Madras High Court
J.Mariadoss vs The State Of Tamilnadu on 14 July, 2009
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.07.2009
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
W.P.No.39082 of 2006
(O.A.3293 of 1999)
J.Mariadoss .. Petitioner
.Vs.
1.The State of Tamilnadu, rep. by its
Secretary (Commercial Taxes)
Chennai-9.
2.Special commissioner and Commissioner
for Sales Tax, Chennai-3.
3.Assistant Commissioner,
Commercial Tax Enforcement,
Madras (North),
Madras-6. .. Respondents
Prayer: Writ Petition came to be numbered under Article 226 of Constitution of India praying for a writ of Certiorari calling for the records in proceedings No. Na.Ka.2502/93/A-1, dated 14.1.99 on the file of the 3rd respondent and quash the same.
For petitioner : Mr. M.Ravi
For respondents : Mr.S.Gopinathan, AGP
O R D E R:
The petitioner, Office Assistant attached to the Commercial Tax Department, was alleged to have removed a mini lorry from the compound of Commercial Tax Department without any orders from the Superior Officer, has challenged the order of his dismissal, from service.
2. The facts of the case are as follows:
The petitioner was employed as Office Assistant in Commercial Tax Department and he was working in commercial Tax Enforcement wing, Madras North. On 23.4.1993, when the Deputy Commercial Tax Officer, Mr.Thanikachalam was checking the vehicles plying on road in Puduvayal village within the then Chengai M.G.R. District, one Mini Lorry TAC 135 did not stop, when it was intercepted. The vehicle was chased and lateron, it was found abandoned at Chakkaraichettikulam. At that time, there was no driver or owner in the vehicle and therefore, after giving a complaint to the police and as per the order of the Deputy Commercial Tax Officer, the petitioner took the Mini Lorry TAC 135, drove the same and parked it in the Commercial Tax Building at Greams Road, Chennai.
3. Subsequently, the said Deputy Commercial Tax Officer came with the owner of the goods and directed the petitioner to accompany the owner of the goods and to receive money from him. Accordingly, as per the directions of the superior officer, without demanding a memo in writing, the petitioner accompanied the owner of the goods. He paid Rs.5,000/- to the petitioner with a request to hand over the amount to the Deputy Commercial Tax Officer and accordingly, the petitioner paid the amount to the said Officer. Thereafter, the said officer directed the petitioner to take the Mini Lorry TAC 135, and leave the same at a particular spot and that the petitioner carried out the instructions. While the Mini Lorry was taken out from the premises of the office building at Greams Road, Chennai, sthe petitioner informed one Mr.Selvaraj, Night Watchman that he is taking the vehicle, as per the directions of the Deputy Commercial Tax Officer.
4. For the reasons best known to the said Officer he has sent a report to the Assistant Commissioner of Commercial Tax Enforcement, Madras North, the third respondent, alleging that the petitioner had removed the vehicle on his own accord, without obtaining permission from the Deputy Commercial Tax Officer and on the basis of the said report, the third respondent placed the petitioner under suspension on 26.4.1993. Subsequently, a charge memo was issued to the petitioner. He also submitted his explanation on 29.5.93, bringing forth all the facts which happened on 23.4.93 and denied the charges. Not satisfied with the explanation, an Enquiry Officer was appointed. Seven witnesses were examined on behalf of the department. The enquiry officer, without appreciating the evidence in proper perspective, found the charges 1 and 2 as proved. On the basis of the report, by the impugned order dated 14.1.99, the Assistant Commissioner, Commercial Tax Enforcement, Madras (North), dismissed the petitioner from service. The said order is under challenge.
