Madras High Court
N.Jayalakshmi vs The Inspector General Of ... on 26 September, 2023
WP.Nos.9851, 11156, 11781, 11782 & 13132/2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 26.09.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.Nos.9851, 11156, 11781, 11782 & 13132/2016
and
WMP.No.8824, 9700, 9701, 10170, 11503, 38479/2016 & 22772/2017
N.Jayalakshmi ... Petitioner in all
the Writ Petitions
Versus
1.The Inspector General of Registration
Registration Department,
Santhome, Chennai.
2.The Deputy Inspector General of Registration
Registration Department, Cuddalore Zone
Thirupapuliyur, Cuddalore.
3.The Deputy Inspector General of Registration
Registration Department, Chennai Zone
27, Rajaji Salai, Chennai-1.
4.The District Registrar
Chidambaram. ... RR 1 to 4 in
WP.Nos.9851 & 11156/2016
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5.The District Registrar [Audit], Chengalpattu.
6.The District Registrar [Administration], Chengalpattu.
7.The District Registrar [Audit], Villupuram.
8.The District Registrar [Administration], Villupuram. .. RR 5 to 8 in
WP.No.11156/2016
1.The Inspector General of Registration
Registration Department,
Santhome, Chennai.
2.The Deputy Inspector General of Registration
Registration Department, Cuddalore Zone
Thirupapuliyur, Cuddalore.
3.The District Registrar [Admin]
The Enquiry Officer, Tindivanam.
4.The Deputy Inspector General of Registration
Registration Department, Cuddalore Zone
Thirupapuliyur, Cuddalore.
5.The District Registrar,
No.7, Lalkhan Street
Chidambaram. ... Respondents in
WP.No.11781/2016
1.The Inspector General of Registration
Registration Department,
Santhome, Chennai.
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2.The Deputy Inspector General of Registration
Registration Department, Cuddalore Zone
Thirupapuliyur, Cuddalore.
3.The Deputy Inspector General of Registration
Registration Department, Cuddalore Zone
Thirupapuliyur, Cuddalore.
4.The District Registrar,
No.7, Lalkhan Street
Chidambaram. ... Respondents in
WP.No.11782/2016
1.The Inspector General of Registration
Registration Department,
Santhome, Chennai.
2.The Deputy Inspector General of Registration
Registration Department, Cuddalore Zone
Thirupapuliyur, Cuddalore.
3.The District Registrar,
No.7, Lalkhan Street
Chidambaram. ... Respondents in
WP.No.13132/2016
Prayer in WP.No.9851/2016 : - Writ Petition filed under Article 226
of the Constitution of India praying for issuance of a writ of certiorari
calling for the records on the file of the 2nd respondents in his proceedings
No.3330/A/2015 dated 29.10.2015 and quash the same.
Prayer in WP.No.11156/2016 : - Writ Petition filed under Article 226
of the Constitution of India praying for issuance of a writ of certiorari
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calling for the records on the file of the 2nd respondent in his proceedings
charge memo No.336/A/2016 dated 11.03.2016 and quash the same.
Prayer in WP.No.11781/2016 : - Writ Petition filed under Article 226
of the Constitution of India praying for issuance of a writ of mandamus
directing the respondents to consider and pass order on the representation of
the petitioner dated 11.03.2016 for permitting the petitioner to retire from
the service subject to pendency of the disciplinary proceedings under Rule 9
of the Tamil Nadu Pension Rules.
Prayer in WP.No.11782/2016 : - Writ Petition filed under Article 226
of the Constitution of India praying for issuance of a writ of certiorari
calling for the records on the file of the 2nd respondent in his proceedings
No.336/A/2016 dated 23.03.2016 and to quash the same.
Prayer in WP.No.13132/2016 : - Writ Petition filed under Article 226
of the Constitution of India praying for issuance of a writ of certiorarified
mandamus calling for the records on the file of the 1st respondent in his
proceedings No.13047/B1/2016 dated 30.03.2016 and to quash the same,
and direct the respondents to allow the petitioner to retire subject to the
disciplinary proceedings.
For Petitioner in all
Writ Petitions : Mr.M.Vijayakumar
For Respondents in all
Writ Petitions : Mr.S.Ravikumar, Spl.GP
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COMMON ORDER
(1) All the five writ petitions have been filed by the very same petitioner
complaining about the charge memos issued to her and further
complaining that though in one of the charge memos, enquiry had
been completed, final orders have not been passed and in the other,
complaining about the suspension order passed against her and in yet
another writ petition, complaining about the order not permitting her
to retire on attaining the age of superannuation.
(2) Since the facts in all the five writ petitions relate to the tenure of the
petitioner as Sub Registrar at Madurantagam in Chengalpattu
Registration District, as Joint Sub Registrar, Cuddalore Zone in
Cuddalore Registration District, as Joint-I Sub Registrar, Villupuram
in Villupuram Registration District and as Joint-II Sub Registrar,
Villupuram in Villupuram Registration District and the facts also
overlap to a large extent and in the counter affidavits and the
rejoinder affidavits, the same stand has been taken with respect to the
charge memos which had been issued to the petitioner herein and also
since the learned counsels advanced arguments with respect to all the
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five writ petitions without differentiating the facts from one another,
it is only prudent that a common order is passed.
(3) The petitioner N.Jayalakshmi, at the time of attaining the age of
superannuation, was working as Sub Registrar [Administration] at the
District Registrar Office at Chidambaram, had filed
WP.No.9851/2016 in the nature of a certiorari seeking the records
relating to the proceedings of the 2nd respondent, Deputy Inspector
General of Registration, Registration Department, Cuddalore Zone,
Cuddalore, dated 29.10.2015 and to quash the same. It must be
mentioned that by the said proceedings, a charge memo had been
issued to the petitioner herein stating that owing to various acts of
omission and commission committed by her while working as Sub
Registrar at Madurantagam in Chengalpattu Registration District, she
had caused loss to the Government to an extent of Rs.19,65,899/-.
(4) The same petitioner N.Jayalakshmi filed WP.No.11156/2016 again in
the nature of a certiorari seeking the records of the 2nd respondent,
Deputy Inspector General of Registration, Registration Department,
Cuddalore Zone, Cuddalore, with respect to a charge memo in
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proceedings No.336/A/2016 dated 11.03.2016 and to quash the same.
(5) By the said charge memo, a series of four charges had been framed
against the petitioner herein again with respect to loss caused to the
Government by her various acts of omission and commission and it
had been stated that this loss had been determined on the basis of the
monthly internal audit of the Sub Registrar Offices, where she was
functioning and on the basis of the audit conducted by the Accountant
General Office and on the basis of annual inspection conducted. It
had been stated in the first charge that owing to various acts
committed by the petitioner herein, she had caused loss to a sum of
Rs.55,15,260/- to the Government. In the second charge, it had been
stated that she had caused loss to the Government to a sum of
Rs.13,90,807/-. In the third charge, it had been stated that she had
caused loss to the Government to an extent of Rs.1,82,343/-. In the
fourth charge, it had been stated that though she had collected
towards stamp duty and registration charges while registering
Doc.No.4475/2009, while working as Joint Registrar-II at Villupuram
and had collected a sum of Rs.5,100/- by way of registration charges
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and a total sum of Rs.96,360/- on 29.10.2009, she had deposited into
the Treasury Account only a sum of Rs.91,260/- and had not
deposited the other sum of Rs.5,100/- and had deposited the same
only on 02.11.2009. In brief, these are the charges which had been
framed against the petitioner herein in the aforementioned writ
petition.
(6) In WP.No.11781/2016, the petitioner seeks a mandamus to consider
passing orders on a representation given by her on 11.03.2016
seeking to permit her to retire from service subject to the pendency of
Disciplinary Proceedings under Rule 9 of the Tamil Nadu Pension
rules.
