(Prayer: Writ Appeal filed under Clause 15 of the Letters Patent to allow the above Writ Appeal and to set aside the order dated 09.01.2023 made in WP No.5231 of 2020.)

1. Under assail is the writ order dated 09.01.2023 passed in W.P. No.5231 of 2020.

2. Commissioner of Commercial Taxes along with the Joint Commissioner and Assistant Commissioner of Commercial Taxes instituted the present intra-court appeal under Clause 15 of the Letters Patent. Respondent has instituted writ proceedings challenging the Charge Memo dated 09.11.2019 issued against him under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Since the Charge Memo has been set aside, the Department preferred the present appeal.

3. The facts in brief are that respondent was holding the post of Assistant Commissioner (CT), (FAC), Omalur Assessment Circle. During the period from 19.11.2016 to 07.09.2017, certain grave lapses were noticed and consequently, a Charge Memo under Rule 17(b) of the Discipline and Appeal Rules was issued vide Proceedings, dated 09.11.2019.The charges framed against the respondent are necessarily to be extracted for appreciation of facts and the charges read as follows:

               “ANNEXURE-I

               Statement of charges framed against Thiru.M.Baskar, formerly Assistant Commissioner (CT)(FAC), Omalur, Now State Tax Officer(Adjudication), Office of the Joint Commissioner(ST)(Intelligence), Salem Division.

Charge No.1:

               You, Thiru.M.Baskar, while functioning as Assistant Commissioner (CT)(FAC) in Omalur Assessment circle for the period from 19.11.2016 to 07.09.2017, have closed the current file No. 1400/2016 of the Ormalur Assessment circle, prematurely without taking proper action on the 144 bogus Form 'S' certificates contained there in without filing criminal complaint and without taking follow up action for recovery of Tax Deduction at Source on the value of works contract mentioned in such Form S certificates. By failing to take proper action on bogus Form S certificates, with a malafide intention, you have failed to safeguard the interests of Revenue in acting upon such crime and realizing revenue to the State Exchequer. WA No. 412 of 2024

Charge No.2:

               You, Thiru.M. Baskar, while functioning as Assistant Commissioner (CT)(FAC) in Omalur Assessment circle for the aforesaid period, have passed erroneous Assessment orders which are prejudicial to the interest of revenue, in respect of the contractor TvI.M.C.M & Co., Salem for the years from 2011-12 to 2015-16 on 03.11.2016 and thus you have caused revenue loss to the exchequer to an extent of Rs. 42.56 Lakhs, by wrongly allowing the dealer to adjust TDS and not levying penalty.

Charge No.3:

               You, Thiru.M.Baskar, while functioning as Assistant Commissioner (CT)(FAC) in Omalur Assessment circle for the aforesaid period, have passed erroneous Assessment orders which are prejudicial to the interest of revenue, in respect of the contractor Tvi.Thangam, Salem for the years from 2010-11 to 2015-16 on 03.11.2016 and thus you have caused revenue loss to the exchequer to an extent of Rs. 32.92 Lakhs, by wrongly allowing the dealer to adjust TDS and not levying penalty.

Charge No.4:

               You, Thiru. M. Baskar, while functioning as Assistant Commissioner (CT)(FAC) in Omalur Assessment circle for the aforesaid period, have wrongly reported to the Inspector of Police, District Crime Branch, Salem, in connection with the FIR registered against the contractors Tvl.M.C.M & Co and Tmt.G.Thangam in Crime No.8/2016, dated 28.06.2016, U/s 468, 471 and 420 of IPC, for filing bogus Form 'S' Certificates with forged seal and signature of the officials of Omalur circle, that the assessment proceedings were finalized for the both the dealers for years from 2011-12 to 2015-16 under TNVAT Act, 2006 and the dealers have duly paid all the tax amounts. When the primary involved in the fabrication of bogus Form 'S' certifiactes, you have furnished misleading facts to the Inspector of Police, Salem with mala fide intention to safeguard the dealers from the clutches of law, for which you are held responsible.

