IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.12.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION No.3184 OF 2008 V.Chennakesavalu ..Petitioner vs. 1.The State of Tamil Nadu rep. By its Secretary to Government Commercial Taxes & Religious Department Secretariat, Chennai 600 009. 2.The Inspector General of Registration Chennai 600 028. ..Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari calling for the records relating to the orders in (i) proceedings No.42249/A3/2002, dated 05.08.2003 of the Inspector General of Registration, Chennai-28 the 2nd respondent herein (ii) G.O.(D)No.282, Commercial Taxes (H1) Department, dated 22.07.2005, of the Secretary, Commercial Taxes (H1) Department, Chennai-9 and (iii) Letter No.23348/H1/2005-2 dated 24.08.2007 of the Secretary to Government, Commercial Taxes of Registration Department, Secretariat, Chennai-9, the 1st respondent herein and quash the same. For Petitioner : Mr.R.Muthukkannu For Respondents : Mr.R.Murali Government Advocate ORDER The writ petitioner was selected by the Tamil Nadu Public Service Commission (TNPSC) and appointed as District Registrar in the Registration Department, in which post he joined on 16.04.1992. While the petitioner was working as the District Registrar (Audit), South Chennai between 19.06.1998 and 02.09.2002, a memo was issued to him by the second respondent on 28.02.2002 under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and appeal) Rules, 1955, (in short, "the Rules") for which the petitioner submitted his explanation on 06.11.2002, denying the charges. On 05.08.2003, the https://hcservices.ecourts.gov.in/hcservices/ second respondent passed an order of punishment imposing stoppage of increment for two years without cumulative effect. 2. On an appeal filed by the petitioner to the first respondent on 05.08.2003, the first respondent while confirming the above said order of the second respondent, modified the punishment to that of stoppage of increment for one year without cumulative effect instead of two years and rejected the appeal on 22.07.2005 and the review petition filed to the Government on 17.10.2005 was also rejected on 24.08.2007, and therefore the present writ petition is filed challenging the above said orders. 3. The main contention of the petitioner in the appeal was that in respect of the allegations, charges were framed against the Sub- Registrar, Kunrathur under Rule 17(b) of the Rules and after enquiry, the second respondent dropped the said charges levelled against the Sub-Registrar on 23.01.2004. The charges which were framed against the petitioner are as follows: " Count No.1:- That Thiru V.Chennakesavalu, while working as District Registrar (Audit), South Chennai, had failed to find out in the Internal Audit about the registration of documents at Sub-Registrar Office, Kundrathur viz., Document Nos.1960/2001 to 1965/2001, 2059/2001, 2060/2001, 2069/2001, 2070/2001, 2071/2001, 2624/2001, 2892/2001, 3804/2001, 3805/2001, 3806/2001, 3809/2001, 3810/2001, 3826/2001, 2092/2001, 2093/2001, 2501/2001 to 2509/2001, without obtaining No Objection Certificate as per G.O.Ms.No.150 C.T. & R.E. Department dated 22.09.2000. Count No.2:- That he had failed to find out in the Internal Audit in respect of Subbiah Nagar of Madhananthapuram Village for which there was no value prescribed in the Guideline, but the Sub-Registrar, Kundrathur without getting the value Fixation order from Deputy Inspector General of Registration, on his own accord fixed value and registered the Document Nos.2484/2001, 2884/2001, 2885/2001, 3293/2001. Thus he has failed to find out the same and acted negligently in violation of Rule 20 (1) of the T.N.G.S.Conduct Rules." 