Madras High Court
The Secretary To Government vs C.Malaisamy(Died) on 12 September, 2023
W.A.(MD) No.1427 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.A.(MD) No.1427 of 2023
and
C.M.P.(MD)No.11066 of 2023
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. ... Appellants/Respondents
-vs-
1.C.Malaisamy(Died)
2.M.Malliga
3.M.Lakshmanaprabu
4.C.M.Ramkumar
5.M.Vijaya Nandhini Devi ... Respondents/Writ Petitioners
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W.A.(MD) No.1427 of 2023
PRAYER: Writ Appeal has been filed under Clause 15 of Letters Patent to set
aside the order, dated 26.04.2022 made in W.P.(MD)No.16385 of 2018 on the
file of this Court.
For Appellants : Mr.J.K.Jayaseelan
Government Advocate
For R1 to R2 : Mr.P.Gunasekaran
JUDGMENT
[Judgment of the Court was made by D.BHARATHA CHAKRAVARTHY, J.]
This Writ Appeal is filed by the respondents in the writ petition in W.P.
(MD)No.16385 of 2018 challenging the order of the learned Single Judge dated
26.04.2022 thereby allowing the writ petition. The writ petition was filed by
one C.Malaisamy who was since died and thereafter, was pursued by his legal
heirs.
2. The case of the original writ petitioner is that he was working as Sub
Registrar, Palani in the year 2013 and while so a charge memorandum dated
28.01.2013 was issued containing the following charge:
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W.A.(MD) No.1427 of 2023
“jpU.rp.kiyr;rhkp> rhh;gjpthsh; Mfpa jhq;fs; nghpaFsk; gjpT
khtl;lk; Nghbehaf;fD}h; rhh;gjpthsuhf gzpahw;wpa NghJ 2011 kw;Wk;
2012k; Mz;LfSf;fhd fhyhz;L Jiwj;jzpf;if mwpf;iffspy; ,og;G
cWjp nra;ag;gl;l ,j;Jld; ,izg;gpy; Fwpg;gpl;Ls;s
cs;jzpf;if ,dq;fspd;gb &.17>44>385/- muRf;F ,og;G
Vw;gLj;jpAs;sPh;fs;> ,t;thW jhq;fs; muRf;F ,og;G Vw;gLj;Jk; tz;zk;
cs;Nehf;fNfhLk;> gzpapy; ftdkpd;wpAk; mrpuj;ijahfTk; nray;gl;L
Kj;jpiyj;jPh;it> gjpTf;fl;lzk; kw;Wk; ,juf; fl;lzk; thapyhf &.
17>44>385/- muRf;F tUtha; ,og;G Vw;gLj;jpajw;F nghWg;ghfpAs;sjd;
%yk; muR gzpahsh; elj;ij tpjp 20(1)I kPwpAs;sPh;fs;.”
2.1 The delinquent official submitted his explanation denying the
charge. It is his explanation that only in cases where the guideline value has
wrongly been calculated, he has correctly calculated the same and accepted
the document. When there was discrepancy in the calculation of the guideline
value as entered in the register between square meter and square feet, he has
corrected it by taking into account the value which is assigned for one square
meter and accordingly converted the same for square feet. This apart wherever
the documents which are presented showing value lesser from the guideline
value proceedings under Section 47A of the Indian Stamp Act, 1899 [Act 2 of
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W.A.(MD) No.1427 of 2023
1899] were initiated and ultimately there was no loss to the Government.
2.2 In that background, by an order dated 05.06.2015, the punishment
of dismissal from service was imposed. Aggrieved by the same, an appeal was
preferred and the appeal was also dismissed by order dated 15.07.2016. When
the writ petition was filed challenging the punishment and the appellate
orders, the same was resisted by the respondents by filing a counter affidavit.
Even from the counter affidavit it can be seen that it is the contention of the
respondents that when there are different values he had taken on his own
decision detrimental to the interest of the revenue. It was the further case in
the counter affidavit that eventhough the proceedings are being initiated, the
entire amount of Rs.14,83,098/- have not been fully collected from the
parties.
2.3 The learned Single Judge after considering the case of the parties
found that when the functions of adjudication on the documents which are
presented before the authority are statutory in nature, and bordering on quasi
judicial functions and when proceedings are initiated under Section 47A of the
Indian Stamp Act, 1899 [Act 2 of 1899], the conduct cannot be termed as a
misconduct. This apart, the learned Single Judge found that eventhough the
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W.A.(MD) No.1427 of 2023
charge itself mentioned that the petitioner erred as per the annexure to the
charge memorandum, no such annexure was served on the first
respondent/writ petitioner even during the enquiry and therefore, the entire
proceedings were also vitiated for violation of principles of natural justice.
