Madras High Court
K.M.Thiyagaraj @ Henry Mani vs The Inspector General Of Registration on 13 August, 2012
Author: K.N.Basha
Bench: K.N.Basha
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 13.08.2012 CORAM THE HONOURABLE MR. JUSTICE K.N.BASHA WP.No.6698/2009 K.M.Thiyagaraj @ Henry Mani .. Petitioner Versus 1.The Inspector General of Registration Chennai 600 028. 2.The District Registrar Audit [South] Chennai. .. Respondents Prayer: Writ petition filed under Article 226 of the Constitution of India seeking for a writ of certiorarified mandamus calling for the records of the first respondent in [1]62628/B2/2008-1 dated 28.12.2008 [charge memo]; [2] 62628/B2/2008-2 dated 28.12.2008 [Order of suspension] and [3]62628/B2/2008 dated 30.12.2008 [order not permitting the petitioner to retire], quash the same and issue consequential directions to the respondents to permit the petitioner to peacefully retire from his services on 31.12.2008 A.N. and grant him all retirement and pensionary benefits with 18% interest on the delayed payment within a limited time frame. For Petitioner : Mr.M.Ravi For RR 1 & 2 : Mr.N.Srinivasan, AGP ORDER
The challenge in this writ petition is to the impugned charge memo and the order of suspension dated 28.12.2008 and the order dated 30.12.2008 by which the petitioner was not permitted to retire from service with a prayer to quash the same and to issue consequential directions to the respondents to permit the petitioner to retire from service on 31.12.2008 and grant him all retirement and pensionary benefits with 18% interest for the belated payment within a time frame.
2.a. The case of the petitioner is that he was appointed as Junior Assistant in the year 1976 in the respondent Department and he was promoted as Assistant in the year 1984 and later, he was promoted as Sub-Registrar, Grade II in the year 1990 and thereafter, he was promoted as Sub-Registrar, Grade I in the year 1999. The petitioner was having unblemished record of service except the order of punishment of stoppage of increment for a period of three months without cumulative effect imposed by the 1st respondent by the order dated 16.11.2005.
2.b. The petitioner was fully qualified and eligible for empanelment and recruitment by transfer as District Registrar for the year 2005-2006 itself. At the time of the verge of his retirement, by way of attaining the age of superannuation on 31.12.2008, the 1st respondent herein declared the petitioner not fit for inclusion in the approved panel of Sub-Registrar [Grade-I] and not fit for appointment as District Registrar for the year 2005-2006 as per G.O.Ms.No.109, Commercial Taxes and Registration [H1] Department dated 13.11.2008. The petitioner has challenged the said order by filing a review petition and after the rejection of the same, the petitioner preferred an appeal and there was no currency of punishment either on the crucial date or on the date of commencement of the panel. Thereafter, the petitioner filed WP.No.28905/2008 before this Court seeking for the relief of promotion as District Registrar without reference to the above said order of punishment dated 16.11.2005. During the pendency of the writ petition, the petitioner has been served with a charge memo dated 28.12.2008 issued by the 1st respondent on the verge of his retirement along with the order of suspension on the same day, i.e., 28.12.2008 and another order dated 30.12.2008 issued by the 1st respondent, not permitting the petitioner to retire from services on attaining the age of superannuation on 31.12.2008. Being aggrieved against the said orders, the petitioner has come forward with this present writ petition with the above said prayer.
3. Mr.M.Ravi, learned counsel for the petitioner while assailing the impugned charge memo, has put forward two-fold contentions, viz., [1]The impugned charge memo is vague and not specific as the same is framed only on the basis of the Annual Inspection Report and the Audit Report and no reasons are assigned; and [2]The petitioner being a quasi-judicial authority, even assuming that there is a loss to the Government in respect of the Stamp Duty, cannot be held liable for the misconduct and it is open to the Department to prefer an appeal before the Inspector General of Registration.
