A.Muralidharan v. The Secretary to Government Commercial Taxes and Registration (A1) Department Secretariat, Chennai – 600 009

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:6.11.2009CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANIW.P.Nos.798 and 799 of 2009A.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... Respondentsin WP:798/2009and 2nd respondentis sole respondentin WP:799/2009PRAYER: Petitions under Article 226 of the Constitution of Indiafor issue of writ of Certiorarified Mandamus and writ of Mandamusas stated herein.For Petitioner:Mr.Ravi ShanmugamFor Respondents:Mr.Haja NaziruddeenSpecial Government Pleader (Taxes)ORDERThese writ petitions are filed by the petitioner challengingthe order dated 4.4.2008 of the second respondent in W.P.No.798 of2009 (Commissioner of Commercial Taxes), imposing on the petitionera punishment of stoppage of increment for one year with cumulativeeffect and the consequential order of the first respondent inW.P.No.798 of 2009 dated 5.1.2009 rejecting the appeal filed by thepetitioner; and for a direction against the sole respondent inW.P.No.799 of 2009 (Commissioner of Commercial Taxes) to includethe petitioner's name in the panel of Assistant Commercial TaxOfficers fit for promotion as Deputy Commercial Tax Officers drawnfor the year 2004 in the appropriate place and also to direct therespondent to promote the petitioner as Deputy Commercial Tax https://hcservices.ecourts.gov.in/hcservices/ 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 thereafterpromoted as Assistant Commercial Tax Officer on 21.1.1996. Accordingto him, he was due for promotion as Deputy Commercial Tax Officer on29.7.2004 for the year 2004, when his immediate juniors were promoted.2.2. It appears that one A.V.Muralidhar preferred a complaintagainst the petitioner and one Radhakrishnan, Deputy Commercial TaxOfficer and the same was registered on 3.1.2003 under Section 7 ofthe 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 2004on the file of the Additional Sessions Judge, Chennai wherein thepetitioner was shown as the third accused. The Sessions Court hasacquitted the petitioner on 26.6.2006, after elaborate trial.2.3. Subsequently, a charge has been framed against thepetitioner on 8.1.2007 under Rule 17(b) of the Tamil Nadu CivilServices (Discipline and Appeal) Rules on the same ground on whichthe criminal prosecution was lodged, viz., that the petitioner hasdemanded and accepted Rs.40,000/- from A.V.Muralidhar for releasingthe goods detained.2.4. According to the petitioner, when the Government as per Rule5 of the Tamil Nadu Civil Services (Disciplinary ProceedingsTribunal) Rules, 1955 has not given direction to the secondrespondent to formulate a charge under Rule 17(b) of the Tamil NaduCivil Services (Discipline and Appeal) Rules, the second respondenthas no suo-motu power to frame charge under the Rules, especiallywhen 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 enquirycommenced on 20.7.2007 and after enquiry, the Enquiry Officersubmitted a report on 14.9.2007, arriving at a conclusion that thecharges levelled against the petitioner are not proved. In fact,according to the petitioner, the Enquiry Officer has found that onthe specific date, viz., on 3.1.2003, the petitioner was on leave andthere is no evidence to establish the demand and acceptance of bribe.2.6. It is stated that even though the Enquiry Officer hasforwarded his report on 14.9.2007 and the same was received by thesecond respondent on 30.9.2007, no order has been passed and it isthe case of the petitioner that the second respondent has sought forfurther opinion from the Vigilance and Anti Corruption Department.It was on 26.3.2008 the second respondent, not accepting with thefinding of the Enquiry Officer, has called for further explanationfrom the petitioner. The disagreement with the report of the EnquiryOfficer was in respect of obtaining Rs.10,000/- other than https://hcservices.ecourts.gov.in/hcservices/ 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 theimpugned order imposing a punishment of stoppage of increment forone year with cumulative effect, which according to the petitioner iswithout considering his explanation and on non application of mind.2.8. It is also stated that in respect of another person involvedin the same allegation, viz., T.S.Balasubramanian, AssistantCommercial Tax Officer, the second respondent has passed an order on4.4.2008 imposing a punishment of censure.2.9. According to the petitioner, it was because of thepunishment he has been denied his service benefits, including hispromotion as Deputy Commercial Tax Officer for the year 2004. 