4. The explanation submitted by the petitioner was that No Objection Certificate is required only relating to the first sale and not for the second and subsequent sales of property as per the clarifications of the second respondent dated 29.02.2001 and the documents registered by Mr.S.Swaminathan, Sub-Registrar, Kundrathur, are all relating to the period falling after the clarificatory order dated 29.02.2001, since the registrations were effected on 07.06.2001, 28.06.2001 and 19.07.2001. https://hcservices.ecourts.gov.in/hcservices/ 5. It is the case of the petitioner that Mr.S.Swaminathan, Sub- Registrar, Kundrathur, who had registered the documents was exonerated from the charges only on the ground that the registration was in respect of second sales. It is also stated that the said G.O.Ms.No.150 C.T. & R.E. Department dated 22.09.2000 itself has been revoked by the Government by subsequent G.O.Ms.No.139 C.T. & R.E. Department dated 25.07.2007. 6. In respect of the second charge, it was the case of the petitioner that guideline value was fixed only for agricultural lands, based on which the Sub-Registrar, Kundrathur, valued the sites as per the guidelines issued in the form of Inspector General of Registration's proceedings dated 09.01.1998 and the value of the site in such circumstances have to be fixed with the help of topo sketch of the village, by adopting the highest value of the surrounding survey numbers and when the Sub-Registrar was held not responsible for under valuation, the petitioner being the District Registrar (Audit) cannot be made responsible at all. 7. It is also the case of the petitioner that under similar circumstances, in respect of another District Registrar (Audit), Tirupur, viz., N.Gopalakrishnan, punishment of Censure was imposed by the Inspector General of Registration and discrimination was shown by the TNPSC in the case of the petitioner by making recommendation otherwise. It is also stated that as submitted by the learned counsel for the petitioner that against the Sub-Registrar, Kundrathur charges were framed under Rule 17(b) of the Rules on 23.08.2002, which were dropped by the second respondent on 23.01.2004 and the memo was issued to the petitioner on 28.08.2002 under Rule 17(a) of the Rules, for which the petitioner filed his explanation on 06.11.2002 and the second respondent passed final orders on 05.08.2003, imposing the punishment of stoppage of increment for two years without cumulative effect, against which an appeal was filed before the first respondent on 21.11.2003. Pending the appeal, the second respondent dropped action against the Sub-Registrar, Kundrathur and therefore, the petitioner has filed additional grounds in the appeal before the first respondent on 23.02.2004 and the first respondent, appellate authority passed orders on 22.07.2005, by modifying the punishment to that of stoppage of increment for one year without cumulative effect instead of two years and the review petition was also rejected. That apart, it has been the case of the petitioner that he acted bona fide and there was no mala fide intention. 8. Mr.R.Muthukkannu, the learned counsel appearing for the petitioner by relying upon the judgment of the Division Bench of this Court in V.Arulkumar vs. Housing and Urban Development Corporation Ltd., New Delhi and others (2009 (3) CTC 388) would contend that when delinquent officers facing identical charges, they should be dealt with similarly. He would also rely upon the judgment of the Supreme https://hcservices.ecourts.gov.in/hcservices/ Court in Akhilesh Kumar Singh vs. State of Jharkhand (2008 (2) SCC 74), to substantiate the said contention. He further relied upon another judgment of the Supreme Court in Man Singh vs. State of Haryana [2008 (8) MLJ 518 (SC)], apart from the another Division Bench judgment of this Court in M.Rajamanickam vs. The Executive Director, Bharat Heavy Electricals Ltd., (1997 WLR 536). 9. On the other hand, it is the contention of the learned Government Advocate that the charges framed against the petitioner as District Registrar (Audit) are different from the charges against the Sub-Registrar, Kundrathur, and therefore, the petitioner and the Sub- Registrar should not be treated equally. It is his submission that while the Sub-Registrar was dealt with under Rule 17(b) of the Rules, the petitioner was dealt with for minor punishment under Rule 17(a) of the Rules. 