IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 6.11.2009
CORAM:
THE HONOURABLE MR.JUSTICE P.JYOTHIMANI
W.P.Nos.798 and 799 of 2009
A.Muralidharan .. Petitioner
in both WPs.
Vs.
1. The Secretary to Government
Commercial Taxes and
Registration (A1) Department
Secretariat, Chennai 600 009.
2. The Commissioner of Commercial
Taxes, Chepauk
Chennai 600 005. .. Respondents
in WP:798/2009
and 2nd respondent
is sole respondent
in WP:799/2009
PRAYER: Petitions under Article 226 of the Constitution of India for issue of writ of Certiorarified Mandamus and writ of Mandamus as stated herein.
For Petitioner : Mr.Ravi Shanmugam
For Respondents : Mr.Haja Naziruddeen
Special Government Pleader (Taxes)
ORDER
These writ petitions are filed by the petitioner challenging the order dated 4.4.2008 of the second respondent in W.P.No.798 of 2009 (Commissioner of Commercial Taxes), imposing on the petitioner a punishment of stoppage of increment for one year with cumulative effect and the consequential order of the first respondent in W.P.No.798 of 2009 dated 5.1.2009 rejecting the appeal filed by the petitioner; and for a direction against the sole respondent in W.P.No.799 of 2009 (Commissioner of Commercial Taxes) to include the petitioner’s name in the panel of Assistant Commercial Tax Officers fit for promotion as Deputy Commercial Tax Officers drawn for the year 2004 in the appropriate place and also to direct the respondent to promote the petitioner as Deputy Commercial Tax Officer with effect from 29.7.2004 with all consequential benefits.
2.1. The petitioner who has joined as a Typist in the respondent-Department on 17.10.1973 was promoted as Assistant and thereafter promoted as Assistant Commercial Tax Officer on 21.1.1996. According to him, he was due for promotion as Deputy Commercial Tax Officer on 29.7.2004 for the year 2004, when his immediate juniors were promoted.
2.2. It appears that one A.V.Muralidhar preferred a complaint against the petitioner and one Radhakrishnan, Deputy Commercial Tax Officer and the same was registered on 3.1.2003 under Section 7 of the Prevention of Corruption Act for an alleged demand of Rs.40,000/- to release the goods. The charge sheet was laid in C.C.No.32 of 2004 on the file of the Additional Sessions Judge, Chennai wherein the petitioner was shown as the third accused. The Sessions Court has acquitted the petitioner on 26.6.2006, after elaborate trial.
2.3. Subsequently, a charge has been framed against the petitioner on 8.1.2007 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules on the same ground on which the criminal prosecution was lodged, viz., that the petitioner has demanded and accepted Rs.40,000/- from A.V.Muralidhar for releasing the goods detained.
2.4. According to the petitioner, when the Government as per Rule 5 of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955 has not given direction to the second respondent to formulate a charge under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the second respondent has no suo-motu power to frame charge under the Rules, especially when on the same charge a Criminal Court has acquitted him.
2.5. It is stated that the Assistant Commissioner (Commercial Taxes) was nominated as Enquiry Officer and oral enquiry commenced on 20.7.2007 and after enquiry, the Enquiry Officer submitted a report on 14.9.2007, arriving at a conclusion that the charges levelled against the petitioner are not proved. In fact, according to the petitioner, the Enquiry Officer has found that on the specific date, viz., on 3.1.2003, the petitioner was on leave and there is no evidence to establish the demand and acceptance of bribe.
2.6. It is stated that even though the Enquiry Officer has forwarded his report on 14.9.2007 and the same was received by the second respondent on 30.9.2007, no order has been passed and it is the case of the petitioner that the second respondent has sought for further opinion from the Vigilance and Anti Corruption Department. It was on 26.3.2008 the second respondent, not accepting with the finding of the Enquiry Officer, has called for further explanation from the petitioner. The disagreement with the report of the Enquiry Officer was in respect of obtaining Rs.10,000/- other than Rs.30,000/- for which no receipt was issued.
2.7. The petitioner has submitted his explanation on 2.4.2008. However, on 4.4.2008, the Disciplinary Authority has passed the impugned order imposing a punishment of stoppage of increment for one year with cumulative effect, which according to the petitioner is without considering his explanation and on non application of mind.
2.8. It is also stated that in respect of another person involved in the same allegation, viz., T.S.Balasubramanian, Assistant Commercial Tax Officer, the second respondent has passed an order on 4.4.2008 imposing a punishment of censure.
2.9. According to the petitioner, it was because of the punishment he has been denied his service benefits, including his promotion as Deputy Commercial Tax Officer for the year 2004.
