BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19/11/2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)NO.82 of 2010
and
M.P.(MD)No.2 of 2010
K.Shanmugam .. Petitioner
vs
1.The Registrar,
State Chief Information Commissioner,
Tamilnadu Information Commission,
Chennai-18.
2.The Principal Commissioner/
The Special Commissioner,
Department of Commercial Taxes,
Chepauk,
Chennai-5.
3.The Joint Commissioner,
Commercial Taxes,
Commercial Tax Buildings,
Dr. Thangaraj Salai,
Madurai-20.
4.A.Fathimabee .. Respondents
This writ petition has been preferred under Article 226 of the Constitution of
India praying for the issue of a writ of certiorari to call for the records on
the file of the first respondent in case No.12050/Enquiry/09, dated 07.12.2009
and to quash the same as arbitrary, illegal and excess of jurisdiction.
!For Petitioner ... Mr.A.Thiyagarajan, SC
for Mr.S.Karunakar
^For Respondents ... Mr.Pala Ramasamy for R-1
Mr.S.C.Herold Singh, GA for RR2 and 3
- - - -
:ORDER
This writ petition is filed by the petitioner challenging an order, dated
7.12.2009 passed by the Tamil Nadu Information Commission, wherein and by which
the petitioner who is the Commercial Tax Officer, Roving Squad (Additional),
Madurai was directed to pay Rs.1000/- as compensation to the fourth respondent
for being dragged her unnecessarily to attend an enquiry and also personal
explanation should be called for as to why penalty prescribed under the Act
should not be imposed. Further, a direction was issued to frame a charge under
Rule 17(b) of the Tamil Nadu Government Servants (Disciplinary & Appeal) Rules
for refusing to accept a RTI petition. It was found that there was failure to
discharge duty.
2.Apart from the averments mentioned in the affidavit, in paragraph
No.12(b) it was stated that he was not put on any notice and no opportunity was
given to put forth his case. The order is opposed to principles of natural
justice.
3.The writ petition was admitted on 06.01.2010. Pending the writ petition,
an interim stay was granted initially for a limited period. Subsequently, it was
extended from time to time. On notice from this court, the third respondent has
filed a counter affidavit, dated 04.10.2010. In the counter affidavit, the
department contended that the action of the petitioner was against the spirit of
the enactment. Pursuant to the direction of the Commission, the charge memo
under Rule 17(b) was framed. But the petitioner is yet to submit his explanation
and he is reaching the age of superannuation.
4.In any event, the issue raised herein is no longer res integra. This
Court in The Public Information Officer/General Manager-in-charge, Villupuram
District Central Cooperative Bank Ltd. Vs. The Tamil Nadu Information
Commission, Chennai and others in W.P.No.21441 of 2009, dated 06.01.2010 dealt
with the similar issue. In paragraphs 17 to 23 this court held as follows:
“17.In any event, a direction to recover the amount as penalty itself indicates
that it is penal in nature and a further direction to take disciplinary action
will result in their service career being jeopardised. Further, a day’s delay
involves penalty of Rs.250/- and a maximum penalty is fixed at Rs.25000/-.
Therefore, the Commission has discretion to order penalties ranging from
Rs.250/- to Rs.25000/-. But, in all the five cases, only maximum penalties were
imposed on the petitioners. In some of the cases, direction to place them under
suspension and to frame charges under the relevant service rules have also been
recommended. In each of the case, the petitioners have some plausible defence to
put forth. But no separate enquiries were conducted by the Commission.
18.Though Section 20 enjoins the Information Commission at the time of deciding
any complaint or appeal and also to decide the question of penalty, a careful
reading of the relevant provisions including first proviso to Section 20 will
show that it obliges a reasonable opportunity of being heard on the question of
penalty and in recommending initiation of disciplinary proceedings. It also
requires the Commission to form an opinion about the conduct of an Information
Officer. Therefore, it involves a separate action by the Commission against the
officer concerned so that they can put forth their defence either about their
bona fides or plead for minimum penalty.
19.When minimum and maximum penalties have been prescribed, the proportionality
of such penalties can also be granted, which can be pleaded by any officer.
Therefore, it obliges the Commission to pass a separate order after issuing
separate show cause notice to the information officer so as to enable them to
satisfy the Commission with their defence.
20.In one case, the writ petitioner was not the notified officer at the relevant
time. But it is necessary that penalty should be imposed on a named officer, who
was acting as the Information Officer at the relevant time. The imposition of
penalty and recommendation for disciplinary action can be taken on several
grounds including the grounds of delay, malafide denial, incorrect or incomplete
or misleading information, etc. Therefore, in each of the cases, penalty has to
be in proportion to the charge levelled against an information officer. Unless
the officer concerned is personally notified with the proposal of the Commission
to impose a maximum penalty together with a direction to recommend disciplinary
action, imposition of penalty may not be legally valid. The impugned orders are
thus liable to be set aside both on the grounds of procedural violation and also
on the question of proportionality of the penalty.
