Madras High Court
S. Muthuramu vs State Of Tamil Nadu on 26 February, 2008
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26-2-2008 CORAM THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.19012 of 2007 M.P.Nos.1 and 2 of 2007 S. Muthuramu ... Petitioner Vs. 1. State of Tamil Nadu, rep.by its Chief Secretary to Government, Public (Special-A) Department, Secretariat, Chennai - 9. 2. The Inspector General of Registration, Foreshore Estate, Chennai -28. ... Respondents Prayer: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorari calling for the records relating to the first respondent vide letter No.379/2005-1, dated 20.8.2005 and quash the same. For Petitioner : Mr.S.Vijayakumar For Respondents : Mr.I.Paranthaman Additional Govt. Pleader O R D E R
By consent of both sides, the writ petition itself was taken up for final disposal.
2. Prayer in the writ petition is to quash the order dated 20.8.2005, passed by the first respondent herein.
3. The brief facts necessary for disposal of the writ petition are as follows:
(a) Petitioner started his service in the Revenue Department as Junior Assistant in the year 1972; got promoted as Assistant in the year 1975; further promoted as Deputy Tahsildar in the year 1984; as Tahsildar in the year 1993; as Deputy Collector in the year 1998; and as District Revenue Officer in the year 2001. When the writ petition was filed, he was serving at the Principal Civil Services Training Institute, Bavanisagar. He has put in totally 34 years of service.
(b) When the petitioner was promoted to the post of Deputy Collector, he was posted as Additional Special Deputy Collector and at that time, the Sub Registrar, Arakkonam referred Document No.70 of 1998 under section 47-A(1) of the Indian Stamp Act. On receipt of the reference, petitioner took action as contemplated under Rule 4 of the Tamil Nadu Stamp (Prevention of Under-Valuation Instruments) Rules, 1968. On perusal of the document and inspection of the property and after considering the representation, petitioner determined the market value of the property and fixed the value at Rs.22 per sq.ft. under section 5 of the Indian Stamp Act. The said value was fixed considering the market value prevailing then, even though the nomenclature of the land was shown as agriculture. The petitioner discharged his duties as a Quasi Judicial Authority and fixed the market value in terms of the provisions of the Indian Stamp Act.
(c) On 20.8.2005, petitioner received a charge memo, framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, alleging that a loss of revenue to the Government to the tune of Rs.2,12,187/- was sustained since the petitioner failed to value the true market value by making local enquiry and arbitrarily fixed the value at Rs.22/- per sq.ft. and thereby petitioner contravened the Rule 20(1) of the Tamil Nadu Government Servants Conduct Rules, 1973.
(d) According to the petitioner, he having exercised his powers as contemplated under the provisions of the Indian Stamp Act, as a Quasi Judicial Authority, if anybody is aggrieved, the proper remedy is to file an appeal against the said order as contemplated under the Act before the Inspector General of Registration and no misconduct for the alleged violation of the Rule 20(1) of the Tamil Nadu Government Servants Conduct Rules, is attracted. Petitioner sent a reply to the said charge memo on 28.11.2005 and stated that he has followed Rule 4 and 5 of the Tamil Nadu Stamp (Prevention of Under-valuation of Instruments) Rules, 1968, and also inspected the property, received representation from the party and also verified the sales took place in the nearby lands within the vicinity and thereafter fixed the market value.
(e) One of the document referred to the petitioner was Document No.70 of 1998 of Joint Sub Registrar Officer, Arakkonam, through which an extent of 1.04 acre of land comprised in T.S.Nos.25, 30, 32, 33 and 34 of Block-6, Ward- D of Arakkonam Municipality, Ammanur Village of Arakkonam Taluk, had been sold. Immediately on receipt of the documents from the Sub Registrar, he inspected the lands on 8.12.1998 and after holding enquiry, he fixed the said market value. In fact, an award was passed by the Revenue Divisional Officer, Ranipet, in respect of lands under acquisition comprised in T.S.No.30/2, Block-4, Ward-D at the rate of Rs.16.06 per sq.ft. and while passing the award the Revenue Divisional Officer relied on the sales transaction took place on 15.3.1997 in document No.131/1997, Joint Registrar-II, Arakkonam.
(f) Even though enquiry was concluded with regard to the said charge memo on 6.4.2006, a copy of the report was not given to the petitioner and after a request made, it was served on the petitioner on 23.9.2006. In the enquiry, charge against the petitioner was found proved. Petitioner submitted remarks to the enquiry officer's report and requested to drop the proceedings and thereafter an order was passed stating that the guideline value of Rs.48.50 per sq.ft. for the total extent of 45344 sq.ft. should have been relied on for valuation of the land and the said value should be used for calculating the revenue loss for the document bearing registration No.70/1998 and the Government in consultation with Inspector General of Registration, arrived at a conclusion that the loss is sustained by the Government.
(g) The said order is challenged on the ground that the petitioner having performed his duties as Quasi Judicial Authority under section 47-A(1) of the Indian Stamp Act, no charge could be framed against the petitioner, that too after a period of seven years. Petitioner bona fidely believed that Rs.22/- per sq.ft. will be the proper value. He has relied on the valuation fixed by the Land Acquisition Officer fixing the value of Rs.16.06 per sq.ft. by award dated 17.7.2000 for the lands in the very same survey number. No motive is attributed against the petitioner and as such the charge itself is not maintainable. Thus the petitioner has challenged the charge memo as it is not maintainable.