10. As per the memo issued by the second respondent dated 28.08.2002 against the petitioner under Rule 17(a) of the Rules, two set of charges are explained, in which one relates to the registration of various documents in the Office of the Sub-Registrar against G.O.Ms.No.150 C.T. & R.E. Department dated 22.09.2000, by which the Sub-Registrar registered the same without obtaining No Objection Certificate and another relates to registration of two documents, wherein the Sub-Registrar registered the same without obtaining the valuation particulars from the Joint Inspector General of Registration in the absence of guideline value for Madhanandhapuram village, and therefore, the petitioner as a District Registrar (Audit) has violated Rule 20(1) of the Rules. The contents of the memo issued by the second respondent to the petitioner is as follows: " jpU/tP/brd;dnfrtY. bjd;brd;id jzpf;if khtl;lg; gjpthsuhfg; gzpahw;wp tUifapy; Fd;wj;J}h; rhh;gjpthsh; mYtyf Mtz vz;/1960-2001 Kjy; 1965-2001. 2059-2001. 2060-2001. 2069-2001. 2070-2001. 2071-2001. 2624-2001. 2892-2001. 3804-2001. 3805-2001. 3806-2001. 3809-2001. 3810-2001. 3826-2001. 2092-2001. 2093-2001. 2501 Kjy; 2509- 2001 tiu cs;s Mtz';fSf;F murhiz vz;/150 tzpf thpj;Jiw ehs; 22/09/2000d; go jilapd;ik rhd;W bgwhJ Mtzg;gjpt[ nkw;bfhz;lija[k; kjde;jg[uk; fpuhk tHpf;fhl;og; gjpntl;oy; Rg;igah efh; bghWj;J Mtz vz;fs;/2484-2001. 2884-2001. 2885-2001. 3293-2001 Mfpatw;wpw;F kjpg;g[ ,y;yhj epiyapy; mtw;wpw;F Jizg; gjpt[j; Jiwj; jiythplk; kjpg;g[ eph;zak; nfhhpg; bgwhJ jd;dpr;irahf kjpg;g[ nrh;j;jija[k; cs;jzpf;ifapd; nghJ fz;Lgpof;f jtwp jd; flikapy; bkj;jdkhft[k;. ftdkpd;wpa[k; gzpahw;wp muRg; gzpahsh; elj;ij tpjp 20(1)I kPwpa[s;shh;/" 11. On the other hand, as it is seen in the final order of the second respondent dated 23.01.2004 in respect of Mr.S.Swaminathan, Sub-Registrar, Kundrathur, who had registered the above said https://hcservices.ecourts.gov.in/hcservices/ documents, the charges framed under Rule 17(b) of the Rules, were ordered to be dropped by the second respondent. The charges framed against the said Sub-Registrar, were as follows: "Fw;wr;rhl;L 1 jpU/R/Rthkpehjd;. Fd;wj;J}h; rhh;gjpthsuhf gzpg[hpe;J tUifapy; Fd;wj;J}h; fpuhkj;ijr; nrh;e;j brhj;Jf;fis bghUj;J gjpt[ bra;ag;gl;Ls;s fPH;f;fhQqk; gl;oaypy; fz;Ls;s 31 Mtz';fspy; murhiz vz;/150 tzpfthpj;Jiw ehs; 22/09/2000d;go eph;zapf;fg;gl;lgo chpa mYtyhpd; jilapd;ik rhd;wpid bgwhky; gjpt[f;F jhf;fy; bra;ag;gl;l Mtz';fisg; gjpt[f;F Vw;W gjpt[ bra;J jpUk;g tH';fpa[s;sjd; K:yk; nkw;go murhizapida[k; kPwp bray;gl;Ls;sPh;fs;/ j';fsJ gzpapy; ftdkpd;wpa[k;. bghWg;gpd;wpa[k;. flik jtwpa[k;. bray;gl;L muR gzpahsh; elj;ij tpjp 20(1)I kPwpa[s;shh;/ I. kfpHk; vd;fpnst; ng!; II 1/1960-2001 Kjy; 1965-2001 Koa 2/2059-2001 3/2060-2001 4/2069-2001 5/2070-2001 6/2071-2001 7/2624-2001 8/2892-2001 9/3804-2001 10/3805-2001 11/3806-2001 12/3809-2001 13/3810-2001 14/3826-2001 II.N:h;ah mbtd;a{ 15/ 2092-2001 16/ 2093/2001 III. Ru!;tjp fhh;ld; 17/ Mtz vz;/2501-2001 Kjy; 2509-2001 tiu Fw;wr;rhl;L 2 jpU/R/Rthkpehjd; Fd;wj;J}h; rhh;gjpthsuhf gzpg[hpe;J tUifapy; nkw;go rhh;tjptf kjde;jg[uk; fpuhk tHpf;fhl;o gjpntl;oy; Rg;iga;ah efh; vd;w kidapl gphpt[f;F 1/4/2000 kw;Wk; 1/4/2001y; gjpt[j;Jiwj; jiyth; Miz vz;/5603-vy;3-1995-2. ehs; https://hcservices.ecourts.gov.in/hcservices/ 4/4/1996k;njjpa Mizapy; Twg;gl;Ls;s mwpt[iuapid gpd;gw;wp bray;glhky; nkw;go kjde;jg[uk; fpuhk tHpf;fhl;o gjpntl;oy; efh;. bjUthhp kjpg;g[ gl;oaypy; brd;id Jizg; gjptj;Jiwj; jiyth; Mizapid bgwhky; thpir vz;/73. Rg;igah efh; vd;W ifahy; vGjp 1/4/2000y; r/mo U:/110-- vd;Wk; 1/4/2001y; r/mo U:/121-- vd;Wk; jd;dpr;irah kjpg;gpidr; nrh;j;J nkw;go jtwhd kjpg;gpd; mog;gilapy; Mtz vz;fs; 2484-2001. 2884-2001. 2885-2001. 