High Court · 2012

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.02.2012CORAM:THE HONOURABLE MR.JUSTICE VINOD K.SHARMAW.P.Nos.49501 of 2006 (O.A.No.1947 of 2001)49502 of 2006 ( O.A.No.7356 of 2000)R.Ramani ... Petitioner in both writ petitions.- vs -1.The Secretary to Government,State of Tamilnadu,Commercial Taxes (H2) and Registration Department, Fort St.George,Chennai-9.2.The Inspector General of RegistrationChennai-28.... Respondents in both writ petitions.3.The Additional Inspector General of Registration,Chennai4.Mr.S.Kannan... Respondents 3 & 4 in W.P.No.49502/2006Prayer in 49501/2006: Writ petition is filed under Article 226 ofConstitution of India for the issuance of a Wit of Mandamus, todirect the respondents to consider the petitioner for promotion asDistrict Registrar by including his name in the panel which is beingdrawn for the year 2000-2001 based on his seniority position.Prayerin 49502/2006: Writ petition is filed under Article 226 ofConstitution of India for the issuance of a Wit of Certiorari, tocall for the records pertaining to the order passed by the 2ndrespondent in his proceedings No.52917/A4/93 dt 5.8.1997 and theconsequential order passed by the 1st respondent in his letterNo.19330/H2/99-5 dt 29.3.2000 which confirms the said earlier orderpassed by the 2nd respondent and quash the same.For Petitioner: Mr.V.ChandrasekaranFor Respondents: Mr.R.Ravichandran, Addl. Govt. Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe petitioner, while working as Joint Sub-Registrar atRedhills, was served with charge memo dated 08.10.1993, on theallegations that the petitioner permitted improper levy of stamp dutyand registration charges, which resulted in loss to the tune ofRs.2,16,589.60 (Rupees Two Lakhs Sixteen Thousand Five Hundred EightyNine and Paisa Sixty only) to the Government.2.The petitioner submits that charges are baseless andactuated by malafide. The 4th respondent was appointed as enquiryofficer to conduct enquiry and the petitioner was examined by theenquiry officer, wherein the petitioner proved that there was no lossto the Government.3.The submission of the petitioner is, that the enquiryofficer did not dispute any of the contention raised by thepetitioner, but however held that the petitioner liable to deposit ofRs.11,301.10 (Rupees Eleven Thousand Three Hundred and One and PaisaTen only) out of total liability of Rs.2,16,589.60 (Rupees Two LakhsSixteen Thousand Five Hundred Eighty Nine and Paisa Sixty only).4.The petitioner submits that there was no actual deficit ofRs.11,301.10 (Rupees Eleven Thousand Three Hundred and One and PaisaTen only), by pointing out that proceedings under Section 47-A(3) ofthe Indian Stamps Act, were pending. It is pleaded by the petitionerthat as per instructions of the Government dated 30.12.1993, if anyirregularities were pointed out in the Audit report, then theAssistant Inspector General of Registration, Chennai, is required topass a final order with regard to the alleged deficit, pointed outin the Audit report, either by confirming it or turning it down. Thiswas required to be done within one month. In case, it was soconfirmed, then the matter was required to be referred to theconcerned Deputy Collector, Stamps for taking steps under Section 47-A(3) of the Indian Stamps Act.5.The case of the petitioner is that respondent no.4, who wasthe Inspector of Registration Officers, failed to pass any order onthe Audit report. That 4th respondent Officer, being Officerresponsible for passing final orders, in absence of exercise of hisduty, could not hold the petitioner liable, as the Deputy Collectorcould take action on the specific orders, which were to be passed byrespondent no.4. That as respondent no.4 is the superior Officer,therefore, he could not blame him in the enquiry proceedings. 