1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/08/2011 C O R A M THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD) No.9867 of 2011 and M.P.(MD).Nos.1 & 2 of 2011 P.T.Rameh ... Petitioner Vs. 1.The Chairman, Tamil Nadu Sales Tax Appellate Tribunal, City Civil Court Building II Floor, High Court Campus, Chennai-104. 2.Additional Judicial Member, Tamil Nadu Sales Tax Appellate Tribunal, (AB), Commercial Taxes Buildings, Dr.Thangarajan Salai, Madurai-625020. 3.Tamil Nadu Sales Tax Appellate Tribunal (AB), rep. by its Secretary, Commercial Taxes Building, Dr.Thangarajan Salai, Madurai - 625 020. 4.The Appellate Deputy Commissioner (CT)/ Enquiry Officer, Madurai (North & South), Commercial Taxes Buildings, Dr.Thangarajan Salai, Madurai-625 020. ... Respondents Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus, to call for the records of the fourth respondent pertaining to his enquiry report, dated 20.04.2011 and the consequential memo issued by the first respondent in Letter No.7886/10-B2, dated 20.08.2011 and quash the same as unlawful and illegal, and further direct the fourth respondent to conduct enquiry after providing all the necessary documents and records as claimed by the petitioner, vide his review application dated 28.12.2010 and permit the petitioner to cross examine the witness at the time of enquiry. For petitioner .. Mr.P.T.Ramesh (Party in person) For 4th respondent .. Mr.S.Chandrasekar, Government Advocate https://hcservices.ecourts.gov.in/hcservices/ 2 ORDER Party-in-person appeared and made submissions. 2. Challenge in this writ petition is to the enquiry report, dated 20.04.2011, issued by the Appellate Deputy Commissioner (CT)/ Enquiry Officer, Madurai (North & South), Madurai, the fourth respondent herein and consequential memorandum, dated 20.08.2011, issued by the Chairman, Tamil Nadu Sales Tax Appellate Tribunal, Chennai, the first respondent herein. 3. Pleadings and material on record show that for certain acts of misconduct the petitioner was placed under suspension and thereafter, disciplinary proceedings have been initiated against him under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, in R.C.No.7886/10/B2, dated 14.12.2010, to wit that the petitioner has committed the following acts of misconduct; "Charge I: Thiru.P.T.Ramesh, Driver (under suspension), Tamil Nadu Sales Tax Appellate Tribunal (AB), Madurai, while functioning as driver in Tamil Nadu Sales Tax Appellate Tribunal (AB), Madurai, he had applied for half a day casual leave on the after-noon, of 13.10.2010 and had left the office by 10.30 a.m., on that day without informing any of the members of the Tamil Nadu Sales Tax Appellate Tribunal (AB), Madurai. He did not hand over the keys of the Government Vehicle and not informed about the whereabout of the keys to the members of the Tribunal. Thereby, he simply brushed aside his responsibility in discharging his duty. Charge II: Thiru.P.T.Ramesh, Driver (under suspension), Tamil Nadu Sales Tax Appellate Tribunal (AB), Madurai, while functioning as driver in Tamil Nadu Sales Tax Appellate Tribunal (AB), Madurai, he was on un-authorised absence on 14.10.2010 and thereby caused hindrance, and in-convenience to the smooth functioning of the Tamil Nadu Sales Tax Appellate Tribunal (AB), Madurai. He had not even bother to inform any one of the officers of the Tribunal about his absence and about handing over the keys of the vehicle. Charge III: Thiru.P.T.Ramesh, Driver (under suspension), Tamil Nadu Sales Tax Appellate Tribunal (AB), Madurai, while functioning as driver in Tamil Nadu Sales Tax Appellate Tribunal (AB), Madurai, placed such an intimidating letter in the centre of the office Hall on 15.10.2010, by making aware of that letter to all the officials of the Tamil Nadu Sales Tax Appellate Tribunal (AB), Madurai. Later on, he had taken away that letter. He had done that, to threaten the Additional Judicial Member, Tamil Nadu Sales Tax Appellate Tribunal (AB), Madurai. https://hcservices.ecourts.gov.in/hcservices/ 3 Charge IV: Thiru.P.T.Ramesh, Driver (under suspension), while functioning as driver in Tamil Nadu Sales Tax Appellate Tribunal (AB), Madurai, has failed to collect the keys of vehicle and to bring the Additional Judicial Member and Additional Departmental Member from their residential place to office on 15.12.2010 though he came and signed in the attendance register on that day. Thereby, he has failed to discharge his rudimentary duty as driver and there is total dereliction in his primary responsibility as a driver. Charge V: Thiru.P.T.Ramesh, Driver (under suspension), Tamil Nadu Sales Tax Appellate Tribunal (AB), Madurai, while functioning as driver in Tamil Nadu Sales Tax Appellate Tribunal (AB), Madurai, has always been a deflant, insubordinate, disobedient, evasive and careless in discharging his duty as driver. Charge VI: Thiru.P.T.Ramesh, Driver (under suspension), Tamil Nadu Sales Tax Appellate Tribunal (AB), Madurai, while functioning as driver in Tamil Nadu Sales Tax Appellate Tribunal (AB), Madurai, by his in different behaviour, intimidating higher ups and deflant attitude has undermined the official decorum and created very bad atmosphere in administration and hampered the smooth functioning of the office before the staff, public and advocates. Charge VII: Thiru.P.T.Ramesh, Driver (under suspension), Tamil Nadu Sales Tax Appellate Tribunal (AB), Madurai, through his acts as setout in charges I to VI, rendered himself unbecoming of a Government Servant and has failed to maintain absolute integrity and devotion to duty. Thereby, he has violated Rule 20 (1) of the Government Servants Conduct Rules 1973." 