(7) In WP.No.11782/2016, the petitioner had sought a certiorari to call
for the records on the file of the 2nd respondent, Deputy Inspector
General of Registration, Registration Department, Cuddalore Zone,
Cuddalore, relating to the proceedings in No.336/A/2016 dated
23.03.2016 and to quash the same. By the said proceedings, the said
2nd respondent had placed the petitioner under suspension.
(8) In WP.No.13132/2016, the petitioner herein had again sought a
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certiorari seeking records of the 1st respondent, Inspector General of
Registration, Chennai, in proceedings No.13047/B1/2016 dated
30.03.2016 and to quash the same. By the said proceedings, the 1st
respondent had passed an order not permitting the petitioner to retire
on reaching the age of superannuation on 31.03.2016 and retaining
her in service till the Disciplinary Proceedings pending against her
are concluded and final orders are passed. The 1 st respondent had
placed reliance on Rule 56[1][c] of the Fundamental Rules.
(9) Counter affidavits have been filed in all the five writ petitions and
rejoinder affidavits have also been filed by the petitioner herein.
(10) Heard the learned counsel for the petitioner and the learned Special
Government Pleader appearing on behalf of the respondents.
(11) It would only be appropriate that since WP.Nos.11781, 11782 and
13132/2016 relate to orders to be passed based on a representation
given by the petitioner, orders passed placing her under suspension
and orders passed not permitting her to retire from service pending
Disciplinary Proceedings, these writ petitions are taken up after
examining the charge memos which had been issued to the petitioner
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and which are the basis for filing WP.Nos.9851 and 11156/2016.
(12) In WP.No.9851/2016, in the affidavit, the petitioner had stated that
she had been appointed as Junior Assistant in the respondent /
Registration Department on 08.12.1978 on compassionate grounds
and was then promoted to the post of Assistant. She was then
promoted as Grade-II Sub Registrar on 09.06.1997 and subsequently,
promoted to the post of Grade-I Sub Registrar on 30.05.2008. She
stated that between 05.07.2012 and 06.03.2013, she was working as
Sub Registrar at Madurantagam in Chengalpattu Registration District.
It was stated that an Audit Report was prepared in the months of July
and August, 2012 on the basis of the guideline value as found in the
website. It was stated by the petitioner that there was a difference
between the guideline value as found in the website and in the
guideline value as maintained in the records of the Sub Registrar.
She claimed that she did not know about this difference and followed
the guideline value as available in the office of the Sub Registrar. It
was stated that the audit, however examined the stamp duty collected
and the registration charges levied on the basis of the guideline value
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as available in the website and had come to a conclusion that with
respect to the documents in the Annexure to the charge memo, the
petitioner had not properly collected the stamp duty and had caused
loss to the Government to a total extent of Rs.19,65,899/-. In the
Annexure to the charge memo, a total number of 62 documents had
been listed and the details given are the Registration District, the Sub
Registrar Office, the period on which the documents were registered,
the Book wherein the said documents were actually entered in the
office of the Sub Registrar Office, the Document Number and the
year of the Document, the deficit stamp duty and the deficit
registration charges and the total loss for each document.
(13) A counter affidavit had been filed.
(14) But the learned counsel for the petitioner had placed much reliance on
the rejoinder affidavit filed by the petitioner giving explanations with
respect to each one of the documents and explaining the
circumstances under which the registrations were done by the
petitioner. He called upon the Court to examine those particular
explanations given by the petitioner and therefore, sought that the
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charge memo itself should be set aside.
(15) Along with the rejoinder affidavit, additional documents had also
been filed to substantiate the explanations made. In the rejoinder
affidavit, it had been stated as follows:-
''3.I submit that in the revenue loss
Rs.19,65,899/- arrived by repeating the very same loss
amount viz., 8-46, 12-25, 13-30, 59-61. The impugned
charge memo liable to be quashed for the very short
reasons.
4.I submit that the Sl.No.20,21,22,23, 37, 44 7 59
are included document therein are the document which
are registered prior to my posting in the particular
station, i.e., by predecessor. The proof for the same
has been filed in typed set of paper-I.
5.I submit that the Sl.No.52, 58, 57, 6, 56, 14, 10,
13 and 16 are the documents wherein the loss
mentioned in the schedule of impugned charge memo
are already been collected. The proof for the same has
been filed in the typed set of-II.
6.I submit that the Sl.No.24 and its 13
documents, 31, 35, 43 and its 3 documents, 51, 55 and
36 are the documents which are referred for proper
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action to take under section 47A[1] of the Stamp Act.
The proof for the same has been filed in the typed set of
papers – III.
7.I submit that the Sl.No.3,7,12,6 and its 19
documents, 17 and its 10 documents, 18 and its 6
documents and 33 and its 10 documents are referred
for taking revenue recovery proceedings under section
47A[3] of the Stamp Act. I have registered duly
following the guideline value. The audit objection
relying on online value has been clarified subsequent
to the registration by circular date 24.05.2012 the copy
are enclosed in the typed set of papers IV.
8.I submit that the other items mentioned in the
schedule are duly stamp in accordance with guideline
value and there is no revenue loss to the Government at
all.''
(16) In the affidavit filed in support of WP.No.11156/2016, the petitioner
had stated that during the period between 04.12.2008 and 30.03.2010,
she was working as Joint-II Sub Registrar at Villupuram and between
05.07.2012 and 06.03.2013, she was working as Sub Registrar at
Madurantagam. She had further stated that there was an Audit Report
conducted for the period 2008-2010 and a charge memo had been
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issued calling upon the petitioner to give an explanation for a loss of
a sum of Rs.2,46,947/- as one caused, according to the respondents,
during the period between 04.12.2008 and 30.03.2010. She stated
that she had given her explanation on 01.06.2012. It was also stated
that the explanation was considered and the proceedings were
dropped. However, she expressed grievance that a further charge
memo had been issued on 11.03.2016 which is the subject matter of
the said writ petition in which four charges had been issued against
the petitioner herein. With respect to the four charges, again, the
respondents have given in detail in the Annexure, the details of the
documents for which deficit stamp duty or registration charges had
been collected by the petitioner herein.
(17) A perusal of the Annexure shows that the respondents have stated
that by acts of omission and commission by the petitioner herein in
the registration of 323 documents, the petitioner had caused a total
loss of Rs.16,67,282/- and Rs.55,15,260/- respectively. The details
relating to each document and the amounts which were deficit in the
stamp duty and the amounts which were deficit in the registration
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charges had been given. Again, with respect ot each one of the
documents, the petitioner had filed a rejoinder affidavit giving
explanation and filing additional documents to substantiate the
explanations given by her. The explanations given by the petitioner
herein in the rejoinder affidavit insofar as this writ petition is
concerned, are as follows:-
''4.I submit that the Sl.No.84, 88, 90, 104, 105,
106, 142, 143, 288, 289, 292, 301, 322 and 323 are the
document therein amount are already collected the
proof for the same has been filed in the additional
typed set of papers-I.
5.I submit that in respect the Sl.No.143, 144,
320, 91,92, 93, 94, 95, 96,97, 98, 109 and 110 these
are the documents are referred for action under section
47A[1] and 47A[3] before Sub Collector. The proof
has been filed in the additional typed set of papers-I.
6.I submit that the Sl.No.1 to 33 are relating
fixation of value for new lay out of Kamala Nagar at
SRO, Madurangdagam. I have fixed the correct value.
The fixation order has been enclosed in the additional
typed set of papers-I.
7.I submit that the Sl.No.34 to 70 are the
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documents which are not registered by me. I have
worked at Madurandagam and relieved on 06.03.2013.
The above documents are registered subsequent to the
date of 06.03.2013. The proof for the same has been
filed additional typed set of papers-II.
8.I submit that in respect of A.G's Audit
Annexure-II SRO at Madurandagam Sl.No.1 and 2
amount have already been collected. Sl.No.3 relating
to service tax for which no stamp duty levyable, as per
the I.G.order dated 16.04.2019. The
Sl.No.4,5,6,7,11,12,13,14,15 and 16 are documents
executed by brother and sister. In respect A.G's audit
is concerned the department can either accept the audit
report or contest. The above said documents are
contested by Department. If it is contested by
Department the SR are not responsible for any loss.
