(Order of the Court was made by P.K. Misra, J.
Heard Mr.M.Dhandapani, learned Special Government Pleader for the State and Ms. C.R.Rukmani, learned counsel for the respondent No.1
2. These two writ petitions are filed against the same order dated 4.11.2003 in O.A.No.579 of 2002. The Tribunal, while dismissing the Original Application No.579 of 2002 filed by the applicant, had given a direction to the following effect in paragraph-10, which is extracted hereunder:
" 10. Therefore, now that the applicant has retired department is directed to consider retrospective promotion after the currency of punishment was over in 2002 and prior to his retirement in October, 2003. The applicant will be entitled to monetary and service benefits and revision of pension accordingly. This shall be done by the department and the applicant is entitled for monetary and service benefits. "
3. These directions contained in paragraph-6 is the subject matter of challenge in W.P.No.8070 of 2005 filed by the Special Commissioner and Commissioner of Commercial Taxes, wherein the applicant before the Tribunal has been impleaded as respondent No.1. The connected Writ Petition No.26534 of 2005 was filed subsequently by the applicant challenging the order passed by the Tribunal not interfering with the order of punishment.
4. There was a departmental enquiry against the applicant in respect of eight charges. However, it was found that the charges except Charge Nos.1 and 7 had not been proved. On the basis of conclusion, a punishment of stoppage of increment for six months without cumulative effect was imposed as per proceedings dated 1.11.2001. The applicant contended before the Tribunal that the conclusion regarding delinquency of the applicant in respect of Charge Nos.1 and 7 are not based on any material on record and such conclusions are liable to be quashed. The Tribunal after referring to the enquiry report made an independent assessment of the materials and came to the conclusion that the order of punishment imposed was justified on the basis of the materials on record. Accordingly, the Tribunal refused to accept the conclusion with the punishment.
5. The learned counsel appearing for the petitioner in W.P.No.26534 of 2005 has contended that the materials on record did not justify the conclusion relating to delinquency of the applicant (writ petition in W.P.No.26534 of 2005) and such punishment should be quashed. We are afraid such submission of the petitioner in W.P.No.26534 of 2005 cannot be accepted. The law is well settled that the Administrative Tribunal while dealing with the quasi judicial proceedings such as disciplinary action is not expected to act as an appellate authority. Such principle is applicable more vigor in a case, where the order of the Administrative Tribunal confirming the disciplinary action is the subject matter of challenge under
Article 226 of the Constitution of India before the High Court. In the present case, the disciplinary authority had referred to the materials on record and had come to the conclusion regarding delinquency of the applicant in respect of Charge Nos.1 and 7 and there had been an independent assessment by the Tribunal. On a perusal of the Paragraphs 6 to 8 of the Tribunal's order, we do not think there is any scope for the High Court to go further and reappreciate the materials on record to come to a different conclusion. Therefore, the contentions raised in W.P.No.26534 of 2005 cannot be accepted. Such writ petition is liable to be dismissed.
6. So far as the writ petition filed by the The Special Commissioner and Commissioner of Commercial Taxes is concerned, the main ground taken by the Commissioner is to the effect that there is an order of stay and as such the order of punishment of stoppage of increment without cumulative effect was given effect to only after the disposal of the original application by which date the person concerned had already retired and therefore, the question of promotion cannot be considered. We do not think such a contention can be accepted. It is not in dispute that because of the stay order, there was no actual stoppage of increment for the period when the person concerned was in employment. However, it is an admitted case that after retirement, such amount has been recovered from the concerned person. Under such circumstances, it can be deemed as if the order of punishment relating to stoppage of increment without cumulative effect immediately after the order of punishment was imposed. Under such circumstances, there cannot be any embargo for the department to consider the question of promotion. However, it is made clear that the promotion can be accorded only if there is no other legal embargo and as observed by the Tribunal, the Department is to consider the question of retrospective promotion, it is for the department to consider whether there is any other embargo. In case it is found that the promotion could have been accorded, no amount need be paid. The arrears is not required to be paid and such amount shall be notionally calculated for the purpose of fixation of pension. The pension should be paid on the aforesaid basis. The said exercise shall be completed within a period of six months from the date of receipt of a copy of this order.
7. With the above clarification, the writ petition filed by the State Government is disposed of. The other writ petition shall stand dismissed. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs.
kb To
1. The Special Commissioner and Commissioner of Commercial Taxes Chepauk, Chennai 5.
2. The Joint Commissioner Enforcement-I, Commercial Taxes Chennai 600 006