IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:5-7-2010
CORAM
THE HON'BLE MRS. JUSTICE PRABHA SRIDEVAN
and
THE HON'BLE MR.JUSTICE G.M. AKBAR ALI
W.P.No.25016 of 2002
R. Vasu .... Petitioner
vs
1.Union of India
rep by Chief Commissioner of
Income Tax (Administration)
Chennai-600 034
2. The Joint Commissioner of Income Tax,
Range III, Madurai
No.2, V.P. Rathinasamy Nadar Road
Madurai-625 002
3. The Central Administrative Tribunal
rep by its Registrar
Madras Bench, Madras-600 104
4. District Level Vigilance Committee
Collector's Office
Dindigul ... Respondents
(impleaded as per Order of the Court
dated 18.10.2005 in WPMP No.29159/2005)
Writ Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiroarified Mandamus to call for the records of the third respondent in OA No.1178 of2001 dated 1.7.2002,
quash the same and also the order of the second respondent in CR No.Conf/98/DP/JC/R-III/2001-2002 dated 8.11.2001, quash the same and consequently forbear the respondents 1 and 2 from proceeding further with the disciplinary enquiry against the petitioner.
For petitioner : Mr.Vijay Narayan, SC
for Mr.R. Parthiban
For R.1 and R.2 : Mr.V. Vijay Shankar
CGSC
ORDER
(Order of the Court was made by PRABHA SRIDEVAN,J.,)
33 years, yes, 33 years ago, charges were framed against the appellant, an employer in the Income Tax Department. The proceedings have not progressed beyond the stage of inquiry report. Incredible, but true.
2. Two charges were framed against the appellant on 7.9.1987 one that he had produced a bogus caste certificate showing himself as he belongs to “Kattunaicken” community and the second charge is that he suppressed the information that he belonged to “Gavara” community.
3. The Enquiry Officer initiated enquiry on these two charges and these charges are still pending because of the various proceedings and interim orders obtained by the appellant.
4. The history of the case must be traced from 1987, listing the several proceedings both before the Tribunal and in the civil forum. The appellant filed a suit in O.S. No.197/87 before the Sub Court, Pudukottai for a declaration that he belongs to Kattunaickan community, which is a Scheduled Tribe. Civil Revision Petition Nos.2053, 3234 and 3235 of 1988 were filed by the respondent herein and the same were dismissed on 17.3.1989 holding that there was no bar on the trial court to proceed with the trial of the suit. In the year 1989, the appellant filed an application in O.A.No.331 of 1989 before the Central Administrative Tribunal. The Tribunal held that as regards the charge against the appellant that he produced a bogus certificate, he should face the enquiry and establish that the community certificate produced by him was not a bogus one and as regards the second charge extracted above, that would arise only after a decision in O.S.No.197 of 1987. The Tribunal passed the following order:
“…. Therefore, at this stage we are of the view that the respondents may proceed with the first charge only relating to the production of a bogus community certificate. Accordingly, the impugned Memorandum dated 07.09.1987 is quashed insofar as it relates to the 2nd charge viz., “that the said Shri R. Vasu at the time of appointment as U.D.C suppressed the information that he belonged to “Gavara ” community and furnished false information in the Attestation Form stating that he belonged to Scheduled Tribe”
5. There is no challenge to this order. O.S.No.197/1987 was decreed on 12.10.1994 granting a declaration that the appellant belongs to “Kattunaicken” community. The respondent herein filed revisions in C.R.P.Nos.2810 and 2811 of 1994, wherein this Court has held that the revisions have become infructuous since by the time the suit itself had been disposed of on 12.10.94.
6. The appellant has filed an Original Application in O.A.No.1275 of 1995 seeking a direction to promote him as Inspector of Income Tax with effect from 1994 onwards. This was disposed of on 6.2.1998 directing the respondent to open the sealed cover and and pass orders in accordance with the decision of the D.P.C .
7. The decree that was referred to by us earlier, was an ex-parte decree and an application in I.A.No.182/97 was filed with long delay of 723 days to set aside the ex-parte decree passed on 12.10.1994, but the same was dismissed on 30.7.1998. In the meantime, in the disciplinary proceedings, the memo of charges was issued on 15.1.2001 giving the appellant an opportunity to submit his written representation or submission within a period of fifteen days. W.P.No. 4828 of 1998 was filed by the respondent against the order of the Tribunal in O.A.No.1275/95 and a Civil Revision Petition No.3362 of 1998 was filed by the respondent against the dismissal of I.A.No.182/97 referred to above. Both the W.P.No.4828 of 1998 and a Civil Revision Petition No.3362 of 1998 were taken up together by the Division Bench of this Court which held that the suit was not maintainable and the decree was set aside along wit h the order made
by the Tribunal, since the order made by the Tribunal was based entirely on the decree. The Division Bench thereafter directed the respondents herein to pass final orders on the enquiry within a period of four weeks.
8. On 16.3.2001, the disciplinary authority, on a perusal of the Enquiry Officer’s report, found that the said report did not discuss any of the relevant evidence and therefore, sent the matter back to the enquiring authority for full compliance of Rule 14(23) of Central Civil Services (Classification, Control and Appeal). Against the common order passed by the Division Bench in W.P.NO.4828 of 1998 and a Civil Revision Petition No.3362 of 1998, , the appellant moved the Hon’ble Supreme Court which passed the following order:
“Exemption allowed.