4. The learned counsel for the petitioner would submit that the petitioner was directed to refer the matter u/s.47-A[3] of the Indian Stamps Act and the same was complied by the petitioner and the matter was referred pertaining to all the 10 documents and the same is pending for consideration on the file of Special Deputy Collector, [Stamps], Chennai. He would submit that once the charge memo is quashed, automatically the order of suspension and the order not permitting the petitioner to retire, are also liable to be set aside. In support of his contentions, he would place reliance on the following decisions:-
[a]Decision of a Division Bench of this Court in THE SPECIAL COMMISSIONER AND COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI AND ANOTHER Vs. N.SIVASAMY AND ANOTHER reported in 2005 [5] CTC 451;
[b]The order of a learned Single Judge of this Court in S.MUTHURAMU Vs. STATE OF TAMILNADU REP.BY ITS CHIEF SECRETARY TO GOVERNMENT, PUBLIC [SPECIAL-A] DEPARTMENT, CHENNAI-9 AND ANOTHER reported in 2008 [3] MLJ 766;
[c]Unreported decision of the Hon'ble First Bench of this Court in GOVERNMENT OF TAMILNADU REP.BY THE SECRETARY TO GOVERNMENT, MUNICIPAL ADMINISTRATION AND WATER SUPPLY DEPARTMENT, FORT ST. GEROGE, CHENNAI-9 AND ANOTHER Vs. S.RAMASAMY made in WA.No.1111/2007 dated 10.09.2007; and [d]Another unreported decision of the Hon'ble First Bench of this Court in GOVERNMENT OF TAMILNADU REP.BY THE SECRETARY TO GOVERNMENT, ENVIRONMENT AND FORESTS DEPARTMENT AND OTHERS Vs. M.SUBRAMANIAN made in WA.No.587/2008 dated 03.07.2008.
5. Per contra, Mr.N.Srinivasan, learned Additional Government Pleader would contend that there is no illegality or infirmity in the impugned charge memo and the consequential orders passed by the 1st respondent. It is submitted that in the impugned charge memo itself, it is clearly stated that as per the Audit report, the petitioner has caused loss to the Government to the tune of Rs.17,35,487/-, Rs.82,744/- and Rs.10,340/- [totalling to Rs.93,084]. It is contended that the impugned charge memo cannot be stated to be vague as it is clearly stated in the said charge memo that the petitioner has caused loss on the basis of the Audit report. It is further contended that during the course of enquiry, the petitioner will be furnished with all other documents relating to the charge levelled against him and as such, it is premature to contend that the impugned charge memo is liable to be quashed on the ground of vagueness. He would also vehemently contend that the charge memo is not liable to be quashed and the petitioner has to face the disciplinary proceedings. Lastly, it is submitted by the learned Additional Government Pleader that in the event of quashing the impugned charge memo, the Department should be given liberty to prefer an appeal before the Inspector General of Registration. In support of his contentions, learned Additional Government Pleader placed reliance on the following two decisions:-
[a]UNION OF INDIA Vs. KUNISETTY SATYANARAYAMA reported in AIR 2007 SUPREME COURT 906[I] and [b]Unreported decision of a learned Single Judge of this Court in S.A.EKAMBARAM Vs. THE INSPECTOR GENERAL OF REGISTRATION, SANTHOME, CHENNAI made in WP.No.1142/2011 dated09.07.2012.
It is further submitted by the learned Additional Government Pleader that a counter is also filed by the respondents.
6. This Court carefully considered the rival contentions put forward by either side and thoroughly scrutinised the entire materials available on record including the affidavit filed by the petitioner, counter filed by the respondents, the impugned charge memo and the suspension order dated 28.12.2008 and the order dated 30.12.2008, not permitting the petitioner to retire from service.
7. At the outset, it is to be stated that the impugned charge memo dated 28.12.2008 does not contain any specific and definite allegations and on the other hand, the same is vague and bald. It is relevant to incorporate the charges levelled against the petitioner as per the impugned charge memo dated 28.12.2008, which is as here under:-
"Charge No.1:-
While serving as Sub-Registrar, Alandur, South Chennai Registration District, Thiru K.M.Thiyagaraj @ Henry Mani has caused loss to the tune of Rs.17,35,587/- by way of Stamp Duty and Registration Fees as per Annexure enclosed, during the year 2007 and 2008 [quarterly] and it has been pointed out in the audit report and the loss has been confirmed. Having been responsible for the loss of Rs.17,35,487/-, you have violated Rule 20[1] of the Tamil Nadu Government Servants Conduct Rules.