The Sl.No.8, 9 and 10 are cancellation of sale deed and
the Department also contested. The I.G's order dated
04.02.2013 stating that the cancellation of sale deed is
not a transfer of title I have followed the same. The
Sl.No.17 and 18 are the document executed by the
SIPCOT for which 50% of the stamp duty only has to
be collected as per the G.O.141 dated 30.09.2003 and
I.G's proceedings dated 10.10.2005. I have collected
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in accordance with the above said orders hence no
loss. The proof for the same has been filed in the
additional typed set of papers-III.
9.I submit that in respect of Annual Inspection,
Annexure-III, Sl.No.1 to 5 are documents relating
cancellation of the sale deed, release deed of brother
sister, ratification deed respectively. I have collected
stamp duty as per circular dated 07.01.2014 issued by
I.G. Registration. The copy of the circular filed along
with Addl.Typed set of paper-III, no loss.
10.I submit that all other documents relating to
fixation of value and stamp duties are duly collected as
per the guideline value. The fixation of value is
concern I have followed the order of the I.G.
Registration, but whereas the audit has taken higher
value which is against the I.G's order. The copy of the
I.G's order not to take higher value, dated 22.04.1998
and fixation of guideline issued by the Department
dated 11.09.2007 an 12.09.2011 are filed along with
typed set of papers-III.
11.I submit that the Sl.No.101 and 102, the
stamp duty and registration fees have been duly
collected but wrong calculated the collected stamp duty
and registration fees and charge memo issued for no
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loss. The proof documents are filed in Additional set
IV herewith.
12.i submit that Sl.No.111,114,115,145,283,303,
304, 308 to 311 and 313 to 315 not registered by me
while working Joint-2 Sub Registrar Villupuram but
registered by other SR Addl.Typed set V is the proof for
the same.''
(18) Placing strong reliance on the explanations given by the petitioner
herein, the learned counsel for the petitioner called upon the Court to
compare each of the documents with the documents filed as
additional typed set of papers and stated that reasonable explanations
having been given with respect to the charge memo issued against the
petitioner herein, the charge memo should be quashed.
(19) The learned counsel for the petitioner stated that the act of the
petitioner in collecting stamp duty or registration charges or
adjudicating the amount of stamp duty to be collected, is a quasi-
judicial act and therefore stated that the Disciplinary Proceedings
cannot be initiated for bona fide errors in a quasi judicial order. It is
contended that the said order being either revisable or appealable, the
respondents have committed grave error in issuing the charge memos.
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(20) In this connection, the learned counsel for the petitioner relied on the
following judgments:-
A)The judgment of a learned Single Judge of the Madurai Bench
dated 08.09.2022 in WP [MD] No.13924/2022 [T.Rajendran Vs.
The Inspector General of Registration, Chennai and 2 Others].
In that particular case, the petitioner therein had sought records
relating to a charge memo issued and sought that the same should
be quashed. The particular document to which that particular
charge memo was issued was with respect to a document which
was registered as a Partition Deed. The learned Single Judge
therefore, had to examine the extended meaning of family and the
amendment brought about with respect to as to who could be the
members of a family. It was then observed by the learned Single
Judge that the document was registered prior to the amendment
brought about by the Act 19/2013 to Schedule-I of Explanation to
Article 45 of the Indian Stamp Act, 1899. Thereafter, it was
stated by the learned Single Judge that determination of proper
stamp duty chargeable on an instrument involves an issue of
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adjudication and therefore, came to a conclusion that the work is a
quasi judicial work and therefore, stated that a charge memo
cannot be issued if the adjudication had not been done properly or
in accordance with the Rules. The learned Single Judge had gone
in much detail with respect to conflicting judgments of the
Hon'ble Supreme Court in this regard. Let me extract the portion
which is relied on by the learned counsel for the petitioner in
entirety:-
''7.Be that as it may, there is an element of
adjudication involved in the matter of determination of
proper stamp duty chargeable on an instrument. In S.P
Goel v. Collector of Stamps (1996) 1 SCC 573, a
question arose whether the act of the registering
authority in not registering a document or issuing
certified copy thereof in spite of full registration
charges having been paid would constitute “deficiency
of service” so as to maintain an action under the
provisions of the Consumer Protection Act, 1986. The
Hon'ble Supreme Court held that under the
Registration Act as also under the Stamp Act, the
officers, apart from performing administrative duties,
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also, at times, perform quasi-judicial functions. It was
observed as follows :
“28.The registration Act as also the
Stamp Act are meant primarily to augment the
state revenue by prescribing the stamp duty on
various categories of instruments or documents
and the procedure for collection of stamp duty
through distress or other means including
criminal prosecution as non-payment of stamp
duty has been constituted as an offence.
Payment of registration fee or registration
charges including charges for issuing certified
copies of the registered documents or fee for
the inspection of various registers or
documents kept in the Registrars or Sub-
Registrars office etc. constitute another
component of State revenue.
29.In this situation, therefore, the person
who presents for registration and pays the
stamp duty on it or the registration fee, does
not become a consumer nor do the officers
appointed to implement the provisions of the
two Acts render any service within the meaning
of Consumer Protection Act. They only perform
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their statutory duties (some of which, as earlier
indicated, are judicial or, at least, quasi-
judicial in nature) to raise and collect the State
revenue which is a part of the sovereign power
of the State.”
A learned Judge of this Court in the decision reported
in 2010-2-L.W. 964 (B.K.Gunasekaran Vs. State of
Tamil Nadu and others) held that the determination as
to whether proper Stamp Duty has been paid under Act
is a quasi-judicial function to be exercised by the
registering authority by going through the contents of
the document and by forming an opinion regarding the
classification of the document for demanding proper
Stamp Duty as per the rates specified in Schedule I to
the Act. Thus, there is an element of adjudication
involved in the matter for determination of proper
Stamp Duty chargeable on an instrument. 8.The next
question that arises is whether for a mere error
committed while exercising this quasi-judicial power,
disciplinary action can be taken against the official
concerned. The precedential trajectory is quite
interesting. In Zunjarrao Bhikaji Nagarkar v. Union
of India (1999) 7 SCC 409, it was held that an
erroneous exercise of jurisdiction by a quasi-judicial
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authority cannot result in disciplinary proceedings and
that it must be kept in mind that being a quasi-judicial
authority, he is always subject to judicial supervision
in appeal. It was further observed that if every error of
law were to constitute a charge of misconduct, it would
impinge upon the independent functioning of quasi-
judicial officers. This decision was by a two judges
Bench. It came up for consideration before a Three
Judges Bench comprising Their Lordships Ruma Pal,
C.K. Thakker and Markandey Katju, JJ. in Union of
India v. Duli Chand (2006) 5 SCC 680. The Hon'ble
Supreme Court held as follows :
“5.The law on the subject was considered in
extenso in the Three Judge Bench decision of Union of
India v. K.K. Dhawan 1993 2 SCC 56 wherein it was
noted that the view that no disciplinary action could be
initiated against an officer in respect of judicial or
quasi-judicial functions was wrong. It was further said
that the officer who exercises judicial or quasi-judicial
powers acting negligently or recklessly could be
proceeded against by way of disciplinary action. The
Court listed six instances when such action could be
taken:
28. i. where the officer had acted in a manner as
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would reflect on his reputation for integrity or good
faith or devotion to duty;
ii. if there is prima facie material to show
recklessness or misconduct in the discharge of his duty;
iii. if he has acted in a manner which is
unbecoming of a government servant;
iv. if he had acted negligently or that he omitted
the prescribed conditions which are essential for the
exercise of the statutory powers;
v. if he had acted in order to unduly favor party;
vi. if he had been actuated by corrupt motive,
however small the bribe may be because Lord Coke
said long ago 'though the bribe may be small, yet the
fault is great'.
