Madras High Court
S.Manickam vs The Commissioner Of Commercial Taxes on 11 March, 2015
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.03.2015 CORAM THE HONOURABLE Mr. JUSTICE K.RAVICHANDRABAABU W.P.(MD)No.8820 of 2014 and M.P(MD)No.1 of 2014 S.Manickam ... Petitioner Vs. 1.The Commissioner of Commercial Taxes, Ezhilagam, Chepauk, Chennai ? 600 005. 2.The Accountant General (A&E) Office of the Account General, Tamil Nadu, Chennai. 3.The District Treasury Officer, Tuticorin. ... Respondents Prayer Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records of the disciplinary proceedings of first respondent in his order in proceedings No.E2/25994/08, dated 07.05.2014 to quash the same, allowing the writ petition and consequently to direct the second and third respondent allowing the petitioner for receiving full pension (without any cut in his pension). !For Petitioner : Mr.M.Ganesan ^For Respondents : Mr.R.Anandaraj Orders reserved on : 12.02.2015 ****** :O R D E R
The petitioner is aggrieved against the final order passed by the first respondent in his proceedings dated 07.05.2014. Consequently, he is seeking a direction to the second and third respondents to allow him to receive full pension. Through the impugned order, the petitioner was awarded the punishment of cut in pension at the rate of Rs.1,000/- per month for a period of three years.
2. The case of the petitioner is as follows:-
He served in the Commercial Taxes Department for more than 33 years without getting any adverse remarks till his retirement on 31.05.2006. The first respondent, who is appointing authority, has however, issued a charge memo on 01.07.2008 under Rule 17(b) of the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules. The allegation made under the charge is that during the year 2004-2005, he had issued seven Transit Passes to a registered dealer M/s. VNMAD Firm, to a total value of Rs.15,08,250/- for the interstate movement of goods on consignment sales to the Pondicherry Union State and thereby facilitated the trader to evade sales tax at the rate of 4% and that by the above said act, he has failed to maintain integrity, devotion to duty and thus violated Rule 21 of the Tamil Nadu Government Servants Conduct Rule, 1973. The petitioner submitted his explanation on 17.02.2009. After lapse of 3 years, the first respondent appointed an Enquiry Officer to conduct enquiry. The Enquiry Officer submitted his report after examining all the relevant material facts and evidence, stating that the charges I and II are 'not proved'. The first respondent differing with the view taken by the Enquiry Officer, issued a show-cause notice under Rule 9(2)(b)(i) of the Tamil Nadu Pension Rules, dated 28.02.2012. The first respondent differed with the Enquiry Officer only on the reason that incorrect name of the check post was found. The first respondent has not pointed out any pecuniary loss caused to the Government. The petitioner has submitted his explanation on 05.04.2013. However, the final order is passed, which is impugned in this writ petition as stated supra.
3. The respondents have filed a counter affidavit, wherein it is stated as follows:-
The writ petitioner and one Thiru M.Omur Mohideen, CTO-III, have issued 24 false transit passes to VNMAD Firm of Thoothukudi to facilitate the said trader to create false records, as if pulses to the total value of Rs.56,34,670/- sold to one N.Rathinasabapathy, Rajagopal Chetty and Co., Pondicherry, when actually no such sale was made at Pondicherry, thus facilitated the trader to evade sales tax of Rs.2,25,387/-. This writ petitioner has issued 7 transit passes to a value of Rs.15,08,250/- out of the total 24 transit passes. The disciplinary action under Rule 17(b) of the Tamil Nadu Civil Services (Disciplinary and Appeal) Rules was initiated against this writ petitioner and a charge memo was issued on 01.07.2008. An enquiry was conducted and the Enquiry Officer submitted his report on 27.01.2012. After examining the report of the Enquiry Officer, it was decided to disagree with the finding of the Enquiry Officer. Hence, through communication dated 28.02.2012, the petitioner was informed of the reasons for such disagreement. Further, explanations were called for from the petitioner, who in turn, submitted his representation on 05.04.2013. The writ petitioner has not accepted the proposed punishment. Hence, material papers were sent to Government for obtaining the views of the Tamil Nadu Public Service Commission, who are the competent authority to offer views to Government under Tamil Nadu Civil Services (Disciplinary and Appeal) Rules.
In the meantime, the petitioner has approached this Court by filing a writ petition in W.P(MD)No.4833 of 2014 to quash the show-cause notice issued on 28.02.2013 and further notice dated 04.07.2013. This Court ordered to direct the first respondent to pass final order on the disciplinary proceedings within a period of 30 days. As per the said order passed by this Court, it has been decided to hold both the charges as proved and consequently, the impugned order has been passed by the competent authority.