2.10. The statutory appeal preferred by the petitioner to the first respondent was rejected by order dated 5.1.2009, on the basis of the report of the Tamil Nadu Public Service Commission which has erroneously found that the petitioner was arrested for demanding and accepting bribe.
2.11. On merit, it is the case of the petitioner that one of the witnesses examined before the Criminal Court has deposed that Rs.30,000/- was paid as fine for one consignment and out of Rs.20,000/- to be paid for the second consignment, he has paid Rs.10,000/- and promised to arrange for the balance amount of Rs.10,000/- and therefore, the Enquiry Officer has found that there was no demand or acceptance of bribe and the same was not taken into consideration.
2.12. The impugned orders are challenged on various grounds, viz.,
(i) that on the same set of facts when the Criminal Court has honourably acquitted a person, there cannot be a punishment in the disciplinary proceedings;
(ii) that the punishment cannot be passed by the Head of the Department on consultation with the other agencies who are not connected with the service of the petitioner;
(iii) that the punishment has been imposed when there is no evidence and based on perverse finding; and
(iv) that the administrative authority has to record the reason and a non-speaking order cannot be accepted.
3.1. Consequent to the prayer in setting aside of the said punishment imposed which is challenged in W.P.No.798 of 2009, the petitioner, by filing W.P.No.799 of 2009, has sought for a direction to the Commissioner of Commercial Taxes to promote him as Deputy Commercial Tax Officer with effect from 29.7.2004.
3.2. According to the petitioner, the crucial date for promotion for the year 2004 was on 1.3.2004 and the panel was drawn on 29.7.2004. The date on which the petitioner was eligible for promotion, viz., the date of promotion of his immediate junior is 3.8.2004. While charge sheet has been filed on 8.11.2004 and the petitioner was acquitted by the Criminal Court on 26.6.2006, the departmental proceedings were initiated by framing charges on 8.1.2007. Therefore, according to the petitioner, on the crucial date and also on the date of drawing of panel as well as on the date of eligibility of the petitioner to be promoted there was no charge pending against the petitioner, except a criminal complaint in which charge sheet was filed only on 8.11.2004, which ultimately led to acquittal and therefore, according to the petitioner, he is entitled to promotion as stated above. It is also stated that the petitioner has retired on attaining superannuation on 30.9.2009.
4.1. In the counter affidavits filed by the Commissioner of Commercial Taxes in these cases, it is stated that even though in the criminal case the petitioner was acquitted, there is no bar for initiating disciplinary proceedings on the ground of acquittal by the Criminal Court, since the departmental proceedings are independent.
4.2. It is further stated that it was because of the existence of prima facie case, a charge under Rule 17(b) of the the Tamil Nadu Civil Services (Discipline and Appeal) Rules was framed on 8.1.2007, after acquittal of the petitioner in the criminal case.
4.3. It is also stated that the second respondent is competent to disagree with the findings of the Enquiry Officer having found that in respect of Rs.10,000/- other than Rs.30,000/- there was no receipt issued and that the second respondent has rightly decided that the charge against the petitioner stands proved, after receiving the further explanation.
4.4. While admitting that the Disciplinary Authority has only sought for remarks from the Vigilance and Anti Corruption Department, it is stated that the decision was taken by independent application of mind and that in departmental proceedings the yardstick of proof is one of preponderance of probability, unlike in criminal cases where it is evidence beyond all doubts.
4.5. While it is admitted that T.S.Balasubramanian was awarded a punishment of censure, it is stated that that was based on the nature and scope of the lapse committed by him.
4.6. It is also stated that on the crucial date, a criminal case was pending and therefore, his name was not considered for the Deputy Commercial Tax Officer Panel 2004. Since the petitioner was facing criminal trial on the crucial date for inclusion of his name in the Deputy Commercial Tax Officer Panel 2004, his name was not considered and the disciplinary action initiated against the petitioner has concluded during 2008 and charges stood proved and therefore, the petitioner is not entitled to inclusion of his name in the panel for promotion to the post of Deputy Commercial Tax Officer for the year 2004.
4.7. It is also stated that the Government has disposed of the appeal after obtaining remarks from the Tamil Nadu Public Service Commission as per law.
