IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.02.2011 CORAM: THE HONBLE MR. JUSTICE K.CHANDRU W.P.Nos.27043 to 27045 of 2005 (O.A.Nos.2829 to 2831 of 2002) A.Dhakshnamoorthy ..Petitioner in all W.Ps. Vs. 1. The Secretary to the Government State Government of Tamil Nadu Fort St.George, Chennai-9 2. The Principal Commissioner and Commissioner of Commercial Taxes Chepauk, Chennai 5 ..1st & 2nd respondents
in all W.Ps.
3. N.Umapathy Enquiry Officer/ Deputy Commissioner (CT) Trichy Division Trichy 1 ..3rd respondent in W.P.No.27043 AND 27045 OF 2005 4. Enquiry Officer/ Assistant Commissioner (CT) Pudukottai ..3rd respondent in W.P.No.27044 OF 2005
Prayer in W.P.No.27043/2005: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorai to call for the orders and set aside the proceedings bearing No. CP2/73104/98 dated 18.2.2000 of the Second Respondent and the consequential order bearing No.22611/E1/98-16 dated 3.10.2001 of the first respondent.
Prayer in W.P.No.27044/2005: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorai to
call for the orders and set aside the proceedings bearing No. C1/67298/93 dated 25.11.1998 of the Second Respondent and the consequential order bearing No.6548/E1/2000.5 dated 11.1.2001 of the first respondent.
Prayer in W.P.No.27045/2005: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorai tocall for the records and set aside the Charge Memo dated 23.7.99 bearing No. CD2/63998/97 and the consequential order of the first respondent bearing Proc. No. 6549/E1/2000.5 dated 1.2.2001.
For Petitioner :: Mr.A.Prabhakaran For Respondents :: Mr.R.Murali, G.A.for R1 & R2 R3-not ready COMMON ORDER
The petitioner in all these Writ Petitions is the one and the same person. The petitioner was formerly working as Commercial Tax Officer-cum-Personal Assistant to the Deputy Commissioner (CT), Chennai East. The petitioner reached the age of superannuation on 31.3.2000. Just before his superannuation, he was given a charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules dated 18.2.2000. In the light of the charge memo, the petitioner was allowed to retire without prejudice to the disciplinary action pending against him. The petitioner also was paid his pension with effect from 1.4.2000 and for the balance of gratuity amount after retaining certain amount covered by the Recovery Notice, the petitioner filed three Original Applications before the Tamil Nadu Administrative Tribunal being O.A.Nos.2829 to 2831 of 2002.
2. The three Original Applications were admitted on 7.5.2002. But, in O.A.No.2829 of 2002, an interim stay was granted on the same day, which interim order was also extended by a further order dated 28.6.2002. In the first Original Application being O.A.No.2829 of 2002, the petitioner challenged the show cause notice dated 30.10.2001, wherein and by which the 1st respondent state asked the petitioner to show cause as to why a sum of Rs.200/- should not be recovered from his pension per month for a period of two years. This penalty was made in terms of Rule 9 of the Tamil Nadu Pension Rules. Before issuance of the show cause notice, on the basis of the charge memo given to the petitioner dated 23.2.2000 and after getting his explanation, an enquiry was ordered to be conducted by the Assistant Commissioner (CT), Chennai East. He found that out of four charges, the 1st charge was proved and the three charges are partly proved. But the Government has disagreed with the findings of the enquiry officer and also held that all the four charges are fully proved. Disagreement Notice was also communicated to the petitioner and he has submitted a further explanation. Considering the fact that he has retired, accepting the enquiry officer’s report, holding that the charges were proved, the petitioner was imposed with penalty as indicated above. Instead of submitting his explanation, the petitioner moved the Tribunal and obtained the interim order.
