IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.06.2008 CORAM THE HONOURABLE MR. JUSTICE S.MANIKUMAR W.P.No.23733 of 2006 B.Shyamala Devi ... Petitioner vs. 1.The Secretary to Government, Commercial Taxes Department, Secretariat, Chennai-600 009. 2.The Commissioner of Commercial Taxes Office of the Commissioner of Commercial Taxes, Ezhilagam, Chennai-600 005. 3.The Administrative Assistant, Commissioner(CT) Office of the Deputy Commissioner(CT) Chennai(East) Division, Chennai-600 006. ... Respondents Petition is filed under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus to call for the records in connection with the charge memo bearing No.CD1/31814/2001 of the 2nd respondent Commissioner of Commercil Taxes dated 10.9.2004 and the consequential Enquiry Report of the Administrative Assistant Commissioner(CT), Chennai East Division, Chennai-6, dated 10.9.2004; the consequential Enquiry Report of the Administrative Assistant Commissioner(CT) Chennai East Division, Chennai-6, dated 17.6.2005 the third respondent herein and the consequential G.O.(D)280 Commercial Taxes and Registration (E1)Department dated 30.6.2006 and G.O.(D) 282 Commercial Taxes and Registration (E1)Department dated 30.6.2006 on the file of the first respondent herein, to quash the same, to direct the respondents to permit the petitioner to retire and to give the petitioner all the retirement benefits including pensionary benefits. For Petitioner : Mr.G.Muthukrishnan For Respondents : Mr.A.Edwinprabakar Additional Govt.Pleader O R D E R The petitioner, formerly Deputy Commercial Tax Officer, Office of the Commercial Tax Department, Taxes and Registration (E1 Department) has sought for a Writ of Certiorarified Mandamus to quash the charge memo dated 10.9.2004 issued by the second respondent and the consequential report of the Administrative Assistant Commissioner (CT), Chennai, East Division, Chennai-6 dated 17.6.2005 and the Government orders in G.O.(D).No.280 and 281 Commercial Taxes and Registration E1 Department, dated 30.6.2006 issued by the first respondent. 2. While he was working as Deputy Commercial Officer, Royapettah-1, Assessment Circle, during the period from 16.6.1997 to 17.6.1999, she assessed many accounts in her official capacity. But in respect of one assessment, done in connection with a dealer by name D.S.N. Marketing India Limited, Chennai in the year 1998-99, a charge memo was issued by the Commissioner of Commercial Tax in his proceedings dated 11.10.1990 CD/1/31 alleging that the petitioner had levied lesser tax and therefore, there was a loss of revenue to the tune of Rs.10,90.122/- in respect of the assessment order passed on 1.6.1999. Thereafter, the petitioner was transferred from Royapettah-2, Assessment Circle to Zone IX Audit under the control of Deputy Commissioner (East) and after completion of one year of satisfactory service, the petitioner was again transferred as Deputy Commercial Tax Officer under the control of Deputy Commissioner (East). Thereafter, she was promoted as Commercial Tax Officer on 4.4.2001 and posted as Additional Commercial Tax Officer in Tirunelveli. After the transfer from Royapettah-2 Assessment Circle, based on certain defects pointed out by the Audit party, a reassessment order was issued on 20.7.2001 under Section 16(1)(B) of the TNGST Act, 1959. It is the case of the petitioner that reassessment or revision of assessment can always be made under Section 16 and 55 of the TNGST Act and provisions are provided to safeguard the Officers, who in their bonafide intention and belief might have levied either excess or lesser tax. 3. As the above provisions are intended to safeguard the interest of the revenue, tax can always be realised by resorting to the above said provisions and if there is any bonafide mistake in assessing lesser percentage of tax, without any ulterior motive or for personal gain, it cannot be the basis for any disciplinary action against the concerned officer. 4. The petitioner has further submitted that even assuming, without admitting for argument sake that the petitioner has committed certain mistakes in the assessment of tax for the dealers, nothing prevented the department from issuing a show cause notice in the year 2000 itself. Had it been done, the petitioner would have had sufficient time to submit her explanation. If only her explanation was not satisfactory, then a decision could have been taken to conduct an enquiry into alleged irregularity, but without issuing a show cause notice and calling upon her explanation, the department has come to the conclusion that the petitioner has committed an offence and straight away and issued a charge memo under Section 17(B) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, which would clearly show the pre-determined mind of the authority. The petitioner has further submitted that the charge memo issued by the Commissioner of Commercial Tax, Chennai is contrary to the circular dated 26.5.1999. Clause-4 of the Circular states that all the incumbent Officers