6.The case of the petitioner further is, that in order toavoid confrontation with his superiors, he sent notices to theparties, and collected money and even agreed to pay from his ownsalary. The petitioner filed objection to the enquiry report, raisingall the points pleaded in this petition, but the competent authority https://hcservices.ecourts.gov.in/hcservices/ passed the order of punishment of censure on 05.08.1997. The order issaid to have been passed in mechanical manner without application ofmind.7.In the order, it is mentioned that the deficit wascollected belatedly by the petitioner. This fact is said to betotally arbitrary, as no final decision on petition under Stamps Acthas been taken to records the findings.8.The pleaded case of the petitioner is, that it was not thecharge against the petitioner, that he delayed recovery, but onlythat the petitioner was responsible for the loss, which wassubsequently held to be only of Rs.12,851/- (Rupees Twelve Thousandand Eight Hundred Fifty one only), which stands paid by thepetitioner.9.The petitioner further submits that there is no prima faciecase made out against the petitioner for framing the charges itself,as it was the responsibility of IRO to pass final order on the Auditreport, and if any deficit was found, to refer it for decision by theDeputy Collector under the Stamps Act, as the Audit report is notfinal.10.The charge, therefore, is based only on Audit report, onwhich respondent no.4 failed to take action in performance of hisduty, and referring the matter for adjudication under Sections 47-A(1) to 47-A(3) of the Indian Stamps Act.11.It is also case of the petitioner that the least no.2junior officers to the petitioner, who have huge amount of arrears inthe firm of deficit stamp duty to be recovered till date, but havebeen promoted to the higher posts.12.The petitioner, being aggrieved by the order of punishment,preferred appeal to the Government against the order of punishment ofcensure, wherein, it was pointed out that the Audit report was wrong.Furthermore, that the loss stood already recovered. It was alsopointed out by the petitioner that on account of pending charge memo,he was not promoted.13.The appeal was rejected, therefore, the petitioner paid asum of Rs.3,536/- (Rupees Three Thousand Five Hundred and Thirty Sixonly) towards deficit in order to compensate the deficit. The case ofthe petitioner is that the finding of guilt recorded against him wasbeyond the scope of charges levelled against him.14.The petitioner, being aggrieved by the order of appellateauthority, filed review petitioner, which was also dismissed. https://hcservices.ecourts.gov.in/hcservices/

15.It is the case of the petitioner that according to therules, review petition was also required to be disposed of afterconsultation with the Tamil Naud Public Service Commission, which wasmandatory. The other ground is that the plea raised by the petitionerwas not considered.16.The case of the petitioner is that he should have beenpromoted in the year 1996 as Sub Registrar, Grade-I, but his name wasoverlooked and 256 juniors to him were promoted. The petitioner,therefore, claims that his name in any case is required to beincluded in the subsequent panel in 1998 – 1999. The petitioner washowever promoted as Sub-Registrar Grade-I after filing of O.A.No.5098of 2000, but his seniority position was pushed down by 256 persons,as juniors to the petitioner were promoted earlier, therefore, praysto quash the impugned order, to restore back to his originalseniority position as Sub Registrar Grade-I.17.The case of the petitioner is that all the juniors to thepetitioner were promoted on 01.01.2000 as District Registrar, but thepetitioner got promotion as Sub Registrar Grade-I only on 20.03.2000.It is also the case of the petitioner that Thiru Jayaraman wasworking along with him at Virugambakkam, who had confronted with thepetitioner on many occasions, while working as Sub Registrar. He wasvery influential person, therefore, charge sheet was issued at hisinstance, inspite of the fact that the petitioner had complainedagainst him.18.It is pertinent to mention that these allegations cannot belooked into, as the petitioner has not chosen to implead ThiruJayaraman as party to this writ petition against whom allegations ofmalafide have been made.19.The prayer in W.P.No.49501 of 2006 is to direct therespondents to consider the petitioner for promotion as DistrictRegistrar by including his name in the panel which is being drawn forthe year 2000-2001 based on his seniority position.20.In this writ petition again, it is submitted that while thepetitioner was working at Virugambakkam Sub Registrar Office,Chennai, he was not allowed to discharge his duties in proper way byone Thiru Jayaraman, who was working with the petitioner, as SeniorSub Registrar and had control over the petitioner. He is claimed tobe influential person, therefore, expecting unnecessary trouble, thepetitioner represented to the Inspector General of Registration on13.08.1993, but no action was taken thereon.21.However, for the reason best known, the petitioner has notimpleaded Thiru Jayaraman as party. https://hcservices.ecourts.gov.in/hcservices/

