Allowed

S.Mahendran v. The Joint Commissioner (Sales Tax)

Madras HC3 Sept 2024WP/3759/2020

Case brief

AI extract

What is this about?

In this writ petition, the petitioner, a Commercial Tax Officer, challenged a charge memo alleging negligence in reporting forged Form-S certificates. The High Court examined the pending criminal investigation into the forgery and directed the quashing of the charge memo.

What did the court decide?

The impugned charge memo is quashed. The petitioner is acquitted of any departmental action. The Inspector of Police is directed to complete the investigation and file a final report within eight week

S.Mahendran Vs The Joint Commissioner (Sales Tax) — Service and Employment | Madras HC (2024)

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W.P.No.3759 of 2020

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IN THE HIGH COURT OF JUDICATUE AT MADRAS

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DATED: 03.09.2024

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CORAM

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THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

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W.P.No.3759 of 2020

S.Mahendran

.. Petitioner

1.The Joint Commissioner (Sales Tax), Salem Division,

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Hastampatti, Salem – 007.

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2.The Deputy Commissioner (Sales Tax), Mohanur Road, Namakkal.

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.. Respondents

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Prayer: Writ Petition is filed under Article 226 of the Constitution of India seeking for issuance of a writ of certiorari to call for the records pertaining to the charge memo issued by the first respondent vide ROC No.22217/2019/A3, dated 09.11.2019, and quash the same.

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For Petitioner : Mr.P.Magesh

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For Respondents : Mrs.K.Vasanthamala, GA

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W.P.No.3759 of 2020

ORDER

The writ petition has been filed challenging the charge memo dated

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09.11.2019 issued by the first respondent.

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The petitioner had joined in the Commercial Taxes Department

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as Assistant Commercial Tax Officer and he was posted at Krishnagiri on 11.12.2008. Thereafter, he was promoted to the post of Commercial Tax Officer on 30.07.2012 and on promotion, he was posted at Dharmapuri. He was again promoted as Assistant Commissioner and posted at Omalur, Salem District, on 03.03.2014, where he served till 23.09.2016. Again, he was transferred to Krishnagiri on 28.06.2019 and at present, he is serving as Assistant Commissioner of Commercial Taxes, Krishnagiri.

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While he was serving as Assistant Commissioner of Commercial Taxes, Omalur, he had received a query under the RTI Act dated 01.02.2016 from one P.Gopinathan, requesting confirmation of genuineness of 28 nos. of Form-S certificates issued to two works contractors, namely, Thangam (15 forms) and M/s.MCM & Co. (13 forms). Subsequently, he verified the records available in the office and upon verification, it is found that those 28 nos. of Form-S, as described in

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the RTI application, are all bogus and forged one. Therefore, the petitioner, vide his communication dated 22.02.2016, informed the second respondent that those 28 nos. of Form-S certificates are bogus and forged by some unscrupulous persons to evade deduction of TDS by the contractees. He had also replied to the RTI applicant vide letter dated 24.02.2016 stating that the official seal affixed in Form-S certificates is not of his office and that the Assessment Officers, whose signatures were forged, were transferred to some other places.

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Subsequently, he had also sent a communication to the Block Development Officer, Koalthur, Mettur Taluk, Salem District, requesting to remit the collected TDS of the above said two work contractors, besides informing that if the said two contractors submit their Form – S certificates, the same should be verified with his office before releasing any payment to them. He had also sent yet another communication to the Project Director/Joint Director, District Rural Development Agency, Salem, vide his communication dated 06.04.2016, requesting to deduct TDS from the contractor/G.Thangam, as 4 nos. of Form-S certificates submitted by her were bogus. However, he did not receive any reply from the Project Director.