4. Being aggrieved by the order of suspension, the petitioner has filed W.P.(MD).No.13764 of 2010 and the same has been dismissed by this Court on 19.11.2010, giving liberty to the petitioner to prefer an appeal before the Chairman, Tamil Nadu Sales Tax Appellate Tribunal, Chennai. The petitioner filed a review petition, dated 28.10.2010, along with the explanation for the charges, he has requested the first respondent to review the earlier order of suspension and reinstate him, as driver in Tamil Nadu Sales Tax Appellate Tribunal (AB), Madurai, the third respondent herein. Though the review petition was pending, no orders were passed for seven months and therefore, the petitioner has filed W.P.(MD).No.8255 of 2011. By order dated 25.07.2011, this Court directed the first respondent to pass orders on the application, dated 28.12.2010, within a period of four weeks from the date of receipt of a copy of the order. Pleadings and materials on record further disclose that earlier, vide proceedings dated 07.01.2011, the Chairman, Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ 4 Sales Tax Appellate Tribunal, Chennai, the first respondent herein, has appointed the Appellate Deputy Commissioner (CT) (FAC), Madurai (North & South), Madurai, the fourth respondent herein, as the enquiry officer to conduct the enquiry on the charges. The fourth respondent has issued a memorandum, dated 28.01.2011, directing the petitioner to appear for enquiry on 15.02.2011. Accordingly, the petitioner appeared. At the time of oral enquiry, the fourth respondent asked the petitioner to explain the charges. He submitted his oral explanation to the charges and it was reduced into writing and the signature of the petitioner was also obtained. It is the grievance of the petitioner that the enquiry officer did not allow him to peruse the materials or any of the reports. The depositions of the witnesses were also not served on the petitioner. According to him, the witnesses were not examined. The petitioner has also contended that in total violation of principles of "audi alteram paterm", the enquiry officer has submitted the report, as if all the witnesses were examined on the same day. On the basis of the farce enquiry report, dated 20.04.2011, which has been drawn up by the fourth respondent, a memorandum, dated 20.08.2011, has been issued by the first respondent, seeking for further explanation on the findings recorded by the enquiry officer. In sum and substance, the petitioner has contended that there has been violation of principles of natural justice in conducting the enquiry and therefore, the report has to be set aside. 5. Though a consequential direction to conduct de nova enquiry, after providing all necessary documents and records, as claimed by the petitioner, vide his review application, dated 28.12.2010, has been sought for by the petitioner, perusal of the enquiry officer report enclosed at page No.52 of the typed set of papers shows that an enquiry was conducted on 15.02.2011 at Madurai in the Chamber of the Appellate Deputy Commissioner (CT), (South), Madurai. The petitioner has been provided with personal enquiry and that he had denied all the charges. The brief statement of defence, offered by the petitioner, as extracted by the enquiry officer, is reproduced hereunder: "(i) The delinquent person has stated that on 13.10.2010 he brought the Additional Judicial Member and Additional Departmental Member and obtained half a day casual leave on the after-noon of that day from Additional Judicial Member and handed over to Secretary and left the office at 1.30 p.m. by informing the Secretary which was known by the staff Thiru.Rajendran, Assistant and Thiru. Bakthavachalu, Record Clerk. Further, he stated that he had handed over the key of the Government Vehicles to Additional Departmental representative. (ii)The delinquent person stated that he had been affected by stomach problem on 14.10.2010, he required one day casual leave on that day from Additional Departmental Member. The Additional Departmental Member has advised him to produce the letter to the Office. He went to https://hcservices.ecourts.gov.in/hcservices/ 5 office and filed his casual leave letter in the attendance. Further he stated that he had already handed over the key of the vehicle to the Additional Departmental Member on 13.10.2010 itself, the question of not handing over the key was does not arise. (iii)The delinquent person had stated that on 15.10.2010 he was served with two memos stating that he had been sanctioned half a day casual leave on 13.10.2010 afternoon but left the office by 11.00 a.m. and un- authorised absent on 14.10.2010 which caused hindrance to the member of the Tamil Nadu Sales Tax Appellate Tribunal to attend the Court in time and called for his explanation within three days. For the above memo he stated that on 13.10.2010 he left the office at 1.30 pm. with permission of half a day casual leave on the afternoon. On 14.10.2010 he applied for casual leave. On 15.10.2010 two memos were served on him. On receipt of such memos, he become mentally disturbed both mentally and physically not well and also continuously received memo means lead to death with his family. Therefore, he dropped such letter that he is going to die with his family. Later on be came to the normal condition of his mind, he returned to the office and took away such letter. He stated that it is not intention to threaten the Additional Judicial Member. (iv) The delinquent person has stated that he asked Mr.Rajendran and Mr.Soundarajan for collecting the vehicle key and he came to know that the key was kept with Additional Departmental Member and he felt that it is not possible to get the key from Additional Departmental Member and drive the vehicle to carry the Additional Judicial Member and Additional Departmental Member from their residency within a short time, hence he was in this office itself. (v) & (vi) The delinquent person has denied those charges and stated that he is not making any disturbance to functioning of the office smoothly at any time and he is doing his duty as instructed by the Additional Judicial Member and Additional Departmental Member." 