22.The petitioner was issued charge memo under Section 17(b)of D.A.Rules for the alleged loss pointed out in local audit for theyear 1991-1992 and 1993. The other averments in the writ petition areidentical to the one filed by the petitioner to challenge the orderof punishment.23.The petitioner in this writ petition has prayed that hisname should be considered to the panel 2000 – 2001, as he is fullyeligible for consideration, even if the order of censure is confirmed.24.Though no counter has been filed to W.P.No.49502 of 2006,but a counter has been filed to W.P.No.49501. The stand of therespondents is that due to loss caused to the Government byregistering the document, which was under-valued, the charge sheetwas framed against the petitioner under Section 17(b) of the TamilNadu Civil Services (Discipline and Appeal) Rules, wherein punishmentof censure was awarded on 05.08.1997.25.The name of the petitioner, therefore, was not included forthe year 1996-1997 and for the year 1997-1998 due to pendency ofcharges under Section 17(b) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules. 26.Similarly, name of the petitioner was not included for thepanel of Sub Registrar Grade-I for the year 1998-1999, since thepunishment of censure was in force on the crucial date.27.The name of the petitioner was included for the year 1999 –2000, at Sl.No.2 in the order dated 22.03.2000. The pleaded case ofthe respondents is that the petitioner was aware that he will not bepromoted, because of his seniority as framed as District Registrarfor the year 2000-2001, he filed this petition for inclusion of hisname in the District Registrar panel.28.It is pleaded that enquiry report was given on 17.03.1995.In the enquiry report, it was held that a sum of Rs.18,831.50 (RupeesEighteen Thousand Eight Hundred and Thirty One and Paisa Fifty only)had been collected from the parties. Another sum of Rs.1,86,457/-(Rupees One Lakh Eighty Six Thousand Four Hundred and Fifty Sevenonly) has been settled by way of disposing the property in pursuanceto the Audit paras.29.For the remaining amount, the enquiry officer held thatpetitioner was liable for loss. However, on examining the enquiryreport and relevant records, loss was assessed as Rs.12,851/- (RupeesTwelve Thousand Eight Hundred and Fifty One only). The petitioner wasgiven opportunity to file objections to enquiry report. https://hcservices.ecourts.gov.in/hcservices/

30.Out of this loss, Rs.9,935/- (Rupees Nine Thousand NineHundred and Thirty Five only) stands collected from the parties andthe balance of Rs.3,536/- (Rupees Three Thousand Five Hundred andThirty Six only) was made good by the petitioner. Keeping in view therecovery of amount, the petitioner was awarded punishment of censure.31.The appeal was rejected after consultation with the TamilNadu Public Service Commission. Revision was again rejected.32.The petitioner challenged the impugned order, whereininterim stay was granted, which was allowed to continue during thependency of the petition.33.The stand of respondents is, that name of the petitionerwas not included for panel of Sub Registrar Grade-I for the year1996-1997 and 1997-1998, because of the pendency of charge sheetunder Section 17(b) on crucial date and for the year 1998-1999, sincepunishment of censure was awarded.34.Subsequently, his name was included and promoted.35.It is the stand of respondents that that petitioner's namefor further promotion will be considered in case he reaches theseniority.36.Learned counsel for the petitioner, in support of both writpetitions, has placed reliance on the judgment of this Court inW.P.No.19012 of 2007 (S.Muthuramu vs. State of Tamil Nadu andanother) decided on 26.02.2008, to contend, that fixation of stampvalue was done in exercise of quasi judicial authority, therefore, itwas not open to the respondents to treat it as misconduct, under theservice rules.37.This Court in this case referred to above was pleased tolay down as under:"6. From the perusal of the charge memo it could be seen thatthe allegation against the petitioner is that he has fixed the marketvalue at Rs.22/- per sq.ft. in Document No.70 of 1998 whereas theadjacent lands were acquired by the Government on negotiation at therate of Rs.58/- per sq.ft. in the year 1999. No motive or ill-will isalleged in the said imputation of charge. Admittedly petitioner isexercising quasi-judicial function under section 47-A(1) of theIndian Stamp Act. If the Department is not satisfied with thevaluation, nothing prevented the Department from filing appeal beforethe Inspector General of Registration challenging the order passed bythe petitioner, fixing the market rate of Rs.22/- per sq.ft. In theabsence of any motive or bad intention, no charge could be framedagainst the Quasi-Judicial Authority and the same is well settled. https://hcservices.ecourts.gov.in/hcservices/

