@JUDGMENTTAG-ORDER
P. Jyothimani, J.@mdashThese writ petitions are filed by the petitioner challenging the order dated 4.4.2008 of the second respondent in W.P.
No. 798 of 2009 (Commissioner of Commercial Taxes), imposing on the petitioner a punishment of stoppage of increment for one year with
cumulative effect and the consequential order of the first respondent in W.P. No. 798 of 2009 dated 5.1.2009 rejecting the appeal filed by the
petitioner; and for a direction against the sole respondent in W.P. No. 799 of 2009 (Commissioner of Commercial Taxes) to include the
petitioner''s name in the panel of Assistant Commercial Tax Officers fit for promotion as Deputy Commercial Tax Officers drawn for the year 2004
in the appropriate place and also to direct the respondent to promote the petitioner as Deputy Commercial Tax 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 thereafter promoted
as Assistant Commercial Tax Officer on 21.1.1996. According to him, he was due for promotion as Deputy Commercial Tax Officer on
29.7.2004 for the year 2004, when his immediate juniors were promoted.
2.2. It appears that one A.V. Muralidhar preferred a complaint against the petitioner and one Radhakrishnan, Deputy Commercial Tax Officer and
the same was registered on 3.1.2003 u/s 7 of the 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 2004 on the file of the Additional Sessions Judge, Chennai wherein the petitioner was shown as the third
accused. The Sessions Court has acquitted the petitioner on 26.6.2006, after elaborate trial.
2.3. Subsequently, a charge has been framed against the petitioner on 8.1.2007 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and
Appeal) Rules on the same ground on which the criminal prosecution was lodged, viz., that the petitioner has demanded and accepted Rs.
40,000/- from A.V. Muralidhar for releasing the goods detained.
2.4. According to the petitioner, when the Government as per Rule 5 of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules,
1955 has not given direction to the second respondent to formulate a charge under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and
Appeal) Rules, the second respondent has no suo-motu power to frame charge under the Rules, especially when 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 enquiry commenced on
20.7.2007 and after enquiry, the Enquiry Officer submitted a report on 14.9.2007, arriving at a conclusion that the charges levelled against the
petitioner are not proved. In fact, according to the petitioner, the Enquiry Officer has found that on the specific date, viz., on 3.1.2003, the
petitioner was on leave and there is no evidence to establish the demand and acceptance of bribe.
2.6. It is stated that even though the Enquiry Officer has forwarded his report on 14.9.2007 and the same was received by the second respondent
on 30.9.2007, no order has been passed and it is the case of the petitioner that the second respondent has sought for further opinion from the
Vigilance and Anti Corruption Department. It was on 26.3.2008 the second respondent, not accepting with the finding of the Enquiry Officer, has
called for further explanation from the petitioner. The disagreement with the report of the Enquiry Officer was in respect of obtaining Rs. 10,000/-
other than 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 the impugned order
imposing a punishment of stoppage of increment for one year with cumulative effect, which according to the petitioner is without considering his
explanation and on non application of mind.
2.8. It is also stated that in respect of another person involved in the same allegation, viz., T.S. Balasubramanian, Assistant Commercial Tax
Officer, the second respondent has passed an order on 4.4.2008 imposing a punishment of censure.
2.9. According to the petitioner, it was because of the punishment he has been denied his service benefits, including his promotion as Deputy
Commercial Tax Officer for the year 2004.
2.10. The statutory appeal preferred by the petitioner to the first respondent was rejected by order dated 5.1.2009, on the basis of the report of
the Tamil Nadu Public Service Commission which has erroneously found that the petitioner was arrested for demanding and accepting bribe.
2.11. On merit, it is the case of the petitioner that one of the witnesses examined before the Criminal Court has deposed that Rs. 30,000/- was
paid as fine for one consignment and out of Rs. 20,000/- to be paid for the second consignment, he has paid Rs. 10,000/- and promised to
arrange for the balance amount of Rs. 10,000/- and therefore, the Enquiry Officer has found that there was no demand or acceptance of bribe and
the same was not taken into consideration.