of the Assessment Circle or zone are requested to communicate the circular to the concerned Assessing Officers, who made the defective/incorrect assessment, as soon as the defects were pointed out by the audit party, so as to enable them to coordinate with the Officers incharge of the assessment circle, to rectify the audit defects immediately. If the Officer incharge failed to do so, due to negligence, the disciplinary action would be intiated against them. In clause-2, it is stated that at the time when the Audit reaches the stage of rectification, decision to take disciplinary action against the assessment officer is taken, if the Officer reaches the age of superannuation and he has to face the disciplinary action on the verge of the retirement. In Clause-3, it is stated that if the audit defects are made known to the assessment officer who made the defective assessment, in turn he will take steps to rectify the defects and coordinate with the incumbent Officers of the department then and there and thus there will be no necessity to take disciplinary action against the Officer who has made the assessment. 5. In the light of the above circular, the petitioner has submitted that she has been denied an opportunity to explain the mistakes committed in the assessment and that she was not intimated about the objection raised by the Audit General/Internal Audit parties before disciplinary action was initiated against her. She has further submitted that on the basis of Accountant General audit, the incumbent Assessing Officer had done reassessment as early as on 20.7.2001 and additional demands were also raised and the dealer was also served with the revisional order on 28.2.2001. From the information gathered, the petitioner also came to know that revenue recovery proceedings have been initiated against the dealer, which is evident from letter dated 21.1.2004 written by the Commercial Tax Officer and the letter dated 25.2.2005 of the Deputy Commissioner, Commercial Taxes, Chennai. 6. The petitioner has submitted that once the department has initiated action for recovery and created encumbrance over the property of the dealer, there is no loss caused to the department and in such circumstances, initiation of disciplinary proceedings agianst the petitioner on the ground that the revenue has sustained loss on account of mistake in the assessment is without jurisdiction. It is the further case of the petitioner that whenever assessment is entrusted to an officer, he is given full freedom to do the assessment without any fear of being prosecuted or penalised. Even if he has committed any error in his assessment in coming to a conclusion with regard to the tax to be levied, no proceedings can be initiated against the Officer, but the assessment can always be reopened calling upon the dealer to pay the difference of tax and proper steps can be taken for recovery. If the department is not in a position to recover the amount, then only the Assessing Officer can be found fault with. Inasmuch as the department has already taken necessary action for recovery and when the said proceedings are still pending, it cannot be said that the amount has become irrecoverable warranting action against the petitioner. 7. The petitioner has further submitted that even if there was any mistake, it could be treated only as an error of judgement and nothing has been mentioned in the charges that it has been done deliberately for making personal gain for the petitioner. Relying on a decision reported in 1999 SCC 409, the petitioner has submitted that till the date of filing of the writ petition, no finality was arrived at with regard to the assessment made in connection with the TSN Marketing (P) Ltd. 8. It is further submitted that as regards the reassessment made on 27.2.2001, the company has preferred an appeal before the Appellate Assistant Commissioner. After setting aside the assessment order, the matter has been remanded back to the Deputy Comercial Tax Officer. The petitioner came to know that the D.C.T.O. has passed a fresh assessment order on 29.8.2002 and therefore, the allegation in the charge memo that the petitioner has caused loss to the government to the tune of Rs.10,90,122/- is without any basis. 9. It is further submitted that three properties, one land at Lalgudi and buildings belonging to the dealer situate at No.3, Ist Main Road, C.I.T.Colony, Mylapore, Chennai were brought under the Revenue Recovery Act as early as on 9.1.2004. The property situated at Mylapore alone will fetch more than Rs.50 lakhs and it is located in the heart of the City of Madras and the properties situated at Lalgudi will fetch more than Rs.50 lakhs. Therefore, it is apparent that nearly about one crore has been secured from the dealer towards tax and penalty. The Commercial Tax Officer, Mylapore had created an encumbrance with the Sub Registrar, Mylapore with respect to the above said property and therefore no revenue loss has occurred to the department. When action has been taken under the Revenue