The petitioner, Office Assistant attached to the Commercial Tax Department, was alleged to have removed a mini lorry from the compound of Commercial Tax Department without any orders from the Superior Officer, has challenged the order of his dismissal, from service.
2. The facts of the case are as follows:
The petitioner was employed as Office Assistant in Commercial Tax Department and he was working in commercial Tax Enforcement wing, Madras North. On 23.4.1993, when the Deputy Commercial Tax Officer, Mr.Thanikachalam was checking the vehicles plying on road in Puduvayal village within the then Chengai M.G.R. District, one Mini Lorry TAC 135 did not stop, when it was intercepted. The vehicle was chased and lateron, it was found abandoned at Chakkaraichettikulam. At that time, there was no driver or owner in the vehicle and therefore, after giving a complaint to the police and as per the order of the Deputy Commercial Tax Officer, the petitioner took the Mini Lorry TAC 135, drove the same and parked it in the Commercial Tax Building at Greams Road, Chennai.
3. Subsequently, the said Deputy Commercial Tax Officer came with the owner of the goods and directed the petitioner to accompany the owner of the goods and to receive money from him. Accordingly, as per the directions of the superior officer, without demanding a memo in writing, the petitioner accompanied the owner of the goods. He paid Rs.5,000/- to the petitioner with a request to hand over the amount to the Deputy Commercial Tax Officer and accordingly, the petitioner paid the amount to the said Officer. Thereafter, the said officer directed the petitioner to take the Mini Lorry TAC 135, and leave the same at a particular spot and that the petitioner carried out the instructions. While the Mini Lorry was taken out from the premises of the office building at Greams Road, Chennai, sthe petitioner informed one Mr.Selvaraj, Night Watchman that he is taking the vehicle, as per the directions of the Deputy Commercial Tax Officer.
4. For the reasons best known to the said Officer he has sent a report to the Assistant Commissioner of Commercial Tax Enforcement, Madras North, the third respondent, alleging that the petitioner had removed the vehicle on his own accord, without obtaining permission from the Deputy Commercial Tax Officer and on the basis of the said report, the third respondent placed the petitioner under suspension on 26.4.1993. Subsequently, a charge memo was issued to the petitioner. He also submitted his explanation on 29.5.93, bringing forth all the facts which happened on 23.4.93 and denied the charges. Not satisfied with the explanation, an Enquiry Officer was appointed. Seven witnesses were examined on behalf of the department. The enquiry officer, without appreciating the evidence in proper perspective, found the charges 1 and 2 as proved. On the basis of the report, by the impugned order dated 14.1.99, the Assistant Commissioner, Commercial Tax Enforcement, Madras (North), dismissed the petitioner from service. The said order is under challenge.
5 . The first respondent in his counter affidavit has submitted that on 23.4.93, when the Deputy Commercial Tax Officer, Mr.V.Thanikachalam was checking the vehicles plying on road, in Puduvayal Village, Chengalpet District, one Mini Lorry TAC 135 did not stop, when it was intercepted, inspite of signal given by the department staff. Hence, the vehicle was chased and it was found near Chakkrai Chettikulam. The driver of the vehicle and the owner of the goods were not available and therefore, a complaint was lodged by the Deputy Commercial Tax Officer, Roving Squard III in the Arni (Chengalpet District) Police Station, narrating the circumstances and informed that the vehicle TAC 135 is being taken to Greams Raod, Chennai-6 for further investigation. The vehicle was brought to Greams Raod, Chennai with the assistance of Mr. J.Mariadoss, Office Assistant, the petitioner herein, who knows driving. The owner of the vehicle and the goods carried in the vehicle were not known. Therefore, the Deputy Commercial Tax Officer, Roving Squard III instructed the duty Watchman and an other duty watchman attached to other tax office to take care of the vehicle and went to the office at 11.30 p.m. The duty Watchman, Mr.C.Selvaraj has informed that Mr.J.Mariadoss the petitioner who attended duty during the vehicle check had taken away the goods vehicle No.TAC 135 parked inside Greams Road Campus, about 12.00 mid night on 23.4.93, informing the said watchman that the Deputy Commercial Tax Officer had asked him to bring the vehicle. When the Deputy Commercial Tax Officer came to know the foul play, he tried to find out the vehicle and contacted the petitioner, but the efforts, proved futile. Therefore, a complaint was lodged in Thousand Light Police Station and the Crime Branch has registered a case in C.R.261 of 1993 under
section 379 of IPC. As the petitioner has committed a grave misconduct, he was placed under suspension on the grounds that on enquiry into grave charges was contemplated.