5. It is not in dispute that the charge framed against the petitioner in the criminal case, which has ended in acquittal, as well as in the departmental proceedings initiated under Rule 17(b) of the the Tamil Nadu Civil Services (Discipline and Appeal) Rules relate to the same incident. The charge as framed in the departmental proceedings on 8.1.2007 by the second respondent against the petitioner is as follows:
“Gross dereliction of duty and grave misconduct, unbecoming of a public servant in having yourself under the instructions of Tr.M.Radhakrishnan, Deputy Commercial Tax Officer demanded and accepted Rs.40,000/- from A.V.Muralidhar, on 3.1.2003 at about 19.00 hours at your office in Greams Road, Chennai for releasing the goods detained by you and Tr.Radhakrishnan, Deputy Commercial Tax Officer which belonged to Tr.Chakkum Kozhiyll Mohammed Kutty and having issued receipt for Rs.30,000/- and retained an amount of Rs.10,000/- without issuing any temporary receipt to Tr.A.Muralidhar and thereby violated rule 20(1) of the Tamil Nadu Government Servant Conduct Rule 1973.”
6. It is no doubt true that the Criminal Court, before which the petitioner was third accused, has acquitted the petitioner. The Criminal Court has specifically found, on appreciation of the entire evidence relating to P.W.2 who is the complainant, that what was demanded, namely a sum of Rs.40,000/-, was only a compounding fee for the goods transported and not bribe as claimed by the prosecution and rejected his complaint dated 3.1.2003. While considering the charge against the petitioner who was arrayed as third accused, the Criminal Court, after examining various materials placed before it, has specifically found that “so also, A3 was nowhere in the picture” and ultimately, acquitted him along with other accused. The judgment of acquittal was on 26.6.2006 and admittedly, it was thereafter on 8.1.2007 charge was framed against the petitioner on the same incidence.
7. It is also not in dispute that the Enquiry Officer appointed by the second respondent, in his report dated 14.9.2007, in respect of the defence of the petitioner that he was on leave on 3.1.2003, the date on which the bribe was alleged to have been accepted, on verifying the attendance register has found that the petitioner was on leave on the said date. The relevant portion of the finding of the Enquiry Officer is as follows:
“1) In his statement of defence, the charged official has informed that he was on leave on 03.01.2003. This aspect is verified with reference to the attendance registers maintained in the Office of the Assistant Commissioner (CT) Chennai (South) Enforcement, Chennai-6 and the verification revealed the follows:
a) In Page No.4 of the Attendance Register for officers, it has been mentioned as jtp on 3.1.2007. b) In Page No.51 of the Casual Leave Register, there is entry of Casual leave on 03.01.2007 for 'kfid kUj;Jtkid miHj;J bry;y' which has been attested by the official concerned. Hence the explanation of the official that he was on leave on 03.01.2003 is acceptable." (The date in the above extracts has been wrongly stated by the Enquiry Officer to be 3.1.2007 instead of 3.1.2003 and the same is not in dispute.)
8. After receiving the report of the Enquiry Officer, the second respondent has issued a memo to the petitioner on 26.3.2008, disagreeing with the report of the Enquiry Officer and calling for further explanation from the petitioner. The reason for disagreement given in the said memo is as follows:
“Reasons for holding the charge as proved disagreeing with the findings of the Inquiry Officer:
Charge No.I:
1. Reasons for obtaining Rs.10,000/- other than Rs.30,000/- for which receipt was not issued.”
9. After considering the further explanation, the second respondent has passed the impugned order dated 4.4.2008. For disagreeing with the report of the Enquiry Officer in respect of the altered charge, the second respondent, in the impugned order, has given the following reason:
“6. The case relates to the trap and arrest for demand and acceptance of bribe and the Hon’ble Court of Vth Additional Sessions Judge, Chennai 104 have acquitted Thiru A.Muralidharan, Assistant Commercial Tax Officer. However, certain grave irregularities were noticed involving misconduct in the discharge of official duties for which the disciplinary action under rule 17(b) of Tamil Nadu Civil Services (Discipline & Appeal) Rules was initiated by framing a charge. The explanation as well as the further representation of the charged officer on the charge framed against him are not convincing and satisfactory. Therefore, disagreeing the findings of the Inquiry Officer and not accepting the further representation of the charged officer, the single charge framed against Thiru.A.Muralidharan, Assistant Commercial Tax Officer is held as proved.”
A reference to the said order makes it clear that no reason has been adduced except to say that the further representation of the petitioner is not convincing and satisfactory.
10. The first respondent, on appeal, has given the following reason for rejecting the appeal:
“5. The Government have carefully examined the appeal of Thiru A.Muralidharan, Assistant Commercial Tax Officer, Roving Squad-II, Chennai-6, now ACTO/Superintendent along with the relevant records and the view of the Tamil Nadu Public Service Commission and decided to accept the views of the Tamil Nadu Public Service Commission. The Government accordingly reject the appeal of Thiru A.Muralidharan, Assistant Commercial Tax Officer/Superintendent, as devoid of merits.”