Recovery Act and the above said properties were secured as early as on 21.1.2004, the respondent ought not to have initiated disciplinary proceedings after eight months alleging that, the petitioner had caused loss to the department. When the assessment was made in the year 1998, the petitioner had conducted a through enquiry and posed many questions to the dealer and only after going through various details of accounts and other records submitted by the dealer, the assessment was made. However on 29.8.2000, the Enforcement Wing of the Commercial Tax Department had conducted a raid in the place of business of TSN Marketing (P) Ltd. at No.86, Dr.Radhakrishnan Salai, Chennai-4 and four officers of the Enforcement Wing seemed to have searched the premises from 11 A.M. to 11 P.M. for twelve hours and they were able to unearth certain documents. 10. It is further submitted that when four Officers had struggled for 12 hours and found out certain documents at the premises of the dealer, it is not possible to expect the person sitting in the office to find out all these irregularities said to have been committed by the dealer. At this juncture, it is relevant to point out that the Enforcement Wing Officers have got all powers to inspect and adopt all legal methods to probe into the affairs of the dealer. When all the books of accounts and other documents were seized and reassesment was made, the department ought to have considered that the assessment of the petitioner, is made purely on the basis of the declaration submitted by the dealer and as the assessment is always revisable, the same cannot be found fault with. The petitioner has further submitted that the petitioner, being a Quasi Judicial Authority, had acted without any ulterior intention and therefore, no disciplinary proceedings can be initiated. 11. On receipt of the charge memo, the petitioner submitted her explanation on 28.4.2005 and an enquiry was conducted by the Administrative Assistant Commissioner of Commercial Tax and no witness was examined in the enquiry. The said enquiry, officer being a subordinate to the Commissioner of Commercial Tax Officer would not go against the orders of higher authority and therefore he has simply accepted the report dated 17.6.2005 and called upon petitioner to offer her explanation to the findings. The petitioner has also submitted her representation dated 12.4.2006 to the findings of the enquiry officer. The petitioner was due to retire on 30.4.2006, on attaining the age of superannuation. When she had already filed her reply on 12.4.2006, to the enquiry report, the department had sufficient time to pass orders on the report but they have unnecessarily placed the petitioner, under suspension by passing G.O.(D) No.280, Commercial Tax and Registration E1 Department, dated 30.6.2006 and did not permit her to retire from service. 12. The petitioner has served honestly for nearly 36 years, without any blemish and in such circumstances, instead of allowing her to retire peacefully with reimbursement of retirement benefits, the respondents have suspended the petitioner and not permitted her to retire on the basis of G.O.Ms.Nos.280 and 282, Commercial Tax and Registration E1 Department, dated 30.6.2006. Placing reliance on various administrative instructions issued by the Government in the form of letters, the petitioner has submitted that the Head of department ought to have disposed of the disciplinary proceedings before six months prior to the date of the superannuation and placing the Government servant under suspension, on the verge of retirement is contrary to the Rule 9 of the Tamil Nadu Pension Rules. 13. The petitioner has further submitted that in case, where disciplinary proceedings were to be initiated against a Government servant, action ought to have been taken to frame the charges and commence the disciplinary proceedings, atleast two months before the retirement. In the instant case, though the disciplinary proceedings were initiated as early as on 10.9.2004, the Commissioner of Commercial Tax, Chennai, the second respondent has unnecessarily protracted the proceedings. It is submitted that though the enquiry officer had submitted his report on 17.6.2005, it was served on the petitioner only on 17.3.2006, after an inordinate delay of nine months and that the same has not been explained. Even though the further representation of the petitioner against the findings of the enquiry officer was submitted on 12.04.2006, the department has unnecessarily kept the file pending and thereby put the petitioner in great hardship. 