Charge No.2:-
While serving as Sub-Registrar, Alandur, South Chennai Registration District, Thiru K.M.Thiyagaraj @ Henry Mani has caused loss to the tune of Rs.82,744/- and Rs.10,340/- [Total Rs.03,084] by way of stamp duty and registration fee for document No.287/2008 registered by him and it has been pointed out in the Annual Inspection Report for 2008 under 47[I][1] and thereby having been responsible for the loss of Rs.93,084/- you have violated Rule 20[1] of the Tamil Nadu Government Servants Conduct Rules."
A perusal of the above said charges make it crystal clear that both the charges are nothing but vague and bald one. It is merely stated that the petitioner has caused loss to the Government to the tune of Rs.17,35,487/-, Rs.82,744/- and Rs.10,340/- by way of Stamp Duty and Registration Fee as pointed out in the Audit report as well as in the Annual Inspection Report. It is also seen that in respect of the first charge, there is not even a reference about any document number and there is absolutely no allegation whatsoever in the impugned charge memo as to how and in what manner the petitioner is responsible for the loss said to have been incurred by the Department.
8.a. The Hon'ble First Bench of this Court in an unreported decision made in WA.No.1111/2007 [GOVERNMENT OF TAMILNADU REP.BY THE SECRETARY TO GOVERNMENT, MUNICIPAL ADMINISTRATION AND WATER SUPPLY DEPARTMENT, FORT ST. GEROGE, CHENNAI-9 AND ANOTHER Vs. S.RAMASAMY] dated 10.09.2007, has held in a similar matter, has held in paragraph 5 as here under:-
"5.The charge memo dated 08.07.2004 relates to non-settlement of audit objections raised in the Audit Reports for the period when the respondent was working as a Municipal Commissioner at Melur, Koothanallur, Tuitcorin, Kumbakonam, Karur, Aruppukottai, and Mettur Municipalities. The charge memo does not disclose any specific charge against the respondent except stating that the audit objections are not complied with. In fact, the respondent has submitted his detailed explanation to the said charge memo in 2004 itself but no further action has been taken till this date."
8.b. Again, the Hon'ble First Bench of this Court in yet another unreported judgment made in WA.No.587/2008 dated 03.07.2008 [GOVERNMENT OF TAMILNADU REP.BY THE SECRETARY TO GOVERNMENT, ENVIRONMENT AND FORESTS DEPARTMENT, FORT ST. GEROGE, CHENNAI-9 AND OTHERS Vs. M.SUBRAMANIAN], has held as here under:-
"3. Apart from that, have looked into the records. The charges framed against the writ petitioner are totally vague. The charges are set out here under :-
"Charge : 1 Negligence of duty and not handed over 4703.450 kg of Sandalwood and caused loss to Government.
Charge : 2 Not handed over the Government records and forest produce and caused loss to Government.
Charge : 3 Not handed over the valuable sandalwood by sustaining loss to Government and dereliction of duty.."
Though this question of vagueness in charges was not canvassed before the writ court, but sitting in appeal, we can look into the records since this is a certioari proceeding and we can find out whether the Departmental proceeding was proceeding on a legal and valid basis.
4. Looking into the records, we find that on such vague charges, no departmental proceeding can be held inasmuch as no one can defend such vague charges. This aspect has been considered by the Honourable Apex Court in the decision rendered in Surath Chandra Chakravarty vs. State of West Bengal reported in A.I.R. 1971 S.C. 752 [see para.4] :
"4. ... The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has also to be stated. This Rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded, he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him.
... The entire proceedings show a complete disregard of Fundamental Rule 55 in so far as it lays down in almost mandatory terms that the charges must be accompanied by a statement of allegations. We have no manner of doubt that the appellant was denied a proper and reasonable opportunity of defending himself by reason of the charges being altogether vague and indefinite and the statement of allegations containing the material facts and particulars not having been supplied to him. In this situation, for the above reason alone, the trial Judge was fully justified in decreeing the suit."