2.12. The impugned orders are challenged on various grounds, viz.,
(i) that on the same set of facts when the Criminal Court has honourably acquitted a person, there cannot be a punishment in the disciplinary
proceedings;
(ii) that the punishment cannot be passed by the Head of the Department on consultation with the other agencies who are not connected with the
service of the petitioner;
(iii) that the punishment has been imposed when there is no evidence and based on perverse finding; and
(iv) that the administrative authority has to record the reason and a non-speaking order cannot be accepted.
3.1. Consequent to the prayer in setting aside of the said punishment imposed which is challenged in W.P. No. 798 of 2009, the petitioner, by
filing W.P. No. 799 of 2009, has sought for a direction to the Commissioner of Commercial Taxes to promote him as Deputy Commercial Tax
Officer with effect from 29.7.2004.
3.2. According to the petitioner, the crucial date for promotion for the year 2004 was on 1.3.2004 and the panel was drawn on 29.7.2004. The
date on which the petitioner was eligible for promotion, viz., the date of promotion of his immediate junior is 3.8.2004. While charge sheet has
been filed on 8.11.2004 and the petitioner was acquitted by the Criminal Court on 26.6.2006, the departmental proceedings were initiated by
framing charges on 8.1.2007. Therefore, according to the petitioner, on the crucial date and also on the date of drawing of panel as well as on the
date of eligibility of the petitioner to be promoted there was no charge pending against the petitioner, except a criminal complaint in which charge
sheet was filed only on 8.11.2004, which ultimately led to acquittal and therefore, according to the petitioner, he is entitled to promotion as stated
above. It is also stated that the petitioner has retired on attaining superannuation on 30.9.2009.
4.1. In the counter affidavits filed by the Commissioner of Commercial Taxes in these cases, it is stated that even though in the criminal case the
petitioner was acquitted, there is no bar for initiating disciplinary proceedings on the ground of acquittal by the Criminal Court, since the
departmental proceedings are independent.
4.2. It is further stated that it was because of the existence of prima facie case, a charge under Rule 17(b) of the Tamil Nadu Civil 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 competent to disagree with the findings of the Enquiry Officer having found that in respect of Rs.
10,000/- other than Rs. 30,000/- there was no receipt issued and that the second respondent has rightly decided that the charge against the
petitioner stands proved, after receiving the further explanation.
4.4. While admitting that the Disciplinary Authority has only sought for remarks from the Vigilance and Anti Corruption Department, it is stated that
the decision was taken by independent application of mind and that in departmental proceedings the yardstick of proof is one of preponderance of
probability, unlike in criminal cases where it is evidence beyond all doubts.
4.5. While it is admitted that T.S. Balasubramanian was awarded a punishment of censure, it is stated that that was based on the nature and scope
of the lapse committed by him.
4.6. It is also stated that on the crucial date, a criminal case was pending and therefore, his name was not considered for the Deputy Commercial
Tax Officer Panel 2004. Since the petitioner was facing criminal trial on the crucial date for inclusion of his name in the Deputy Commercial Tax
Officer Panel 2004, his name was not considered and the disciplinary action initiated against the petitioner has concluded during 2008 and charges
stood proved and therefore, the petitioner is not entitled to inclusion of his name in the panel for promotion to the post of Deputy Commercial Tax
Officer for the year 2004.
4.7. It is also stated that the Government has disposed of the appeal after obtaining remarks from the Tamil Nadu Public Service Commission as
per law.
5. It is not in dispute that the charge framed against the petitioner in the criminal case, which has ended in acquittal, as well as in the departmental
proceedings initiated under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules relate to the same incident. The charge as
framed in the departmental proceedings on 8.1.2007 by the second respondent against the petitioner is as follows:
Gross dereliction of duty and grave misconduct, unbecoming of a public servant in having yourself under the instructions of Tr. M. Radhakrishnan,
Deputy Commercial Tax Officer demanded and accepted Rs. 40,000/- from A.V. Muralidhar, on 3.1.2003 at about 19.00 hours at your office in
Greams Road, Chennai for releasing the goods detained by you and Tr. Radhakrishnan, Deputy Commercial Tax Officer which belonged to Tr.
Chakkum Kozhiyll Mohammed Kutty and having issued receipt for Rs. 30,000/- and retained an amount of Rs. 10,000/- without issuing any
temporary receipt to Tr. A. Muralidhar and thereby violated Rule 20(1) of the Tamil Nadu Government Servant Conduct Rule 1973.
