Madras High Court
A.Murugesan vs The Secretary To Govt on 18 February, 2014
Author: T.S. Sivagnanam
Bench: T.S. Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:18.02.2014 Coram The Hon'ble Mr. Justice T.S. SIVAGNANAM W.P. No.13224 of 2010 A.Murugesan ... Petitioner Vs 1.The Secretary to Govt., Commercial Taxes and Registration Dept., Secretariat, Chennai 600 009. 2.The Inspector General of Registration, No.100, Santhome High Road, Chennai 600 028. ... Respondents Prayer:-Petitions filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus to call for all the records on the file of the second respondents in No.46829/B2/U1/2006, dated 16.04.2010, quash the same and consequently, permit the petitioner to retire from service from 30.09.2005, with all retiremental/terminal benefits. For petitioner .. M/s.K.Moorthy and Mr.S.R.Sundar For Respondents .. Mr.R.Ravichandran A.G.P., for RR1&2 O R D E R
With the consent of the learned counsel appearing on either side, the Writ Petition itself is taken up for final disposal.
2. In this writ petition, the petitioner has sought for issuance of a Writ of Certiorarified Mandamus, to quash the order passed by the second respondent, dated 16.04.2010, and consequently permit the petitioner to retire from service with effect from 30.09.2005.
3. The petitioner was working as a Sub-Registrar of Assurance, who was placed under suspension on the eve of his retirement on the ground that the charges were pending against the petitioner under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (Rules), for having caused loss to the exchequer, while registering certain documents during his tenure as Sub-Registrar at various places. The petitioner was due to retire on attaining the age of superannuation on 30.09.2005, but was not permitted to retire, as he was placed under suspension on 12.08.2005 and he was retained his services. The charges framed against the petitioner ultimately resulted in an order dated 06.04.2010, by which the petitioner was removed from service. Challenging the same, this writ petition has been filed.
4. The petitioner was issued five charge memos dated 03.04.2003, 14.01.2005, 21.07.2005, 03.08.2005 and 10.08.2005, all issued invoking Rule 17(b) of the Rules. The allegation in all the charge memos were identical alleging that during the tenure of the petitioner as Sub-Registrar at various places, namely Perundurai, Chatrapatti and Vadamadurai. The petitioner had registered several documents and based on an objection raised by the Office of the Accountant General, there was short levy of stamp duty and registration fee, proceedings were initiated against the petitioner. The allegations in the charge memo dated 03.04.2003, are that during his tenure as Sub-Registrar of Perundurai, he has alleged to have caused a loss of Rs.2,34,726/-, while registering 46 documents; In the charge memo dated 14.01.2005, it is alleged that the petitioner caused a loss of Rs.1,45,184/-, while registering certain documents. In the charge memo dated 21.07.2005, it is alleged that a loss of Rs.13,99,142/-, was caused while registering documents between the year 1997 till 2002; Similarly in respect of charge memo dated 03.08.2005, it was alleged that a loss of Rs.9,10,987/- was caused while registering documents between 2002 to 2005; In respect of the charge memo dated 10.08.2005, it is alleged that a loss of Rs.14,30,167/-, has been caused while registering 12 lease deeds executed by SIPCOT with certain entrepreneurs during 2002 to 2005. The common feature in all the charge memos are that the alleged loss has been pointed out in the departmental audit and the audit conducted by the Office of the Accountant General. Thus, the charge memos emanated only based upon the audit conducted by the Department and based on the objection raised by the Office of the Accountant General.
5. It is to be noted that all the allegations in all the charge memos did not pertain to the year during which the charge memos were issued, but the allegation dates back to nearly 15 years prior to the issuance of the charge memos, as the documents which were subject matter of those charge memos, were registered from 1990 onwards. Thus, it is evident that the Department did not immediately proceed on the alleged loss said to have been caused on account of the power exercised by the petitioner, as Sub-Registrar, but the respondents were prompted to act based on the audit objection, which appears to have been initiated nearly 15 years after the registration of the documents. The petitioner submitted his explanation to the charge memo and pointed out that certain documents like document No.1382/2002, was never registered by the petitioner while he was a Sub-Registrar and it has been wrongly mentioned. At that stage, the petitioner was diagnosed to have cancer and was under intensive treatment, which ultimately resulted in the removal of his intestines. The Assistant Inspector General of Registration (in-charge), appointed as enquiry officer to enquire into the charges, submitted reports dated 18.09.2008 and 22.01.2010. The enquiry officer in his report observed that in respect of 10 documents, the allegation that there was financial loss was held to be proved.
6. Insofar as the question as to whether the stamp duty on development charges should be collected in respect of the lease documents executed by SIPCOT, the enquiry officer held in favour of the petitioner, as development charges are not liable for any stamp duty. The Department accepted the said findings of the enquiry officer and there is no dissent on this aspect by the disciplinary authority. Thereafter, the disciplinary authority proceeded to accept the findings of the enquiry officer and held that the petitioner was responsible for causing loss of Rs.10,85,918/-and imposed the major penalty of removal from service. Challenging the said order, the writ petition has been filed.