5a. Subsequently, a charge memo was framed on 10.12.93 by the third respondent. The respondents have further submitted that the petitioner his explanation dated 29.12.1993, has stated that on 23.4.93, he accompanied the Deputy Commercial Tax Officer/Roving Squard III for the Lorry check. As the goods vehicle TAC 135 did not stop at the checking point, the vehicle was chased and found near Chakkarai Chettikulamj. Neither the driver nor the owner of the vehicle was not found. Investigation further revealed that the vehicle was brought to Greams Road, commercial Taxes compound by him, under the instructions of the Deputy Commercial Tax Officer and the goods vehicle was parked there. In his explanation, he further submitted that as per the instructions of the Deputy Commercial tax Officer, the petitioner had collected a sum of Rs.5,000/- and after receiving the money, the Deputy Commercial Tax Officer instructed him to take the goods vehicles and deliver the same at the appropriate place. In his explanation, he has also submitted that a sum of Rs.5,000/- was handed over to the Deputy Commercial Tax Officer and without instructions, he would not have removed the vehicle. According to him, the vehicle was removed from Greams Road office Complex only on the oral instructions of the Deputy commercial Tax Officer, Roving Squard III. To that effect, he has also informed the other Night Watchman. The respondents have further submitted that the explanation submitted by the petitioner was considered and it was found that the petitioner has made allegations against his superior officer. That the superior officer, after receiving Rs.5,000/- had instructed him to remove the vehicle and thereafter has paid the money to him.
6. It is the further case of the respondents that after giving sufficient opportunity to the petitioner in the oral enquiry and after considering the evidence in proper perspective, the defence putforth by the petitioner and his further representation on the findings recorded in the enquiry report, the punishment of dismissal from service was inflicted on him. The respondents have further submitted that there is no procedural irregularity and the findings recorded by the Enquiry Officer are based on proper appreciation of evidence and hence, it cannot be termed as perverse, warranting interference.
7. Attacking the procedure followed by the enquiry officer as unfair and his findings as perverse, Mr.M.Ravi, learned counsel appearing for the petitioner submitted that the witnesses examined were all subordinate officers/servants and therefore they have obliged the superior officers and therefore the evidence cannot be acted upon. The enquiry officer and the disciplinary authority have failed to consider that the petitioner was only an Office Assistant who was bound to carry out the instructions of the Deputy Commercial Tax Officer, who instructed the petitioner, to remove the vehicle from the Commercial Tax Office building and hand over the same to the owner of the vehicle.
8. According to the Learned Counsel, the petitioner's version that he was directed to release the vehicle was corroborated by Mr. Selvaraj, Night Watchman and both the enquiry officer and the disciplinary authority have failed to consider the same. Considering the fact that the petitioner, being a last grade servant and a subordinate staff, he could not demand a letter or memo in writing from the Deputy commercial tax Officer for remaining the vehicle. Hence, he submitted that there is no evidence to prove that the petitioner has committed the act of misconduct.
9. It is the further contention of the of the learned counsel for the petitioner that the department ought to have examined the owner of the goods and the driver of the vehicle to prove the incident alleged to have taken place on 23.4.1993 and non-examination of the said witnesses is vital to the proceedings. According to him, when the petitioner was only an Office Assistant, the allegations that he has removed the vehicle at late hours, from Commercial Tax building, without prior permission from the higher authorities is purely an imagination and therefore, both the enquiry officer and disciplinary authority ought to have visualised the situation in the light of the oral testimony of night watchman, Mr.Selvaraj and applying test of preponderance of probability, they ought to have come to the conclusion that an office Assistant would not have taken the vehicle, without the oral directions of the superior officer, namely, the Deputy Commercial Tax Officer, Roving Officer Squard III. In these circumstances , he submitted that the findings recorded by the enquiry officer are perverse.
10. On the basis of the judgement in C.C.No.9018 of 1995, dated 4.2.1999 of the Learned XIV Metropolitan Magistrate, Egmore, Chennai, acquitting the petitioner, on the charge of theft of vehicle TAC 135, learned counsel for the petitioner submitted that when the criminal case registered against the petitioner ended in acquittal, initiation of disciplinary proceedings was only to victimise the petitioner and to cover up the illegality committed by the then Deputy commercial Tax Officer.
11. Placing reliance on the judgment of this Court reported in 2006 (3) M.L.J. 191, N.Nandagopalan VS. Secretary to Government, Personnel and Administrative Reforms (Q) Department, Chennai-9, learned counsel for the petitioner submitted that the Deputy Commercial tax Officer/Roving Officer, Squard III was very much involved in directing the petitioner to release the vehicle at late hours and only on that basis, he had informed the Night Watchman Mr.Selvaraj, while taking the vehicle out of Commercial Tax Buildings. He further submitted that when more than one persons are involved in the same incident, the department, ought to have proceeded against all the persons and that they have no right discretion to pick and choose the petitioner and proceed against him, leaving the others and therefore there is violation of
Article 14 of the Constitution of India.