4. Learned counsel appearing for the petitioner submits that the impugned order passed is in violation of Rules 9(1)(a), 2(a) and 2(b) of the Tamil Nadu Pension Rules. He further pointed out that there is no specific finding rendered by the punishing authority that there is a pecuniary loss happened to the Government. He further pointed out that before passing this impugned order, remarks were not obtained from the Tamil Nadu Public Service Commission, as the petitioner has not agreed for withholding or withdrawing of pension. In support of his submission, the learned counsel relied on the decisions reported in (1990)4 SCC 314 (D.V.Kapoor vs. Union of India and others), (1993)2 SCC 55 (V.D.Trivedi vs. Union of India), (1999)7 SCC 409 (Zunjarrao Bhikaji Nagarkar vs. Union of India and others) and unreported decision of this Court made in W.A(MD)No.171/2012 dated 13.03.2012.
5. Per contra, the learned Government Advocate appearing for the respondents supported the impugned order and submitted that the same was passed in accordance with law, as the petitioner has facilitated the trader to evade sales tax to a sum of Rs.60,330/- by issuing four transit passes to the value of Rs.15,08,350/- . Therefore, he submitted that the pecuniary loss to the Government is well established in this case. He further submitted that Rule 9 of the Tamil Nadu Pension Rules empowers the Government withholding or withdrawing a pension or part thereof either permanently or for a specified period, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct during the period of his service.
6. Heard both sides.
7. The petitioner was functioning as Additional Deputy Commercial Tax Officer and retired from service on attaining age of superannuation on 31.05.2006. It is stated by the petitioner and not disputed by the respondents that till his retirement, there were no adverse remarks and any other proceedings initiated or pending against him. It is also seen that the first respondent has forwarded the pension papers of the petitioner to the Accountant General for sanctioning of pension and other pensionery benefits, after the retirement of the petitioner for the grant of pension. However, after a period of two years, the first respondent issued a charge memo dated 01.07.2008 under Rule 17(b) of the Tamil Nadu Civil Services (Disciplinary and Appeal) Rules, containing two charges. The allegation made against the petitioner was that he issued 7 false transit passes to one trader which enabled the said trader to create false records to evade sale tax to the tune of Rs.60,330/-. The petitioner denied the charges and consequently, an enquiry was conducted. It is seen that the Enquiry Officer after conducting the enquiry, filed a report on 27.01.2012, holding that the charges levelled against the petitioner as 'not proved'. The disciplinary authority differed with the findings of the Enquiry Officer and issued show-cause notice dated 28.02.2012 under Rule 9(2)(b)(i) of the Tamil Nadu Pension Rules. The reason for disagreement on the findings of the Enquiry Officer is that the charged officer has issued the transit passes with incorrect name and such act is proved in the enquiry report. The petitioner, on receipt of such show-cause notice, submitted his explanation on 05.04.2013 denying the charges by giving written representation in detail. The petitioner specifically stated that issuance of 7 transit passes, which were issued by the petitioner to the assessee, was corroborated by the documentary evidence, Lorry Receipt, Consignment Note, Form XX, sales pattials and declaration of Form F. He further stated that non-surrender of transit pass is not the conclusive proof to decide whether the goods consigned have been sold within the State without being moved to Pondicherry. Thereafter, the disciplinary authority not being satisfied with the said explanation, proposed to impose a punishment of cut in pension of Rs.1000/- per months for a period of three years. Such proposal was communicated to the petitioner through proceedings dated 04.07.2013 and he was called upon to offer his objection as against the proposed punishment. The petitioner once again disputed and denied the allegations and requested to drop the charges, through his letter dated 21.08.2013. Thereafter, the present impugned order came to be passed, imposing the punishment as stated supra.
8. At this juncture, it is useful to refer to the relevant Rule, namely, Rule 9(1)(a) of the Tamil Nadu Pension Rule. 9(1)(a) The Government reserve to themselves the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period if, in any departmental or judicial proceeding, the petitioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement, and such withholding or withdrawing the pension may be effected irrespective of the fact whether or not any pecuniary loss on account of such grave misconduct or negligence was caused to the Government, to any local body or to any co-operative society comprising of government servants and registered under the Tamil Nadu Co-operative Societies Act 1961;
9. A perusal of the said Rule would show that the Government is empowered to withhold or withdrawal of the pension either in full or part thereof whether permanently or for a specified period if the pensioner is found guilty of grave misconduct or negligence during the period of his service in any departmental or judicial proceeding.
10. It is further contemplated therein that such withholding or withdrawing of the pension may be effected, irrespective of the fact whether or not any pecuniary loss on account of such misconduct was caused to the Government. Therefore, the petitioner is not justified in contending that there is no finding with regard to pecuniary loss caused to the Government. However, reading of proviso to sub-rule (1)(a) of Rule 9 would show that if the petitioner does not agree to such withholding or withdrawing of the pension and before passing an order under the said Rule, the Tamil Nadu Public Service Commission shall have to be consulted. Needless to say that such consultation referred to under the above such proviso with a Tamil Nadu Public Service Commission is mandatory.