5 . The first respondent in his counter affidavit has submitted that on 23.4.93, when the Deputy Commercial Tax Officer, Mr.V.Thanikachalam was checking the vehicles plying on road, in Puduvayal Village, Chengalpet District, one Mini Lorry TAC 135 did not stop, when it was intercepted, inspite of signal given by the department staff. Hence, the vehicle was chased and it was found near Chakkrai Chettikulam. The driver of the vehicle and the owner of the goods were not available and therefore, a complaint was lodged by the Deputy Commercial Tax Officer, Roving Squard III in the Arni (Chengalpet District) Police Station, narrating the circumstances and informed that the vehicle TAC 135 is being taken to Greams Raod, Chennai-6 for further investigation. The vehicle was brought to Greams Raod, Chennai with the assistance of Mr. J.Mariadoss, Office Assistant, the petitioner herein, who knows driving. The owner of the vehicle and the goods carried in the vehicle were not known. Therefore, the Deputy Commercial Tax Officer, Roving Squard III instructed the duty Watchman and an other duty watchman attached to other tax office to take care of the vehicle and went to the office at 11.30 p.m. The duty Watchman, Mr.C.Selvaraj has informed that Mr.J.Mariadoss the petitioner who attended duty during the vehicle check had taken away the goods vehicle No.TAC 135 parked inside Greams Road Campus, about 12.00 mid night on 23.4.93, informing the said watchman that the Deputy Commercial Tax Officer had asked him to bring the vehicle. When the Deputy Commercial Tax Officer came to know the foul play, he tried to find out the vehicle and contacted the petitioner, but the efforts, proved futile. Therefore, a complaint was lodged in Thousand Light Police Station and the Crime Branch has registered a case in C.R.261 of 1993 under section 379 of IPC. As the petitioner has committed a grave misconduct, he was placed under suspension on the grounds that on enquiry into grave charges was contemplated.
5a. Subsequently, a charge memo was framed on 10.12.93 by the third respondent. The respondents have further submitted that the petitioner his explanation dated 29.12.1993, has stated that on 23.4.93, he accompanied the Deputy Commercial Tax Officer/Roving Squard III for the Lorry check. As the goods vehicle TAC 135 did not stop at the checking point, the vehicle was chased and found near Chakkarai Chettikulamj. Neither the driver nor the owner of the vehicle was not found. Investigation further revealed that the vehicle was brought to Greams Road, commercial Taxes compound by him, under the instructions of the Deputy Commercial Tax Officer and the goods vehicle was parked there. In his explanation, he further submitted that as per the instructions of the Deputy Commercial tax Officer, the petitioner had collected a sum of Rs.5,000/- and after receiving the money, the Deputy Commercial Tax Officer instructed him to take the goods vehicles and deliver the same at the appropriate place. In his explanation, he has also submitted that a sum of Rs.5,000/- was handed over to the Deputy Commercial Tax Officer and without instructions, he would not have removed the vehicle. According to him, the vehicle was removed from Greams Road office Complex only on the oral instructions of the Deputy commercial Tax Officer, Roving Squard III. To that effect, he has also informed the other Night Watchman. The respondents have further submitted that the explanation submitted by the petitioner was considered and it was found that the petitioner has made allegations against his superior officer. That the superior officer, after receiving Rs.5,000/- had instructed him to remove the vehicle and thereafter has paid the money to him.
6. It is the further case of the respondents that after giving sufficient opportunity to the petitioner in the oral enquiry and after considering the evidence in proper perspective, the defence putforth by the petitioner and his further representation on the findings recorded in the enquiry report, the punishment of dismissal from service was inflicted on him. The respondents have further submitted that there is no procedural irregularity and the findings recorded by the Enquiry Officer are based on proper appreciation of evidence and hence, it cannot be termed as perverse, warranting interference.
7. Attacking the procedure followed by the enquiry officer as unfair and his findings as perverse, Mr.M.Ravi, learned counsel appearing for the petitioner submitted that the witnesses examined were all subordinate officers/servants and therefore they have obliged the superior officers and therefore the evidence cannot be acted upon. The enquiry officer and the disciplinary authority have failed to consider that the petitioner was only an Office Assistant who was bound to carry out the instructions of the Deputy Commercial Tax Officer, who instructed the petitioner, to remove the vehicle from the Commercial Tax Office building and hand over the same to the owner of the vehicle.