Following the said decision, the Honourable Supreme Court in the case of Sawai Singh vs. State of Rajasthan reported in A.I.R. 1986 S.C. 995, held that where a departmental enquiry entails consequences like loss of job, which nowadays means loss of livelihood, there must be fairplay in action in respect of an order involving adverse and penal consequences of an employee, and the learned Judges held that the charges must be clear and specific; otherwise, it will be difficult for the employee to meet the charges [see para.14] :
"14. Quite apart from that fact, it appears to us that the charges were vague and it was difficult to meet the charges fairly by any accused. Evidence adduced was perfunctory and did not at all bring home the guilt of the accused."
The learned Judges also held that mere participation in the enquiry by the employee does not cure the defect of vague charges [see para.15] :
"15. Shri B.D. Sharma, learned advocate for the respondent, contended that no allegations had been made before the enquiry officer or before the High Court, that the charges were vague. In fact the appellant had participated in the enquiry. That does not by itself exonerate the department to bring home the charges."
The aforesaid principles in Surath Chandra Chakravarty's case and Sawai Singh's case have also been followed subsequently by the Honourable Supreme Court in the case of Transport Corporation, Madras-5 vs. A. Radhakrishnamoorthy reported in (1995) 1 S.C.C. 332 [see para.9] :
"9. Insofar as the vagueness of the charges is concerned we find that it deserves acceptance. It is asserted by Shri Vaidyanathan, learned counsel for the respondent that except the memo of charges dated 4-6-1989, no other particulars of charges or supporting particulars were supplied. This assertion could not be denied by the learned counsel for the appellant. A reading of charges would show that they are not specific and clear. They do not point out clearly the precise charge against the respondent, which he was expected to meet. One can understand the charges being accompanied by a statement of particulars or other statement furnishing the particulars of the aforesaid charges but that was not done. The charges are general in nature to the effect that the respondent along with eight other officials indulged in misappropriation by falsification of accounts. What part did the respondent play, which account did he falsify or help falsify, which amount did he individually or together with other named persons misappropriate, are not particularised. The charge is a general one. It is significant to notice that respondent has been objecting to the charges on the ground of vagueness from the earliest stage and yet he was not furnished with the particulars. It is brought to our notice that respondents name was not included in the schedule appended to GOMs 928 dated 25-4-1988 mentioning the names of officials responsible for falsification of accounts and misappropriation and that he is also not made an accused in the criminal proceedings initiated in that behalf."
Recently, the Honourable Supreme Court reiterated the same principle in the case of Government of Andhra Pradesh & Others vs. A. Venkata Raidu reported in (2007) 1 S.C.C. 338 [see para.9] :
"9. We respectfully agree with the view taken by the High Court. It is a settled principle of natural justice that if any material is sought to be used in an enquiry, then copies of that material should be supplied to the party against whom such enquiry is held. In Charge 1, what is mentioned is that the respondent violated the orders issued by the Government. However, no details of these orders have been mentioned in Charge 1. It is well settled that a charge-sheet should not be vague but should be specific. The authority should have mentioned the date of the GO which is said to have been violated by the respondent, the number of that GO, etc. but that was not done. Copies of the said GOs or directions of the Government were not even placed before the enquiry officer. Hence, Charge 1 was not specific and hence no finding of guilt can be fixed on the basis of that charge. Moreover, as the High Court has found, the respondent only renewed the deposit already made by his predecessors. Hence, we are of the opinion that the respondent cannot be found guilty for the offence charged."
The above said decisions rendered by the Honourable First Bench of this Court by placing reliance on the decisions of the Hon'ble Apex Court would make it crystal clear that if the charge is not specific and definite, there is no question of subjecting the delinquent officer to undergo the ordeal of enquiry or disciplinary proceedings. The said ratio laid down by the Hon'ble First Bench on the basis of the decision rendered by the Hon'ble Apex Court are squarely applicable to the facts of the instant case as in this case also it is already pointed out by this Court that the impugned charge memo dated 28.12.2008 is nothing but a vague and bald one. Therefore, the impugned charge memo is liable to be quashed on this sole ground itself.