7. (a) In the decision reported in (1999) 7 SCC 409 (ZunjarraoBhikaji Nagarkar v. Union of India), the Supreme Court consideredsimilar issue and held that negligence in exercising quasi-judicialpower by mere carelessness or inadvertence or omission is notsufficient to initiate proceedings under misconduct. Unless there isa culpable negligence or ill-motive, no charge could be framed. Inparagraphs 43 and 44, the Supreme Court held as follows:43. If every error of law were to constitute a charge ofmisconduct, it would impinge upon the independent functioning ofquasi-judicial officers like the appellant. Since in sum andsubstance misconduct is sought to be inferred by the appellant havingcommitted an error of law, the charge-sheet on the face of it doesnot proceed on any legal premise rendering it liable to be quashed.In other words, to maintain any charge-sheet against a quasi-judicialauthority something more has to be alleged than a mere mistake oflaw, e.g., in the nature of some extraneous consideration influencingthe quasi-judicial order. Since nothing of the sort is alleged hereinthe impugned charge-sheet is rendered illegal. The charge sheet, ifsustained, will thus impinge upon the confidence and independentfunctioning of a quasi-judicial authority. The entire system ofadministrative adjudication whereunder quasi-judicial powers areconferred on administrative authorities, would fall into disrepute ifofficers performing such functions are inhibited in performing theirfunctions without fear or favour because of the constant threat ofdisciplinary proceedings.44. Considering whole aspects of the matter, we are of the viewthat it was not a case for initiation of any disciplinary proceedingsagainst the appellant. The charge of misconduct against him was notproper. It has to be quashed."(b) Whether the disciplinary proceeding can be initiated againsta judicial officer, who granted bail exercising discretion whiledischarging the Judicial function, was considered by the SupremeCourt in the decision reported in (2007) 2 SCC (Criminal) 266 (RameshChander Singh v. High Court of Allahabad). In paragraph 12, theSupreme Court held as follows:"12. This Court on several occasions has disapproved thepractice of initiation of disciplinary proceedings against officersof the subordinate judiciary merely because the judgments/orderspassed by them are wrong. The appellate and revisional courts havebeen established and given powers to set aside such orders. Thehigher courts after hearing the appeal may modify or set asideerroneous judgments of the lower courts. While taking disciplinaryaction based on judicial orders, the High Court must take extra careand caution." https://hcservices.ecourts.gov.in/hcservices/ (c) In the decision reported in 2007 (3) LLN 106 = (2007) 4 SCC 566(Inspector Prem Chand v. Government of N.C.J. of Delhi) following theearlier decisions, the Supreme Court held that the acts ofnegligence, error of judgment or innocent mistake, do not constitutemisconduct. In the above case, the appellant/Police Officer failed toseize the tainted money on receipt of complaint of alleged demand ofbribe by an Inspector (Malairiya). Department initiated disciplinaryproceeding on the charge that he had not seized the tainted money,which could be an important piece of evidence in criminal proceeding.The Supreme Court held that the Police Inspector could not be said tohave committed any misconduct merely because in the opinion of thehigher authorities he ought to have seized the tainted money. TheSupreme Court in paragraphs 10 to 12 dealt with the term misconduct,which reads as follows:"10. In State of Punjab v. Ram Singh, Ex-Constable (1999 (2) LLN419) it was stated, in para.5, at page 422: Misconduct has been defined in Blacks Law Dictionary , 6th Edn. atp.999, thus: A transgression of some established and definite rule of action, aforbidden act, a dereliction from duty, unlawful behavior, willful