6. It is no doubt true that the Criminal Court, before which the petitioner was third accused, has acquitted the petitioner. The Criminal Court has
specifically found, on appreciation of the entire evidence relating to P.W.2 who is the complainant, that what was demanded, namely a sum of Rs.
40,000/-, was only a compounding fee for the goods transported and not bribe as claimed by the prosecution and rejected his complaint dated
3.1.2003. While considering the charge against the petitioner who was arrayed as third accused, the Criminal Court, after examining various
materials placed before it, has specifically found that ""so also, A3 was nowhere in the picture"" and ultimately, acquitted him along with other
accused. The judgment of acquittal was on 26.6.2006 and admittedly, it was thereafter on 8.1.2007 charge was framed against the petitioner on
the same incidence.
7. It is also not in dispute that the Enquiry Officer appointed by the second respondent, in his report dated 14.9.2007, in respect of 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, on verifying the attendance
register has found that the petitioner was on leave on the said date. The relevant portion of the finding of the Enquiry Officer is as follows:
1) In his statement of defence, the charged official has informed that he was on leave on 03.01.2003. This aspect is verified with reference to the
attendance registers maintained in the Office of the Assistant Commissioner (CT) Chennai (South) Enforcement, Chennai-6 and the verification
revealed the follows:
a) In Page No. 4 of the Attendance Register for officers, it has been mentioned as jtp on 3.1.2007.
b) In Page No. 51 of the Casual Leave Register, there is entry of Casual leave on 03.01.2007 for (sic) which has been attested by the official
concerned.
Hence the explanation of the official that he was on leave on 03.01.2003 is acceptable.
(The date in the above extracts has been wrongly stated by the Enquiry Officer to be 3.1.2007 instead of 3.1.2003 and the same is not in dispute.)
8. After receiving the report of the Enquiry Officer, the second respondent has issued a memo to the petitioner on 26.3.2008, disagreeing with the
report of the Enquiry Officer and calling for further explanation from the petitioner. The reason for disagreement given in the said memo is as
follows:
Reasons for holding the charge as proved disagreeing with the findings of the Inquiry Officer:
Charge No. I:
1. Reasons for obtaining Rs. 10,000/- other than Rs. 30,000/- for which receipt was not issued.
9. After considering the further explanation, the second respondent has passed the impugned order dated 4.4.2008. For disagreeing with the
report of the Enquiry Officer in respect of the altered charge, the second respondent, in the impugned order, has given the following reason:
6. The case relates to the trap and arrest for demand and acceptance of bribe and the Hon''ble Court of Vth Additional Sessions Judge, Chennai
104 have acquitted Thiru A. Muralidharan, Assistant Commercial Tax Officer. However, certain grave irregularities were noticed involving
misconduct in the discharge of official duties for which the disciplinary action under Rule 17(b) of Tamil Nadu Civil Services (Discipline & Appeal)
Rules was initiated by framing a charge. The explanation as well as the further representation of the charged officer on the charge framed against
him are not convincing and satisfactory. Therefore, disagreeing the findings of the Inquiry Officer and not accepting the further representation of the
charged officer, the single 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 been adduced except to say that the further representation of the petitioner is not
convincing and satisfactory.
10. The first respondent, on appeal, has given the following reason for rejecting the appeal:
5. The Government have carefully examined the appeal of Thiru A. Muralidharan, Assistant Commercial Tax Officer, Roving Squad-II, Chennai-6,
now ACTO/Superintendent along with the relevant records and the view of the Tamil Nadu Public Service Commission and decided to accept the
views of the Tamil Nadu Public Service Commission. The Government accordingly reject the appeal of Thiru A. Muralidharan, Assistant
Commercial Tax Officer/Superintendent, as devoid of merits.
11. It is specifically admitted in the counter affidavit filed by the second respondent that in respect of T.S. Balasubramanian, another Assistant
Commercial Tax Officer, who was arrayed as second accused in the criminal case and who was also acquitted in the said judgment, punishment of
censure was awarded. In fact, a reference to the various portions of the judgment of the Criminal Court shows that the main charge of demand and
acceptance of bribe was against him and even that was found to have been not proved and in spite of it, in the disciplinary proceedings, he has
been awarded punishment of censure while the petitioner has been awarded punishment of stoppage of increment for one year with cumulative
effect and for that the reason given is that the lapse committed by him is different.