2.10. The statutory appeal preferred by the petitioner to thefirst respondent was rejected by order dated 5.1.2009, on the basisof the report of the Tamil Nadu Public Service Commission which haserroneously found that the petitioner was arrested for demanding andaccepting bribe.2.11. On merit, it is the case of the petitioner that one of thewitnesses examined before the Criminal Court has deposed thatRs.30,000/- was paid as fine for one consignment and out ofRs.20,000/- to be paid for the second consignment, he has paidRs.10,000/- and promised to arrange for the balance amount ofRs.10,000/- and therefore, the Enquiry Officer has found that therewas no demand or acceptance of bribe and the same was not taken intoconsideration.2.12. The impugned orders are challenged on various grounds,viz.,(i) that on the same set of facts when the CriminalCourt has honourably acquitted a person, there cannot bea punishment in the disciplinary proceedings; (ii) that the punishment cannot be passed by the Head ofthe Department on consultation with the other agencieswho are not connected with the service of the petitioner;(iii) that the punishment has been imposed when there isno evidence and based on perverse finding; and (iv) that the administrative authority has to record thereason and a non-speaking order cannot be accepted.3.1. Consequent to the prayer in setting aside of the saidpunishment imposed which is challenged in W.P.No.798 of 2009, thepetitioner, by filing W.P.No.799 of 2009, has sought for a directionto the Commissioner of Commercial Taxes to promote him as Deputy https://hcservices.ecourts.gov.in/hcservices/ Commercial Tax Officer with effect from 29.7.2004.3.2. According to the petitioner, the crucial date for promotionfor the year 2004 was on 1.3.2004 and the panel was drawn on29.7.2004. The date on which the petitioner was eligible forpromotion, viz., the date of promotion of his immediate junior is3.8.2004. While charge sheet has been filed on 8.11.2004 and thepetitioner was acquitted by the Criminal Court on 26.6.2006, thedepartmental proceedings were initiated by framing charges on8.1.2007. Therefore, according to the petitioner, on the crucialdate and also on the date of drawing of panel as well as on the dateof eligibility of the petitioner to be promoted there was no chargepending against the petitioner, except a criminal complaint in whichcharge sheet was filed only on 8.11.2004, which ultimately led toacquittal and therefore, according to the petitioner, he is entitledto promotion as stated above. It is also stated that the petitionerhas retired on attaining superannuation on 30.9.2009.4.1. In the counter affidavits filed by the Commissioner ofCommercial Taxes in these cases, it is stated that even though in thecriminal case the petitioner was acquitted, there is no bar forinitiating disciplinary proceedings on the ground of acquittal by theCriminal Court, since the departmental proceedings are independent.4.2. It is further stated that it was because of the existence ofprima facie case, a charge under Rule 17(b) of the the Tamil NaduCivil 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 competentto disagree with the findings of the Enquiry Officer having foundthat in respect of Rs.10,000/- other than Rs.30,000/- there was noreceipt issued and that the second respondent has rightly decidedthat the charge against the petitioner stands proved, after receivingthe further explanation.4.4. While admitting that the Disciplinary Authority has onlysought for remarks from the Vigilance and Anti Corruption Department,it is stated that the decision was taken by independent applicationof mind and that in departmental proceedings the yardstick of proofis one of preponderance of probability, unlike in criminal caseswhere it is evidence beyond all doubts. 4.5. While it is admitted that T.S.Balasubramanian was awarded apunishment of censure, it is stated that that was based on the natureand scope of the lapse committed by him. 4.6. It is also stated that on the crucial date, a criminal casewas pending and therefore, his name was not considered for the DeputyCommercial Tax Officer Panel 2004. Since the petitioner was facing https://hcservices.ecourts.gov.in/hcservices/ criminal trial on the crucial date for inclusion of his name in theDeputy Commercial Tax Officer Panel 2004, his name was not consideredand the disciplinary action initiated against the petitioner hasconcluded during 2008 and charges stood proved and therefore, thepetitioner is not entitled to inclusion of his name in the panel forpromotion to the post of Deputy Commercial Tax Officer for the year2004.4.7. It is also stated that the Government has disposed of theappeal after obtaining remarks from the Tamil Nadu Public ServiceCommission as per law.5. It is not in dispute that the charge framed against thepetitioner in the criminal case, which has ended in acquittal, aswell as in the departmental proceedings initiated under Rule 17(b) ofthe the Tamil Nadu Civil Services (Discipline and Appeal) Rulesrelate to the same incident. The charge as framed in thedepartmental proceedings on 8.1.2007 by the second respondent againstthe petitioner is as follows:"Gross dereliction of duty and grave misconduct,unbecoming of a public servant in having yourself underthe instructions of Tr.M.Radhakrishnan, DeputyCommercial Tax Officer demanded and accepted Rs.40,000/-from A.V.Muralidhar, on 3.1.2003 at about 19.00 hours atyour office in Greams Road, Chennai for releasing thegoods detained by you and Tr.Radhakrishnan, DeputyCommercial Tax Officer which belonged to Tr.ChakkumKozhiyll Mohammed Kutty and having issued receipt forRs.30,000/- and retained an amount of Rs.10,000/-without issuing any temporary receipt to Tr.A.Muralidharand thereby violated rule 20(1) of the Tamil NaduGovernment Servant Conduct Rule 1973."6. It is no doubt true that the Criminal Court, before which thepetitioner was third accused, has acquitted the petitioner. TheCriminal Court has specifically found, on appreciation of the entireevidence relating to P.W.2 who is the complainant, that what wasdemanded, namely a sum of Rs.40,000/-, was only a compounding fee forthe goods transported and not bribe as claimed by the prosecution andrejected his complaint dated 3.1.2003. While considering the chargeagainst the petitioner who was arrayed as third accused, the CriminalCourt, after examining various materials placed before it, hasspecifically found that "so also, A3 was nowhere in the picture" andultimately, acquitted him along with other accused. The judgment ofacquittal was on 26.6.2006 and admittedly, it was thereafter on8.1.2007 charge was framed against the petitioner on the sameincidence.7. It is also not in dispute that the Enquiry Officer appointed https://hcservices.ecourts.gov.in/hcservices/ by the second respondent, in his report dated 14.9.2007, in respectof 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, onverifying the attendance register has found that the petitioner wason leave on the said date. The relevant portion of the finding ofthe Enquiry Officer is as follows:"1) In his statement of defence, the charged officialhas informed that he was on leave on 03.01.2003. Thisaspect is verified with reference to the attendanceregisters maintained in the Office of the AssistantCommissioner (CT) Chennai (South) Enforcement, Chennai-6and the verification revealed the follows:a) In Page No.4 of the Attendance Register forofficers, it has been mentioned as jtpon 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 attestedby the official concerned.Hence the explanation of the official that he was onleave on 03.01.2003 is acceptable."(The date in the above extracts has been wrongly stated by theEnquiry Officer to be 3.1.2007 instead of 3.1.2003 and the same isnot in dispute.)8. After receiving the report of the Enquiry Officer, the secondrespondent has issued a memo to the petitioner on 26.3.2008,disagreeing with the report of the Enquiry Officer and calling forfurther explanation from the petitioner. The reason for disagreementgiven in the said memo is as follows:"Reasons for holding the charge as proved disagreeingwith the findings of the Inquiry Officer:Charge No.I:1. Reasons for obtaining Rs.10,000/- other thanRs.30,000/- for which receipt was not issued."9. After considering the further explanation, the secondrespondent has passed the impugned order dated 4.4.2008. Fordisagreeing with the report of the Enquiry Officer in respect of thealtered charge, the second respondent, in the impugned order, hasgiven the following reason:"6. The case relates to the trap and arrest for demandand acceptance of bribe and the Hon'ble Court of VthAdditional Sessions Judge, Chennai 104 have acquittedThiru A.Muralidharan, Assistant Commercial Tax Officer.However, certain grave irregularities were noticedinvolving misconduct in the discharge of official dutiesfor which the disciplinary action under rule 17(b) ofTamil Nadu Civil Services (Discipline & Appeal) Rules https://hcservices.ecourts.gov.in/hcservices/ was initiated by framing a charge. The explanation aswell as the further representation of the chargedofficer on the charge framed against him are notconvincing and satisfactory. Therefore, disagreeing thefindings of the Inquiry Officer and not accepting thefurther representation of the charged officer, thesingle 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 beenadduced except to say that the further representation of thepetitioner is not convincing and satisfactory. 10. The first respondent, on appeal, has given the followingreason for rejecting the appeal:"5. The Government have carefully examined the appeal ofThiru A.Muralidharan, Assistant Commercial Tax Officer,Roving Squad-II, Chennai-6, now ACTO/Superintendentalong with the relevant records and the view of theTamil Nadu Public Service Commission and decided toaccept the views of the Tamil Nadu Public ServiceCommission. The Government accordingly reject theappeal of Thiru A.Muralidharan, Assistant Commercial TaxOfficer/Superintendent, as devoid of merits."11. It is specifically admitted in the counter affidavit filed bythe second respondent that in respect of T.S.Balasubramanian, anotherAssistant Commercial Tax Officer, who was arrayed as second accusedin the criminal case and who was also acquitted in the said judgment,punishment of censure was awarded. In fact, a reference to thevarious portions of the judgment of the Criminal Court shows that themain charge of demand and acceptance of bribe was against him andeven that was found to have been not proved and in spite of it, inthe disciplinary proceedings, he has been awarded punishment ofcensure while the petitioner has been awarded punishment of stoppageof increment for one year with cumulative effect and for that thereason given is that the lapse committed by him is different.12. This aspect has not been considered by the respondents whichis violative of Wednesbury Principles and Doctrine ofProportionality, the well established concept of administrative law.It is true that the punishment awarded to the petitioner is not amajor punishment, but that is not a material fact for deciding aboutthe concept of proportionality. It is also true that the ultimatefinding of the Criminal Court may not be relevant for the purpose ofdeciding departmental proceedings, but, nevertheless, the factualassertion after narration of evidence of various witnesses in thecriminal case certainly has to be taken into consideration for thepurpose of deciding as to whether the petitioner was actuallyinvolved. As I have stated earlier, the Criminal Court, on evidence,has found that the petitioner was on leave and there was no iota of https://hcservices.ecourts.gov.in/hcservices/ evidence to show that the petitioner was involved in the demand andacceptance of bribe. Of course, that was also the case in respect ofT.S.Balasubramanian, as found by the Criminal Court, and in his casethe punishment of censure was awarded, while in the case of thepetitioner a punishment of stoppage of increment for one year withcumulative effect has been awarded. Taking note of this clinchingaspect, I am of the considered view that awarding of punishment tothe 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 asthe 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 astatute gave discretion to an administrator to take adecision, the scope of judicial review would remainlimited. He said that interference was not permissibleunless one or other of the following conditions weresatisfied, namely the order was contrary to law, orrelevant factors were not considered, or irrelevantfactors were considered; or the decision was one whichno reasonable person could have taken. These principleswere consistently followed in UK and in India to judgethe validity of administrative action. It is equallywell known that in 1983, Lord Diplock in Council forCivil Services Union v. Minister of Civil Service 1983(1) AC 768 (called the GCHQ case) summarised theprinciples of judicial review of administrative actionas based upon one or other of the following viz.,illegality, procedural irregularity and irrationality.He, however, opined that proportionality' was a "futurepossibility".....28. By 'proportionality', we mean the question whether,while regulating exercise of fundamental rights, theappropriate or least restrictive choice of measures hasbeen made by the legislature or the administrator so asto achieve the object of the legislation or the purposeof the administrative order, as the case may be. Underthe principle, the Court will see that the legislatureand the administrative authority 'maintain a properbalance between the adverse effects which thelegislation or the administrative order may have on therights, liberties or interests of persons keeping inmind the purpose which they were intended to serve'. Thelegislature and the administrative authority are howevergiven at area of discretion or a range of choices but asto whether the choice made infringes the rightsexcessively or not is for the Court. That is what is https://hcservices.ecourts.gov.in/hcservices/ meant by proportionality."14. The judgment relied upon by the learned counsel for therespondents rendered by the Supreme Court in Union of India v.K.Krishnan, AIR 1992 SC 1898 relates to the Post and Telegraph ManualVolume-3 wherein the rule specifically prohibits promotion during thecurrency of penalty in disciplinary proceedings against an employee.But, on the facts and circumstances of the present case, there was nodisciplinary proceeding pending or penalty imposed on the crucialdate for inclusion of his name in the Deputy Commercial Tax OfficerPanel 2004. Even the criminal case charge sheet was filed only on8.11.2004, while the crucial date for the panel of the year 2004 was1.3.2004. Mere pendency of FIR against the petitioner at that time,namely during the crucial date cannot be taken as a bar for includinghis name in the panel, especially in the circumstances whereultimately the criminal case has ended in acquittal on 26.6.2006.15. In such circumstances, even if the impugned order ofpunishment is sustained, the petitioner is entitled to be included inthe panel of Assistant Commercial Tax Officers fit for promotion asDeputy Commercial Tax Officers for the year 2004, for thedisciplinary proceedings commenced by framing of charge under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rulesonly on 8.1.2007, long after the crucial date. Thus, looking fromany angle, I am of the considered opinion that the impugned order ofpunishment imposed on the petitioner is unsustainable and the name ofthe petitioner is entitled to be included in the panel of AssistantCommercial Tax Officers fit for promotion as Deputy Commercial TaxOfficers for the year 2004 and the petitioner is entitled to beconsidered for promotion as Deputy Commercial Tax Officer on the datewhen his immediate junior stood promoted, which was on 3.8.2004. For the foregoing reasons, the writ petitions stand allowed andthe impugned order of punishment imposed on the petitioner by theimpugned order dated 4.4.2008 stands set aside with a direction tothe respondents to include the name of the petitioner in the panel ofAssistant Commercial Tax Officers fit for promotion as DeputyCommercial Tax Officers for the year 2004 and give benefit ofpromotion from the date of promotion of his immediate junior andgrant all consequential monetary benefits due to the petitionerwithin a period of twelve weeks from the date of receipt of a copy ofthis order. No costs. Sd/Assistant Registrar/True Copy/Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ sasiTo:1. The Secretary to Government Commercial Taxes and Registration (A1) Department Secretariat, Chennai – 600 009.2. The Commissioner of Commercial Taxes, Chepauk Chennai – 600 005.2 CCs to the Spl. Government Pleader SR NO 59195 &591962 ccs To Mr.Ravi Shanmugam, Advocate, SR.59159W.P.Nos.798 and 799 of 2009KSJ(CO)SRA(12/11/2009)