4. Respondents filed counter affidavit wherein it is contended that the petitioner cannot be permitted to justify his improper action under the cover of quasi judicial function when there is material to show that his fixation is of lower market value.
5. Heard the learned counsel for the petitioner as well as the learned Additional Government Pleader.
6. From the perusal of the charge memo it could be seen that the allegation against the petitioner is that he has fixed the market value at Rs.22/- per sq.ft. in Document No.70 of 1998 whereas the adjacent lands were acquired by the Government on negotiation at the rate of Rs.58/- per sq.ft. in the year 1999. No motive or ill-will is alleged in the said imputation of charge. Admittedly petitioner is exercising quasi-judicial function under section 47-A(1) of the Indian Stamp Act. If the Department is not satisfied with the valuation, nothing prevented the Department from filing appeal before the Inspector General of Registration challenging the order passed by the petitioner, fixing the market rate of Rs.22/- per sq.ft. In the absence of any motive or bad intention, no charge could be framed against the Quasi-Judicial Authority and the same is well settled.
7. (a) In the decision reported in (1999) 7 SCC 409 (Zunjarrao Bhikaji Nagarkar v. Union of India), the Supreme Court considered similar issue and held that negligence in exercising quasi-judicial power by mere carelessness or inadvertence or omission is not sufficient to initiate proceedings under misconduct. Unless there is a culpable negligence or ill-motive, no charge could be framed. In paragraphs 43 and 44, the Supreme Court held as follows:
"43. If every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi-judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi-judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi-judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi-judicial authority. The entire system of administrative adjudication whereunder quasi-judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings.
44. Considering whole aspects of the matter, we are of the view that it was not a case for initiation of any disciplinary proceedings against the appellant. The charge of misconduct against him was not proper. It has to be quashed."
(b) Whether the disciplinary proceeding can be initiated against a judicial officer, who granted bail exercising discretion while discharging the Judicial function, was considered by the Supreme Court in the decision reported in (2007) 2 SCC (Criminal) 266 (Ramesh Chander Singh v. High Court of Allahabad). In paragraph 12, the Supreme Court held as follows:
"12. This Court on several occasions has disapproved the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgments/orders passed by them are wrong. The appellate and revisional courts have been established and given powers to set aside such orders. The higher courts after hearing the appeal may modify or set aside erroneous judgments of the lower courts. While taking disciplinary action based on judicial orders, the High Court must take extra care and caution."
(c) In the decision reported in 2007 (3) LLN 106 = (2007) 4 SCC 566 (Inspector Prem Chand v. Government of N.C.J. of Delhi) following the earlier decisions, the Supreme Court held that the acts of negligence, error of judgment or innocent mistake, do not constitute misconduct. In the above case, the appellant/Police Officer failed to seize the tainted money on receipt of complaint of alleged demand of bribe by an Inspector (Malairiya). Department initiated disciplinary proceeding on the charge that he had not seized the tainted money, which could be an important piece of evidence in criminal proceeding. The Supreme Court held that the Police Inspector could not be said to have committed any misconduct merely because in the opinion of the higher authorities he ought to have seized the tainted money. The Supreme Court in paragraphs 10 to 12 dealt with the term misconduct, which reads as follows:
"10. In State of Punjab v. Ram Singh, Ex-Constable (1999 (2) LLN 419) it was stated, in para.5, at page 422:
Misconduct has been defined in Blacks Law Dictionary , 6th Edn. at p.999, thus:
A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior; its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. Misconduct in office has been defined as:
Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office-holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.
11. In P.Ramanatha Aiyars Law Lexicon , 3rd Edn., at p.3027, the term misconduct has been defined as under:
The term misconduct implies a wrongful intention, and not a mere error of judgment.
Misconduct is not necessarily the same thing as conduct involving moral turpitude.
The word misconduct is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. (See also Bharat Petroleum Corpn. Ltd. v. T.K. Raju (2006 (2) LLN 54))
12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was wilful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India v. J.Ahmed ((1979) 2 SCC 286) whereupon Mr Sharan himself has placed reliance, this Court held so stating:
Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster 17 Q.B.536, 542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers (1959(1) W.L.R.698)). This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Rly., Nagpur Division, Nagpur (61 B.L.R. 1569) and Satubha K. Vaghela v. Moosa Raza (10 G.L.R. 23). The High Court has noted the definition of misconduct in Strouds Judicial Dictionary which runs as under:
Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct . (emphasis supplied)
(d) A Division Bench of this Court in the decision reported in 1999 (2) LW 174 (A.M.Sankaran v. The Registrar, High Court, Madras), quashed an order of compulsory retirement passed against the judicial officer for destroying the seized spirit without examining or recording any evidence regarding the inflamable nature of the spirit. This court held that the said order having been passed during discharge of the function as judicial officer, framing such charge without any allegation or recklessness or abuse of power, cannot be sustained.
8. Applying the principles laid down in the above decisions to the facts of this case, particularly when there is no motive or recklessness attributed against the petitioner and no misconduct is committed by the petitioner, I hold, the charge as framed is not maintainable against the petitioner, who is a quasi-judicial authority. The impugned order is set aside and the writ petition is allowed. No costs. Connected miscellaneous petitions are closed.
vr To
1. The Director of School Education, Chennai - 6.
2. The District Educational Officer,(East), Chennai 94.