3293-2001 Mfpa Mtz';fis gjpt[ nkw;bfhz;L j';fsJ gzpapy; mjpfhu tuk;gpid kPwp bray;gl;Ls;shh;/" 12. A reference to the said charges framed against the petitioner as well as the said Swaminathan, Sub-Registrar, who has registered the documents shows that they are all relating to the same documents and the charges are also similar, except that in respect of the Sub-Registrar, the charge under Rule 17(b) was that he has registered against G.O.Ms.No.150 C.T. & R.E. Department dated 22.09.2000 and he has not chosen to get the valuation from the higher authorities in the absence of guideline value in Madhanandhapuram village, while in the case of the petitioner being the District Registrar (Audit), the charge was that he has not noted the defect made by the Sub-Registrar in registering the documents. Therefore, there is no difficulty to conclude that the charges are similar and the contention of the learned counsel for the respondents that they are differently situated people and therefore they cannot be treated as equal, holds no good. In the hierarchy of posts, the petitioner may be a superior officer than the Sub-Registrar, but the charges are relating to the registration of same documents. In fact, the charges against the Sub-Registrar are more serious as it is seen that the second respondent himself has taken action against the said Sub- Registrar under Rule 17(b) of the Rules, while the action against the petitioner was initiated under Rule 17(a) and inasmuch as the charges are one and the same, they cannot be said that they are differently situated. 13. As correctly pointed out by the learned counsel for the petitioner, in M.Rajamanickam vs. The Executive Director, Bharat Heavy Electricals Ltd., (1997 Writ Law Reporter 536), a Division Bench of this Court in similar circumstance held that when both are similarly situated, any discrimination in punishment would be violative of Article 14 of the Constitution of India. The relevant portion of the judgment is as follows: “ 26. We are of the view that there is no iota of evidence which would differentiate the case of the present appellant from that of the other employee Meenakshisundaram. This discrimination writ large on the record and the Court cannot overlook the same. Therefore, we see no justification in treating the appellant differently without pointing out how he was guilty of more serious misconduct or the degree of indiscipline in this https://hcservices.ecourts.gov.in/hcservices/ case was higher than compared to that of Meenakshisundaram. Learned counsel for the management failed to explain to us the distinguishing features therefore, we are satisfied in putting both of them in the same bracket. Therefore, we have no hesitation to come to the conclusion that the treatment meted to the present appellant suffers from the vice of arbitrariness and Article 14 forbids any arbitrary action which would tantamount to denial of equality as guaranteed by Article 14 of the Constitution of India. The Court must accordingly interpose and quash the discriminatory action.” 14. The Apex Court has also taken a similar view in such circumstance as it was found in Akhilesh Kumar Singh vs. State of Jharkhand (2008 (2) SCC 74). In that case, even though it was held that while exercising the powers of judicial review, the Courts would not interfere with the quantum of punishment, while referring the earlier judgment in Anand Regional Co.operative Oil Seed Growers Union Ltd., vs. Shaileshkumar Harshadbhai Shah (2006 (6) SCC 548) and The Director General of Police vs. G.Dasayan (1998 (2) SCC 407), the Supreme Court has held as follows: “ 18. The appellant has, thus, been found guilty of tampering with records and committing forgery. He misappropriated food allowance. Shri Kaushal Kumar Singh was found guilty only for claiming food allowance illegally. The superior courts of India exercising power of judicial review, it is trite, would not ordinarily interfere with the quantum of punishment. Even the Industrial Court would not do so as has been noticed by this Court in Anand Regional Co.operative Oil Seed Growers Union Ltd., vs. Shaileshkumar Harshadbhai Shah (2006 (6) SCC 548). In the said case, however, having regard to the fact situation obtaining therein, it was held: (SCC p.557, para 27) “27. There is, however, another aspect of the matter which cannot be lost sight of. Identical allegations were made against seven persons. The management did not take serious note of misconduct committed by six others although they were similarly situated. They were allowed to take the benefit of the voluntary retirement scheme.” The said decision does not assist the appellant at all. 19. G.Dasayan is a case where the respondent therein as also the Head Constable were tried together, but as different punishments have been imposed upon them although https://hcservices.ecourts.gov.in/hcservices/ they faced identical charges, this Court interfered with the quantum of punishment. 