9. The second ground raised by the learned counsel for the petitioner is to the effect that the petitioner, being a quasi-judicial officer, viz., as a Sub-Registrar, cannot be subjected to the disciplinary proceedings in the absence of any proof of motive or bad intention. This Court is able to see much force in the said contention put forward by the learned counsel for the petitioner. Learned counsel for the petitioner has also rightly placed reliance on the following decisions:-
[1]A Division Bench of this Court in THE SPECIAL COMMISSIONER AND COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI AND ANOTHER Vs. N.SIVASAMY AND ANOTHER reported in 2005 [5] CTC 451 has held in paragraphs 12 and 13 as here under:-
"12.In Zunjarrao Bhikaji Nagarkar V. Union of India, AIR 1999 SC 2881, in similar circumstance, the Supreme Court, after finding that the applicant being a quasi-judicial authority, he is always subject to judicial supervision in appeal, merely because penalty was not imposed, concluded that the charge of misconduct against the applicant was not proper and quashed the disciplinary proceedings initiated against him.
13.In the light of the above principles, let us consider whether the Department would be justified to take action under pension rules by pursuing the above charges, on the ground that the applicant attained superannuation even on 31.07.1997. It is the definite case of the applicant that in his capacity as Commercial Tax Officer, Assessment Circle, he had been exercising the quasi judicial power. As rightly pointed out, assuming that there was any error, the remedy would be by way of appeal or revision as provided in the Central Sales Tax Act or Tamil Nadu General Sales Tax Act. Further, there was inordinate delay in issuing the charge memo. It is not in dispute that in respect of alleged occurrence in 1992-95, charge memo was issued on 15.07.97 and served on 23.07.97 when he was due to retire on the afternoon of 31.07.97.
.......................
As rightly pointed out by the applicant, all the charges relate to the exercise of the powers by the applicant as a quasi-judicial authority. We have already referred to the view of the Supreme Court that action taken by a judicial authority should not form the basis for disciplinary action....."
[b]A learned Single Judge of this Court in S.MUTHURAMU Vs. STATE OF TAMILNADU REP.BY ITS CHIEF SECRETARY TO GOVERNMENT, PUBLIC [SPECIAL-A] DEPARTMENT, CHENNAI-9 AND ANOTHER reported in 2008 [3] MLJ 766, took a similar view and has held as here under:-
"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 u/s.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."
10. Learned Additional Government Pleader placed reliance on an unreported decision of a learned Single Judge of this Court dated 09.07.2012 in S.A.EKAMBARAM Vs. THE INSPECTOR GENERAL OF REGISTRATION, SANTHOME, CHENNAI made in WP.No.1142/2011. A perusal of the said decision would disclose that even the said learned Single Judge has taken a similar view as that of the views taken in the above cited decisions which reads as here under:-
"12.Thus, the documents annexed to the impugned charge memo show that certainly the impugned charge memo contains more details than what were there in the charge memo dated 26.04.2010. But, unfortunately, these details are not sufficient for a person to defend himself in the enquiry. In my earlier order dated 05.07.2010, I had pointed out the details that are required to be furnished. Paragraphs 4 and 6 of the order passed by me in the previous writ petition would show that there was a specific direction to the respondent to indicate the following things:-
[i]The documents registered during his tenure in such of the offices;
[ii]the market value and the stamp duty accepted by him in respect of each of those documents, in each of the places where he worked; and [iii]the actual market value of the property covered by each of those documents and the correct stamp duty that ought to have been collected.
But, they are not at all indicated in the impugned charge memo. Therefore, I do not think that it is possible for the petitioner to defend himself effectively and meaningfully in the enquiry. Therefore, I have no alternative except to set aside the impugned charge memo.
13.Once, it is found that the impugned charge memo is liable to be set aside, the next question to be considered is as to whether the respondent could be permitted to issue fresh charge memo. On this aspect, the learned counsel for the petitioner relies upon a decision of this Court by a learned Judge, which was also confirmed by a Division Bench. I will now make a reference to these decisions.
14.In B.K.Gunasekaran V. State of Tamil Nadu [WP.No.14682/2009 dated 25.02.2012], a learned Judge of this Court has held that the power of the Sub Registrar in assessing the market value and charging stamp duty is a quasi judicial power and that only under limited circumstances, the exercise of such power could form the basis for disciplinary action. However, I would not go so far, as I have my own doubts about the said proposition.
