Madras High Court
C.Malaisamy (Died) vs The Secretary To Government on 26 April, 2022
W.P.(MD).No.16385 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.04.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD).No.16385 of 2018
and
W.M.P.(MD).No.14549 of 2018
C.Malaisamy (Died) ... Petitioner
2.M.Malliga
3.M.Lakshmanaprabu
4.C.M.Ramkumar
5.M.Vijaya Nandhini Devi ... Proposed petitioners
(Petitioner Nos.2 to 5 are impleaded vide Court order, dated 22.04.2022
in W.M.P(MD)No.5531 of 2022 in W.P(MD)No.16385 of 2018)
Vs.
1.The Secretary to Government,
Commercial Taxes and Registration (k) Department,
Fort St.George, Chennai.
2.The Inspector General of Registration,
100, Santhome High Road,
Chennai-28.
3.The District Registrar (Audit),
Madurai North Registration District,
Madurai. ... Respondents
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1/11
W.P.(MD).No.16385 of 2018
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, to call for the
records pertaining to the impugned order passed by the second respondent in
his proceedings in No.3028/Aa2/2013, dated 05.06.2015 and the further
impugned order passed by the first respondent in G.O.(d) No.259 Commercial
Taxes and Registration (k) Department, dated 15.07.2016 and quash them as
illegal and consequently, direct the respondents 1 & 2 to permit the petitioner's
retire from service with effect from 31.01.2013 and to pay all the retirement
benefits from the date of his retirement with 18% interest within a time as
stipulated by this Court.
For Petitioner : Mr.P.Gunasekaran
For Respondents : Mr.P.Thambidurai
Government Advocate (Civil Side)
ORDER
The writ petition has been filed to quash the impugned order passed by
the second respondent in his proceedings No.3028/Aa2/2013, dated 05.06.2015
and the further impugned order passed by the first respondent in G.O.(d) No.
259 Commercial Taxes and Registration (k) Department, dated 15.07.2016 and
consequently, direct the respondents 1 and 2 to permit the petitioner to retire
from service with effect from 31.01.2013 and to pay all the retirement benefits
from the date of his retirement with 18% interest.
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W.P.(MD).No.16385 of 2018
2. During the pendency of the writ petition, the writ petitioner died on
04.03.2019 and hence, the legal heirs of the petitioner had filed impleading
petition in W.M.P.(MD)No.5531 of 2022 and the same was allowed on
22.04.2022. The petitioner Nos.2 to 5 are the legal heirs of the deceased
petitioner.
3. The brief facts of the case are that the deceased petitioner was
appointed as Junior Assistant in the Animal Husbandry Department on
07.12.1981 and subsequently, the petitioner was transferred to the Sub-
Registrar Office, Theni as Junior Assistant on 22.03.1996. Thereafter, the
petitioner was promoted as Assistant and transferred to Sub Registrar Office
and transferred to various places, the petitioner was due to retire on 31.01.2013.
When the petitioner was working as a Sub Registrar, Palani, the second
respondent issued a charge memo, dated 28.01.2013 stating that the petitioner
has caused a loss of Rs.17,44,385/- to the Government while he was working as
a Sub Registrar in Bodinaickanur. On the verge of retirement, the petitioner was
placed under suspension on 29.01.2013 and on receipt of the charge memo, the
petitioner submitted an explanation and the third respondent was appointed as
an enquiry officer.
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W.P.(MD).No.16385 of 2018
4. The contention of the petitioner is that during the enquiry, the
documents relied by the respondents as a proof to show the deceased petitioner
was responsible for loss to the Government were not at all furnished to the
petitioner, pleaded before the third respondent and the documents registered
was only as per the guidelines issued by the Government. Subsequent
amendments which were not at all brought to the knowledge that the alleged
loss were recovered from the parties to the document, further pleaded that there
was no ulterior motive in registering the documents and the charges were
framed belatedly that too on the verge of retirement. But the third respondent,
without considering the petitioner's defense, submitted a report saying that the
charge leveled against the petitioner are proved and the basis of the said report,
the second respondent passed the impugned order on 05.06.2015, dismissing
the petitioner from service. The petitioner has preferred an appeal before the
first respondent and also pleaded that the punishment of dismissal is
disproportionate to the charges. The first respondent dismissed the appeal on
15.07.2016, by confirming the dismissal order and has reduced the loss to
Rs.14,83,098/- by way of a cryptic order. Aggrieved over the same, the present
writ petition has been filed.
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W.P.(MD).No.16385 of 2018
5. The respondents have filed a counter stating the petitioner, while he
was served as Sub Registrar, Bodinayakanur from 2011 to 2012, registered
certain documents. In the Departmental Quarterly Audit Reports a loss due to
the Government to the tune of Rs.17,44,385/- was reported. Based on the said
report, the Head of the Department and Inspector General of Registration has
framed charges under Rule 17(b) of Tamil Nadu Civil Services (Discipline and
Appeal) Rules and enquiry officer was appointed. According to the enquiry
officer, the Revenue loss caused to the Government is as follows:
"(i) non adoption of correct guideline value by the
petitioner in respect of 102 documents has caused loss of stamp
duty of Rs.8,72,170/- registration fees Rs.1,36,040/- and others
Rs.80 totaling Rs.10,08,290/-
(ii) Failure to decide the correct nature in respect of 14
documents has caused stamp duty loss of Rs.4,11,908/- and fees
loss of Rs.62,900/- totalling Rs.4,74,808/-".