6.The Court, however, made it clear that
ultimately the matter would have to depend upon the
facts of a particular case. The present case would fall
squarely within the fourth instance listed above.
7.The decision in K.K. Dhawan case was
considered by this Court and followed in Govt. of T.N.
v. K.N. Ramamurthy 1997 7 SCC 101 In that case the
Tribunal had set aside the order imposing punishment
on an officer who had been discharging judicial
functions. The Court was of the view that the Tribunal's
action was contrary to the several judgments of this
Court and the settled law on the question. 8.In 1999
another bench of two judges in Zunjarrao Bhikaji
Nagarkar considered and referred to these earlier
decisions. However, the Court appears to have reverted
back to the earlier view of the matter where
disciplinary action could be taken against an officer
discharging judicial functions only where there was an
element of culpability involved. Since in that particular
case there was no evidence whatsoever that the
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employee had shown any favour to the Assessee to
whom refund had been made, it was held that the
proceedings against him would not lie. In fact the
Court set aside the disciplinary proceedings at the
stage of the issuance of charge-sheet to the charged
officer.
9.In our opinion, Nagarkar case was contrary to
the view expressed in K.K. Dhawan case. The decision
in K.K. Dhawan being that of a larger Bench would
prevail. The decision in Nagarkar case therefore does
not correctly represent the law. Inasmuch as the
impugned orders of the Tribunal and the High Court
were passed on the law enunciated in Nagarkar case
this appeal must be allowed. The impugned decisions
are accordingly set aside and the order of punishment
upheld.”
But another Three Judges Bench of the Hon'ble
Supreme Court in Ramesh Chander Singh v. High
Court of Allahabad (2007) 4 SCC 247 approvingly
referred to Zunjarrao. Duli Chand which was decided
on 21.04.2006 was not brought to the Hon'ble Bench
which decided Ramesh Chander Singh on 26.02.2007.
In Inspector Prem Chand v. Govt. of NCT of Delhi
(2007) 4 SCC 566, Zunjarrao was relied on.
Interestingly, His Lordship Mr.Justice Markandey
Katju who was part of the Duli Chand Bench which
overruled Zunjarrao was part of the Hon'ble Bench
which decided Inspector Prem Chand. Zunjarrao was
followed in ESI Corpn v. A.K.Abdul Samad (2016) 4
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SCC 785, Krishna Prasad Verma v. State of Bihar
(2019) 10 SCC 640. In Krishna Prasad Verma it was
held as follows :
“16.We would, however, like to make it clear
that we are in no manner indicating that if a
judicial officer passes a wrong order, then no
action is to be taken. In case a judicial officer
passes orders which are against settled legal
norms but there is no allegation of any
extraneous influences leading to the passing of
such orders then the appropriate action which
the High Court should take is to record such
material on the administrative side and place it
on the service record of the judicial officer
concerned. These matters can be taken into
consideration while considering career
progression of the concerned judicial officer.
Once note of the wrong order is taken and they
form part of the service record these can be
taken into consideration to deny selection
grade, promotion etc., and in case there is a
continuous flow of wrong or illegal orders then
the proper action would be to compulsorily
retire the judicial officer, in accordance with
the Rules. We again reiterate that unless there
are clear-cut allegations of misconduct,
extraneous influences, gratification of any kind
etc., disciplinary proceedings should not be
initiated merely on the basis that a wrong order
has been passed by the judicial officer or
merely on the ground that the judicial order is
incorrect.”
One common thread is evident. Unless the
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official exercising quasijudicial function was actuated
by corrupt motive or he acted under extraneous
considerations or he was recklessly negligent, he
cannot be visited with disciplinary action. In this case,
the petitioner had carried out his quasi-judicial duty
while registering the documents in question. His
decision was endorsed not once but twice. There is no
allegation that the petitioner was swayed by any other
consideration. The petitioner has not committed any
act of misconduct. Even if the petitioner's decision as
regards the chargeability of the instrument is held to be
incorrect, still, no cause of action had arisen for
initiating disciplinary proceedings.
9.Respectfully applying the aforesaid ratio laid
down by the Hon'ble Supreme Court to the facts of this
case, I hold that the impugned charge memo ought not
to have been issued against the writ petitioner for
having taken a particular view as regards the
chargeability of the instrument under the relevant
provisions of the Stamp Act. The impugned charge
memo is quashed. ''
B)The learned counsel for the petitioner also placed reliance on the
judgment of a learned Single Judge of this Court reported in 2010
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[2] LW 964 : 2010 [7] MLJ 32 [B.K.Gunasekaran Vs. The State
of Tamil Nadu rep. by the Secretary to Government and
Others]. In that particular case also, the petitioner therein was
functioning as Assistant Inspector General of Registration at
Coimbatore and charges related to a Release Deed presented for
registration before the Joint Sub Regitsrar-II at Central Madras
and the charge was that the document should have been treated as
a conveyance and appropriate stamp duty should have been
collected. The 2nd charge was with respect to the loss on the
stamp duty not collected. In that particular case, the petitioner
had given his explanation and thereafter, an Enquiry Officer had
also been appointed and a Report had also been filed. The
petitioner therein had also given his reply to the charge memo.
The learned counsel for the petitioner had placed reliance on
paragraphs No.7, 13 and 14 of the said judgment which are as
follows:-
''7.Mr.N.R.Chandran, learned Senior counsel
and Mr.K.V.Venkatapathy, learned Senior counsel and
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P.V.Balasubramaniam, learned counsels appearing for
the petitioner would raise the common legal issue
based on which the impugned charge memo is liable to
be set aside. It is contended that the power exercised
by the registering authorities under the provisions of
the Indian Stamp Act, the Registration Act and the
Rules framed thereunder are quasi-judicial powers and
adjudicatory in nature and if there is any error in the
violation or assessment or discharge of such quasi-
judicial power, the same cannot be a basis for a
disciplinary proceedings in the absence of proof of any
motive or bad intention. The learned Senior counsels
would therefore submit the allegation in the charge
memo itself is regards the matter as to whether the
petitioner ought to have exercised the statutory power
under Section 33 (A) of the Act for recovery of deficit
stamp duty and such power being a quasi-judicial
power, since a decision has to be arrived at whether
proper Stamp Duty payable under the Act in respect of
such instrument has not been paid or has been
insufficiently paid and based on a certificate of the
Registrar of District could be recovered from the
person liable to pay the Stamp Duty. Therefore, it is
contended that failure to exercise such statutory power,
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which is in the nature of a quasi-judicial power can
hardly be a ground for initiation of disciplinary
proceedings. In support of such contention, the
learned Senior counsels referred to the decision of the
Hon'ble Supreme Court in Zunjarrao Bhikaji Nagarkar
Vs. Union of India and Others '' (1999) 7 SCC 409, and
the decision of the Hon'ble Division Bench of this
Court in The Special Commissioner and
Commissioner of Commercial Taxes, Chennai and
another Vs. N.Sivasamy, Commercial Tax Officer,
(Under suspension), Chennai and another-(2005) 4
MLJ 659, Union of India, rep. by the Secretary to
Government of India, Ministry of Finance,
Department of Revenue, New Delhi Vs. A.Kannan
and Another (2008) 4 MLJ 424 and the decision of
the learned Single Judge of this Court in S.Muthuramu
Vs. State of Tamil Nadu, rep. by its Chief Secretary to
Government, Public (Special-A) Department,
Chennai-9 and Another (2008) 3 MLJ 766.
.....
13.I have considered the submissions made on
either side and perused the materials available on
record. Though elaborately submissions have been
made on either side as regards the factual contentions
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raised, the first of the legal issues which would arise
for consideration is to whether the allegations
contained in the charge memo would clothe the
respondents with power to initiate disciplinary action.
