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TMI Blog2015 (3) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt after examining all the relevant material facts and evidence, stating that the charges I and II are 'not proved'. The first respondent differing with the view taken by the Enquiry Officer, issued a show-cause notice under Rule 9(2)(b)(i) of the Tamil Nadu Pension Rules, dated 28.02.2012. The first respondent differed with the Enquiry Officer only on the reason that incorrect name of the check post was found. The first respondent has not pointed out any pecuniary loss caused to the Government. The petitioner has submitted his explanation on 05.04.2013. However, the final order is passed, which is impugned in this writ petition as stated supra. 3. The respondents have filed a counter affidavit, wherein it is stated as follows:- The writ petitioner and one Thiru M.Omur Mohideen, CTO-III, have issued 24 false transit passes to VNMAD Firm of Thoothukudi to facilitate the said trader to create false records, as if pulses to the total value of ₹ 56,34,670/- sold to one N.Rathinasabapathy, Rajagopal Chetty and Co., Pondicherry, when actually no such sale was made at Pondicherry, thus facilitated the trader to evade sales tax of ₹ 2,25,387/-. This writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court made in W.A(MD)No.171/2012 dated 13.03.2012. 5. Per contra, the learned Government Advocate appearing for the respondents supported the impugned order and submitted that the same was passed in accordance with law, as the petitioner has facilitated the trader to evade sales tax to a sum of ₹ 60,330/- by issuing four transit passes to the value of ₹ 15,08,350/- . Therefore, he submitted that the pecuniary loss to the Government is well established in this case. He further submitted that Rule 9 of the Tamil Nadu Pension Rules empowers the Government withholding or withdrawing a pension or part thereof either permanently or for a specified period, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct during the period of his service. 6. Heard both sides. 7. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be passed, imposing the punishment as stated supra. 8. At this juncture, it is useful to refer to the relevant Rule, namely, Rule 9(1)(a) of the Tamil Nadu Pension Rule. 9(1)(a) The Government reserve to themselves the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period if, in any departmental or judicial proceeding, the petitioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement, and such withholding or withdrawing the pension may be effected irrespective of the fact whether or not any pecuniary loss on account of such grave misconduct or negligence was caused to the Government, to any local body or to any co-operative society comprising of government servants and registered under the Tamil Nadu Co-operative Societies Act 1961; 9. A perusal of the said Rule would show that the Government is empowered to withhold or withdrawal of the pension either in full or part thereof whether permanently or for a specified period if the pensioner is found guilty of grave misconduct or negligence during the period of his service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyment after retirement, then the Government shall have the right of ordering recovery of the whole or part of the pecuniary loss caused by such grave misconduct or negligence from the pension or Death-cum-Retirement Gratuity. However, this can be done only after consultation with the Tamil Nadu Public Service Commission. (emphasis supplied) 12. Therefore, 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. 13. In this case, it is seen that 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings.? 14. Even on merits it appears that the charge levelled against the petitioner cannot be sustained for the following reasons: It is not in dispute that the petitioner was only an Issuing Authority to issue the transit passes. Therefore, if the goods were moved without transit passes or with false transit passes, as if the goods were moved from Tamil Nadu to Pandicherry, then, the Assessing Authority ought to have proceeded against the registered dealer by issuing show-cause notice and making an order of assessment accordingly by considering said movement of goods as deemed sales within the State of Tamil Nadu. But in this case, it appears that no such proceedings have been initiated by the Assessing Authority and on the other hand, the Assessing Authority accepted the transit passes issued along with other documents including declaration form to the effect that the transfer of goods claimed otherwise than by way of sale. Such assessment order passed in respect of the relevant period appears to have become final and conc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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