14. Reiterating the contentions made in the counter affidavit, Mr.A.Edwin Prabhakar, learned Additional Government Pleader submitted that the petitioner was holding the post of Deputy Commercial Tax Officer, Royapettah-2 Assessment Circle, during the period from 16.6.1997 to 17.6.1999 and in her capacity, she has discharged the powers and responsibilities in making assessment on the turnover of various dealers. However, during audit by the officials of the Accountant General, Chennai, it was brought to the notice of the department, that the petitioner had finalised the assessment of a dealer Tvl. TSN Marketing (P) Limited for the year 1998-99 under the TNGST Act adopting incorrect rates of tax for several commodities, as against correct rates prescribed in schedules under the Act, which caused loss of revenue to the tune of Rs.10.90 lakhs. For the failure to levy proper rates of tax and negligence in discharge of her duties, the Commissioner, Commercial Tax, Chennai initiated disciplinary proceedings under Rule 17(b) of the Tamil Nadu Government Servant Civil Services (Discipline and Appeal) Rules and issued a charge memo dated 10.9.2004. 15. Learned counsel for the respondent further submitted that on the basis of Accountant General Audit party report, the petitioner's successor, Deputy Commercial Tax Officer, Royapettah-2, Assessment Circle reopened the assessment for revision and simultaneously, he was implementing certain proposals evolved by the enforcement wing of the Sales Tax Department relating to sales suppression by the assessee. Though the petitioner has submitted that the successor in office had initiated action to rectify the irregularities done by the petitioner it would not absolve the petitioner, of her omissions in the discharge of her duty. On the contrary, it is submitted on behalf of the respondent that the petitioner has failed to adopt the correct rates of tax fixed under TNGST Act. According to the respondent, as an Assessing Officer the petitioner is excepted to adopt only the rates of tax prescribed for each item as listed in the schedule and no discretionary power is vested with the Assessing Officer in this regard. If there is any error in the rate of tax applicable to an unlisted commodity, the petitioner being a Assessing Officer ought to have obtained necessary clarification from the higher authorities. 16. Learned counsel for the respondent further submitted that incorrect rates of tax have been adopted by the petitioner in respect of commodities which find place in the schedule and thus the petitioner has grossly erred in discharging her duties, in adopting fair rates of tax, which tantamounts to substitution of her opinion for law. Thus the petitioner has committed gross negligence and utter carelessness in discharging her statutory duties, which misconduct has to be enquired into by the authorities. 17. Learned counsel for the respondent further submitted that no preliminary enquiry is contemplated under the Tamil Nadu Civil Service (Discipline and Appeal) Rules, and therefore the contention of the petitioner that she should have been given a show cause notice before initiation of disciplinary proceedings is not correct. 18. It is further submitted on behalf of the respondent that the issue of settlement of an audit objection and the initiation of the disciplinary proceedings are entirely different and the contention that the petitioner should be given an opportunity to assist the settlement of the defects, cannot be countenanced. In the instant case, heavy revenue loss has occurred to the State exchequer and for such illegal act, disciplinary action is warranted and appropriate penalty has to be inflicted on the Government Servant, if the charges are proved against her. It is the case of the respondents that despite persistent efforts of the successor in office and other higher Officials, the amount due to be paid by the dealer is yet to be recovered. 19. Learned counsel for the respondents further submitted that the dealer has closed the business and therefore the department was constrained to initiate action under the Revenue Recovery Act, 1890 for attachment of the property of one of the erstwhile Directors of the company. The said proceedings has been stayed and the attached property is now developed by a third party. It is the contention of the respondents that despite strenuous efforts taken by the department, not even a paisa has been recovered so far and the possibility of recovery of arrears in the near future is also bleak. Even if the revenue loss is collectable or is collected, it would at the most be construed only as a mitigating factor in assessing the gravity of the charges and will not fully take away the basis on which the department has initiated the proceedings against the petitioner. 20. According to respondents the appointing authority or any other competent authority cannot be restrained from taking cognizance of culpable negligence as misconduct against the assessment officer. Learned counsel for the respondents submitted that the Quasi Judicial Authority is always immune from disciplinary action only with regard to bona fide omissions and commissions, in the discharge of duties, but there is no legal bar to proceed against the authority on the ground of any misconduct or recklessness or negligence in the discharge of Quasi Judicial functions resulting in huge revenue loss to the Government. 