6. After extracting the charges and the statement of defence offered by the petitioner during the oral enquiry, the enquiry officer has formulated points for determination, assessment of the evidence in respect of each point set out for determination and recorded his finding. Finding on each article of charge has also been made in the enquiry report. At this juncture, it is relevant to note that when the petitioner filed W.P.(MD).No.8255 of 2011, seeking for a direction to consider the review application, dated 28.12.2010, filed to review the suspension passed by the first https://hcservices.ecourts.gov.in/hcservices/ 6 respondent, there was no case of denial of fair and reasonable opportunity in the enquiry proceedings. Material on record further disclose that out of 15 witnesses cited in the charge memorandum, only 11 witnesses were examined by the enquiry officer to prove the charges. The contention that the petitioner was not given an opportunity to peruse the records, relating to the enquiry proceedings and that he was not given an opportunity to cross-examine the witnesses, cannot be countenanced, for the reason that perusal of the enquiry officer report does not indicate as to whether the petitioner had made any request for cross examination of the witnesses. The statement of defence extracted in the foregoing paragraph would reveal the same. 7. The relevant documents enclosed in the typed set of papers filed along with the supporting affidavit did not disclose that the petitioner has sought for copies of any documents in support of his defence. No prejudice has been raised before the enquiry officer regarding non supply of copies of depositions made by the witnesses. In the absence of substantiate material that the petitioner had demanded copies of the statements recorded during the enquiry or failure to provide an opportunity to the charged officials to cross examine the witnesses, mere averments made in the supporting affidavit would not stand the test of proof. 8. Though the petitioner has contended that 15 prosecution witnesses, but only 11 are examined and for the reasons best known, four witnesses were not examined, this Court is of the view that it is the prerogative of the department to decide the examination of witnesses. If for any reason the presence of such persons are required to elicit points favourable to the charged official, he could have made a representation. Nevertheless, it is for the enquiry officer to consider the representation and if the same is rejected, it is always open to the petitioner to examine such witnesses or any other person, as his defence witness. Perusal of the statement of the petitioner, dated 15.02.2011, in oral enquiry and enclosed at page 36 to 39 in the typed set of papers, do not disclose that the petitioner, after examination, has sought for defence witness or supply of copies of any documents produced before the enquiry officer. No complaint or prejudice has been made out in the statements enclosed at page 36 to 39 of the typed set of papers. The disciplinary proceedings have been initiated against the petitioner on 14.10.2010 by the Chairman, Sales Tax Appellate Tribunal, Chennai. The explanation has been submitted and that an oral enquiry has also been conducted. The enquiry officer has found that charge No.1 as partly proved and partly not proved and rest of the charges 2 to 7 have been held as proved. Now, it is open to the petitioner to offer his further explanation on the findings recorded by the enquiry officer and there is no manifest illegality in the impugned memorandum, dated 20.08.2011, of the Chairman, Tamil Nadu Sales Tax Appellate Tribunal, Chennai, calling for further representation of the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 7 9. For the reasons stated supra, this Court is not inclined to quash the enquiry report, dated 20.04.2011 and consequential memorandum, dated 20.08.2011. Hence, the writ petition is dismissed. No costs. Consequently connected miscellaneous petitions are also dismissed. Sd/- Assistant Registrar (CO) /True Copy/ Sub Assistant Registrar To 1.The Chairman, Tamil Nadu Sales Tax Appellate Tribunal, City Civil Court Building II Floor, High Court Campus, Chennai-104. 2.Additional Judicial Member, Tamil Nadu Sales Tax Appellate Tribunal, (AB), Commercial Taxes Buildings, Dr.Thangarajan Salai, Madurai-625020. 3.The Secretary, Tamil Nadu Sales Tax Appellate Tribunal (AB), Commercial Taxes Building, Dr.Thangarajan Salai, Madurai - 625 020. 4.The Appellate Deputy Commissioner (CT)/ Enquiry Officer, Madurai (North & South), Commercial Taxes Buildings, Dr.Thangarajan Salai, Madurai-625 020. W.P.(MD) No.9867 of 2011 and M.P.(MD).Nos.1 & 2 of 2011 30.08.2011 gcg NSV/9.9.11/7P/5C https://hcservices.ecourts.gov.in/hcservices/