It has been alleged in the charge memo that the
petitioner ought to have invoked Section 33 A of the
Indian Stamp Act for recovering a deficit Stamp Duty
on a release deed submitted before the Joint Registrar
Central Chennai, who treated the document as a deed
of release under Article 55 of Schedule I of the Stamp
Act. Section 33 A deals with recovery of deficit Stamp
Duty of the Stamp Act and provides for contingencies
for such recovery and procedure to be followed. At
this stage, it is useful to refer to 33A which reads as
follows:-
"33-A. Recovery of deficit stamp duty:-
(1) Notwithstanding anything contained in
section 33 or in any other provisions of this Act, if,
after the registration of any instrument under the
Registration Act, 1908 (Central Act XVI of 1908), it is
found that the proper stamp duty payable under this
Act in respect of such instrument has not been paid or
has been insufficiently paid, such duty or the deficit, as
the case may be, may, on a certificate from the
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Registrar of the district under the Registration Act,
1908 (Central Act XVI of 1908) be recovered from the
person liable to pay the duty, as an arrear of land
revenue:
Provided that no such certificate shall be
granted unless due inquiry is made and such person is
given an opportunity of being heard:
Provided further that no such inquiry shall be
commenced after the expiry of three years from the
date of registration of the instrument.
(2) The certificate of the Registrar of the district
under sub-section (1) shall, subject only to appeal
under sub-section (3), be final and shall not be called
in question in any court or before any authority.
(3)Any person aggrieved by a certificate of the
Registrar of the district under sub-section (1) may
appeal to the Chief Controlling Revenue Authority.
Any such appeal shall be preferred within such time,
and shall be heard and disposed of in such manner, as
may be prescribed."
14.Thus, it is to be noted that the pre-requisite
for invoking Section 33-A is that it has to be found that
proper Stamp duty payable under the Act in respect of
the instrument has not been paid or has not been
sufficiently paid and on determining such fact the
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Registrar of the District may issue a certificate for
recovery of such amount and no such certificate shall
be granted unless enquiry is made and such person is
given an opportunity of being heard and no such
enquiry shall be commenced after the expiry of three
years from the date of Registration of the instrument.
Thus, the determination as to whether proper Stamp
Duty has been paid under Act is a quasi-judicial
function to be exercised by the registering authority by
going through the contention of the document and
coming to an opinion as to determine as to what calls
the document could be classified for demanding proper
Stamp Duty as per the rates specified in Schedule I to
the Act. Therefore, there is an element of adjudication
involved in the matter for determination of proper
Stamp Duty chargeable on an instrument. Even
according to the respondents the concerned Joint Sub-
Registrar central Chennai treated the document as a
release deed and held that the document would fall
within the description under Article 55 of Schedule I.
The allegation is that an Audit objection was raised by
the Audit Department stating that such instrument
which was admitted for registration by a Sub-Registrar
ought to have been treated as a deed a of conveyance
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under Article 23 and not under Article 55 and
therefore, deficit stamp duty is payable and in spite
such Audit objection said to have been confirmed by
the Inspector General, the petitioner failed to invoke
Section 33-A for recovery of deficit stamp duty. In my
view the power of the Sub-Registrar is a quasi-judicial
power in determining the Stamp Duty. Likewise, the
officer in the position of the petitioner is required to
render a quasi-judicial findings before issuing a
certificate for recovery that the document in question
was not sufficiently Stamped. This finding cannot be
done without an enquiry to the aggrieved person.''
C)The learned counsel for the petitioner placed reliance on the
judgment dated 13.08.2012 in WP.No.6698/2009
[K.M.Thiyagaraj @ Henry Mani Vs. The Inspector General of
Registration, Chennai and Another]. That writ petition was also
filed seeking interference with the charge memo and the order of
suspension and the order by which the petitioner therein was not
permitted to retire from service. After extracting the charge
memo, it had been held by the learned Single Judge that it would
not be possible for the petitioner therein to give effective reply
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since the details had not been given in the charge memo. Be that
as it may, the learned Single Judge had held as follows:-
''12.Though the learned Additional Government
Pleader vehemently contended that the charge memo
and the consequential orders are not liable to be
quashed and also placed reliance on the decision of the
Hon'ble Apex Court in KUNNITSETTY's case [cited
supra] reported in AIR 2007 SC 906[I], I am unable to
countenance such contention for the simple reason that
the Hon'ble Apex Court has not imposed any total ban
for quashing the charge memos. It was made clear by
the Hon'ble Apex Court in the said decision that this
Court can quash a charge sheet in some very rare and
exceptional cases where the charges are found to be
wholly without jurisdiction or for some other reason, if
it is wholly illegal. As far as the case on hand is
concerned, it is already pointed out by this Court that
the charges are not specific and definite and the same
is vague and bald. It is also already pointed out by this
Court that the impugned charge memo is liable to be
quashed not only on the ground of vagueness of the
charge, but also on the ground that the petitioner has
acted only as a quasi-judicial authority and as such, in
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the absence of any specific allegation of dishonest or
corrupt practice or any ulterior motive, no charge can
be framed against a quasi-judicial authority. Further,
the disciplinary proceedings is not maintainable
insofar as the petitioner, on the basis of the impugned
charge memo as he has admittedly, discharged his
duties as a quasi-judicial authority. Therefore, the
impugned charge memo is liable to be quashed on this
ground also.''
D)The learned counsel for the petitioner also placed reliance on the
judgment of a learned Single Judge of this Court dated
26.02.2008 in WP.No.19012/2007 [S.Muthuramu Vs State of
Tamil Nadu]. In that particular case also, the petitioner therein
had questioned the issuance of a charge memo. The petitioner
therein was working as Additional Special Deputy Collector and
at that time, the Sub Registrar, Arakonam, had referred a
document under Section 47A[1] of the Indian Stamp Act.
Examining the charge, the learned Single Judge had stated as
follows:-
''7.(a) In the decision reported in (1999) 7 SCC
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409 (Zunjarrao Bhikaji Nagarkar v. Union of India),
the Supreme Court considered similar issue and held
that negligence in exercising quasi-judicial power by
mere carelessness or inadvertence or omission is not
sufficient to initiate proceedings under misconduct.
Unless there is a culpable negligence or ill-motive, no
charge could be framed. In paragraphs 43 and 44, the
Supreme Court held as follows:
"43.If every error of law were to
constitute a charge of misconduct, it would
impinge upon the independent functioning of
quasi-judicial officers like the appellant. Since
in sum and substance misconduct is sought to
be inferred by the appellant having committed
an error of law, the charge-sheet on the face of
it does not proceed on any legal premise
rendering it liable to be quashed. In other
words, to maintain any charge-sheet against a
quasi-judicial authority something more has to
be alleged than a mere mistake of law, e.g., in
the nature of some extraneous consideration
influencing the quasi-judicial order. Since
nothing of the sort is alleged herein the
impugned charge-sheet is rendered illegal. The
charge sheet, if sustained, will thus impinge
upon the confidence and independent
functioning of a quasi-judicial authority. The
entire system of administrative adjudication
whereunder quasi-judicial powers are
conferred on administrative authorities, would
fall into disrepute if officers performing such
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functions are inhibited in performing their
functions without fear or favour because of the
constant threat of disciplinary proceedings.
44.Considering whole aspects of the
matter, we are of the view that it was not a case
for initiation of any disciplinary proceedings
against the appellant. The charge of
misconduct against him was not proper. It has
to be quashed."
(b) Whether the disciplinary proceeding can
be initiated against a judicial officer, who granted bail
exercising discretion while discharging the Judicial
function, was considered by the Supreme Court in the
decision reported in (2007) 2 SCC (Criminal) 266
(Ramesh Chander Singh v. High Court of Allahabad).
In paragraph 12, the Supreme Court held as follows:
"12.This Court on several occasions has
disapproved the practice of initiation of
disciplinary proceedings against officers of the
subordinate judiciary merely because the
judgments/orders passed by them are wrong.