15.When the above decision was taken on appeal to the Division Bench in WA.No.2417/2010, the Division Bench did not go into the said question. However, observations made by the Division Bench in paragraphs 11 to 13 are of relevance. They are extracted as follows:
"11.By way of the impugned charge sheet, Department has once again initiated proceedings against the respondent pertaining to the misconduct that had taken place during the period 1998-2002. Moreover, the charge-sheet does not any materials regarding the transaction and as to how the Department has come to a prima facie view that the respondent caused loss to the exchequer.
12.The appellants have already initiated action for the misconduct alleged to have been committed during the year 2001 by issuing charge sheet on 30th January 2004. Now, once again, a fresh charge sheet was issued for the alleged misconduct pertaining to the very same period. The delay in initiating the proceedings was explained by the Inspector of Registration, as according to him, they have received the report of the Vigilance and Anti Corruption Department only recently. Initiation of disciplinary proceedings during the fag end of the service caused substantial prejudice to the respondent. The manner in which he was suspended on 27 February 2010, just one day prior to the date of his retirement and two days after the quashing of the earlier charge sheets, clearly shows mala fides. The present charge sheet also pertains to the misconduct for the year 1998-2002. Earlier charge sheet was also for the said period. Therefore, nothing prevented the appellants to initiate proceedings earlier by including the present charge also in the initial charge sheet issued on 30 January 2004. In fact, the counter affidavit filed by the Inspector General of Registration does not contain any indication as to the date on which they have received the report of the Vigilance and Anti Corruption Department. These aspects were considered by the learned Single Judge while quashing the charge sheet.
13.It would not be possible for the respondent to submit an effective repl on account of the absence of necessary details in the charge sheet. Not even the nature of transaction was referred to in the charge memo. The Department by initiating proceedings during the fag end of the service really caused difficulties to the respondent as he would not be in a position to defend the proceedings. Documents in question was verified by the Sub enquiry officer during the year 2005. It was only on the basis of the said report, Department initiated proceedings. Therefore, nothing prevented them from initiating proceedings immediately after the submission of report by the Inspecting officer. It is true that the order impugned in the writ petition was only a charge sheet. However, the said charge sheet has to be considered in the light of the earlier charge memo and the order passed by the learned Judge on 25 February 2010, quashing the disciplinary proceedings.
16.In my view, the observations of the Division Bench, extracted above, would apply to the case on hand. Therefore, the writ petition is allowed and the impugned charge memo is set aside."
11.I have also taken a similar view on an earlier occasion in WP.No.9932/2011 dated 20.09.2011 [S.PACKIAM Vs. THE SECRETARY TO GOVERNMENT, GOVT. OF TAMILNADU, COMMERCIAL TAXES & REGISTRATION DEPT., CHENNAI-9 AND ANOTHER], wherein I have held as follows:-
'7.The fact remains that the impugned charge memo was issued only on the basis of the audit objection as per the Annual Audit conducted for the year 2002-2003 in October 2003. The only allegation levelled against the petitioner is that he has registered a document bearing No.612/2002 on 18.04.2002 by way of short levy of stamp duty and thereby, caused loss to the Government to the tune of Rs.48,990/-. At the outset, it is to be stated that the said charge is nothing but a vague charge. It is not made clear in the impugned charge memo as to how the petitioner, being the Sub Registrar, has short levied the stamp duty and there is no other particulars given for justifying such charge levelled against the petitioner herein.
8.At this juncture, it is relevant to refer the decision of the Hon'ble Apex Court reported in AIR 1986 SC 995 [SAWAI SINGH Vs. STATE OF RAJASTHAN], wherein the Hon'ble Apex Court has held as here under:-
"Where the charges framed against the delinquent officer were vague and no allegations regarding it, have been made by him before the Enquiry Officer or before the High Court, the fact that he has participated in the enquiry would not exonerate the department to bring home the charges. The enquiry based on such charges would stand vitiated, being not fair."
9.The principle laid down by the Hon'ble Apex court in the decision cited supra is squarely applicable to the facts of the instant case as in this case also, as already pointed out, the charge levelled against the petitioner is vague and baseless and as such, this court has no hesitation to hold that the entire proceedings is vitiated on this sole ground itself.