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While being so, as directed by the second respondent, the petitioner filed a criminal complaint before the Superintendent of Police, Salem District, requesting him to take action against those two contractors for having illegally forged the signatures of Assessing Officers of the Commercial Taxes Department and producing bogus Form-S certificates for claiming exemption from TDS deduction. The said complaint was duly informed to the respondents 1 and 2. Subsequently, on the basis of the police complaint, the Inspector of Police, District Crime Branch, registered an FIR in Cr.No.8 of 2016 for offences under Section 468, 471 and 420 of IPC against those two contractors. Pending investigation, he received a summons on 26.12.2018 from the District Crime Branch Salem, whereby it is stated that since those two contractors, namely, G.Thangam and M/s.MCM & Co. had deposited TDS amount, no case of loss to exchequer is made out against those contractors. Subsequently, the police officials filed a final report dropping further action against the complaint filed by the petitioner. Aggrieved by the same, the petitioner filed Protest Petition before the Judicial Magistrate No.VI, Salem.

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It is submitted by the learned counsel for the petitioner that the

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said protest petition was subsequently allowed by the Judicial Magistrate No.VI, Salem, ordering further investigation. Now, the said complaint of the petitioner is now taken cognizance in Cr.No.1/24 on the file of CBCID, Salem, and the investigation is pending.

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In the meanwhile, the petitioner was served with impugned

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charge memo dated 09.11.2019 containing two charges as follows:-

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Charge No.1:

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You, Thiru.S.Mahendran, while functioning as Assistant Commissioner (CT), Omalur Circle, from 03.03.2014 to 23.09.2016 have failed to incorporate the details of 23 bogus Form-S certificates alleged to be fabricated by the contractors Tvl.MCM & Co. for contract value of Rs.81.20 lakhs and 25 bogus Form S certificates alleged to be fabricated by Tvl.Thangam for contract value of Rs.340.28 lakhs by forging seal and signature of the officials in the complaint petition filed before the Superintendent of Police, Salem, on 15.06.2016, and reported only about 5 Forms with contract value of Rs.34.40 lakhs in respect of Tvl.MCM & Co., and 3 Forms with contract value of Rs.19.50 in respect of

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W.P.No.3759 of 2020

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Tvl.Thangam contractor, with a malafide intention to safeguard the contractors from consequential penal action under Sections 468, 471 and 420 of IPC.

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Charge No.2:

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You, Thiru.S.Mahendran, formerly Assistant Commissioner (CT), Omalur, now Assistant Commissioner (ST), Krishnagiri-2, Office of the Assistant Commissioner (ST), Krishnagiri-2, 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.

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The respondents have filed a counter affidavit. Learned Government Advocate appearing for the respondents would submit that the petitioner wantonly failed to produce Form-S certificates fabricated and forged by the accused persons before the Investigating Officer at the

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time of lodging the complaint. Therefore, there was a loss to the exchequer. In view of the same, the petitioner was served with a charge

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W.P.No.3759 of 2020

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memo under Rule 17(b) of the Tamil Nadu Civil Service (Discipline & Appeal) Rules. Though accused persons produced 48 nos. of Form-S certificates, he failed to produce the same before the Investigating Agency. Now, the investigation is pending and as such, the charge memo cannot be challenged by the petitioner, since the investigation may reveal the part played by the petitioner.

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The crux of the charge is that the petitioner failed to incorporate

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the details of 23 bogus Form-S certificates alleged to have been fabricated by the contractor/M/s.MCM&Co. for contract value of Rs.81.20 lakhs; and 25 bogus Form-S certificates alleged to have been fabricated by Thangam for contract value of Rs.340.28 lakhs by forging seal and signature of the officials in the complaint petition preferred by him before the Superintendent of Police, Salem. As narrated above, immediately after coming to know about the bogus and fabricated Form-S certificates filed by those two contractors upon filing of RTI Application by one Gopinathan, the petitioner had duly intimated the same to his higher authorities, namely, the respondents 1 and 2. In fact, as directed by the respondents 1 and 2, the petitioner lodged a criminal complaint against those two contractors. On perusal of the complaint

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W.P.No.3759 of 2020

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dated 06.04.2016, it is revealed that the petitioner has narrated each and

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every crime committed by the accused persons. For better appreciation, the crux of the complaint is extracted below:-

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mDg;g[dh;

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knfe;jpud;. cjtp Mizah; (tt). XkYhh;. XkYhh; tzpfthp ruf mYtyfk;. nryk;/

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bgWeh;

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cah;jpU fhty; fz;fhzpg;ghsh; mth;fs;. nryk; khtl;lk;. nryk;/ mk;kh.