The appellate and revisional courts have been
established and given powers to set aside such
orders. The higher courts after hearing the
appeal may modify or set aside erroneous
judgments of the lower courts. While taking
disciplinary action based on judicial orders, the
High Court must take extra care and caution."
(c)In the decision reported in 2007 (3) LLN 106
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= (2007) 4 SCC 566 (Inspector Prem Chand v.
Government of N.C.J. of Delhi) following the earlier
decisions, the Supreme Court held that the acts of
negligence, error of judgment or innocent mistake, do
not constitute misconduct. In the above case, the
appellant/Police Officer failed to seize the tainted
money on receipt of complaint of alleged demand of
bribe by an Inspector (Malairiya). Department
initiated disciplinary proceeding 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 to have committed any misconduct
merely because in the opinion of the higher authorities
he ought to have seized the tainted money. The
Supreme 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) LLN 419) it was
stated, in para.5, at page 422:
''Misconduct has been defined in Black''s Law
Dictionary , 6th Edn. at p.999, thus:
''A transgression of some established and
definite rule of action, a forbidden act, a
dereliction from duty, unlawful behavior,
willful in character, improper or wrong
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behavior; its synonyms are misdemeanor,
misdeed, misbehavior, delinquency,
impropriety, mismanagement, offense, but not
negligence or carelessness.''
Misconduct in office has been defined as:
''Any unlawful behavior by a public
officer in relation to the duties of his office,
willful in character. Term embraces acts which
the 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 Aiyar''s 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 mere error of
judgment.
Misconduct is not necessarily the same
thing as conduct involving moral turpitude.
The word ''misconduct'' is a relative
term, and has to be construed with reference to
the subject-matter and the context wherein the
term occurs, having regard to the scope of the
Act or statute which is being construed.
''Misconduct'' literally means wrong conduct or
improper conduct.''
(See also Bharat Petroleum Corpn. Ltd. v.
T.K. Raju (2006 (2) LLN 54))
12. It is not in dispute that a disciplinary
proceeding was initiated against the appellant
in terms of the provisions of the Delhi Police
(Punishment and Appeal) Rules, 1980. It was,
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therefore, necessary for the disciplinary
authority to arrive at a finding of fact that the
appellant was guilty of an unlawful behaviour
in relation to discharge of his duties in service,
which was wilful in character. No such finding
was arrived at. An error of judgment, as
noticed hereinbefore, per se is not a
misconduct. A negligence simpliciter also
would not be a misconduct. In Union of India
v. J.Ahmed ((1979) 2 SCC 286) whereupon Mr
Sharan himself has placed reliance, this Court
held so stating:
''Code of conduct as set out in the
Conduct Rules clearly indicates the conduct
expected of a member of the service. It would
follow that conduct which is blameworthy for
the government servant in the context of
Conduct Rules would be misconduct. If a
servant conducts himself in a way inconsistent
with due and faithful discharge of his duty in
service, it is misconduct (see Pierce v. Foster
17 Q.B.536, 542). A disregard of an essential
condition of the contract of service may
constitute misconduct [see Laws v. London
Chronicle (Indicator Newspapers (1959(1)
W.L.R.698)). This view was adopted 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 the definition of
misconduct in Stroud''s Judicial Dictionary
which runs as under:
''Misconduct means, misconduct arising
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from ill motive; acts of negligence, errors of
judgment, or innocent mistake, do not constitute
such misconduct ''.
(emphasis supplied)
(d)A Division Bench of this Court in the decision
reported in 1999 (2) LW 174 (A.M.Sankaran v. The
Registrar, High Court, Madras), quashed an order of
compulsory retirement passed against the judicial
officer for destroying the seized spirit without
examining or recording any evidence regarding the
inflammable nature of the spirit. This court held that
the said order having been passed during discharge of
the function as judicial officer, framing such charge
without any allegation or recklessness or abuse of
power, cannot be sustained.
8.Applying the principles laid down in the above
decisions to the facts of this case, particularly when
there is no motive or recklessness attributed against
the petitioner and no misconduct is committed by the
petitioner, I hold, the charge as framed is not
maintainable against the petitioner, who is a quasi-
judicial authority. The impugned order is set aside and
the writ petition is allowed. No costs. Connected
miscellaneous petitions are closed.''
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E)The learned counsel for the petitioner also placed reliance on a
judgment of a Division Bench of this Court in
WP.No.41699/2002 [Special Commissioner and Commissioner
of Commercial Taxes, Chennai Vs. N.Sivasamy, Commercial
Tax Officer, [Under Suspension], Chennai]. There again, the
Division Bench had examined whether a charge memo could be
issued for an act of omission or commission of a work which is
quasi judicial in nature. The learned counsel relied on paragraph
No.4, which is extracted below:-
''4.A perusal of the above charges would show
that incorrect report without personally verifying the
bill of lading, wrong deduction of the amount from the
taxable turnover, failure to take follow-up action to
prevent misuse of forms and loss of revenue, loss of
records, failure to make payment in time, failure to
make demand in time, short levy of penalty, wrong
statement and false report causing loss, as rightly
observed by the Tribunal and argued by the learned
counsel for the applicant, in none of the charges there
is allegation misappropriation or any other offence of
criminal nature. Though learned Government
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Advocate vehemently contended that the charges are
all of serious nature, on going through the same, we
are unable to accept his 5 contention, as the same
cannot be construed as criminal allegations. At the
most, he must be held responsible for negligence.
In Union of India Vs. R.K.Desai, 1993 [2] SCC
49, after finding that there is deficiency in discharging
quasi-judicial function, however, that cannot be a basis
for disciplinary action. The following conclusion of
their Lordships is relevant:-
''4.In our view, the allegations are merely to the
effect that the refunds were granted to
unauthorised persons and this was done in
disregard to the instructions of the Central
Board of Direct Taxes. There is no allegation,
however, either express or implied that these
actions were taken by the respondent actuated
by any corrupt motive or to oblige any person
on account of extraneous considerations. In
these 5 circumstances, merely because such
orders of refunds were made, even assuming
that they were erroneous or wrong, no
disciplinary action could be taken as the
respondent was discharging quasi-judicial
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function. If any erroneous order had been
passed by him the correct remedy is by way of
an appeal or revision to have such orders set
aside.''
In Zunajarro Bhikaji Nagarkar V. Union of India
AIR 1999 SC 2881 : 1999 [7] SCC 409 : 2000-1-LLJ-
728 in similar circumstance, the Supreme Court after
finding that the applicant being a quasi-judicial
authority, he is always subject to judicial supervision
in appeal, merely because penalty was not imposed,
concluded that the charge of misconduct against the
applicant was not proper and quashed the Disciplinary
Proceedings initiated against him
In the light of the above principles, let us
consider whether the department would be justified to
take action under Pension Rules by pursuing the above
charges, on the ground that the applicant attained
superannuation even on July 31, 1997. It is the definite
case of the applicant, that in his capacity as
Commercial Tax Officer, Assessment Circle, he had
been exercising the quasi judicial power. As rightly
pointed out assuming that there was any error, the
remedy would be by way of appeal or revision as
provided in the Central Sales Tax Act or Tamil Nadu
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General Sales Tax Act. Further, there was inordinate
delay in issuing the charge memo. It is not in dispute
that in respect of alleged occurrence in 1992-1995,
charge memo was issued on July 15, 1997 and served
on July 23, 1997 when he was due to retire on the
afternoon of July 31, 1997.''
(21) Placing reliance on the ratios laid down in the above judgments, it
had been very strenuously argued by the learned counsel for the
petitioner that this Court should interfere with the charge memos
issued to the petitioner herein and quash the charge memos.