21. Learned counsel for the respondents further submitted that though the assessee went an appeal against the revision of assessment made by her successor in office, the Appellate Authority was pleased to remand the matter for fresh disposal. After a recheck of accounts, the successor in office, Assessing Officer once again levied the correct rates of taxes. The assessee once again went on appeal against the fresh assessment order and the appellate authority has upheld the levy of tax. Thus the lapse on the part of the petitioner to adopt correct rates of taxes has been established despite the appeals preferred by the assessee. Therefore, learned counsel for the respondents submitted that the contention of the petitioner that the issue has not reached the stage of finality is not correct. 22. Learned counsel for the respondents further submitted that when the rates of taxes to be adopted by the Assessing Officer are given in the Statute, the Assessing Officer has failed to follow the same, due to negligence in discharge of her functions and therefore the petitioner cannot claim any immunity, merely because the assessee has agitated the matter before an Appellate Forum. It is also contended that the action taken by the respondents for recovery of the arrears from the defaulter assessee is a separate line of action and it should not be confused with the disciplinary action initiated against the petitioner, which is for the misconduct involved in the commission of lapse, leading to loss of revenue. 23. Learned counsel for the respondents further submitted that recovery action initiated against the defaulter assessee is for arrears relating to other assessment years and that there is no guarantee that the entire arrears would be collected. Even in the proceedings initiated against the erstwhile Director of the defaulter, the assessing company has filed an original application, before the Tamil Nadu Taxation Special Tribunal and the issue is still pending disposal before this Court. 24. Regarding inspection and sales suppressions, learned counsel for the respondents submitted that they were not at all related to the issue on hand, as the petitioner was charged with failure to adopt correct rates of tax as per TNGST Act for the turn over reported by the assessee at the time of check of their accounts. 25. As regards Zhunjurao Bhikaji Nagarkar vs. Union of India reported in 1999 (7) SCC 409, learned counsel for the respondents, placing reliance on a decision reported in AIR 1993 SC 1478 [Union of India and others vs. K.K.Dhawan], submitted that each case will depend its own fact and no absolute rule can be postulated. It is submitted that if culpable misconduct is made out, initiation of disciplinary proceedings against the quasi-judicial officers are permissible and there is no hard and fast rule that no action can be taken against the quasi-judicial officers. In support of his contention, the learned counsel for the respondents relied on decision in Govinda Menon Vs.Union of India reported in AIR 1967 SC 1274, and also another decision reported in 80 STC 53. The counsel for the State submitted that the power of judicial authority to initiate action against the erring officials cannot be curtailed, merely because they had discharged quasi judicial functions. Learned counsel for the respondent further contended that if the contention of the petitioner is accepted, then the department cannot take any action against the assessing officers for their lapses and it has to be sit as a mute witness to all sorts of irregularities committed by the Assessing Officer, even if there are blatant violations of the statutory provisions. 26. Learned counsel for the respondents further submitted that disciplinary action was initiated by the Commissioner of Commercial Taxes, Chennai, the second respondent being the competent authority under Rule 12(2) of the Tamil Nadu Civil Services (Discipline and Appeal Rules). The petitioner had failed to submit his explanation even after lapse of three months from the date of receipt of the charge memo and there was no objection to the appointment of enquiry officer, after providing adequate opportunity, the Enquiry Officer has submitted his report. 27. Having submitted his further representation to the show notice issued by the respondent, it is not open to the petitioner to question the correctness of the charge memo after two years. The third respondent, the Enquiry Officer is only a fact finding authority and on receipt of further representation, the relevant records were forwarded to the first respondent to pass orders on the departmental proceedings. While the matter is under active consideration of the government, the petitioner has reached the age of superannuation on 30.6.2006 and considering the pendency of judicial proceedings and the gravity of the alleged charges, the government placed the petitioner under suspension from service and issued orders in G.O.(D)No.280, Commercial Taxes and Registration E1 Department dated 30.6.2006 and G.O.Ms.No.282, Commercial Taxes and Registration Department,