incharacter, improper or wrong behavior; its synonyms are misdemeanor,misdeed, misbehavior, delinquency, impropriety, mismanagement,offense, but not negligence or carelessness. Misconduct in office hasbeen defined as: Any unlawful behavior by a public officer in relation to theduties of his office, willful in character. Term embraces acts whichthe office-holder had no right to perform, acts performed improperly,and failure to act in the face of an affirmative duty to act. 11.In P.Ramanatha Aiyars Law Lexicon , 3rd Edn., at p.3027,the term misconduct has been defined as under: The term misconduct implies a wrongful intention, and not a mereerror of judgment. Misconduct is not necessarily the same thing as conductinvolving moral turpitude. The wordmisconduct is a relative term, and has to be construed with referenceto the subject-matter and the context wherein the term occurs, havingregard to the scope of the Act or statute which is being construed.Misconduct literally means wrong conduct or improper conduct. (Seealso Bharat Petroleum Corpn. Ltd. v. T.K. Raju (2006 (2) LLN 54)) 12. It is not in dispute that a disciplinary proceeding wasinitiated against the appellant in terms of the provisions of theDelhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, https://hcservices.ecourts.gov.in/hcservices/ necessary for the disciplinary authority to arrive at a finding offact that the appellant was guilty of an unlawful behaviour inrelation to discharge of his duties in service, which was wilful incharacter. No such finding was arrived at. An error of judgment, asnoticed hereinbefore, per se is not a misconduct. A negligencesimpliciter also would not be a misconduct. In Union of India v.J.Ahmed ((1979) 2 SCC 286) whereupon Mr Sharan himself has placedreliance, this Court held so stating: Code of conduct as set out in the Conduct Rules clearlyindicates the conduct expected of a member of the service. It wouldfollow that conduct which is blameworthy for the government servantin the context of Conduct Rules would be misconduct. If a servantconducts himself in a way inconsistent with due and faithfuldischarge of his duty in service, it is misconduct (see Pierce v.Foster 17 Q.B.536, 542). A disregard of an essential condition of thecontract of service may constitute misconduct [see Laws v. LondonChronicle (Indicator Newspapers (1959(1) W.L.R.698)). This view wasadopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt.,Central Rly., Nagpur Division, Nagpur (61 B.L.R. 1569) and Satubha K.Vaghela v. Moosa Raza (10 G.L.R. 23). The High Court has noted thedefinition of misconduct in Strouds Judicial Dictionary which runsas under:Misconduct means, misconduct arising from ill motive; acts ofnegligence, errors of judgment, or innocent mistake, do notconstitute such misconduct.(emphasis supplied) (d) A Division Bench of this Court in the decision reported in1999 (2) LW 174 (A.M.Sankaran v. The Registrar, High Court, Madras),quashed an order of compulsory retirement passed against the judicialofficer for destroying the seized spirit without examining orrecording any evidence regarding the inflamable nature of the spirit.This court held that the said order having been passed duringdischarge of the function as judicial officer, framing such chargewithout any allegation or recklessness or abuse of power, cannot besustained.8. Applying the principles laid down in the above decisions tothe facts of this case, particularly when there is no motive orrecklessness attributed against the petitioner and no misconduct iscommitted by the petitioner, I hold, the charge as framed is notmaintainable against the petitioner, who is a quasi-judicialauthority. The impugned order is set aside and the writ petition isallowed. No costs. Connected miscellaneous petitions are closed." https://hcservices.ecourts.gov.in/hcservices/