(22) In this connection, it had also been stated that in several of the
registrations given in the Annexure, proceedings had also been
initiated under Section 47 of the Indian Stamp Act and it is then
stated that since such proceedings had been initiated, the petitioner
cannot be held responsible even deficit stamp duty had been
collected by her. With respect to valuation, it had been stated again
that, that is an adjudicatory process and since it was an adjudication,
disciplinary action should not be initiated against the petitioner herein
and learned counsel faulted the respondents for having issued the
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charge memos. It had been stated that in view of the pronouncements
made above, it would be extremely harsh on the part of the petitioner
herein to participate in the Disciplinary Proceedings particularly
when the charge memos themselves suffer from having been issued
questioning quasi judicial order of the petitioner herein. The learned
counsel for the petitioner therefore, submitted that the charge memos
should be quashed and consequently, if the charge memos are
quashed, then the order of suspension should be revoked and the
petitioner should be permitted to retire and the order, not permitting
the petitioner to retire, should be set aside. It is also contended that a
mandamus would also lie as sought for in WP.No.11781/2016 and
order should be passed in the enquiry already conducted against the
petitioner herein.
(23) The learned Special Government Pleader on behalf of the respondents
however disputed the contentions raised by the petitioner herein. It is
the contention of the learned Special Government Pleader that the
charges indicate that the petitioner had, by her acts of commission
and omission, collected deficit stamp duty from nearly about more
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than 400 documents. It had been stated that therefore, the petitioner
is duty bound to give her explanations, to the respondents herein and
if such explanations are given to the respondents, they would be in a
position to examine the explanations along with the records available.
It had been stated that it is only a preliminary stage of a charge memo
being issued and at that stage, the Court should not interfere with the
proceedings. The learned Special Government Pleader also pointed
out the charge memos issued against the petitioner herein and alleged
that the petitioner had been the direct cause for collection of deficit
stamp duty which correspondingly had led to unlawful gain by those
who had presented the documents for registration.
(24) With respect to the contention that the act of collection of deficit
stamp duty is quasi-judicial authority, the learned Special
Government Pleader had placed reliance on the judgment of the
Hon'ble Supreme Court as stated in the counter affidavit, reported in
2016 [10] SCC 767 [Satya Pal Anand Vs. State of Madhya Pradesh
and Others]. In that particular case, which had been referred to a
Larger Bench of Hon'ble Supreme Court consequent to difference of
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opinion of the two Coordinate Benches of the Hon'ble Supreme
Court, the points in difference were as follows:-
''A.M.KHANWILKAR, J. This appeal has been
placed before a three-Judge Bench in terms of order
dated 25-8-2015 [Satya Pal Anand v. State of M.P.,
(2015) 15 SCC 263 : (2016) 3 SCC (Civ) 318] ,
consequent to the difference of opinion between the two
learned Judges of the Division Bench.
2. Dipak Misra, J. took the view that, in the fact
situation of the present case the writ petition filed by
the appellant challenging the order passed by the Sub-
Registrar (Registration) and the Inspector General
(Registration) was rightly dismissed [Satya Pal
Anand v. State of M.P., 2011 SCC OnLine MP 627 :
(2012) 1 MPLJ 555] by the High Court. However, his
Lordship opined that a question would still arise for
consideration, namely, whether in absence of any
specific rule in the State of Madhya Pradesh, the
general principle laid down in Thota Ganga
Laxmi v. State of A.P. [Thota Ganga Laxmi v. State of
A.P., (2010) 15 SCC 207 : (2013) 1 SCC (Civ) 1063]
would be applicable?
3. V. Gopala Gowda, J., on the other hand,
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allowed the appeal on the finding that the Sub-
Registrar (Registration) had no authority to register
the extinguishment deed presented by the respondent
Society dated 9-8-2001 and his action of registration of
that document was void ab initio. For the same reason,
the subsequent deeds in respect of the property in
question registered by the Sub-Registrar dated 21-4-
2004 and 11-7-2006 were also without authority and
void ab initio. His Lordship held that the High Court
should have declared the above position and set aside
registration of the subject documents and also the
orders passed by the Sub-Registrar (Registration) and
Inspector General (Registration). His Lordship allowed
the appeal filed by the appellant with compensation
amount to be paid by the respondents quantified at Rs
10 lakhs.''
(25) On the basis of aforementioned facts and ratio laid down by the
Division Bench, the Larger Bench of the Hon'ble Supreme Court had
formulated the questions which were referred as follows:-
23. Having considered the rival submissions, including
keeping in mind the view taken by the two learned
Judges of this Court on the matters in issue, in our
opinion, the questions to be answered by us in the fact
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situation of the present case, can be formulated as
under:
23.1. “(a) Whether in the fact situation of the
present case, the High Court was justified in dismissing
the writ petition?
23.2. (b) Whether the High Court in exercise of
writ jurisdiction under Article 226 of the Constitution
of India is duty-bound to declare the registered deeds
(between the private parties) as void ab initio and to
cancel the same, especially when the aggrieved party
(appellant) has already resorted to an alternative
efficacious remedy under Section 64 of the 1960 Act
before the competent forum whilst questioning the
action of the Society in cancelling the allotment of the
subject plot in favour of the original allottee and
unilateral execution of an extinguishment deed for that
purpose?
23.3. (c) Even if the High Court is endowed with
a wide power including to examine the validity of the
registered extinguishment deed and the subsequent
registered deeds, should it foreclose the issues which
involve disputed questions of fact and germane for
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adjudication by the competent forum under the 1960
Act?
23.4. (d) Whether the Sub-Registrar
(Registration) has authority to cancel the registration
of any document including an extinguishment deed
after it is registered? Similarly, whether the Inspector
General (Registration) can cancel the registration of
extinguishment deed in exercise of powers under
Section 69 of the 1908 Act?
23.5. (e) Whether the Sub-Registrar
(Registration) had no authority to register the
extinguishment deed dated 9-8-2001, unilaterally
presented by the respondent Society for registration?
23.6. (f) Whether the dictum in Thota Ganga
Laxmi [Thota Ganga Laxmi v. State of A.P., (2010)
15 SCC 207 : (2013) 1 SCC (Civ) 1063] is with
reference to the express statutory Rule framed by the
State of Andhra Pradesh or is a general proposition of
law applicable even to the State of Madhya Pradesh, in
absence of an express provision in that regard?”
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(26) One of the questions which was presented was whether the High
Court in exercise of Writ jurisdiction under Article 226 of the
Constitution, had the power to declare a registered Deed between
private parties as void ab initio and cancel the same particularly,
when one of the parties had resorted to an alternate efficacious
remedy under Section 64 of the Registration Act before the competent
Forum. One of the other questions was whether the Sub Registrar
[Registration] had authority to cancel the registration of any
document including an extinguishment Deed after its registration.
While answering the issues, the Larger Bench of the Hon'ble Supreme
Court had stated that the High Court, in that particular case, was
correct in dismissing the writ petition with liberty to pursue the
statutory remedy as provided under the Statute. The references had
been answered that once the document is registered, the role of the
Sub Registrar [Registration], stands discharged and thereafter, the
documents cannot be cancelled. The power of the Inspector General
is limited to superintendence of the Registration Offices and make
Rules in that behalf. It had been very specifically held that the
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Inspector General has no power to cancel registration of any
document which had already been registered. In effect, the ratio laid
down is that once the document had been registered with deficit
stamp duty, then the document does not become void, but is voidable
and the authorities have every right to seek the deficit stamp duty to
be paid. It had also been held that this is so because it cannot be held
that it is strictly an adjudication of the stamp, but an act of negligence
by the Sub Registrar.
(27) The learned Special Government Pleader having placed reliance on
this particular judgment which was rendered by a Larger Bench of the
Hon'ble Supreme Court, stated that therefore the petitioner herein
should answer the charges framed against her and stated that if the
petitioner gives an explanation, the said explanation would be
considered in its proper light and stated that at this stage, it may not
be proper on the part of this Court to interfere with the charge memos.
(28) I have carefully considered the arguments and more particularly,
considered the ratios laid down by a string of judgments of this Court
by the learned Single Judges and also by a Division Bench.