10.Learned counsel appearing for the petitioner has raised the yet another contention to the effect that the impugned charge memo was issued while exercising the quasi-judicial function and such being the position, the proceeding has to be initiated only in the event of the allegations of dishonest intention and corrupt practice against the delinquent officer. As far as the impugned charge memo is concerned, there is no allegation of any dishonest intention on the part of the petitioner or any allegation in respect of any corrupt practice. Added to that, there is no list of witnesses to speak about the charge levelled against the petitioner annexed while issuing the charge memo. Learned counsel has rightly placed reliance on the unreported order of this court dated 13.10.2009 made in WP.No.21992/2008 and the Division Bench judgment of this court dated 08.07.2010 made in WA [MD] No.930/2010 respectively.
11.A learned Single Judge of this court in his order dated 13.10.2009 made in WP.No.21992/2008 [A.DHANASEKARAN Vs. SECRETARY TO GOVERNMENT, GOVERNMENT OF TAMIL NADU, COMMERCIAL TAXES and REGISTRATION DEPARTMENT, CHENNAI-9 AND ANOTHER] has held as here under:-
"............
7.Learned Senior Counsel appearing for the petitioner would rely on the judgment of the Division Bench of this court in "The Special Commissioner-cum-Commissioner of Commercial Taxes, Chepauk, Chennai-5 and another ...Vs... N.Sivasamy, Commercial Tax Officer and another" reported in 2005 [5] CTC 451 wherein His Lordship P.Sathasivam, J [as he then was] after having considered the nature of the job of the petitioner therein, ultimately held that being a decision taken by a quasi-judicial authority by error of judgment that cannot be a foundation for punishing him as per the Service Rules.
8.Learned Senior Counsel would rely on yet another judgment of this court in WP.[MD].No.10682/2007 [N.Soundarapandian ..Vs.. Government of Tamil Nadu] wherein after analysing various judgments of the Hon'ble Supreme Court, I have concluded that unless the decision taken by the quasi-judicial authority is tainted by reasons like extraneous considerations, corruption, abuse of power and malafide motive, there can be no punishment imposed as per Service Rules. Learned senior counsel, relying on the above two judgments, would submit that in the case on hand also there is no allegations that the petitioner registered the document by categorizing the same as a release deed either for any motive or for any other extraneous considerations. Therefore, according to him, the punishment is liable to be quashed.
9.In my considered opinion, a perusal of the records would not got to show that the petitioner registered the document categorizing the same as the release deed not for extraneous consideration. Obviously, it is an error of judgment. Even now it cannot be clearly stated that the conclusion arrived at by the petitioner categorizing the document as release deed is a wrong conclusion. However, by means of subsequent proceedings, the further stamp duty and registration fee have been collected. Therefore, applying the principles stated in the above two judgments, since it is not stated before this court that the petitioner's action is tainted by malafide or for extraneous consideration of the same is tainted with any motive, I am of the view that the impugned punishment is not sustainable and therefore, the same is quashed."
12.A Division Bench of the Madurai Bench of this court in WA.[MD] No.93/2010 dated 08.07.2010 [THE INSPECTOR GENERAL OF REGISTRATION, CHENNAI 600 028 Vs. A.SHANMUGAVADIVU] has held as here under:-
"........
7.A perusal of the charge memo, which has been extracted above, reveals that by the action of the respondent, a loss to the tune of Rs.3,98,822/- has been caused to the Department. As rightly pointed out by the learned counsel appearing for the respondent, there is no whisper either with regard to the wrongful gain or any wrongful motive. The Hon'ble Supreme Court in Zunjarrao Bhikaji Nagarkar V. Union of India reported in 1999 [7] SCC 409 replying on the earlier judgment, has held that even while exercising quasi-judicial power under certain circumstance, if any wrong has been committed, disciplinary action can be initiated. But, as per the above said judgment, under following circumstances, disciplinary proceedings can be initiated as against an officer in a wrong exercise of quasi-judicial power.
