IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 24..3..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. No. 37797 of 2002 and W.P.M.P. No. 56711 of 2002 and W.V.M.P. No. 1818 of 2002 1. Secretary to Government Commercial Taxes Department Chennai 9 2. Principal Commissioner and Commissioner of Commercial Taxes Chepauk, Chennai ... Petitioners -vs- 1. Mayalagu 2. The Registrar Tamil Nadu Administrative Tribunal Chennai 104 ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorari calling for the records relating to the order of the Tribunal dated 05.4.2002 made in O.A. No. 4422 of 2001 and quash the same. For Petitioner : Mr. M. Dhandapani, Spl. GP For Respondent 1 : Mr. K. Raj Kumar for M/s Arulmozhi ORDER
K. CHANDRU, J.
Heard the arguments of Mr. M. Dhandapani, learned Special Government Pleader representing the petitioners, Mr. K. Raj Kumar, learned counsel appearing for the first respondent and have perused the records.
2. The Secretary to Government, Commercial Taxes Department, Government of Tamil Nadu together with the Principal Commissioner of Commercial Taxes, have filed the present writ petition against the order dated 05.4.2002 passed by the Tamil Nadu Administrative Tribunal in O.A. No. 4422 of 2001. The Tribunal, by the impugned order, held that since the punishment given to the first respondent was no longer on record, he is entitled to have his name included in the panel for the post of Deputy Commercial Tax Officer [for short, ‘DCTO’] and accordingly, it was directed that he was to be given promotion in terms of the panel dated 07.7.2000 in the appropriate place and should be given promotion, if any of his junior’s name is on the panel.
3. It was contended by the learned Special Government Pleader that the Tribunal was wrong in giving a positive direction in favour of the first respondent especially when the Government had decided not to promote the first respondent and he was also accordingly informed that in view of the pendency of the disciplinary proceedings under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, his name was deferred from being included in the panel for DCTO for the year 2000. Therefore, their decision was correct at the time of deferring his name for being included in the DCTO panel.
4. The first respondent, however, contended that by G.O. (2D) No. 60 CTRE Department dated 04.4.2001, the charges against the petitioner were set aside. But, however, he conceded that it was decided by the Government that the second petitioner will conduct a fresh enquiry from the stage where a defect had crept in, viz., when the petitioner disagreed with the enquiry officer’s finding in respect of charge No. 2 and it was felt that he may be given an opportunity to put forth his representation before the disciplinary authority.
5. Inspite of the specific stand taken by the petitioners, the Tribunal held that the punishment was not on record as if the first respondent was exonerated from the charges. In terms of G.O. No. 248 Personnel & Administrative Reforms Department dated 20.10.1997, it was stated that once a person is exonerated from charges, he should be given promotion from the date on which he became due for promotion.
6. The learned Special Government Pleader contended that the Government Order produced by the first respondent had not exonerated him from the charges. But, on the contrary, what was decided was to set aside the punishment so as to proceed afresh from the stage where a procedural irregularity had crept in. This only means that the charge-memo under Rule 17(b) and the resultant proceedings up to the stage of submission of the Report by the enquiry officer was held in tact. The learned Special Government Pleader also submitted that the first respondent cannot take advantage of G.O. No. 248 wherein it has been specifically held that it was not a case of exoneration of charges and that only in case of exoneration of charges, promotion in case of deferred employees, can be restored.
7. It was also brought to the notice of this Court that subsequent to the completion of the proceedings, the petitioner was imposed with a punishment of stoppage of increment for six months without cumulative effect. Therefore, he had stated that it is a clear case where charge-memo was pending in terms of Rule 17(b) of the Rules and hence, his name was deferred from being considered for inclusion in the DCTO panel. The learned Special Government Pleader also submitted that since the punishment was undergone by the first respondent, his name was subsequently included in the DCTO panel for the year 2002 and he was also appointed as a DCTO vide proceedings of the second petitioner dated 30.11.2003. He also further submitted that the first respondent was also posted as Commercial Tax Officer by recruitment by transfer by the order of the second petitioner dated 09.3.2005. Under the circumstances, he prayed for setting aside of the order of the Tribunal which is contrary to law.
8. However, Mr. K. Rajkumar, learned counsel appearing for the petitioner submitted that Rule 39(d) of the Tamil Nadu State and Subordinate Service General Rules enables the State to promote an officer temporarily pending enquiry into charges and in a given case, discretion was also given to make regular promotion. He further contended that the Department cannot simply frame a charge under Rule 17(b) of the Rules only with a view to deny promotion and subsequently end up with a minor penalty. If only the proceedings were initiated under Rule 17(a) of the Rules, the first respondent would have got his promotion and by mere invoking Rule 17(b) of the Rules, the first respondent could not be denied his due promotion.
9. However, the learned counsel for the first respondent could not state anything in respect of the findings rendered by the Tribunal impugned in the writ petition with reference to so-called exoneration of the punishment given to the first respondent.
10. We do not agree with the finding rendered by the Tribunal in this regard that by the order dated 04.4.2001, the Government had exonerated the first respondent from the charges and, therefore, he was eligible for promotion. It was only a case of setting aside the final order so that the irregularities in the procedure were removed so that he may be proceeded against the first respondent. The guidelines issued by the Government clearly state that the question of inclusion of the name of a Government servant in the panel may not arise if the charge-memo under Rule 17(b) was pending against him.
11. The learned counsel's attempt to place reliance upon the judgment of this Court reported in 2002 (2) C.T.C. 134 [The Secretary to Government, Home (Transport I) Department, Chennai v. K. Kolappapillai and another] cannot have any bearing on the present case. In that case, the Court was considering the impact of the punishment on the issue of promotion. 12. Mr. K. Rajkumar, learned counsel appearing for the first respondent, also submitted for consideration by this Court the judgment of the Supreme Court reported in JT 1995 (2) SC 18 [State of Punjab and others v. Charanji Lal Goel] and tried to contend that the disciplinary proceedings related to the period ending December 1994 had been kept alive only for the purpose of denying him promotion. We do not think so. In fact, in the present case, not only the Government took note of the procedural irregularities crept in the enquiry held against the first respondent but also set aside the punishment and ordered for fresh proceedings from the stage at which the irregularities had crept in. We also reject the argument that the first respondent could have been given promotion in terms of Rule 39 (d) of the General Rules as it is solely on the discretion of the Government to make any such promotion in terms of the Rule. 13. Further, we are also surprised to note as to how the State can frame any such rule by which even a person charged with corruption can be temporarily promoted by the State. It is for the State to decide desirability to have such a rule continued in the Rule Book. 14. We are of the opinion that the Tribunal fell into error by holding that the first respondent was exonerated of his charges and that he was eligible for promotion. This finding and the resultant direction overlooks other part of the guidelines issued by the Government in this regard. 15. In the light of the above, we have no hesitation to set aside the order dated 05.4.2002 passed by the Tribunal in O.A. No. 4422 of 2001. The writ petition will stand allowed. However, there will be no order as to costs. Connected Miscellaneous Petitions will stand closed. gri