12. Per contra, Mr.S.Gopinathan, learned Additional Government Pleader taking this Court through the enquiry report and the pleadings submitted that the vehicle was brought to Greams Road Campus and both the duty Watchman and another duty Watchman attached to other office were directed to take care of the vehicle and thereafter, at 11.30 p.m. on 23.4.1993, the Deputy Commercial tax Officer had left the office. On the next day, when he came to the office, the duty watchman Mr.Selvaraj informed the Deputy Commercial Tax Officer that the petitioner had taken away the goods vehicle TAC 135 parked inside the Greams Road Campus, at about 12.00 mid night on 23.4.93 informing him that the Deputy commercial Tax Officer had asked him to bring the vehicle. He further submitted that when the Deputy Commercial Tax Officer came to know about the foul play of the petitioner, he could not be contacted and therefore a complaint was lodged with Thousand Light Police Station in Cr.No.261 of 1993 under
section 379 of IPC. He further submitted that in the explanation to the charge memo, the petitioner has made serious allegations against the Deputy Commercial Tax Officer, stating that after removing the vehicle from Commercial Tax office campus, both the Deputy commercial tax Officer/Roving Squard III and the owner of the vehicle came there and that the officer had instructed the owner of the vehicle to give money and as per the instructions of the Deputy commercial Tax Officer, the petitioner collected Rs.5,000/- from the owner of the vehicle and that after receiving the said sum, the officer instructed to take the vehicle and deliver it at the appropriate place.
13. Inviting the attention of this Court to the oral evidence let in by the petitioner, learned counsel appearing for the respondents submitted that about 11.30.p.m. on 23.4.1993, the driver of the vehicle was prepared to pay the 'C' fees on the next day morning and therefore, the Deputy Commercial Tax Officer, who came to the place at 11.30 p.m., along with owner of the goods informed him to release the vehicle and pointing out the contradiction between the explanation and the oral evidence let in by the petitioner, learned counsel for the respondents further submitted that the defence put up by the petitioner cannot be accepted as it was self-contradictory.
14. Learned counsel for the respondents further submitted that excepting the petitioner, the other witnesses, including the Night Watchman have clearly deposed that neither the owner of the goods nor the driver of the vehicle had turned up at the place. Therefore, the contention of the petitioner that he had received a sum of Rs.5,000/- from the owner and paid it to the Deputy Commercial Tax Officer for release of the vehicle was proved to be false in the enquiry. Further, the Deputy Comercial Tax Officer has clearly deposed that he has not ordered for the release of the goods vehicle. He further submitted that if the Deputy Commercial Tax Officer was present along with the driver of the vehicle and the owner of the goods, there was no necessity for the night Watchman to stop the vehicle.
15. According to the learned counsel for the respondents, the enquiry officer after proper appreciation and assessment of evidence, has categorically found that the defence put up by the petitioner was not acceptable and false and he had taken the vehicle from Greams Road, without prior permission or release order from the Superior Officers.
16. Learned counsel for the respondents further submitted that if the Deputy Commercial Tax officer had instructed the petitioner to release the vehicle, there was no necessity for him to lodge a complaint to Thousand Light Police Station.
17. He further submitted that acquittal of the petitioner in the criminal case was purely on technical grounds as certain witnesses were not examined. The Investigation Officer and other certain important witnesses were not examined. In the above said criminal case, the acquittal was not on merits and therefore that will not preclude the disciplinary authority to launch departmental action.
18. Placing reliance on the decisions of the Supreme Court as well as this Court, the respondents submitted that acquittal in a criminal court does not have the effect of ascertaining the factual position of this case.
19. Learned counsel for the respondents further submitted that the disciplinary proceedings were conducted following the procedure as per Rule 17(b) of the Tamilnadu Civil Services (Discipline and Appeal) Rules. The enquiry was conducted in a fair manner. No objections were raised regarding the procedure followed in the enquiry before the disciplinary authority. As regards the contention that the petitioner ought to have been given the benefit of doubt, learned counsel for the respondents submitted that excepting the statement of the petitioner, no other witness deposed that the driver of the vehicle or the owner of the goods was present on 23.4.93 mid night to release the vehicle. If the petitioner had wanted the presence of the abovesaid persons to prove that they were present on the said date, nothing prevented the petitioner from taking steps to summon them before the enquiry officer. F