Even though a civil suit may be maintainable on the question as to whether the petitioner belongs to a particular caste or not, the said question can also be gone into in the departmental proceedings. Mr.K.K. Venugopal, learned Senior Counsel for the petitioner states that in the inquiry which has been instituted against the petitioner, the Inquiry Officer should investigate the correctness of the allegations and give a finding. He also states that the pendency of the civil suit should not deter the Inquiry Officer from deciding the same. We, therefore, issue notice returnable after eight weeks limited to the question as to whether the civil suit was maintainable or not, but, in the meantime, we direct the Inquiry Officer to proceed and conclude with the Inquiry within two months from today”.
9. In the disciplinary proceedings, the appellant took up the position that the second charge did not survive because of the earlier order of the Central Administrative Tribunal. On 8.11.2001, the respondent forwarded the Enquiry Officer’s report of the appellant asking him to submit a written representation to the disciplinary authority within 10 days if he so desires. The Enquiry Officer, after conducting a detailed enquiry had held that the Certificate produced by the appellant as he belonged to Kattunaicken Community is bogus and that he actually belongs to “Gavara” Community and that he is therefore clearly guilty of both the charges .
10. Against the order passed in W.P.No.4828 of 1998, the appellant moved the Supreme Court and the Supreme Court dismissed the S.L.P leaving the question of law open. Thereafter, the appellant
filed O.A.No.1178 of 2001 to quash the order dated 8.11.2001, by which, the disciplinary authority forwarded the Enquiry Officer’s report. In the said Original Application, the Tribunal held that it was open to the applicant to place all the submissions before the disciplinary authority and explain to him why the enquiry report should not be accepted and it is for the disciplinary authority to consider all the submissions and pass orders in accordance with law. This order was passed on 1.7.2002. It is against that, the present writ petition has been filed. Interim order was obtained and it was also made absolute on 18.10.2005. In the result, the appellant continues in service without facing the disciplinary proceedings initiated in 1987.
11. The learned Senior Counsel Mr.Vijay Narayanan submitted that when the earlier order of the Tribunal quashed the second charge,
it was not open to the respondent to investigate both the charges and give a finding. The learned Senior Counsel drew the difference between the employer’s power to examine whether the certificate is bogus and the employer’s power to examine whether a particular person belongs to a community. The learned Senior Counsel submitted that after Madhuri Patil’s case, which is reported in AIR 1995 SC 94 (Kumari Madhuri Patil vs Additional Commissioner, Tribal Development), the employer cannot go into the second question and it is for the State Level Committee in the case of Scheduled Tribe and for the District Level Committee in the case of Scheduled Caste which goes into the issue whether a particular person belongs to particular community.
12. The learned Senior Counsel submits that as long as certificate is not set aside in the manner known to law, the employer cannot go into the correctness of the certificate.
13. The learned counsel appearing for the respondent submitted that the enquiry officer had gone into this matter only because of the specific orders of the Supreme Court in which, the Enquiry Officer was directed to proceed and conclude with the enquiry within a period of two months.
14. The Enquiry Officer’s report is only the basis on which the disciplinary authority finds whether the charges of his employee is proved. The Tribunal had correctly held that all the objections could be
raised before the disciplinary authority and there was no need to stall the proceedings at this stage.
15. The case of the appellant is that when the Tribunal had quashed the second charge, it was not open to the Enquiry Officer to go into the second charge. It is true that the Tribunal had quashed the second charge, but that was because the suit was pending on that day. In any event, the question whether the Certificate that is produced by the appellant certifying him that he belongs to Kattunaicken community is genuine, is inextricably linked to the question whether he belongs to “Gavara” community. If there is evidence to show that the appellant belongs to one community then a certificate that is produced by him that he belongs to another community is automatically bogus. Enquiry Officer has given certain findings, which may or may not be accepted by the disciplinary authority after hearing the objections of the appellant. But, at this stage, the appellant cannot stall the enquiry proceedings which he has successfully doing for the last two decades. Stay of departmental proceedings is not to be given lightly. This is well settled.
16. In 1994 (3) SCC 357 (Union of India and Others) vs Upendra Singh, the Supreme Court dealt with the Central Administrative Tribunal’s Order relating to correctness of the charges framed against the respondent and they held that the Tribunal had exceeded its jurisdiction in going into the correctness of the charges. The following paragraphs are relevant:
“6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal vs Gopi Nath and Sons. The Bench comprising M.N. Venkatachaliah J (as he then was) and A.M. Ahmadi, J., affirmed the principle thus (SCC p.317 para 8)
“Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. 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 by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself”.
7. Now if a court cannot interfere with the truth or correctness of the charges even in a proceeding against the final order, it is ununderstandable how can that be done by the tribunal at the stage of framing of charges? In this case, the Tribunal has held that the charges are not sustainable (the finding that no culpability is alleged and no corrupt motive attributed), not on the basis of the articles of charges and the statement of imputations but mainly on the basis of the material produced by the respondent before it, as we shall presently indicate”.
In the present case, the Tribunal had rightly held that the Original Application cannot be entertained and the matter had to be decided by the Disciplinary Authorities.
17. In the result, the writ petition is dismissed. The respondents are directed to conclude the proceedings within a period of two months from the date of receipt of copy of this order. No costs.
(P.S.D.J.,) (G.M.A.J.,) 5-7-2010
sr
Index:yes
Website:yes
To
1. Chief Commissioner of
Income Tax (Administration)
Union of India,
Chennai-600 034
2. The Joint Commissioner of Income Tax,
Range III, Madurai
No.2, V.P. Rathinasamy Nadar Road
Madurai-625 002
3. Registrar,
Central Administrative Tribunal
Madras Bench, Madras-600 104
4. District Level Vigilance Committee
Collector's Office
Dindigul
PRABHA SRIDEVAN,J.,
AND
G.M. AKBAR ALI,J.,
sr
W.P.No.25016 of 2002
5-7-2010