8. According to the Learned Counsel, the petitioner's version that he was directed to release the vehicle was corroborated by Mr. Selvaraj, Night Watchman and both the enquiry officer and the disciplinary authority have failed to consider the same. Considering the fact that the petitioner, being a last grade servant and a subordinate staff, he could not demand a letter or memo in writing from the Deputy commercial tax Officer for remaining the vehicle. Hence, he submitted that there is no evidence to prove that the petitioner has committed the act of misconduct.
9. It is the further contention of the of the learned counsel for the petitioner that the department ought to have examined the owner of the goods and the driver of the vehicle to prove the incident alleged to have taken place on 23.4.1993 and non-examination of the said witnesses is vital to the proceedings. According to him, when the petitioner was only an Office Assistant, the allegations that he has removed the vehicle at late hours, from Commercial Tax building, without prior permission from the higher authorities is purely an imagination and therefore, both the enquiry officer and disciplinary authority ought to have visualised the situation in the light of the oral testimony of night watchman, Mr.Selvaraj and applying test of preponderance of probability, they ought to have come to the conclusion that an office Assistant would not have taken the vehicle, without the oral directions of the superior officer, namely, the Deputy Commercial Tax Officer, Roving Officer Squard III. In these circumstances , he submitted that the findings recorded by the enquiry officer are perverse.
10. On the basis of the judgement in C.C.No.9018 of 1995, dated 4.2.1999 of the Learned XIV Metropolitan Magistrate, Egmore, Chennai, acquitting the petitioner, on the charge of theft of vehicle TAC 135, learned counsel for the petitioner submitted that when the criminal case registered against the petitioner ended in acquittal, initiation of disciplinary proceedings was only to victimise the petitioner and to cover up the illegality committed by the then Deputy commercial Tax Officer.
11. Placing reliance on the judgment of this Court reported in 2006 (3) M.L.J. 191, N.Nandagopalan VS. Secretary to Government, Personnel and Administrative Reforms (Q) Department, Chennai-9, learned counsel for the petitioner submitted that the Deputy Commercial tax Officer/Roving Officer, Squard III was very much involved in directing the petitioner to release the vehicle at late hours and only on that basis, he had informed the Night Watchman Mr.Selvaraj, while taking the vehicle out of Commercial Tax Buildings. He further submitted that when more than one persons are involved in the same incident, the department, ought to have proceeded against all the persons and that they have no right discretion to pick and choose the petitioner and proceed against him, leaving the others and therefore there is violation of Article 14 of the Constitution of India.
12. Per contra, Mr.S.Gopinathan, learned Additional Government Pleader taking this Court through the enquiry report and the pleadings submitted that the vehicle was brought to Greams Road Campus and both the duty Watchman and another duty Watchman attached to other office were directed to take care of the vehicle and thereafter, at 11.30 p.m. on 23.4.1993, the Deputy Commercial tax Officer had left the office. On the next day, when he came to the office, the duty watchman Mr.Selvaraj informed the Deputy Commercial Tax Officer that the petitioner had taken away the goods vehicle TAC 135 parked inside the Greams Road Campus, at about 12.00 mid night on 23.4.93 informing him that the Deputy commercial Tax Officer had asked him to bring the vehicle. He further submitted that when the Deputy Commercial Tax Officer came to know about the foul play of the petitioner, he could not be contacted and therefore a complaint was lodged with Thousand Light Police Station in Cr.No.261 of 1993 under section 379 of IPC. He further submitted that in the explanation to the charge memo, the petitioner has made serious allegations against the Deputy Commercial Tax Officer, stating that after removing the vehicle from Commercial Tax office campus, both the Deputy commercial tax Officer/Roving Squard III and the owner of the vehicle came there and that the officer had instructed the owner of the vehicle to give money and as per the instructions of the Deputy commercial Tax Officer, the petitioner collected Rs.5,000/- from the owner of the vehicle and that after receiving the said sum, the officer instructed to take the vehicle and deliver it at the appropriate place.
13. Inviting the attention of this Court to the oral evidence let in by the petitioner, learned counsel appearing for the respondents submitted that about 11.30.p.m. on 23.4.1993, the driver of the vehicle was prepared to pay the 'C' fees on the next day morning and therefore, the Deputy Commercial Tax Officer, who came to the place at 11.30 p.m., along with owner of the goods informed him to release the vehicle and pointing out the contradiction between the explanation and the oral evidence let in by the petitioner, learned counsel for the respondents further submitted that the defence put up by the petitioner cannot be accepted as it was self-contradictory.