3. In the second Original Application No.2830 of 2002, the petitioner challenged another show cause notice dated 11.1.2001 issued by the respondent wherein the penalty of cut in pension at the rate of Rs.200/- for a period of three years was imposed on him. This was also in terms of Rule 9 of the Tamil Nadu Pension Rules. In that case, the petitioner was issued with charge memo under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules on 25.11.1998 and the petitioner also gave explanation. Enquiry was directed to be considered by the Assistant Commissioner (CT), Pudukkottai. The enquiry officer held that the 1st charge was partly proved and the 2nd and 3rd charges were not proved. But the Government disagreeing with the findings of the enquiry officer and after communicating disagreement note and getting his representation, found all the charges as proved. In respect of the proved charges, the penalty was sought to be imposed. Instead of giving explanation, the petitioner filed O.A.No.2830 of 2002. But in the second Original Application, there is nothing on record to show any interim order was granted by the Tribunal.
4. In O.A.No.2831 of 2002, the petitioner challenged the charge memo dated 23.7.99 issued by the 2nd respondent as well as the show cause notice dated 1.2.2001 issued by the 1st respondent. By the 1st impugned order dated 23.7.99, the petitioner was issued with a charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and subsequently an enquiry was ordered to be conducted by the Deputy Commissioner (CT), Trichy. The said enquiry officer found the charges 1, 3 and 4 stand proved and charges 2 and 5 were not proved. But the Government disagreed with the enquiry officer’s report and also held that the other charges were also proved. After due notice to the petitioner, show cause notice was given. It was found that on the basis of proved charges, the loss of the Government was estimated at Rs.98,582/- and the said amount was directed to be recovered from the DCRG of the petitioner and in respect of the penalty, it was proposed to make a cut in pension at the rate of Rs.500/- per month for a period of three years. The petitioner was asked to show cause on the said penalty. But the petitioner has not filed any explanation but went to the Tribunal.
5. On notice from the Tribunal, the respondents have filed a reply affidavit dated 23.6.2004 justifying the penalty. The petitioner filed W.P.No.9207 of 2005 before this Court seeking for transfer of all the three Original Applications pending before the Tribunal. This Court by an order dated 10.3.2005 directed the three Original Applications pending before the Tribunal to be transferred to this Court. Accordingly, the Tribunal forwarded all the three bundles under the covering letter dated 7.5.2005 and all the three Original Applications were renumbered as W.P.Nos.27043 to 27045 of 2005.
6. In the present cases, it is needless to state that the petitioner has already been retired from service. Before his retirement, he was allowed to retire without prejudice to the disciplinary proceedings pending against him. For all the three charges, the enquiries were conducted by appropriate enquiry officers, who have given finding. The disagreement note by the State was also furnished to the petitioner. After his explanation, the proposed penalty was sought to be made. In the normal circumstances, there is no show cause notice on the proposed penalty. In the light of the amendment made to the Constitution by 42nd amendment to Article 311(2), this has been upheld by the Supreme Court in Union of India vs. Tulsiram Patel reported in (1985) 3 SCC 398.
7. But, in the present case, since the pension is sought to be cut in terms of Pension Rules, a further notice has been issued, it is for the petitioner to make a reply to the said notices. This Court is not inclined to interfere with the said show cause notices and it is open to the petitioner to make appropriate explanation to the show cause notice and depending upon the outcome, he can work out his remedies.
8. In his application for fixing an early date, the petitioner was lamenting that gratuity has not been paid. However, on this question, the petitioner should have made a proper explanation, which would enable the respondents State to pass appropriate orders. Considering the fact that there are no mala fides alleged against the respondents and as per the procedural aspect the enquiry has been gone through, this Court is not inclined to interfere with the impugned show cause notices.
9. However, it is open to the petitioner to submit explanation. If the petitioner wants to submit explanation, it shall be done within three weeks from the date of receipt of a copy of this order. Upon the explanation being filed by the petitioner, the 1st respondent will pass appropriate orders within two months thereafter and communicate the result to the petitioner. With the above observation, all the Writ Petitions stand dismissed. No costs.
ajr
To
1. The Secretary to the Government
State Government of Tamil Nadu
Fort St.George, Chennai-9
2. The Principal Commissioner
and Commissioner of Commercial Taxes
Chepauk,
Chennai 5