7. The learned counsel appearing for the petitioner contended that the impugned order is opposed to the principles of law and in total violation of principles of natural justice. It is further contended that the nature of duties and responsibility discharged by the petitioner while in service, is quasi judicial in nature and therefore, in the absence of any bad intention, no charge memo can be framed against such quasi judicial action. Further, the learned counsel submitted that the enquiry officer accepted the stand taken by the petitioner that development charges collected by the lessor will not be construed as market value of the property. Further, as regards the appropriate Article of the Stamp Act under which the document is chargeable, the learned counsel placed reliance on the decision of the Special Bench of the Delhi High Court in the case of Chief Controlling Revenue Authority, Delhi vs. Marshell Produce Brokers Company Pvt Ltd., (SB) reported in AIR 1980 Del 249 and submitted that plot cost paid by the lessee to SIPCOT is refundable and the said amount shall be treated as a security deposit for the due performance of the contract of lease and is chargeable under Article 57 of Schedule-I read with Section 5 of the Indian Stamp Act, 1899. Referring to the decision in the case of S.Muthuramu vs. State of Tamil Nadu reported in 2008 3 MLJ 766, the learned counsel placed reliance on the decisions of this Court in the case of B.K.Gunasekaran vs. State of Tamil Nadu, reported in (2010) 7 MLJ 32, and the case of B.K.Gunasekaran vs. State of Tamil Nadu, reported in (2010) 7 MLJ 161, which was confirmed by the Hon'ble Division Bench in W.A.No.2417 of 2010, dated 25.03.2011.
8. The learned Additional Government Pleader appearing for the respondents sought to sustain the impugned order by referring to the charge memos and the finding rendered by the disciplinary authority and submitted that the punishment of removal from service was appropriate. It is further submitted that the petitioner while working as Sub-Registrar failed to take statutory steps to recover the loss from the parties and therefore, the charges were framed against the petitioner and he was not permitted to retire. Further, it is submitted that the charges could not have been framed earlier, but was done on receipt of the audit objections from the office of the Accountant General and therefore, the charges were framed after exhausting all steps, which are time consuming.
9. Heard the learned counsels appearing on either side and perused the materials available on record.
10. The first issue which falls for consideration is as to whether the petitioner who while functioning as Sub-Registrar of Assurances from the period 1992 to 2002 in the process of exercising his powers under the Stamp Act and Rules framed thereunder, which are quasi judicial in nature could be penalised by issuing a charge memo under Rule 17(b) of the Rules for exercise of such quasi judicial power solely based on audit objections raised after a long lapse of time that to by the Office of the Accountant General. This question is no longer res integra and has been considered by several decisions of this Court, which have been followed in a decision rendered by this Court in the case of B.K.Gunasekaran vs. State of Tamil Nadu, reported in (2010) 7 MLJ 161, wherein this Court considered the earlier Judgments and held as follows:-
15. It is argued by the learned Additional Government Pleader, that mere delay cannot be a ground to quash the charge memo and each case needs to be examined by considering the nature of the charges and the reasons for delay. The learned Additional Government Pleader has also dated the judgments in Secretary to Government, Prohibition & Exer4cise Department v. L. Srinivasan (1996) 3 SCC 157 : 1996-II-LLJ-245 and Government of A.P. and Others v. Appalaswamy (2007) 14 SCC 49 in support of such argument. As far as Secretary to Government, Prohibition & Exercise Department v. L. Srininvasan (supra) case is concerned , allegations therein are regarding embezzlement and fabrication of records and the Apex Court was of the view that delay in checking the records to be done in secrecy leading to delay in initiating disciplinary proceedings. But, that is not the case herein, as the department had occasion to detect the irregularities as early as on 2004, the ruling above cited is not applicable to the present case. In the case in Government of A.P. and Others v. Appalaswamy (supra) the principle laid down is that proceedings, initiated belatedly can be quashed on two grounds (i) where by reason of the delay, the employer condoned the lapses on the part of the employee (ii) where the delay caused prejudice to the employee.
11. The petitioner in the said writ petition namely B.K.Gunasekaran was subsequently issued another charge memo in respect of discharge of his duty as Assistant Inspector General of Registration alleging that he has adopted lesser value than the prescribed guideline value. This Court, in the decision reported in (2010) 7 MLJ 161, following the earlier decision in (2010) 7 MLJ 32, and the decision of the Hon'ble Apex Court, quashed the charge memo. The respondent State preferred Writ Appeal in W.A.No.2417/2010, against the said order, which was dismissed by the Hon'ble Division Bench, in W.A.No.2417 of 2010 by order dated 25.03.2011.
12. Admittedly, the method of valuation adopted by the petitioner while functioning as Sub-Registrar at Perundurai, while entertaining 12 lease deeds executed by SIPCOT, he held that development charges cannot be taken into consideration for computing the value of the land. Though in the charge memo this was pointed to as a dereliction of duty warranting deterrent action, the enquiry officer who conducted the domestic enquiry upheld the view taken by the petitioner and stated that development charges are not liable for any duty. In the counter affidavit filed by the second respondent in this writ petition in paragraph 5, the second respondent has accepted that the view of the enquiry officer is correct and the second respondent has accepted the findings of the enquiry officer.