14. Learned counsel for the respondents further submitted that excepting the petitioner, the other witnesses, including the Night Watchman have clearly deposed that neither the owner of the goods nor the driver of the vehicle had turned up at the place. Therefore, the contention of the petitioner that he had received a sum of Rs.5,000/- from the owner and paid it to the Deputy Commercial Tax Officer for release of the vehicle was proved to be false in the enquiry. Further, the Deputy Comercial Tax Officer has clearly deposed that he has not ordered for the release of the goods vehicle. He further submitted that if the Deputy Commercial Tax Officer was present along with the driver of the vehicle and the owner of the goods, there was no necessity for the night Watchman to stop the vehicle.
15. According to the learned counsel for the respondents, the enquiry officer after proper appreciation and assessment of evidence, has categorically found that the defence put up by the petitioner was not acceptable and false and he had taken the vehicle from Greams Road, without prior permission or release order from the Superior Officers.
16. Learned counsel for the respondents further submitted that if the Deputy Commercial Tax officer had instructed the petitioner to release the vehicle, there was no necessity for him to lodge a complaint to Thousand Light Police Station.
17. He further submitted that acquittal of the petitioner in the criminal case was purely on technical grounds as certain witnesses were not examined. The Investigation Officer and other certain important witnesses were not examined. In the above said criminal case, the acquittal was not on merits and therefore that will not preclude the disciplinary authority to launch departmental action.
18. Placing reliance on the decisions of the Supreme Court as well as this Court, the respondents submitted that acquittal in a criminal court does not have the effect of ascertaining the factual position of this case.
19. Learned counsel for the respondents further submitted that the disciplinary proceedings were conducted following the procedure as per Rule 17(b) of the Tamilnadu Civil Services (Discipline and Appeal) Rules. The enquiry was conducted in a fair manner. No objections were raised regarding the procedure followed in the enquiry before the disciplinary authority. As regards the contention that the petitioner ought to have been given the benefit of doubt, learned counsel for the respondents submitted that excepting the statement of the petitioner, no other witness deposed that the driver of the vehicle or the owner of the goods was present on 23.4.93 mid night to release the vehicle. If the petitioner had wanted the presence of the abovesaid persons to prove that they were present on the said date, nothing prevented the petitioner from taking steps to summon them before the enquiry officer. Further when the above two individuals were not traceable by the department, non-examination of them would not be fatal to the departmental case as the and other witnesses have categorically deposed that about 11.30 p.m. except the petitioner nobody else was present, at the time of the incident.
20. Learned counsel for the respondents further submitted that when the Deputy Commercial Tax Officer has already deposed that he has not given any oral instructions to the petitioner to take the vehicle parked inside the Commercial Tax building, the contention to the contra, cannot be accpeted.
21. Learned counsel for the respondents further submitted that when the night watchman has deposed that the officer had left the office by 11.30 p.m. and when the driver of the vehicle and the owner of the goods have abandoned the vehicle, it was absolutely not possible for the driver of the vehicle or the owner of the goods to come along with the Deputy Commercial Tax Officer to take back the vehicle and therefore, the defence put up by the petitioner was rightly found to be false and thus, there is no perversity in the findings recorded by the enquiry officer.
22. Placing a few decisions of the Supreme Court he submitted that re-appreciation of evidence is not permissible in Writ jurisdiction and therefore prayed dismissal of the writ petition.
23. As regards the alleged discrimination in not taking action against the Deputy Commercial Tax Officer and the Night Watchman P.W.4, learned Additional Government Pleader submitted that when the enquiry revealed that the petitioner has taken the vehicle without prior permission of the Deputy Commercial Tax Officer and when there was no involvement of the superior officer or the Night Watchman, there is no need for taking action against others. In these circumstances, he submitted that the decision of this Court in W.P.No.28301 of 2005 is not applicable to the present case.