Since the delinquent official/the writ petitioner died pending the disposal of
the writ petition, the learned Single Judge after setting aside the order of
punishment, instead of remanding the matter for further continuation of the
disciplinary proceedings, directed that the terminal and other benefits to be
paid to the other petitioners who are his legal heirs. Aggrieved by the same,
the present writ appeal is filed.
3. Mr.J.K.Jeyaseelan, the learned Government Advocate appearing on
behalf of the appellant would submit that when the disciplinary proceedings
have been duly initiated and concluded with due opportunity to the delinquent
employee, the learned Single Judge in exercise of the power of the judicial
review ought not to have gone into the merits of the allegations. He would
further submit that when the action of the delinquent officials have resulted in
loss to the Government, even while exercising the statutory powers, still the
nature of charges can be gone into and the punishment has been rightly
imposed.
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W.A.(MD) No.1427 of 2023
4. Per contra, Mr.P.Gunasekaran, the learned counsel appearing on
behalf of the respondents 1 and 2 relying upon the judgment of the Hon'ble
Supreme Court in Union of India and Others Vs. Duli Chand1 would submit
that the respondents ought not to have initiated departmental enquiry on
quasi judicial functions exercised by the deceased employee. He would further
submit that the annexure to the charge memo has not been supplied even till
today and the same does not form part of the enquiry proceedings or even the
document set filed in the writ appeal.
5. We have considered the rival submissions made on either side and
perused the material records of the case.
6. Firstly when the charge itself does not clearly mentioned as to in what
manner the deceased writ petitioner caused loss to the Government and it was
simply mentioned that the loss was caused as mentioned in the annexure to
the charge memorandum and later no annexure has been served on the
delinquent official, the delinquent official was absolutely at loss to properly
explain the charge. Leave alone explanation he cannot even understand what
1 (2006) 5 SCC 680
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W.A.(MD) No.1427 of 2023
exactly was in the mind of the disciplinary authority while alleging the
misconduct. The learned Government Advocate for the appellants is unable to
refute the contention of the learned counsel for the respondents that the said
document was not provided while serving the charge memo and even
thereafter in the departmental enquiry. In the proceedings before this Court
also the said annexure has not been produced by the respondents. In that
view of the matter, firstly we hold that the entire disciplinary proceeding is
vitiated and its violative of principle of natural justice.
7. We also further find that even in the absence of details, the
delinquent employee has given explanation in detail explaining as to how in
some cases, the entry made in the guideline value register was erroneously
made while fixing the value in respect of square meter and thereafter, while
converting into square feet. When the delinquent official has pleaded that he
has only corrected the error and when nothing to the contrary has been
pleaded or contained in the punishment orders, we are in agreement with the
learned Single Judge that just because the exercise of statutory powers were
not in favour of collecting maximum revenue, the same could not be termed as
lawful loss to the Government.
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W.A.(MD) No.1427 of 2023
8. As far as the other documents are concerned, it is also seen that
proceedings under Section 47A has been initiated and therefore, whether at all
the delinquent official acted in a manner so as to cause loss to the
Government is not on record to prove the guilt. Eventhough normally for
violation of principles of natural justice and for other defects in the enquiry,
this Court would remand the matter back to the appellants/respondents to
proceed with the enquiry from one stage which it has to, since in this case the
writ petitioner/delinquent employee had died pending disposal of the writ
petition, the learned Single Judge has rightly directed the disbursal of the
terminal benefits once the impugned order of punishment is bound to be
vitiated.
9. In that view of the matter, the writ appeal fails and is accordingly
dismissed. However, there shall be no order as to costs. Consequently,
connected miscellaneous petition is closed.
[S.S.S.R., J.] [D.B.C., J.]
12.09.2023
NCC : Yes / No
Index : Yes / No
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W.A.(MD) No.1427 of 2023
Internet : Yes / No
sji
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W.A.(MD) No.1427 of 2023
S.S.SUNDAR, J.
and
D.BHARATHA CHAKRAVARTHY, J.
sji
W.A.(MD) No.1427 of 2023
and
C.M.P.(MD)No.11066 of 2023
12.09.2023
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https://www.mhc.tn.gov.in/judis