21.The Supreme Court in Om Kumar v. Union of India reported in (2001) 2 SCC 386
dealt with the scope of judicial review over administrative action affecting
fundamental freedoms. The following passages found in paragraphs 54, 59 and 68
may be usefully extracted below:
“54. Administrative action in India affecting fundamental freedoms has
always been tested on the anvil of “proportionality” in the last fifty years
even though it has not been expressly stated that the principle that is applied
is the “proportionality” principle. For example, a condition in a licence issued
to a cinema house to exhibit, at every show, a certain minimum length of
“approved films” was questioned. The restriction was held reasonable (see R.M.
Seshadri v. Distt. Magistrate Tanjore27). Union of India v. Motion Picture
Assn.28 also related, inter alia, to the validity of licensing conditions. In
another case, an order refusing permission to exhibit a film relating to the
alleged obnoxious or unjust aspects of reservation policy was held violative of
freedom of expression under Article 19(1)(a) (S. Rangarajan v. P. Jagjivan
Ram29). Cases of surveillance by police came up for consideration in Malak Singh
v. State of P&H30. Cases of orders relating to movement of goods came up in
Bishambhar Dayal Chandra Mohan v. State of U.P.31 There are hundreds of such
cases dealt with by our courts. In all these matters, the proportionality of
administrative action affecting the freedoms under Article 19(1) or Article 21
has been tested by the courts as a primary reviewing authority and not on the
basis of Wednesbury principles. It may be that the courts did not call this
proportionality but it really was.
…..
59. But, in E.P. Royappa v. State of T. N.32 Bhagwati, J laid down another test
for purposes of Article 14. It was stated that if the administrative action was
“arbitrary”, it could be struck down under Article 14. This principle is now
uniformly followed in all courts more rigorously than the one based on
classification. Arbitrary action by the administrator is described as one that
is irrational and not based on sound reason. It is also described as one that is
unreasonable.
…..
68. Thus, when administrative action is attacked as discriminatory under Article
14, the principle of primary review is for the courts by applying
proportionality. However, where administrative action is questioned as
“arbitrary” under Article 14, the principle of secondary review based on
Wednesbury principles applies.
22.Though in a given case, this Court can go into the proportionality of a
punishment, under normal circumstance, if the court is of the opinion that if a
punishment requires reconsideration, it should be remanded to the very same
authority for reconsideration. This was made clear in Om Kumar’s case (cited
supra). The following passages found in paragraphs 70 and 71 may be usefully
quoted below:
“70. In this context, we shall only refer to these cases. In Ranjit Thakur
v. Union of India43 this Court referred to “proportionality” in the quantum of
punishment but the Court observed that the punishment was “shockingly”
disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of
India44 this Court stated that the court will not interfere unless the
punishment awarded was one which shocked the conscience of the court. Even then,
the court would remit the matter back to the authority and would not normally
substitute one punishment for the other. However, in rare situations, the court
could award an alternative penalty. It was also so stated in Ganayutham2.
71. Thus, from the above principles and decided cases, it must be held that
where an administrative decision relating to punishment in disciplinary cases is
questioned as “arbitrary” under Article 14, the court is confined to Wednesbury
principles as a secondary reviewing authority. The court will not apply
proportionality as a primary reviewing court because no issue of fundamental
freedoms nor of discrimination under Article 14 applies in such a context. The
court while reviewing punishment and if it is satisfied that Wednesbury
principles are violated, it has normally to remit the matter to the
administrator for a fresh decision as to the quantum of punishment. Only in rare
cases where there has been long delay in the time taken by the disciplinary
proceedings and in the time taken in the courts, and such extreme or rare cases
can the court substitute its own view as to the quantum of punishment.”
(Emphasis added)
23.In the light of the above, the impugned orders in all the writ petitions will
stand set aside. The Commission is hereby directed to give appropriate show
cause notices to the petitioners. After hearing them on the question of penalty
as well as on its recommendation to take disciplinary action against them, can
pass an appropriate order. All the writ petitions will stand partly allowed and
to the extent indicated above….”
5.In the light of the above, the impugned order will stand set aside. The
writ petition will stand allowed. However, there will be no order as to costs.
Consequently, connected miscellaneous petition stands closed.
vvk
To
1.The Registrar,
State Chief Information Commissioner,
Tamilnadu Information Commission,
Chennai-18.
2.The Principal Commissioner/
The Special Commissioner,
Department of Commercial Taxes,
Chepauk,
Chennai-5.
3.The Joint Commissioner,
Commercial Taxes,
Commercial Tax Buildings,
Dr. Thangaraj Salai,
Madurai-20.