20. Such is not the case here. Charges against the appellant and Kaushal Kumar Singh being not identical in nature, the impugned judgment does not suffers from any legal infirmity.” 15. That was also the view of the Supreme Court in Man Singh vs. State of Haryana [2008 (8) MLJ 518 (SC)], wherein the settled position in this regard in administrative law has been explained as follows: “ 19. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of exercise of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of ‘fair play’ and reasonableness. We have, therefore, examined the case of the appellant in the light of the established doctrine of equality and fair play. The principle is the same, namely, that there should be no discrimination between the appellant as HC Vijay Pal as regards the criteria of punishment of similar nature in departmental proceedings. The appellant and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the Excise Prohibition Orders operating in the State. The appellate authority exonerated HC Vijay Pal mainly on the grounds of his acquittal by the criminal Court in the Excise case and after exoneration, he has been promoted to the higher post, whereas the appeal and the revision filed by the appellant against the order of punishment have been rejected on technical ground that he has not exercised proper and effective control over HC Vijay Pal at the time of commission of the Excise offence by him in the State of Andhra Pradesh. The order of the disciplinary authority https://hcservices.ecourts.gov.in/hcservices/ would reveal that for the last about three decades the appellant has served the Police Department of Haryana in different capacity with unblemished record of service. 20. In the backdrop of the above mentioned facts and circumstances of the case, we are of the view that the order of the disciplinary authority imposing punishment upon the appellant for exhibiting slackness in the discharge of duties during his visit to Hyderabad when HC Vijay Pal was found involved in Excise offence, as also the orders of the appellate and revisional authorities confirming the said order are unfair, arbitrary, unreasonable, unjustified and also against the doctrine of equality. The High Court has failed to appreciate and consider the precise legal questions raised by the appellant before it and dismissed the Second Appeal by unreasoned judgment. The judgment of the High Court, therefore, confirming the judgments and decrees of the first appellate Court and that of the trial Court is not sustainable. The appellant deserves to be treated equally in the matter of departmental punishment initiated against him for the acts of omissions and commissions vis-à-vis HC Vijay Pal, the driver of the vehicle.” 16. A Division Bench of this Court in V.Arulkumar vs. Housing and Urban Development Corporation Ltd., New Delhi and others (2009 (3) CTC 388), to which I am a party, had an occasion to consider a similar case, and while considering about the quantum of punishment on similarly situated delinquent officers facing identical charges, we have held as follows: “ 32. It is not in dispute that in respect of the other officials, who were instrumental in giving opinions, like the legal opinion of the Law Officer in respect of the format of Bank Guarantee, apart from the financial appraisal report given by the Assistant Finance Officer, meager punishment of censure was awarded. In Akhilesh Kumar Singh vs. State of Jharkand and Others (2008 (2) SCC 74), under similar circumstances, the Supreme Court has held as follows: “ 15. It is true that delinquent officers similarly situated should be dealt with similarly and, thus if the charges against the employees are identical, it is desirable that they be dealt with similarly. …….. …….. https://hcservices.ecourts.gov.in/hcservices/ 19. Director General of Police v. G.Dayasan 1998 (2) SCC 407, is a case where respondent therein as also the Head Constable were tried together, but as different punishments having been imposed upon them although they faced identical charges, this Court interfered with the quantum of punishment.” 