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ehd; nryk; khtl;lk; XkYhh; tzpfthp ruf mYtyfj;jpy; cjtp Mizasuhf gzpg[hpe;J tUfpnwd;/ v';fsJ mYtyfk; nryk; khtl;lk;. XkYhh; lt[d; filtPjp fjt[ vz; 2-1-d;w Kfthpapy; ,a';fp tUfpwJ. v';fsJ mYtyfj;jpy; xg;ge;j gzp (Work Contract) bjhHpYf;F thpgpoj;jk; bra;ahky; ,Ug;gjw;fhf jkpH;ehL kjpg;g[ Tl;L thprl;lk; gphpt[ 13d; go Form S rhd;wpjH; Kiwahf tH';fg;gl;L tUfpwJ/

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nryk;. nkl;Lh; tl;lk;. bfhsj;Jhh; fhnthpg[uk;. uhk;jh!; efh; fjt[ vz; 3-4-307 vd;w Kfthpapy; trpj;J bfhz;L jpUth/ j';fk; fz;l;uhf;lh; vd;w bgahpy; v';fs; mYtyfj;jpy; TIN 33253245186 vd;w gjpt[ vz;iz 15-3-2007 Kjy; bgw;W xg;ge;j gzp bra;J tUk; jpUkjp/ j';fk; f-bg nfhtpe;jd; taJ 52 vd;gtUk;. nryk; nkl;LPh; tl;lk; bfhsj;Jhh; fU';fy;Yhh; nkl;LPg;ghisa{h; fjt[ vz; 2-5-424 vd;w Kfthpapy; trpj;J bfhz;L jpUth/ vk;/rp/vk;/ & nfh vd;w bgahpy; g';Fjhuh; epUtdk; v';fs; mYtyfj;jpy; TIN 33483245496 gjpt[

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vz;iz 24-9-2007 Kjy; bgw;W xg;ge;J gzp bra;J tUk; jpU/ Fkhh; (eph;thf ,af;Feh;) j-bg uhkrhkp taJ 31 vd;gtUk;. nryk; XkYhh; tl;lk; f!;gg[Jhh; mkuFe;jp m";ry; fjt[ vz; 1 vd;w Kfthpapy; trpj;J bfhz;L jpUth/ bfsjk; fd;!;l;uf;rd; vd;w bgahpy; Tl;lhz;ik epWtdk; v';fs; mYtyfj;jpy; TIN 33523244407 gjpt[ vz;iz 19-8-2004 ehs; Kjy; bgw;W xg;ge;j gzp bra;J tUk; jpU/ ghg[ vd;fpw gr;rpaz;zd; (eph;thf g';Fjhuh;) j-bg kd;dhjd; taJ-50 vd;gtUk; v';fs; mYtyfj;jpy; xg;ge;jgzp bjhHpYf;F thpgpoj;jk; bra;ahky; ,Ug;gjw;fhf tH';fg;gLk; Form S rhd;wpjH;fis ,t;tYtyfj;jpy; jw;bghGJ gzpg[hpa[k; kw;Wk; ,jw;F Kd;g[ gzpg[hpe;j mYtyh;fspd; ifbahg;gj;ij nghypahf ifbaGj;jpl;L. nghypahf XkYhh; mYtyf Kj;jpiuapl;Lk; Form S Mtzk; nghypahf 2013-14. 2014-15. 2015-2016 Mz;Lfspy; jahhpj;Js;shh;fs;/

