VISWAMBHARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Two retired officers of the Sales tax Department, M. Viswambharan, Deputy Commissioner and K. J. Francis, Appellate Assistant Commissioner, are the petitioners in these writ petitions. Viswambharan retired from service on 30.6.1989 and Francis retired on 31.5.1983. They are mainly aggrieved by the orders passed by the Government under R.59(b) of Part III of the Kerala Service Rules reducing their monthly pension. Two main common questions are involved in these writ petitions; first is whether any order passed or action taken by an officer while exercising the quasi judicial powers under the provisions of a statute can be made as basis for initiating disciplinary proceedings and the second is whether the grounds taken for initiating disciplinary proceedings can be relied on for taking action under R.59(b) of Part III K.S.R. These two questions are co - related and interdependent. The first question relates to the extent of the quasi judicial powers conferred on the officer and the other, the ambit and scope of the powers under R.59(b) of Part III K.S.R.

(2.) Sales tax Officer, Appellate Assistant Commissioner and the Deputy Commissioner are the different quasi judicial authorities under the provisions of the Kerala General Sales tax Act, 1963. The powers of these officers have been specified and if the Department or the assessee is aggrieved by the action taken and orders passed by any of the authorities, remedies are provided in the Act. The Deputy Commissioner and the Board of Revenue are authorised to take suo motu actions by calling for and examining any orders passed or proceedings recorded by any officer subordinate to them. Therefore before initiating the disciplinary proceedings against the officers who are conferred with quasi judicial powers under the provisions of the statute, extreme care and caution shall be exercised by the Government. While placing reliance on certain orders passed or actions taken by the officers the enters background of the case must be kept in view. There must be some reasons for not taking suo motu action either by the Deputy Commissioner or by the Board of Revenue against the disputed actions taken or orders passed by the subordinate authorities. It must be known why the Department has not chosen to file appeal in cases wherever the appeals are provided under the Act. In the aforesaid background it is necessary to examine the decision of this Court in Kesavan v. State of Kerala ( 1989 (1) KLT 135 ). If this court goes by the above decisions, the only course open is to quash the disciplinary proceedings against officers exercising quasi judicial function and as a result, the impugned orders are to be set aside. In the above decision this court observed:

(3.) However, the above decision of the Supreme Court came up for consideration before the three learned judges of the Supreme Court in Union of India v. K.K. Dhawan ( 1993 (2) SCC 56 ). In that case the decision in R. K. Desai's case, supra was explained and its operation had been limited. The Supreme Court in K. K. Dhawan's case (1993 (2) SCC 56) observed: