E.Rathinasamy v. The Secretary to Government, Commercial Taxes Department, Fort St. George, Chennai & Ors

In the High Court of Judicature at MadrasDated: 30.04.2009 Coram: The Hon’ble Mr.Justice M.SATHYANARAYANANW.P.No.16986 of 2007E.Rathinasamy… Petitioner Versus1.The Secretary to Government, Commercial Taxes Department, Fort St. George, Chennai-9.

The Tamil Nadu Public Service Commission, rep. by its Secretary, Government Estate, Chennai- 600 002.

The Special Commissioner and Commissioner of Commercial Taxes, Chepauk, Chennai-5.… RespondentsWrit Petition filed under Article 226 of the Constitution of India, praying for the issuance of writ of Certiorari to call forthe records of the first respondent in letter in No.729/E2/2005-2dated 20.6.2005, confirming the appeal order dated 17.9.2004 passedby the first respondent in G.O(D) No.394 and quash the same. For Petitioner..Mr.A.P.SrinivasFor Respondents ..Mr.Haja Seriff NazirudeenSpl. G.P. (Taxes) for R1 & R3M/s.C.N.G. Ezhilarasi for R2.

O R D E RThe petitioner in this writ petition has challenged the impugnedorders passed by the first respondent, under which, the punishment ofstoppage of one increment without cumulative effect was ordered. 2. The facts which are necessary for the disposal of this writpetition are as follows:- https://hcservices.ecourts.gov.in/hcservices/ The petitioner while he was working as Assistant Commissioner(CT), was issued with a charge memo dated 8.4.2002 by the thirdrespondent, alleging that he has failed to make entries in theservice register of one Thiru.S.Vijayakumar, Assistant Commercial TaxOfficer, regarding the punishment given by the Deputy Commissioner(CT), North vide proceedings dated 13.4.1999 to the saidThiru.S.Vijayakumar and failed to inform the same to the DeputyCommissioner (CT), Enforcement II, Chennai. Since the saidpunishment was not noted in the Nomination Roll, the DeputyCommissioner (CT) had recommended the name of Thiru.S.Vijayakumar, Assistant Commercial Tax Officer, for promotion to the post of DeputyCommercial Tax Officer on the ground that the said official has notsuffered any punishment.

Later on it was brought to the notice of the appointing authority about the award ofpunishment to Thiru.S.Vijayakumar and consequently his name wasdeleted from the Deputy Commercial Tax Officer's promotion list. Since the petitioner on account of the said lapse causedadministrative inconvenience, he was departmentally proceeded byissuing the above said charge memo. 3. The petitioner in response to the said charge memo under Rule17(a) of the Tamil Nadu Civil Services (Discipline and Appeal Rules),has submitted his explanation. In his explanation the petitionersubmitted that the punishment orders in respect of Thiru.S.Vijayakumar, Assistant Commercial Tax Officer, was receivedin the office of the Assistant Commissioner (CT) on 19.4.1999.However, even prior to the receipt of the said communication, thepetitioner approved the Nomination Roll in respect of AssistantCommercial Tax Officers due for promotion to the post of DeputyCommercial Tax Officers as early as on 5.4.1999 itself.

Therefore, at the time of approval of the Nomination Roll in respect of Thiru.S.Vijayakumar, the petitioner was not aware of the punishmentawarded to him by the Deputy Commissioner (CT) North, videproceedings dated 13.4.1999. Consequently, the punishment awarded to Thiru.S.Vijayakumar was noted in his Nomination. The petitioner, however, has noted the earlier punishment awarded to Thiru.S.Vijayakumar and has also not recommended for promotion to Thiru.S.Vijayakumar to the post of Deputy Commercial Tax Officer, whereas he recommended 11 other Assistant Commercial Tax Officers forpromotion to the post of Deputy Commercial Tax Officers. Thedisciplinary authority not being satisfied with the explanationoffered by the petitioner, has imposed punishment.