6. The enquiry officer has reduced the loss from Rs.17,44,385 to
Rs.14,83,098/-. The second respondent being the disciplinary authority,
concurred with the findings of the enquiry officer. The petitioner was afforded
the opportunity of submitting further explanation and also the opportunity of
personal hearing by the second respondent herein on 01.06.2014. The petitioner
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W.P.(MD).No.16385 of 2018
could not give valid explanation, why he had registered documents adopting the
lesser value in the case of 102 documents when there are different contradicting
values. When there are different values, the petitioner has taken on his own
decisions detrimental to the interest of the Government revenue. Hence, the
punishment of dismissal from service was imposed for the proven charges, vide
order No.3028/B2/2013, dated 05.06.2013. On appeal, the Appellate Authority
has taken the opinion from the Tamil Nadu Public Service Commission and
then had confirmed the punishment order. The contention of the respondent is
that the loss of Rs.14,83,098/- have not yet been fully collected from the parties
as on date and the claim of the petitioner is blatantly false and therefore, prayed
to dismiss the writ petition.
7. Heard Mr.P.Gunasekaran, learned Counsel appearing for the petitioner
and Mr.P.Thambidurai, learned Government Advocate (Civil Side) appearing
for the respondents and perused the records.
8. It is seen from the records that the charge memo was issued for the
alleged loss of Rs.17,44,385/- and after enquiry it has been reduced as
Rs.14,83,098/-. The allegation against the petitioner is that there are two
different contradicting values in the case of 102 documents and when there are
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W.P.(MD).No.16385 of 2018
two different values, the petitioner has taken his own decision which is
detrimental to the interest of Government Revenue. The respondents
themselves have admitted that there are two different contradictory values. If
there are two contradicting values, the petitioner being the Sub Registrar who is
sitting as “Quasi Judicial Authority” has power to take a decision on the
guideline value by referring to other documents which were registered in and
around the same area. If the quasi-judicial Authority has erred in taking the
correct guideline value, the available remedy is to prefer an appeal to the
Collector (Stamps) under Section 47 A. The respondents in their counter have
not clarified whether Section 47 A proceedings were initiated against the said
102 documents. The respondents have stated that the loss of Rs.14,83,098/-
have not yet been fully collected. Hence, this Court is of the considered opinion
that the proceedings under Section 47 A is still pending for consideration. This
Court in several judgments have held that the Sub Registrar post is a quasi-
judicial Authority. The Sub Registrar has to determine the applicable guideline
value and if, there is any mistake or wrong fixation of value, the same can be
rectified under Section 47 A. The wrong fixation by exercising Quasi Judicial
power cannot be a ground to initiate disciplinary proceedings. The respondents
have initiated Section 47A proceedings and subsequently, the alleged loss
amount was collected by the respondents.
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W.P.(MD).No.16385 of 2018
9. Therefore, this Court is of the considered opinion, the loss stated as
Rs.14,83,098/- has been reduced. It is seen from the records that the petitioner
died and now the legal heirs are contesting this writ petition. Therefore, this
Court is of the considered opinion, the punishment of dismissal from service
ought to be interfered. The petitioner has relied on the Division Bench order
rendered in Union of India represented by the Secretary Vs. The
Registrar, Central Administrative Tribunal reported in 2005 (2) MLJ 154,
wherein this Court has held the disciplinary authority while imposing the
punishment cannot act on the material which was neither supplied nor shown to
the delinquent officer. Admittedly, in the present case, the petitioner has raised
the plea that the documents referred in the enquiry was not supplied to the
petitioner. The petitioner has relied on one another case reported in 2016 (7)
MLJ 751 wherein, it has been held that the delinquent who has discharged the
quasi-judicial power then the disciplinary proceedings cannot be initiated for
the wrong exercise of such power.
10. Therefore, this Court is of the considered opinion, the petitioner who
has served as Sub Registrar was exercising quasi-judicial power while
determining the guideline value. If there is any wrong exercise of such quasi-
judicial power, the same can be rectified under Section 47 A. Admittedly, in the
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W.P.(MD).No.16385 of 2018
present case, Section 47 A has been initiated and subsequently, the alleged loss
amount was collected by the respondents. The respondents have collected some
amount and have not collected fully, but the respondents have power to collect
the entire amount by initiating Section 47A proceedings.
11. Therefore, this Court is inclined to interfere in the punishment. The
impugned order is set aside. The respondents are directed to implement this
order and subsequently, quantify the terminal benefits and other benefits
applicable to the petitioner and the same shall be disbursed to the deceased
legal heirs. The said exercise shall be completed within the period of eight (8)
weeks from the date of receipt of a copy of this order.
12. The writ petition stands allowed accordingly. No costs. Consequently,
connected Miscellaneous Petition is closed.
26.04.2022
Index : Yes / No
Internet : Yes/ No
btr
Note : In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
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W.P.(MD).No.16385 of 2018
To
1.The Secretary to Government,
Commercial Taxes and Registration (k) Department,
Fort St.George,
Chennai.
2.The Inspector General of Registration,
100, Santhome High Road,
Chennai-28.
3.The District Registrar (Audit),
Madurai North Registration District,
Madurai.
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.16385 of 2018
S.SRIMATHY, J.
btr
W.P.(MD).No.16385 of 2018
26.04.2022
https://www.mhc.tn.gov.in/judis