12. This aspect has not been considered by the respondents which is violative of Wednesbury Principles and Doctrine of Proportionality, the well
established concept of administrative law. It is true that the punishment awarded to the petitioner is not a major punishment, but that is not a
material fact for deciding about the concept of proportionality. It is also true that the ultimate finding of the Criminal Court may not be relevant for
the purpose of deciding departmental proceedings, but, nevertheless, the factual assertion after narration of evidence of various witnesses in the
criminal case certainly has to be taken into consideration for the purpose of deciding as to whether the petitioner was actually involved. As I have
stated earlier, the Criminal Court, on evidence, has found that the petitioner was on leave and there was no iota of evidence to show that the
petitioner was involved in the demand and acceptance of bribe. Of course, that was also the case in respect of T.S. Balasubramanian, as found by
the Criminal Court, and in his case the punishment of censure was awarded, while in the case of the petitioner a punishment of stoppage of
increment for one year with cumulative effect has been awarded. Taking note of this clinching aspect, I am of the considered view that awarding of
punishment to the petitioner is disproportionate.
13. The Supreme Court in Om Kumar and Ors. v. Union of India [2001] 2 SCC 386 has explained about the Wednesbury Rule as well as the
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 a statute gave discretion to an
administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or
other of the following conditions were satisfied, namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors
were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed in UK and in
India to judge the validity of administrative action. It is equally well known that in 1983, Lord Diplock in Council for Civil Services Union v.
Minister of Civil Service 1983 (1) AC 768 (called the GCHQ case) summarised the principles of judicial review of administrative action as based
upon one or other of the following viz., illegality, procedural irregularity and irrationality. He, however, opined that proportionality'' was a ""future
possibility"".
....
28. By ''proportionality'', we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least restrictive choice
of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative
order, as the case may be. Under the principle, the Court will see that the legislature and the administrative authority ''maintain a proper balance
between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind
the purpose which they were intended to serve''. The legislature and the administrative authority are however given at area of discretion or a range
of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality.
14. The judgment relied upon by the learned Counsel for the respondents rendered by the Supreme Court in Union of India and others Vs. K.
Krishnan, relates to the Post and Telegraph Manual Volume-3 wherein the rule specifically prohibits promotion during the currency of penalty in
disciplinary proceedings against an employee. But, on the facts and circumstances of the present case, there was no disciplinary proceeding
pending or penalty imposed on the crucial date for inclusion of his name in the Deputy Commercial Tax Officer Panel 2004. Even the criminal case
charge sheet was filed only on 8.11.2004, while the crucial date for the panel of the year 2004 was 1.3.2004. Mere pendency of FIR against the
petitioner at that time, namely during the crucial date cannot be taken as a bar for including his name in the panel, especially in the circumstances
where ultimately the criminal case has ended in acquittal on 26.6.2006.
15. In such circumstances, even if the impugned order of punishment is sustained, the petitioner is entitled to be included in the panel of Assistant
Commercial Tax Officers fit for promotion as Deputy Commercial Tax Officers for the year 2004, for the disciplinary proceedings commenced by
framing of charge under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules only on 8.1.2007, long after the crucial date.
Thus, looking from any angle, I am of the considered opinion that the impugned order of punishment imposed on the petitioner is unsustainable and
the name of the petitioner is entitled to be included in the panel of Assistant Commercial Tax Officers fit for promotion as Deputy Commercial Tax
Officers for the year 2004 and the petitioner is entitled to be considered for promotion as Deputy Commercial Tax Officer on the date when his
immediate junior stood promoted, which was on 3.8.2004.
For the foregoing reasons, the writ petitions stand allowed and the impugned order of punishment imposed on the petitioner by the impugned order
dated 4.4.2008 stands set aside with a direction to the respondents to include the name of the petitioner in the panel of Assistant Commercial Tax
Officers fit for promotion as Deputy Commercial Tax Officers for the year 2004 and give benefit of promotion from the date of promotion of his
immediate junior and grant all consequential monetary benefits due to the petitioner within a period of twelve weeks from the date of receipt of a
copy of this order. No costs.