38.Learned counsel for the petitioner also placed reliance ona judgment of the Hon'ble Division Bench of this Court in W.A.No.1497of 2008 (State of Tamil Nadu and another vs. N.Vidhyasankar), decidedon 18.03.2010, wherein, the Hon'ble Division Bench of this Court waspleased to lay down as under:"13. There is no dispute that the proceedings ere quasi judicialin nature. The respondent has passed orders for transfer of patta andhe has indicated reason for such transfer. The said order was thesubject matter of appellate as well as revisional proceedings. Merelybecause the respondent has taken a particular vie in the matter andby exercising his quasi judicial powers, transferred the patta, itcannot be said that departmental proceedings should be taken againsthim solely on the ground that a different view was taken by anotherofficer in the very same matter. It is true that in case orders arepassed on extraneous reasons, the Government would be justified ininitiating departmental proceedings. However, even according to theappellants there was no benefit accrued to the respondent. Similarly,no loss occasioned to the Government on account of the alleged act ofmisconduct. Therefore, the learned Judge was perfectly justified incoming to a conclusion that there was no basis in issuing theimpugned charge sheet.14. In Zunjarrao Bhikaji Nagarkar v. Union of India, (1999) 7SCC 409, the Supreme Court observed that wrong application orinterpretation of law is not a misconduct inasmuch as wrong decisionis subject to judicial supervision in appeal. The observation readsthus:-"43. If every error of law were to constitute a charge ofmisconduct, it would impinge upon the independent functioning ofquasi-judicial officers like the appellant. Since in sum andsubstance misconduct is sought to be inferred by the appellant havingcommitted an error of law, the charge-sheet on the face of it doesnot proceed on any legal premise rendering it liable to be quashed.In other words, to maintain any charge-sheet against a quasi-judicialauthority something more has to be alleged than a mere mistake oflaw, e.g., in the nature of some extraneous consideration influencingthe quasi-judicial order. Since nothing of the sort is alleged hereinthe impugned charge-sheet is rendered illegal. The charge-sheet, ifsustained, will thus impinge upon the confidence and independentfunctioning of a quasi-judicial authority. The entire system ofadministrative adjudication whereunder quasi-judicial powers areconferred on administrative authorities, would fall into disrepute ifofficers performing such functions are inhibited in performing theirfunctions without fear or favour because of the constant threat ofdisciplinary proceedings."15. Neither in the impugned charge sheet nor in the counteraffidavit, the appellants have contended that the orders passed by https://hcservices.ecourts.gov.in/hcservices/ the respondent was deliberate and it was actuated by malafides. Whenthere were no such allegations against the respondent, there was nojustification in initiating departmental proceedings and that tooduring the verge of retirement. These issues were considered by thelearned Single Judge in extenso and we do not find any error orillegality in the finding warranting out interference in this appeal.16. In the result, the writ appeal is dismissed. No costs."39.The stand of the petitioner, therefore, is that he hadacted in his quasi judicial authority in registering the document andfurthermore that no allegations could be levelled in absence ofconfirmation of audit objection by respondent no.4, and in absence ofsubsequent proceedings under the Stamps Act.40.On consideration, it is noticed that the allegationsagainst the petitioner are only, that the petitioner, while acting asregistering authority, under-valued the document. This was admittedlyin performance of his quasi judicial authority, as there are noallegation of fraud or misrepresentation or ulterior motive againstthe petitioner, but of loss, which was also substantially reduced.41.Therefore, in view of law laid down by this Court, referredto above, charge memo issued against the petitioner, itself was notmaintainable, thus punishment awarded also cannot be sustained in law.42.Consequently, both two writ petitions are ordered. Ordersimposing punishment of censure against the petitioner, is ordered tobe set aside.43.The petitioner shall be entitled to consequential relief ofconsideration for promotion as Sub Registrar Grade-I and DistrictRegistrar from the date his immediate juniors so promoted, with allconsequential benefits.44.No costs.Sd/Asst. Registrar/true copy/Sub Asst.Registrarar https://hcservices.ecourts.gov.in/hcservices/ To,1.The Secretary to Government,State of Tamilnadu,Commercial Taxes (H2) and Registration Department, Fort St.George,Chennai-9.2.The Inspector General of RegistrationChennai-28.3.The Additional Inspector General of Registration,Chennai.+ 1 cc to Mr.V. Chandrasekaran, SR.14335+ 1 cc to Government Pleader Sr.14418W.P.Nos.49501 and 49502 of 2006NR(CO)Eu 16.3.12