2015 (3) TMI 827 - HC - Indian Laws

Decrease in pension of petitioner - The allegation made under the charge is that during the year 2004-2005, he had issued seven Transit Passes to a registered dealer M/s. VNMAD Firm, to a total value of ₹ 15,08,250/- for the interstate movement of goods on consignment sales to the Pondicherry Union State and thereby facilitated the trader to evade sales tax at the rate of 4% and that by the above said act, he has failed to maintain integrity, devotion to duty and thus violated Rule 21 of the Tamil Nadu Government Servants Conduct Rule, 1973 - Held that - The petitioner was functioning as Additional Deputy Commercial Tax Officer and retired from service on attaining age of superannuation on 31.05.2006. It is stated by the petitioner and not disputed by the respondents that till his retirement, there were no adverse remarks and any other proceedings initiated or pending against him. It is also seen that the first respondent has forwarded the pension papers of the petitioner to the Accountant General for sanctioning of pension and other pensionery benefits, after the retirement of the petitioner for the grant of pension. However, after a period of two years, the first respondent issued a charge memo dated 01.07.2008 under Rule 17(b) of the Tamil Nadu Civil Services (Disciplinary and Appeal) Rules, containing two charges. The allegation made against the petitioner was that he issued 7 false transit passes to one trader which enabled the said trader to create false records to evade sale tax to the tune of ₹ 60,330/-. It is crystal clear that consultation of the Tamil Nadu Public Service Commission before passing the order under Rule 9(1)(a), is essential and cannot be dispensed with. Whether the views furnished by the TNPSC is binding on the Government or not is another thing. But at the same time, when taking of such view is being mandatory and if no such view is taken, the order passed under Rule 9(1)(a) is to be held as vitiated. - no such consultation was made with the TNPSC before passing the impugned order. Admittedly, a notice was issued calling upon the petitioner to show-cause about the proposed punishment. He replied thereby not agreeing with such proposed punishment. As per the proviso to Rule 9(1)(a), the respondent ought to have taken view of the TNPSC. In this case, it has not been done and on the other hand, the first respondent has passed the impugned order only, on the reason that this Court has directed the first respondent to pass final orders within 30 days. Needless to say that if this Court has directed the authority to pass order within 30 days, it does not mean that such order can be passed without following the mandatory procedure contemplated under the relevant Rule. Therefore, I am of the view that the impugned order having been passed in violation of Rule 19(1)(a) cannot be sustained. - Decided in favour of petitioner.

Summary

Issues Involved:
1. Legality of the punishment order cutting pension.
2. Procedural compliance under Tamil Nadu Pension Rules.
3. Merits of the charges against the petitioner.
4. Delay in initiating disciplinary proceedings.

Detailed Analysis:

1. Legality of the punishment order cutting pension:
The petitioner was aggrieved by the final order passed by the first respondent on 07.05.2014, which imposed a punishment of cutting the pension at the rate of Rs. 1,000/- per month for three years. The petitioner sought directions to allow him to receive full pension. The first respondent issued a charge memo under Rule 17(b) of the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules, alleging that the petitioner facilitated a trader to evade sales tax by issuing seven transit passes.

2. Procedural compliance under Tamil Nadu Pension Rules:
The petitioner argued that the impugned order violated Rules 9(1)(a), 2(a), and 2(b) of the Tamil Nadu Pension Rules. Specifically, the petitioner contended that there was no specific finding of pecuniary loss to the government and that the Tamil Nadu Public Service Commission (TNPSC) was not consulted before passing the order. The court emphasized that Rule 9(1)(a) of the Tamil Nadu Pension Rules requires consultation with the TNPSC if the petitioner does not agree to the withholding or withdrawing of the pension. The court noted that such consultation is mandatory and that the lack of consultation vitiated the order.

3. Merits of the charges against the petitioner:
The petitioner was charged with issuing false transit passes, which allegedly facilitated tax evasion. However, the Enquiry Officer found the charges 'not proved.' The disciplinary authority disagreed and issued a show-cause notice, but the petitioner provided a detailed explanation denying the charges. The court observed that the petitioner was merely an issuing authority and that the assessing authority should have taken action against the registered dealer if there were discrepancies. The court also noted that no proceedings were initiated against the dealer, and the assessment order for the relevant period had become final and conclusive.

4. Delay in initiating disciplinary proceedings:
The charge memo was issued on 01.07.2008 for alleged misconduct that occurred in 2004-2005, after the petitioner retired on 31.05.2006. The court found that there was an unreasonable delay in initiating disciplinary proceedings, which was not properly explained.

Conclusion:
The court allowed the writ petition, setting aside the impugned order due to procedural violations and lack of merit in the charges. The court directed that any amount recovered from the petitioner pursuant to the impugned order should be refunded within four weeks. The connected Miscellaneous Petition was also closed.