Charge No.5:

               You, Thiru. M.Baskar, while functioning as Assistant Commissioner (CT)(FAC) in Omalur Assessment circle for the period from 19.11.2016 to 07.09.2017, have wrongly recommended for withdrawal of black listing of the contractors Tvl.M.C.M & Co and Tmt. G.Thangam Contractor, vide your Lr.No.248/2016, dated 04.11.2016 addressed to the Block Development Officer, Kolathur, by stating irrelevant facts that the said dealers were not in any arrears of tax, when the investigations initiated against the said contractors in crime no.8/2016 in District Crime Branch, Salem was pending for the alleged offence of fabricating Form 'S' for forging with seal and signature. Thus, you were instrumental in deflecting the action actually warranted in this matter by furnishing unrelated/irrelevant facts to the Block Development Officer, Kolathur and thereby prevented him from black listing the said contractors for which you are held responsible.

Charge No.6:

      You, Thiru.M.Baskar, formerly Assistant Commissioner (CT) (FAC), Omalur, Now State Tax Officer(Adjudication), Office of the Joint Commissioner(ST) (Intelligence), Salem Division during the aforesaid period, by your aforesaid activities, had thus, acted with negligence in duty with malafide intention and failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant in violation of Rule 20(1) of the Tamil Nadu Government Servants Conduct Rules, 1973.”

4. Perusal of the Charge Memo would show that six charges are framed and Annexure-II of the Charge Memo provides Statement of allegations namely imputations of misconduct. The details regarding the allegations are stated in Annexure-II. Annexure-III provides list of documents including list of 49 Form-S Certificates received in the Assistant Director, Local Fund Audit, Salem. Several documents have been relied upon.

5. Close reading of the Charge Memo would show that there is no infirmity as such in respect of issuance of Charge Memo, which is in consonance with the procedures as contemplated under Rule 17(b) of the Discipline and Appeal Rules.

6. Respondent has not submitted his explanation to the Charge Memo, but preferred a writ petition challenging the Charge Memo. The Writ Court allowed the writ petition on the ground that even if an enquiry is conducted in disciplinary proceedings, the final result will only absolve the petitioner from any misconduct.

7. Learned Special Government Pleader would submit that Writ Court quashed the charge memo based on presumptions and assumptions. Finding that there is a possibility of absolving the petitioner, is not based on an enquiry. Merely considering the nature of allegations and the reply given by the respondent before the Writ Court, the Charge Memo came to be set aside. Therefore, the impugned writ order is to be set aside.

8. The charges are to be enquired into by following the procedures, and in the present case, respondent has not even filed his explanation to the Charge Memo and the writ affidavit was considered and the Charge Memo was set aside.

9. Mr.P.Vijendran, learned counsel for the respondent would oppose by stating that order passed in the writ petition is a consent order and therefore, not appealable. The disputed amount in the Charge Memo has already been deposited, and there is no financial loss to the Department. Since there is no financial loss to the Department, the Writ Court made a finding that there is no possibility of punishing the respondent, and on that basis, Charge Memo was set aside by the Writ Court. He would submit that amount involved was recovered and proof to that effect has been produced before the Writ Court. Thus, there is no infirmity and the appeal is to be rejected.

10. This Court considered the rival submissions made between the parties to the lis.

11. The governing principles for entertaining a writ petition against a Charge Memo have now been settled. They are,

               (i). No writ against a Charge Memo is entertainable in a routine manner.

               (ii). A writ against Charge Memo is entertainable, only if the Charge Memo has been issued by an incompetent authority having no jurisdiction or tainted with allegations of mala fide.

               (iii). The delinquent officer, on receipt of Charge Memo has to submit his explanation.

               (iv). The Writ Court is not expected to adjudicate disputed facts in a departmental disciplinary proceeding. Roving enquiry cannot be conducted by the Writ Court in exercise of powers of judicial review under Article 226 of the Constitution of India.

               (v). In the event of adjudication of disputed facts in writ proceedings, it will result in miscarriage of justice, and there may not be any opportunity to the parties to establish their case through documents and evidence in original.

               (vi). The very purport of enquiry contemplated under the disciplinary rules is to cull out the truth behind the allegations. Therefore, mere statement in writ proceedings would not per se a ground to quash the charge.