The petitioner challenging the vires of the order ofpunishment, preferred an appeal and the appeal was also dismissed bythe first respondent vide G.O(D) No.394, dated 17.9.2004 and thereview filed by him before the first respondent was also dismissedvide order dated 20.6.2005. Hence this writ petition. https://hcservices.ecourts.gov.in/hcservices/

The respondents 1 and 2 had filed common counter affidavitand it is stated among other things that the punishment imposed on Thiur.S.Vijayakumar in the Nomination Roll on 5.4.1999, was receivedon 19.4.1999 by the office of the petitioner and that the petitionerhimself had authenticated the endorsement made on 26.4.1999 in thepunishment order and forwarded the same to the individual who was working in his office itself. The petitioner as a responsible headof office, has failed in his duty, as it is his primary duty toinform the higher officers about the punishment awarded to Thiru.S.Vijayakumar, Assistant Commercial Tax Officer for whomNomination Roll for inclusion in the list of Deputy Commercial TaxOfficers has been sent. It is further averred in the counter thatthe petitioner is very much aware of the said order of punishment, chosen to suppress the same for the reasons best known to him. Basing on the Nomination Roll and details of punishment furnished bythe petitioner in his official capacity and after verification of the Service Register, the Deputy Commissioner (CT), Enforcement-II,Chennai, has made his recommendations for promotion to Thiru.S.Vijayakumar, to the Special Commissioner and Commissioner of Commercial Taxes. The said fact would make it clear that thepetitioner has miserably failed to inform his higher officers namelythe Deputy Commissioner (CT) about the punishment awarded to Thiru.S.Vijayakumar. It is further averred in the counter that thepunishment entries pertaining to Thiru.S.Vijayakumar, had been madein the Service Register only on 21.7.1999 and whereas the NominationRoll, after verification of the Service Register, has been sent tothe Special Commissioner of Commercial Taxes by Deputy Commissioner(CT) Enforcement-II on 18.6.1999 itself. It is further stated in the counter that the punishment awarded to Thiru.S.Vijayakumar namely"Censure" was noted in the Nomination Roll sent by the petitioner, but he has not made any remarks as "Not Recommended". The petitionerhas sent the Nominal Roll without any remarks. It is also thebounden duty of the officer to send specific remarks as to whetherthe name of the officer for whom Nomination Roll is sent, isrecommended or not recommended, based on the materials available onrecord.

This Court heard the submissions of the learned counselappearing for the petitioner and the learned Special GovernmentPleader (Tax) and also perused the materials available on record.

The fact remains that at the time of approval of NominationRoll in respect of Thiru.S.Vijayakumar, the petitioner was not awareof the punishment imposed on him, as he has forwarded the saidNomination Roll on 5.4.1999 itself. As per the counter, thepunishment order pertaining to Thiru.S.Vijayakumar was received bythe petitioner only on 19.4.1999. The petitioner after becomingaware of the order of punishment, authenticated the endorsement dated26.4.1999 and also forwarded the same to the individualThiru.S.Vijayakumar, who is working in the office. As regards the https://hcservices.ecourts.gov.in/hcservices/ averment made in the counter that it is the bounden duty of thepetitioner to specifically make endorsement as to whether he isrecommending the concerned individual for promotion or not, this Court is of the view that while recommending the 11 other AssistantCommercial Tax Officers for promotion, the petitioner has not madeany recommendation for promotion to Thiru.S.Vijayakumar, on takinginto account the said individual has suffered punishment on anearlier point of time. Therefore, it would clearly imply that thepetitioner has not made recommendation for promotion to Thiru.S.Vijayakumar as Deputy Commercial Tax Officer. Therefore, thesame cannot be put against the petitioner. In any event, the lapseif any, on the part of the petitioner, can be taken only as aninadvertent in nature and it cannot be stated as deliberate orwillful. Therefore, the reasons assigned in the impugned orders onthe face of it are unsustainable and therefore, the impugned ordersare liable to be quashed.

In the result, the writ petition is allowed. The orderspassed by the first respondent are quashed. But in thecircumstances, there will be no order as to costs. Sd/Asst. Registrar/true copy/Sub Asst. Registrargr. To1.The Secretary to Government, Commercial Taxes Department, Fort St. George, Chennai-9.2. The Secretary, Tamil Nadu Public Service Commission, Government Estate, Chennai- 600 002.3. The Special Commissioner and Commissioner of Commercial Taxes, Chepauk, Chennai-5.1 CC to the Spl. Government Pleader,(Taxes) SR NO.200052 CC To Mr.A.P.Srinivas, Advocate, SR NO.16986W.P.NO.16986 of 2007 rsm(co)pmk.14.5.2009