11. At this juncture, it is useful to refer to a Full Bench decision of this Court reported in (2013)3 MLJ 846 (C.Mathesu vs. Secretary to Government, Revenue Department, Chennai and others), wherein at paragraph 12, it has been observed as follows:-
?12. As far as the Pension Rules are concerned, under Rule 9(1)(a), the Government has reserved to it the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period if, in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service. It is also applicable in respect of service rendered upon re-employment after retirement. The Government can withhold or withdraw the pension irrespective of the fact whether any pecuniary loss on account of the misconduct or negligence was caused to the Government or not. However, the order withholding or withdrawing the pension can be passed only after consultation with the Tamil Nadu Public Service Commission, in case the pensioner does not agree to such a proposal. Under the second proviso, it has been stipulated that withholding or withdrawing a part of the pension cannot reduce the pension payable below the limit specified in sub-rule (5) of Rule 43. Clause
(b) of Rule 9(1) provides that if any pecuniary loss has been caused to the Government and in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including the service rendered upon re-employment after retirement, then the Government shall have the right of ordering recovery of the whole or part of the pecuniary loss caused by such grave misconduct or negligence from the pension or Death-cum-Retirement Gratuity. However, this can be done only after consultation with the Tamil Nadu Public Service Commission.
(emphasis supplied)
12. Therefore, it is crystal clear that consultation of the Tamil Nadu Public Service Commission before passing the order under Rule 9(1)(a), is essential and cannot be dispensed with. Whether the views furnished by the TNPSC is binding on the Government or not is another thing. But at the same time, when taking of such view is being mandatory and if no such view is taken, the order passed under Rule 9(1)(a) is to be held as vitiated.
13. In this case, it is seen that no such consultation was made with the TNPSC before passing the impugned order. Admittedly, a notice was issued calling upon the petitioner to show-cause about the proposed punishment. He replied thereby not agreeing with such proposed punishment. As per the proviso to Rule 9(1)(a), the respondent ought to have taken view of the TNPSC. In this case, it has not been done and on the other hand, the first respondent has passed the impugned order only, on the reason that this Court has directed the first respondent to pass final orders within 30 days, in W.P(MD)No.4833 of 2013. Needless to say that if this Court has directed the authority to pass order within 30 days, it does not mean that such order can be passed without following the mandatory procedure contemplated under the relevant Rule. Therefore, I am of the view that the impugned order having been passed in violation of Rule 19(1)(a) cannot be sustained. The learned counsel for the petitioner relied a decision reported in (1997)7 SCC 409 (cited supra) wherein at paragraphs 42 and 43, it is held as follows:
?42. Initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty.
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 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 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.?
14. Even on merits it appears that the charge levelled against the petitioner cannot be sustained for the following reasons:
It is not in dispute that the petitioner was only an Issuing Authority to issue the transit passes. Therefore, if the goods were moved without transit passes or with false transit passes, as if the goods were moved from Tamil Nadu to Pandicherry, then, the Assessing Authority ought to have proceeded against the registered dealer by issuing show-cause notice and making an order of assessment accordingly by considering said movement of goods as deemed sales within the State of Tamil Nadu. But in this case, it appears that no such proceedings have been initiated by the Assessing Authority and on the other hand, the Assessing Authority accepted the transit passes issued along with other documents including declaration form to the effect that the transfer of goods claimed otherwise than by way of sale. Such assessment order passed in respect of the relevant period appears to have become final and conclusive, as no appeal or revision is said to have been filed by the department. Therefore, the charge levelled against the petitioner cannot be sustained even on merits. This aspect has not been considered by the disciplinary authority while passing the final order of punishment. Further the charge memo impugned in this writ petition came to be issued on 01.07.2008 in respect of the alleged delinquency, said to have been taken place in the year 2004-2005, that too, after allowing the petitioner to retire on 31.05.2006. The above sequence of events would show that there is unreasonable delay in initiating the disciplinary proceedings against the petitioner, which in my considered view has not been properly explained.
15. Considering all these facts and circumstances, this Writ Petition is allowed and the impugned order is set aside. If any amount is recovered from the petitioner in pursuant to the impugned order, the same shall be refunded to the petitioner within four weeks from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is closed.
11.03.2015 Index:Yes/No Internet:Yes/No skn To
1.The Commissioner of Commercial Taxes, Ezhilagam, Chepauk, Chennai ? 600 005.
2.The Accountant General (A&E) Office of the Account General, Tamil Nadu, Chennai.
3.The District Treasury Officer, Tuticorin.
K.RAVICHANDRABAABU, J skn Order made in W.P.(MD)No.8820 of 2014 and M.P(MD)No.1 of 2014 11.03.2015