 12. Perusal of the writ order impugned would show that Writ Court has considered the averments made by the respondent in the writ affidavit. The Writ Court made a finding that:

               “… no useful purpose will be achieved if a direction is issued to the respondents to complete the disciplinary proceedings initiated against the petitioner, within a time frame as the evidence placed on record before this Court as well as the statement made by the respondents before this Court through the learned Government Advocate makes it clear that the petitioner cannot be held guilty for the alleged charge, in view of the fact that his assessment order passed earlier in his official capacity has once again been re-affirmed in the subsequent assessment order passed pursuant to the directions given by this Court in W.P.Nos. 4976 to 4981 of 2017. The FIR registered against the contractors (Dealers) at the behest of the predecessor of the petitioner has also been closed. Even if an inquiry is conducted in the disciplinary proceedings, the final result will only absolve the petitioner from any misconduct. Therefore, the impugned charge memo dated 09.11.2019 has to be necessarily quashed”

13. A close reading of the above finding would show that Writ Court considered the disputed facts and formed an opinion that there is no possibility of establishing the charges against the delinquent officer. The Writ Court had gone to the extent of recording that, even if an enquiry is conducted in the disciplinary proceedings, the final result will only absolve the petitioner. Such a finding of the Writ Court is unnecessary, since a Government servant may be punished even for lapses, dereliction of duty, negligence or otherwise. The Tamil Nadu Government Servants' Conduct Rules are wider enough to cover various misconducts including lapses. Therefore, mere repayment of money by the contractors per se would not absolve the delinquent officer from departmental disciplinary proceedings. Even in case where the amount of loss is repaid, the said ground cannot be considered for exoneration of the delinquent officer from the disciplinary proceedings.

14. Once the charges are framed and specific allegations are set out, repayment of money per se cannot be a ground to quash the entire charge memo. Even if the respondent could able to produce some documents to establish that money has been repaid and there is no financial loss to the Department, still the authorities are empowered to conduct an enquiry to find out whether there is any lapses, dereliction of duty, negligence or otherwise.

15. The contention of Mr. P.Vijendran, learned counsel for the respondent is that the writ order is a consent order. However, there is no specific finding by the Writ Court that the order has been passed by consent. Considering his oral submission that the Government Pleader had given consent at the time of final hearing of the writ petition before the learned Single Judge, such consent given by the law officers is not binding on the parties. This legal proposition has been considered by this Court in the case of Commissioner, Udhagamandalam Municipality Vs. L.Loganathan (2025 MHC 2698), wherein the learned Additional Advocate General has given a specific consent before the Court, which has been dealt with by the Division Bench of this Court in the following

paragraphs:

               “22. Strong reliance has been placed by the learned counsel for respondent that learned Additional Advocate General, Mr.J.Ravindran has given an undertaking in writing that in future, no application seeking building plan permission/licence will be rejected on the ground of Rule 7(2). Validity of such undertaking given by learned Additional Advocate General or authorities

               before the Court in contravention to the provisions of the special enactment and Rules framed thereunder is to be tested.

               23. In the case of Director of Elementary Education, Odisha & Ors v Pramod Kumar Sahoo2, Hon'ble Supreme Court held as under:

               '8. ..................Therefore, the concession given by the State counsel is erroneous concession in law and, does not bind the appellant. Reference was made to Himalayan Coop. Group Housing Society v. Balwan Singh & Ors. wherein, this Court held as under:

               “32. Generally, admissions of fact made by a counsel are binding upon their 2 (2019) 10 SCC 674 principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyer's statements or admissions as to matters of law or legal conclusions….”

               (Emphasis supplied)'

               24. Therefore, any undertaking of the law officer running counter to the Act or Rules cannot be relied on by the Courts for the purpose of considering the issues. That apart, undertaking given by learned Additional Advocate General is not only running counter to the law but would take away the objectives of Chapter X-A of Act and Rules framed thereunder. Any such undertaking cannot be relied upon for the purpose of grant of building plan permission/licence in hill stations.

16. In view of the fact that grounds raised on behalf of the respondent are insufficient to set aside the charges and more so, the findings of the Writ Court for quashing the charges are also not in consonance with the governing legal principles settled by the Courts, there is every reason to interfere with the writ order impugned.

17. Accordingly, the writ order dated 09.01.2023 made in W.P.No.5231 of 2020 is set aside and the writ appeal stands allowed. No costs. Consequently, the connected miscellaneous petitions, if any, are closed.