24. Learned counsel for the respondents further submitted that the petitioner not only removed the vehicle along with the goods without prior permission, but has also given false information to the Night Watchman, stating that the Deputy Commercial Tax Officer has instructed him to bring the vehicle. As the above said act is a serious misconduct, the punishment awarded to the petitioner is commensurate with the gravity of the charge and therefore, prayed that there is no need to interfere with the quantum of penalty. For the above said reasons, he prayed for dismissal of the writ petition.
25. Heard the learned counsel appearing for the parties and perused the materials available on record.
26. The charges levelled against the petitioner under Rule 17(b) of the Tamilnadu Civil Services (Discipline and appeal) Rules are as follows:
"Charge:1 That Thiru J.Mariadoss, Office Assistant under suspension has taken away the goods vehicle No.TAC.135 from the Greams Road Campus without valid release order from the Officer concerned which was detained for further investigation.
Charge:2 Furnished false information to the Night Watchman stating that the Deputy Commercial Tax Officer has instructed him to bring the vehicle and released the vehicle and thereby curtailing the officer without investigating the matter further.
Charge:3 Thus by removing the vehicle without valid release order from the Officer concerned, the details of owner of the goods/nature of goods could not be known and the chance as ascertaining the loss of revenue was failed."
27. Before the enquiry officer, eight witnesses were examined including the petitioner. The facts enquired by the enquiry officer was whether the petitioner has taken away the goods vehicle TAC135 from Greams Road Campus, without release order from the Deputy Commercial Tax Officer/ Roving Squard III, who had ordered for detention of the vehicle, for further investigation and whether he had given any oral directions to release the vehicle along with the goods and further instructed to deliver at a particular place. Perusal of the report shows that out of seven departmental witnesses including P.W.4 the vital witness, Mr.C.Selvaraj, none of them have deposed that the Deputy Commercial Tax Officer had given any oral instructions to the petitioner to release the vehicle after receiving money from the driver of the vehicle or the owner of the goods. P.W.4 in his deposition, has stated that about 11.30 p.m on 24.3.1993, the Deputy Commercial Tax Officer along with other officials brought vehicle No. TAC-135 to the Commercial Tax Office compound and after 5 to 10 minutes, the petitioner, the Office Assistant came back and took away the vehicle along with the goods. The enquiry officer has further recorded that no specific instructions were given in writing for release the vehicle. P.W.7, the Deputy Commercial Tax officer in his evidence has categorically stated that on 23.4.1993 along with his officials went for vehicular check and having found the vehicle No. TAC 135 abandoned by the driver and brought the same to the Deputy Commercial Tax office at 9.00 p.m. He waited there till 11.30 p.m. P.W.4 Mr.Selvaraj, Watchman Mr.Kanniappan and another watchman, Mr. Madurai were directed to take care of the vehicle. He has clearly deposed before the enquiry officer that he did not give any oral instructions to the petitioner to release the vehicle. On the next day at 10.00 a.m., when he came to the office, he came to know that the petitioner had taken the vehicle without prior permission, giving a false information to the Night Watchman as if the officer had given instructions. Thereafter, he preferred a complaint.
28. Perusal of the findings of the Enquiry officer shows that the Deputy Commercial Tax Officer has specifically denied the suggestion putforward by the petitioner that permission was given to him. The enquiry officer, after careful consideration of the oral evidence and the contradiction, has categorically found that the allegations made against the Deputy Comercial Tax Officer was false and on the contrary, the petitioner had taken away the vehicle, without prior permission from the concerned officer and that he has also furnished false information to the Night Watchman.
Now let me consider some of the decisions of the Supreme Court as to whether, the Tribunal/Court can re-appreciate the evidence and set aside the penalty, on the ground of insufficiency of evidence to prove charges and the scope of Judicial Review.
29. In Government of T.N. v. A.Rajapandian reported in 1995 (1) SCC 216, the Supreme Court, while considering the above issue, at Paragraphs 9 and 10, held as follows:
"9. This Court in Union of India v. Sardar Bahadur reported in 1972(4) SCC 618, held as under:
"A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that Nand Kumar was a person beyond reasonable doubt. If the inference that Nand Kumar was a person likely to have official dealings, with the respondent was one which reasonable person would draw from the proved facts of the case, the High Court cannot sit as a Court of appeal over a decision based on it. Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy of reliability of the evidence cannot be canvassed before the High Court."