17. On the factual matrix which has been enumerated above, it is clear that the charges against the petitioner as well as the Sub- Registrar are one and the same. Even though the petitioner who is a higher officer being the District Registrar (Audit), in respect of the Sub-Registrar has registered the documents, against whom more serious charges have been levelled under Rule 17(b) of the Rules, a lenient view has been taken by the second respondent by dropping the charges. But, the second respondent has chosen to impose the punishment even though the charges are minor in nature, which in my considered view, certainly offends Article 14 of the Constitution of India. In the case of awarding punishment in respect of delinquent officers, who are facing similar charges, certainly the administrative authorities are expected to act reasonably in following uniform method in awarding punishments. 18. In the present case, as enumerated above, an inferior officer charged for major punishment was awarded with no punishment, while the petitioner who is a higher officer was considered for a minor punishment, for the same nature of charges, which is certainly discriminatory in nature. Unfortunately, the first respondent, appellate authority has not chosen to take note of the fact that the charges framed against the Sub-Registrar were dropped. However, the further contention of the learned counsel for the petitioner that in a similar circumstance in respect of another District Registrar only the punishment of censure was given, is not an acceptable argument because in respect of quantum of punishment regarding various charges, it is for the authorities to decide based on the facts and circumstances of the case. 19. On the other hand, I have proposed to interfere with the impugned orders only on the ground that for similar nature of charges in respect of the same transaction, two officers have been differently treated and that is offensive of Article 14 of the Constitution of India. The first respondent has not at all taken note of the additional grounds raised by the petitioner during the time when the appeal was pending before him that the second respondent dropped the charges against the Sub Registrar, and even in the review filed before the Government, the first respondent has not taken note of the said circumstance. 20. It is further relevant to point out that the entire charge is that the Sub-Registrar as well as the petitioner have acted https://hcservices.ecourts.gov.in/hcservices/ against G.O.Ms.No.150 C.T. & R.E. Department dated 22.09.2000, and the said Government Order itself was passed based on the amended provision of Section 22-A of the Registration Act,1994 and the Division Bench of this Court has held that the said amendment is unconstitutional in .... 2007 (3) MLJ 1025 and even the G.O.Ms.No.150 Commercial Taxes and Religious Endowment Department dated 22.09.2000, based on which the charge has been leveled against the petitioner as well as the Sub-Registrar itself came to be withdrawn by G.O.Ms.No.137 Commercial Taxes and Religious Endowment Department dated 25.07.2007. In such view of the matter, looking into any angle, I am of the considered view that the impugned orders are not sustainable in law, accordingly, the same are liable to be set aside and the same are set aside. The writ petition stands allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Kh To 1. The Secretary to Government State of Tamil Nadu Commercial Taxes & Religious Department Secretariat, Chennai 600 009. 2. The Inspector General of Registration Chennai 600 028. W.P.No.3184 of 2008 KGK (CO) GSK 31.12.2009. https://hcservices.ecourts.gov.in/hcservices/