Madras High Court
S.Thangavel vs The Commissioner Of on 15 November, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.11.2012 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.30407 of 2012 and M.P.No.1 of 2012 S.Thangavel .. Petitioner Vs. 1.The Commissioner of Commercial Taxes, Ezhilagam, Chepauk, Chennai 600 005. 2.The Deputy Commissioner, Commercial Taxes, Zone VII, PAPJAM Buildings, Greams Road, Chennai 600 006. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for a writ of Certiorarified mandamus, calling for the records pertaining to the Charge Memo in CP2/14873/2012 dated 31.5.2012 issued by the 1st respondent as the issues involved in the charges are pending disposal before the tax appellate forums and also contrary to the facts submitted by the second respondent in Roc.516/2012/A3 dated 31.05.2012 to quash it as illegal arbitrary and against the law laid down by the Apex Court and consequently to direct the 1st respondent to settle the terminal pension benefits due to the petitioner. For Petitioner : Mr.R.Rajendran O R D E R
The petitioner is a retired Assistant Commissioner of Commercial Taxes. When he reached the age of superannuation on 31.05.2012, he was issued with charge memo dated 31.05.2012 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. On the same day another order was also passed by the Commissioner of Commercial Taxes viz., the first respondent allowing him to retire without prejudice to the disciplinary proceedings initiated under Rule 17(b).
2. The petitioner submitted his explanation denying the charges. He also objected to the framing of charges. As he was retired without prejudice to disciplinary action, he was paid provisional pension at the rate of 75% by the order of the Deputy Commissioner (CT) Zone IX, Chennai -6 dated 06.09.2012. It was thereafter the petitioner has filed the present writ petition challenging the charge memo. In doing so, he was inspired by the observation made by the Supreme Court vide judgment reported in (2007) 4 SCC 247 [Ramesh Chander Singh v. High Court of Allahabad and another], wherein the Supreme Court held that when a person discharges his judicial function, taking exception to the order, no disciplinary action can be initiated. Hence, the petitioner contended as a Assistant Commissioner (CT), he had discharged his function and in the absence of any corrupt motive or irregular procedure, no action is called for.
3. The charges levelled against the petitioner as found in the impugned charge memo reads as follows:-
"Charge No.1 That Thiru S.Thangavel, now Assistant Commissioner (CT), Washermanpet II Assessment Circle, Chennai has committed certain lapses in his assessment work, as detailed in Annexure II, while he was working as Assessing Officer in Adayar I assessment circle which led to huge loss of revenue to State Exchequer.
Charge No.2 That the above said official has not properly issued revision notices in time in certain cases and thus the demands raised consequent on revision has not been collected as indicated in Annexure II.
Charge No.3 That Thiru S.Thangavel, now Assistant Commissioner (CT), Washermanpet II Assessment Circle, Chennai by his aforesaid act of failure to issue of revision notices has acted with negligence and dishonestly in the discharge of his duties violative of Rule 20(1) of the Tamil Nadu Government Servants' Conduct Rules 1973."
(Emphasis added)
4. In support of the charges in Annexure II, imputations of misconduct have been set out, in Annexure III, the documents by which it was sought to be proved was set out and in Annexure IV, the name of the present Assistant Commissioner (CT), Washermanpet as a witness to support the charges was given.
5. Therefore, this Court is not inclined to interfere with the impugned charge memo, especially when the petitioner has given his defence and facing charges. He has also been paid 75% of provisional pension pending enquiry.
6. However, the learned counsel for the petitioner placed reliance on the judgment of a Division Bench of this Court presided by P.K.Misra (as he then was) reported in 2008 (226) ELT 696 [Union of India v. P.Parameswaran]. But in that case, the Division Bench analysed the previous judgments of the Supreme Court bearing on the subject including Ramesh Chander Singh case cited by the petitioner and in paragraphs 14 and 15, the Division Bench observed as follows:-
"14. Once again, in this matter also, there is no reference to the earlier three Judge Bench judgment in Duli Chand's case. However, since Nagarkar's case was found to be contrary to the earlier judgment of the Supreme Court in K.K.Dhawan case wherein the Supreme Court had laid down six instances under which a Government servant discharging quasi-judicial function can be proceeded in a disciplinary action (which have been already extracted). We will have to apply those facts also in the present case. But the subsequent judgment in Ramesh Chander Singh case (cited supra), K.G.Balakrishnan, CJ had referred to Nagarkar's case and quoted it with approval. Ultimately, the decisions will have to be applied depending on the fact situation of each case.
15. Therefore, if the decisions in K.K.Dhawan case, Nagarkar case, Duli Chand case, Ramesh Chander Singh case and Inspector Prem Chand case are read together, it is necessary that before initiating disciplinary action, the Department must have a prima facie material to show recklessness and that the officer had acted negligently or by his order unduly favoured a party and his action was actuated by corrupt motive. In fact, K.G.Balakrishnan, CJ in Ramesh Chander Singh's case even took an exception to the practice of initiating disciplinary action against Officers merely because the orders passed by them were wrong."
7. Therefore, the case referred to by the petitioner is no way helpful to the petitioner. The circumstances under which a charge memo can be quashed even without trial has not been made out in the case on hand. Hence, the writ petition stands dismissed. No costs. Connected miscellaneous petition is closed.
svki To
1.The Commissioner of Commercial Taxes, Ezhilagam, Chepauk, Chennai 600 005.
2.The Deputy Commissioner, Commercial Taxes, Zone VII, PAPJAM Buildings, Greams Road, Chennai 600 006