10. In Union of India v. Parma Nanda reported in 1989 (2) SCC 177, the Supreme Court observed as under:
"We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority."
In Rae Bareli Kshetriya Gramin Bank v. Bhola Nath Singh and others reported in 1997 (3) SCC 657, the Supreme Court at Paragraph 6 of the judgment, answered a question as to whether the High Court would be correct in law to appreciate the evidence, the manner in which the evidence was recorded and record a finding in that behalf. The Court held as follows:
"The judicial review is not akin to adjudication of the case on merits as an appellate authority. The High Court, in the proceedings under Article 226 does not act as an appellate authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice."
The Supreme Court in Commissioner and Secretary to the Government v. C.Shanmugam, reported in 1998(2) SCC 394, considered a case of compulsory retirement, which was interfered by the Tribunal on the ground of absence of evidence. The Apex Court, after dealing with various judgments on the point, held that only in the absence of any evidence, i.e., no evidence or if there was any perversity, the Court can interfere. At Paragraph 2 of the judgment, the Supreme Court held as follows:
"It is seen from the order of the Tribunal that at the regular departmental enquiry held, the employees who were present at the time of the incident in the office on 02.08.1980 were examined and they all supported the charges (misbehaviour with the superior officer) levelled against the respondent/delinquent. The Tribunal on a re-appreciation of evidence, in judicial review, was of the view that the enquiry report based on such evidence cannot be totally accepted as free from bias and an order passed on such reports cannot be accepted as a fair and just one. Assailing this view of the Tribunal, the learned counsel appearing for the appellants brought to our notice three judgments of this Court reported as State of T.N. v. Subramaniam, Govt. Of T.N. v. A.Rajapandian and State of Haryana v. Rattan Singh. In State of T.N. v. Suibramaniam, a three-Judge Bench of this Court observed as follows: (SCC.pp.511-12, para 5) "The only question is: Whether the Tribunal was right in its conclusion to appreciate the evidence to reach its own finding that the charge has not been proved. The Tribunal is not a Court of appeal. The power of judicial review of the High Court under Article 226 of the Constitution of India was taken away by the power under Article 323-A and invested the same in the Tribunal by the Central Administrative Tribunals Act. It is settled law that the Tribunal has only power of judicial review of the administrative action of the appellant on complaints relating to service conditions of employees. It is the exclusive domain of the disciplinary authority to consider the evidence on record and to record the findings whether the charge has been proved or not. It is equally settled law that technical rules of evidence have no application for the disciplinary proceedings and the authority is to consider the material on record. In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to re-appreciate the evidence and would (sic) come to its own conclusions on the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence."
In Apparel Export Promotion Council v. A.K.Chopra reported in 1999 (1) SCC 759, the Supreme Court at Paragraphs 16 and 17 held as follows:
"16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate authority over he factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the Court, in exercise of the power of judicial review, is not concerned with the correctness of the findings of the fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Hailsham in Chief Constable of the North Wales Police v. Evans reported in 1982 (3) ALL. ER 141 HL observed:
"The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorised or enjoined by law to decide for itself, a conclusion which is correct in the eyes of the Court."
"17. Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the Court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the Court cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority."
The above position was reiterated in Commandant v. D.Paul reported in 1999 SCC (L&S) 789, and at Paragraphs 4 and 5 of the judgment, the Supreme Court held as follows:
"4. .........It is not the function of the Tribunal to review the decision and to arrive at an independent finding on the evidence and that if there be some legal evidence on which the findings can be based, the adequacy or the reliability of that evidence is not a matter which can be permitted to be canvassed before the Tribunal."
"5. ............ It is settled law that the Tribunal, while exercising its power of judicial review in respect of disciplinary action taken against the a government servant, cannot re-appreciate the evidence adduced to prove the charges in the disciplinary proceedings."