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me;j nghypahd Form Mtzj;ij. cz;ikahd Form S vd bfhsj;Jhh; tl;lhu tsh;r;rp mYtyfk;. khtl;l Cuf tsh;r;rp Kfik nryk; kw;Wk; nfhl;l bghwpahsh; (PWD). (fl;Lkhdk; kw;Wk; guhkhpg;g[) nryk; Mfpa mYtyf';fspy; rkh;gpj;J. thpahf muRf;F tuntz;oa gy yl;r U:ghia thp Va;g;g[ bra;J nkhro bra;Js;shh;fs;/

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thp Va;g;g[ tpguk;/

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1. j';fk; fhz;lf;lh - U: 3/50 yl;rk; njhuakhf

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1. vk;/rp/vk; & nfh - U: 1/50 yl;rk; njhuakhf

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1. bfst[jk; fd;!;l;uf;rd; - U: 5/00 yl;rk; njhuakhf

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vdnt nghypahf muR mYtyf Kj;jpiu kw;Wk; nghyp ifbahg;gkpl;L cz;ikahd Mtzk; vd;W Twp muRf;F jkpH;ehL thpVa;g;g[ bra;j nkw;go egh;fs; kPJ rl;lg;go chpa eltof;if vLf;FkhW nfl;Lf; bfhs;fpnwd;/

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,g;gof;F

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cjtp Mizah; (tt) XkYhh; ehs ; : 6-4-2016 ,lk;: XkYhh;

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W.P.No.3759 of 2020

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A mere reading the above complaint would reveal that the petitioner has disclosed all the offences committed by the accused in his complaint dated 06.04.2016 lodged before the Superintendent of Police, Salem. Whether accused persons caused loss to the exchequer by way of producing bogus and fabricated Form-S certificate or not, is a matter for investigation and all those issues are also pending investigation in Crime No.1 of 2024 on the file of CBCID, Salem. Therefore, only after thorough investigation, while filing final report, it will be known as to the loss caused to the exchequer in view of production of bogus and fabricated Form-S certificate by the accused.

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In fact, as stated above, pending investigation in Cr.No.8 of 2016, accused persons had remitted the entire taxes due to the Government and thereafter, the Investigating Agency closed the FIR as further action was dropped. Aggrieved by the same, the petitioner preferred Protest Petition before the Judicial Magistrate No.VI, Salem, and the said Protest Petition was allowed ordering further investigation. Now, the complaint of the petitioner is taken cognizance by the CBCID, Salem, in Crime No.1 of 2024 and the investigation is pending.

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W.P.No.3759 of 2020

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It is settled law that the FIR is not an encyclopedia containing all the minute details and it has to be considered only after investigating the matter while filing the final report. While such being the tenet of law, issuing a charge memo to the petitioner, especially when the compliant filed by him against those two contractors for production of 48 nos. of bogus and fabricated Form-S certificates to claim TDS, while pending investigation, is not sustainable in law.

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For the forgoing reasons, the impugned charge memo issued by the first respondent is quashed and the writ petition stands allowed. The Inspector of Police, CBCID, Salem, is directed to complete the investigation in Cr.No.1/24 and file a final report within a period of eight weeks from the date of receipt of a copy of this order. Registry is directed to mark a copy of this order to the Inspector of Police, CBCID, Salem. No Costs. Consequently, connected miscellaneous petitions are closed.

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03.09.2024

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rkm

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Index:yes/no Neutral Citation: yes/no

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1.The Joint Commissioner (Sales Tax), Salem Division, Hastampatti, Salem – 007.

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2.The Deputy Commissioner (Sales Tax), Mohanur Road, Namakkal.

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3.The Inspector of Police,

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CBCID, Salem.

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G.K.ILANTHIRAIYAN, J.

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rkm

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S.Mahendran v. The Joint Commissioner (Sales Tax)

Case brief

What is this about?

What did the court decide?

S.Mahendran v. The Joint Commissioner (Sales Tax)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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