropriate
provision but in the absence thereof, we
have no manner of doubt that no
document or material can be relied by an
authority for passing an order without
disclosing the same to the affected party
otherwise the ultimate order would be in
violation of natural justice. The present
case also where assessment is proposed
by the authority based on a survey and the
report submitted on the basis of the said
survey, the authority before acting upon
such report is bound to disclose the said
1 All] Union of India and others V. Hari Nath Yadav and another
263
report to the person concerned otherwise
it would amount to take a decision
without disclosing adverse material to the
person concerned.

6. The assessing authority has
declined to supply copy of the report by
his letter dated 15.12.2007 on the ground
that the same is confidential and,
therefore, need not be furnished to the
petitioner particularly when inference
drawn from the said report has already
been noticed in the show cause notice. In
our view the aforesaid decision of the
assessing authority cannot be sustained.
There does not appear any logical reason
to hold the report of the DC SIB to be
confidential
and
accordingly-for
not
supplying the same, if it is proposed by
the department to rely upon that report in
the provisional assessment.

7. It is mentioned in Anncxurc-5 to
the writ petition that the 'substance of the
adverse
inferences'
has
been
communicated to the petitioner. But the
communication of the substance of the
adverse findings in that report may not
always be sufficient. The reason is that
the material adverse to the petitioner in
the report may not have been properly or
completely understood or appreciated in
its proper perspective by the Officer when
it read the report, and what has been
understood by the Officer may not have
been communicated accurately to the
petitioner by that Officer. Language as a
medium for communication of ideas is far
from perfect, and that imperfection
increases indirect communication. The
inadmissibility of hearsay evidence is
based on that concept. Moreover the
context in which the adverse conclusion
finds place in the report may, in some
cases, have great importance. Again the
basis of the adverse conclusion, as
mentioned in the report, would also be
important. Therefore, principles of natural
justice would require a copy of the
original report to be supplied, instead of
supplying indirect information to the
person against whom that report is
proposed to be relied upon.

8. In the circumstances, we dispose
of this writ petition finally directing the
respondents not to proceed with the
provisional assessment unless copy of the
report of DC SIB is supplied to the
petitioner if the department proposes to
rely on any part of that report in the
provisional assessment proceedings. It is
clarified that the supply of the copy of the
report will not be necessary, and the
provisional assessment proceedings may
be continued if the department does not
propose to rely upon that report at all in
the provisional assessment proceedings.
However, in the latter situation the
petitioner will be informed in advance in
writing by the department that the
department will not rely on any part of
that report.

Petition disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.01.2008

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 17571 of 2006

Union of India and others ...Petitioners
Versus
Hari Nath Yadav & another ...Respondents

Counsel for the Petitioners:
Sri V.K. Goel