In High Court of Judicature at Bombay v. Shashikant S. Patil reported in 2000 (1) SCC 416, while considering the scope of Judicial Review of the decision of the Disciplinary Authority in exercise of powers under Article 226 of the Constitution of India, the Apex Court at Paragraph 16, held as follows:
"16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by consideration extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a Writ Petition filed under Article 226 of the Constitution."
In State of A.P. v. S.Sree Rama Rao reported in AIR 1963 SC 1723, the Supreme Court, considering the scope of the Judicial Review, held that, "The High Court is not constituted in a proceeding under Article 226 of the Constitution as a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Whether there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a Writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence."
The above position was once again reiterated by the Supreme Court in Sub-Divisional Officer, Konch v. Maharaj Singh reported in 2003(9) SCC 191. In Paragraph 5 of the judgment, the Court held as follows, "It has been stated by this Court on a number of occasion that the jurisdiction of the High Court under Article 226 is a supervisory one and not an appellate one, and as such the Court would not be justified in re-appreciating the evidence adduced in a disciplinary proceeding to alter the findings of the enquiring authority."
30. In view of the principles of law, I do not find that there is any manifest illegality in the findings recorded by the enquiry officer and it is not a case of no evidence. Therefore, in the light of the abovesaid decisions and the findings recorded, this Court is of the considered view that the petitioner has not substantiated the contention of perversity.
31. Perusal of the material on record shows that no serious procedural irregularity, has been alleged and proved. As rightly contended by the learned counsel for the respondents, when the whereabouts of the driver of the vehicle or owner of the goods were not known and traceable omission to examine them will not vitiate the proceedings. If the petitioner had wanted to establish his case, he should have taken necessary steps to examine them as defence witnesses. Even assuming that the above said persons were present, at the place of the incident along with the District Commercial Tax Officer, the petitioner could have elicited the said fact from P.W.4 Night Watchman or P.W.7, the District Commercial Tax Officer in the oral enquiry. The evidence of the District Commercial Tax Officer, is cogent and clear.
32. Perusal of the judgement in C.C.No.9018 of 1995, dated 4.2.1999 shows that acquittal of the petitioner of the charges under Section 379 of IPC has been rendered on account of failure of the prosecution in examining the Investigating Officer and some other witnesses. The said judgement is not on merits and therefore as rightly contended by the learned counsel for the respondents, mere acquittal of the petitioner in the criminal court will not absolve the petitioner of the acts of misconduct.
33. There is no corroboration to the oral testimony of the petitioner. On the contra, the department has clearly established that the petitioner has given false information to the night watchman and taken the vehicle along with the goods. Going through the materials on record and pleadings, this Court is unable to subscribe to the contentions of the petitioner that the District Commercial Tax Officer and the night watchman were involved in the illegal removal of the vehicle and therefore the action taken against the petitioner, cannot be said to be discriminatory violating Article 14 of the Constitution of India.
34. As rightly contended by the learned counsel for the respondents that the petitioner has been found to have indulged in a serious charge of removing the vehicle without a proper release order from the superior officer and therefore, the judgement relied on by the learned counsel for the petitioner is in opposite to the facts of the case. The punishment imposed on the petitioner for the proved charges does not touch the conscience of this Court for any interference.
35. It is also the case of the respondents that the respondents could not assess the actual loss of revenue due to the conduct of the petitioner. Taking into consideration of the over all picture and seriousness of the charges, this Court is not inclined to interfere with the quantum of penalty.
36. For the above said reasons, the Writ Petition is dismissed.
No costs.
Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar aes To
1. The Secretary (Commercial Taxes), The State of Tamilnadu, Chennai-9.
2. The Special commissioner and Commissioner for Sales Tax, Chennai-3.
3. The Assistant Commissioner, Commercial Tax Enforcement, Madras (North), Madras-6.
+ 1 cc to Govt., Pleader, Advocate, Sr 31364/09 + 1 cc to Mr.M.Ravi, Advocate, Sr 31216/09 W.P.No.39082 of 2006 RSI (CO) RH (2.2.10)