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(29) It must be straightaway stated that the Division Bench was more
concerned with the delay in issuing the charge memo. In
T.Rajendran's case referred supra, in WP[MD].No.13924/2022, the
learned Single Judge who had delivered the order on 08.09.2022 in
Madurai Bench, had unfortunately not examined the decision of the
Larger Bench of the Hon'ble Supreme Court reported in 2016 [10]
SCC 767 [Satya Pal Anand's case] referred supra, which was
specifically referred to the Larger Bench on difference of opinion
between two Coordinate Benches. The ratio laid down by the Hon'ble
Supreme Court as stated in the judgment of the learned Single Judge
was also questioned and deviated by another Coordinate Bench which
was also referred by the learned Single Judge. The learned Single
Judge had stated that there was a judgment of the Hon'ble Supreme
Court reported in 1999 [7] SCC 409 [Zunajarro Bhikaji Nagarkar
V. Union of India], wherein it had been stated that erroneous
exercise of jurisdiction by a quasi-judicial authority cannot result in
Disciplinary Proceedings. A Three Judges Bench of the Hon'ble
Supreme Court, examined the same issue in the decision reported in
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2006 [5] SCC 680 [Union of India and Others Vs. Duli Chand] and
it examined another decision of a Three Judges Bench of the Hon'ble
Supreme Court reported in 1993 [2] SCC 56 [Union of India and
Others Vs. K.K.Dhawan]. In that particular decision, it had been held
that the view that no disciplinary action could be initiated against an
officer discharging judicial or quasi-judicial functions, was wrong. It
had been very specifically held that the officer who exercised judicial
or quasi-judicial powers and acts negligently or recklessly, can be
proceeded against by ways of disciplinary action. Instances had also
been stated. There was also another Three Judges Bench decision of
the Hon'ble Supreme Court reported in 2007 [4] SCC 247 [Ramesh
Chander Singh Vs. High Court of Allahabad and Others]. Once
again, the earlier judgments were not brought to the notice of the
other Coordinate Bench. The primary issue was whether a quasi-
judicial function erroneously conducted, could be the subject matter
of a charge memo issued by the authorities concerned. The learned
Single Judge while examining all these judgments, had unfortunately
not referred to the judgment of reference before a Larger Bench of the
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Hon'ble Supreme Court as held in 2016 [10] SCC 767 [Satya Pal
Anand's case] referred supra. Even though reference was with
respect to cancellation of a document and whether the Registration
Department could cancel the document, one of the aspects which was
deeply considered was about the adjudicatory powers of the Sub
Registrar and it had been held that the authorities can proceed if it
had been done recklessly.
(30) Now, coming back to the facts of the present case, in the first writ
petition in WP.No.9851/2016, to the Annexure in the Charge Memo,
it had been stated by the respondents that the petitioner had
committed acts of negligence while registering as many as 62
documents. In the other writ petition in WP.No.11156/2016, in the
four charges issued against the petitioner herein, again the Annexure
had been given and it is stated that he petitioner had collected deficit
stamp duty in as many as 323 documents. This would only give an
impression that in every document presented before the petitioner
herein, she had collected deficit stamp duty. It is not an act of
negligence. It is a series of acts and the total exceeds 400 documents.
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Every Sub Registrar would be working in a particular Sub Registrar
Office only for a limited period of time. If for every alternate
document, the petitioner was to collect deficit stamp duty, naturally,
she must explain the basis on which she had so collected deficit
stamp duty. It is a different issue that the amounts have been
subsequently collected or amounts are subject matter of further
adjudication under Section 47 of the Indian Stamp Act. But still, the
petitioner is duty bound to explain her acts of negligence, if at all, it
could be termed as negligence. The petitioner should be aware that a
responsibility had been cast on her as Sub Registrar and as Joint
Registrar and she had to necessarily collect the correct stamp duty.
No reason had been given as to why she had collected deficit stamp
duty. Claiming innocence on the basis that she had gone along with
the records in the office of the Sub Registrar and had not verified the
guideline value as given in the website, would not take the petitioner
anywhere and it would only be a weak argument as ignorance of the
guideline value makes her unfit to work as Sub Registrar or as a Joint
Registrar.
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(31) She had been cast with the onerous responsibility to collect stamp
duty as has been stipulated by the guideline value. There is no reason
for the petitioner to favour the parties who presented the document
for registration. These are issues which could be examined only if
she gives explanations and this Court cannot sit as an Enquiry Officer
to examine whether each and every explanation given by the
petitioner would require the charge memo to be dropped against her
in entirety and whether for all the documents presented for
registration, explanations have been given. There are also instances
pointed out by the petitioner herein that the same documents had been
mentioned again and the deficit stamp duty being stated differently
for the same document. This may be an error in the charge memo, but
that would not invite the charge memo itself to be wiped away from
the face of the records.
(32) She had been paid her salary by way of public tax and it is only
expected that any public servant who does not discharge his/her duty
to the best of his/her ability, can never claim innocence and ignorance
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and seek indulgence. If the petitioner is not capable to perform her
duty as Sub Registrar, then she should have resigned and walked
away. It is also to be noted that she had not gone through the ordeal
of being selected and not gone through the selection process for
appointment to the post of Sub Registrar in the Registration
Department, but had been the beneficiary of being selected by the
respondents on compassionate grounds directly as Junior Assistant.
Therefore, she had the benefit of being so appointed and after having
been promoted as Assistant and subsequently, as Sub Registrar and
also as Joint Registrar, if in over 400 documents, continuously she
were to collect deficit stamp duty and then turn around and state that
the Court should examine her explanation, I am afraid that under
Article 226 of the Constitution of India, this Court cannot conduct an
enquiry about the various charges levelled against the petitioner
herein. It is for the respondents to so conduct an enquiry. The
petitioner should forward the explanations to the respondents and the
respondents, I am confident, would examine them with alignment
with the records already available.
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(33) In view of the same, I hold that no grounds have been made to
interfere with the charge memos issued to the petitioner and
consequently, WP.Nos.9851 and 11156/2016 stand dismissed.
(34) With respect to the mandamus sought in WP.No.11781/2016, a
direction is given to the petitioner herein to once again give a copy of
the representation already given by her on 11.03.2016 and if such
representation is given, the respondents may examine the same and
pass necessary orders. But, even that would become otiose since that
particular representation is for permitting the petitioner to retire from
service, since she is facing Disciplinary Proceedings, it may not be
possible for the respondents to permit the petitioner to retire from
service and therefore, the order placing the petitioner under
suspension which is the subject matter of WP.No.11782/2016 is
upheld by me and the writ petition in WP.No.11782/2016 stands
dismissed.
(35) The order, not permitting the petitioner to retire from service which is
the subject matter of WP.No.13132/2016 is also upheld by me.
Hence, WP.No.13132/2016 also stand dismissed.
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(36) The mandamus sought becomes otiose since this Court itself had
stated that the petitioner cannot be permitted to retire. Hence,
WP.No.11781/2016 stands dismissed.
(37) In effect, all the five writ petitions stand dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
26.09.2023
AP
Internet : Yes
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WP.Nos.9851, 11156, 11781, 11782 & 13132/2016
To
1.The Inspector General of Registration
Registration Department,
Santhome, Chennai.
2.The Deputy Inspector General of Registration
Registration Department, Cuddalore Zone
Thirupapuliyur, Cuddalore.
3.The Deputy Inspector General of Registration
Registration Department, Chennai Zone
27, Rajaji Salai, Chennai-1.
4.The District Registrar
Chidambaram.
5.The District Registrar [Audit], Chengalpattu.
6.The District Registrar [Administration], Chengalpattu.
7.The District Registrar [Audit], Villupuram.
8.The District Registrar [Administration], Villupuram.
9.The District Registrar [Admin]
The Enquiry Officer, Tindivanam.
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C.V.KARTHIKEYAN, J.,
AP
WP.Nos.9851, 11156, 11781, 11782 & 13132/2016
26.09.2023
https://www.mhc.tn.gov.in/judis