13. Sofar as the plot deposit, the petitioner appears to have valued the documents under Article 57 of the Schedule read with Section 5 of the Stamp Act. This according to the audit department of the office of the Accountant General is incorrect. In any event such being a quasi judicial act and in the absence of any allegation of malafide intentions or recklessness attributed to the petitioner, the same could not have been a basis for issuing a charge memo under Rule 17(b) of the Rules. In fact, the lessor of the property was SIPCOT a Government of Tamil Nadu undertaking and 12 such lease deeds were executed by the SIPCOT and registered during the tenure of the petitioner between 2002 to 2005 and no objection was raised by the officials of the Registration Department nor the Inspector General of Registration, the second respondent and for the first time action is sought to be proceeded against the petitioner by retaining him in service, though he attained the age of superannuation on 30.09.2005, based on an audit objection raised by the Office of the Accountant General.
14. Further, it is to be noted that the CCRA who is a quasi judicial authority while exercising appellate powers under Section 33A of the Indian Stamp Act in the appeals filed by the lessees to the said documents, confirmed the audit objections that the development charges collected from the lessees form part and parcel of advance to the lease and hence includable in the market value. However, the same quasi judicial authority namely, CCRA subsequently accepted the findings of the enquiry officer, who conducted the enquiry against the petitioner and accepted his view stating that development charges need not be taken into account for the calculation of stamp duty and registration fee.
15. Thus, the CCRA himself as a quasi judicial appellate authority exercising powers under Section 33A of the Act, passed an erroneous order at the first instance and thereafter, accepted his mistake on perusing the enquiry officer's report and reversed its earlier order. This manifestly establishes that the initial order passed by the CCRA suffered from gross error while deciding the nature of lease deeds in question and it is chargeablity to stamp duty. Therefore, it is clear that the charges against the petitioner have been framed without due application of mind solely on the basis of a much belated audit objection raised by the office of the Accountant General.
16. Furthermore, the respondent in the counter affidavit, has stated that the alleged deficit stamp duty cannot be recovered, when in fact in respect of two documents, the said deficit stamp duty along with registration charges have been collected from the claimants of those two documents as per the information provided under the Right to Information Act, by proceedings dated 08.06.2010. Apart from the above, there has been gross procedural violation in the manner in which the domestic enquiry was conducted, as it is to be noted that no witnesses were examined to establish the charges and documents were not marked in the manner known to law. The copy of the enquiry report has not been furnished to the petitioner and the belated initiation of disciplinary proceedings vitiate the entire proceedings.
17(i) In respect of registrations done between the period 1990 to 1992, charge memo dated 06.11.2007, was issued i.e., after 15 years in which the petitioner was not the registering authority for 9 out of 10 documents.
(ii) In respect of the charge memo dated 03.08.2005, it was alleged that a loss of Rs.9,10,987/- has been caused to the exchequer, whereas the second respondent by order dated 16.04.2010, stated that the alleged loss is Rs.8,358/-.
(iii) In respect of charge memo dated 19.08.2005, the allegation pertains to certain documents registered between 1997 and 2002 and the alleged loss is Rs.8879/-;
(iv) In respect of charge memo dated 21.07.2005, the documents pertain to the year between 1997 and 2002;
(v) In respect of the charge memo dated 14.01.2003, it pertains to the documents registered between 1993 and 2001; and
(vi) In respect of the charge memo dated 10.08.2005, it pertains to 12 lease deeds registered between 2002 and 2005 and there is also a mistake in the charge memo, since two of the documents mentioned in the charge memo were not admitted for registration by the petitioner during his tenure.
18. Considering the entire facts and applying the settled legal principles to the facts of the case, this Court has no hesitation to hold that the proceedings initiated against the petitioner was thoroughly without jurisdiction and the order which ultimately resulted in the punishment of removal from service is held to be unsustainable in law.
19. In the result, the Writ Petition is allowed, the impugned order is quashed and the second respondent is directed to permit the petitioner to retire from service with effect from the actual date on which he attained the age of superannuation, viz., 30.09.2009 and the retiral benefits shall be settled to the petitioner, within a period of two months from the date of receipt of a copy of this order. This Court has fixed the period of two months for settling the retrial benefits, because the petitioner has been diagnosed as suffering from cancer in his intestines and his intestines have been removed, a major surgery has been performed on him and he is regularly under going treatment, which requires substantial sums of money. Considering the above facts, the second respondent shall pass appropriate orders for releasing the retiral benefits, within the time stipulated by this Court. No costs.
18.02.2014
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Index : Yes
Internet: Yes
To
1.The Secretary to Govt.,
Commercial Taxes and Registration Dept.,
Secretariat, Chennai 600 009.
2.The Inspector General of Registration,
No.100, Santhome High Road,
Chennai 600 028.
T.S. SIVAGNANAM, J.
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O r d e r in
W.P. No.13224 of 2010
18.02.2014