11. It is specifically admitted in the counter affidavit filed by the second respondent that in respect of T.S.Balasubramanian, another Assistant Commercial Tax Officer, who was arrayed as second accused in the criminal case and who was also acquitted in the said judgment, punishment of censure was awarded. In fact, a reference to the various portions of the judgment of the Criminal Court shows that the main charge of demand and acceptance of bribe was against him and even that was found to have been not proved and in spite of it, in the disciplinary proceedings, he has been awarded punishment of censure while the petitioner has been awarded punishment of stoppage of increment for one year with cumulative effect and for that the reason given is that the lapse committed by him is different.
12. This aspect has not been considered by the respondents which is violative of Wednesbury Principles and Doctrine of Proportionality, the well established concept of administrative law. It is true that the punishment awarded to the petitioner is not a major punishment, but that is not a material fact for deciding about the concept of proportionality. It is also true that the ultimate finding of the Criminal Court may not be relevant for the purpose of deciding departmental proceedings, but, nevertheless, the factual assertion after narration of evidence of various witnesses in the criminal case certainly has to be taken into consideration for the purpose of deciding as to whether the petitioner was actually involved. As I have stated earlier, the Criminal Court, on evidence, has found that the petitioner was on leave and there was no iota of evidence to show that the petitioner was involved in the demand and acceptance of bribe. Of course, that was also the case in respect of T.S.Balasubramanian, as found by the Criminal Court, and in his case the punishment of censure was awarded, while in the case of the petitioner a punishment of stoppage of increment for one year with cumulative effect has been awarded. Taking note of this clinching aspect, I am of the considered view that awarding of punishment to the petitioner is disproportionate.
13. The Supreme Court in Om Kumar and others v. Union of India, [2001] 2 SCC 386 has explained about the Wednesbury Rule as well as the Proportionality Principle as follows:
“26. Lord Greene said in 1948 in the Wednesbury case, [1948] 1 KB 223: [1947] 2 All ER 680 (CA) that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or other of the following conditions were satisfied, namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed in UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lord Diplock in Council for Civil Services Union v. Minister of Civil Service 1983 (1) AC 768 (called the GCHQ case) summarised the principles of judicial review of administrative action as based upon one or other of the following viz., illegality, procedural irregularity and irrationality. He, however, opined that proportionality’ was a “future possibility”.
….
28. By ‘proportionality’, we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the legislature and the administrative authority ‘maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve’. The legislature and the administrative authority are however given at area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality.”
14. The judgment relied upon by the learned counsel for the respondents rendered by the Supreme Court in Union of India v. K.Krishnan, AIR 1992 SC 1898 relates to the Post and Telegraph Manual Volume-3 wherein the rule specifically prohibits promotion during the currency of penalty in disciplinary proceedings against an employee. But, on the facts and circumstances of the present case, there was no disciplinary proceeding pending or penalty imposed on the crucial date for inclusion of his name in the Deputy Commercial Tax Officer Panel 2004. Even the criminal case charge sheet was filed only on 8.11.2004, while the crucial date for the panel of the year 2004 was 1.3.2004. Mere pendency of FIR against the petitioner at that time, namely during the crucial date cannot be taken as a bar for including his name in the panel, especially in the circumstances where ultimately the criminal case has ended in acquittal on 26.6.2006.
15. In such circumstances, even if the impugned order of punishment is sustained, the petitioner is entitled to be included in the panel of Assistant Commercial Tax Officers fit for promotion as Deputy Commercial Tax Officers for the year 2004, for the disciplinary proceedings commenced by framing of charge under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules only on 8.1.2007, long after the crucial date. Thus, looking from any angle, I am of the considered opinion that the impugned order of punishment imposed on the petitioner is unsustainable and the name of the petitioner is entitled to be included in the panel of Assistant Commercial Tax Officers fit for promotion as Deputy Commercial Tax Officers for the year 2004 and the petitioner is entitled to be considered for promotion as Deputy Commercial Tax Officer on the date when his immediate junior stood promoted, which was on 3.8.2004.
For the foregoing reasons, the writ petitions stand allowed and the impugned order of punishment imposed on the petitioner by the impugned order dated 4.4.2008 stands set aside with a direction to the respondents to include the name of the petitioner in the panel of Assistant Commercial Tax Officers fit for promotion as Deputy Commercial Tax Officers for the year 2004 and give benefit of promotion from the date of promotion of his immediate junior and grant all consequential monetary benefits due to the petitioner within a period of twelve weeks from the date of receipt of a copy of this order. No costs.
sasi
To:
1. The Secretary to Government
Commercial Taxes and
Registration (A1) Department
Secretariat, Chennai 600 009.
2. The Commissioner of Commercial
Taxes, Chepauk
Chennai 600 005