[1] Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;
[2] If there is prima facie material to show recklessness or misconduct in the discharge of his duty;
[3] If he has acted in a manner which is unbecoming of a Government servant;
[4] If he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
[5] If he had acted in order to unduly favour a party; and [6] If he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago 'though the bribe may be small, yet the fault is great'.
8.As rightly pointed out by the learned counsel appearing for the respondent, a perusal of the charge memo has not reflected any of the reasonings stipulated above. Apart from this, even as per the principles laid down in the other judgments, referred to above, a wrong interpretation of the statute cannot form a base for initiation of disciplinary proceedings. Since the issue in question has already been covered by the above judgments, we do not find any reason to interfere with the order dated 27.09.2007 made in WP.[MD] No.7294/2005 passed by the learned Single Judge. Hence the writ appeal is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed."
The principles laid down by this court in the decisions cited supra are squarely applicable to the facts of the instant case, as in this case also there is absolutely no allegation of dishonest intention or allegation of corrupt practice against the petitioner."
The principles laid down by this Court as well as by the Hon'ble Apex Court in the decisions cited supra are squarely applicable to the facts of the instant case as in this case also there is absolutely no allegation of dishonest intention or allegation of corrupt practice or any ulterior motive against the petitioner and the petitioner cannot be held liable in any manner.
12. Though the learned Additional Government Pleader vehemently contended that the charge memo and the consequential orders are not liable to be quashed and also placed reliance on the decision of the Hon'ble Apex Court in KUNNITSETTY's case [cited supra] reported in AIR 2007 SC 906[I], I am unable to countenance such contention for the simple reason that the Hon'ble Apex Court has not imposed any total ban for quashing the charge memos. It was made clear by the Hon'ble Apex Court in the said decision that this Court can quash a charge sheet in some very rare and exceptional cases where the charges are found to be wholly without jurisdiction or for some other reason, if it is wholly illegal. As far as the case on hand is concerned, it is already pointed out by this Court that the charges are not specific and definite and the same is vague and bald. It is also already pointed out by this Court that the impugned charge memo is liable to be quashed not only on the ground of vagueness of the charge, but also on the ground that the petitioner has acted only as a quasi-judicial authority and as such, in the absence of any specific allegation of dishonest or corrupt practice or any ulterior motive, no charge can be framed against a quasi-judicial authority. Further, the disciplinary proceedings is not maintainable insofar as the petitioner, on the basis of the impugned charge memo as he has admittedly, discharged his duties as a quasi-judicial authority. Therefore, the impugned charge memo is liable to be quashed on this ground also.
13. The learned Additional Government Pleader took enormous pain to contend that in the event of quashing the charge memo, the Department should be given liberty to prefer an appeal before the 2nd respondent / Inspector General of Registration and also, liberty to recover the loss from the petitioner. I am unable countenance such contention for the simple reason that the Department itself has already directed the petitioner to refer the matter u/s.47-A[3] of the Indian Stamp Act and the said direction was already complied with by the petitioner and the matter is pending for consideration on the file of the Special Deputy Collector [Stamps], Chennai at the time of filing of the writ petition. The said factor is not disputed even in the counter filed by the respondents as it is stated in para 8 of the counter affidavit that referring documents u/s.47-A[3] of the Indian Stamp Act would not absolve from initiating disciplinary proceedings against the erring Sub-Registrars like that of the petitioner.
14. In view of the aforesaid reasons, this Court is constrained to quash the impugned charge memo dated 28.12.2008. Accordingly, the impugned charge memo issued by the 1st respondent in 62628/B2/2008-1 dated 28.12.2008 is hereby quashed. Consequently, the order of suspension and the order dated 30.12.2008, not permitting the petitioner to retire from service pursuant to the issuance of the impugned charge memo dated 28.12.2008, are also liable to be quashed and accordingly, they are quashed. The writ petition is allowed. No costs.
15. It is made clear that the petitioner is entitled for all the consequential retiral, monetary and other benefits. The first respondent is directed to pay all the retiral, monetary and other benefits to the petitioner within a period of twelve [12] weeks from the date of receipt of a copy of this order.
ap To
1.The Inspector General of Registration Chennai 600 028.
2.The District Registrar Audit [South] Chennai