Y. THARUN ROY v. STATE OF KERALA and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH & THE HONOURABLE MR.JUSTICE ANTONY DOMINIC WEDNESDAY, THE 29TH DAY OF MARCH 2017/8TH CHAITHRA, 1939 WP(C)No. 10384 of 2017 (W) ---------------------------- PETITIONER: ----------- Y. THARUN ROY INTELLIGENCE OFFICER (RAPID ACTION) O/O.DY. COMMISSIONER (INTELLIGENCE) COMMERCIAL TAXES OFFICE, TAX TOWER, KILLIPPALAM, THIRUVANANTHAPURAM, NOW ASSISTANT COMMISSIONER-III, AUDIT ASSESSMENT, ERNAKULAM. BY ADVS.SRI.SUNIL JACOB JOSE SRI.SACHIN JACOB AMBAT RESPONDENTS: ------------ 1. STATE OF KERALA REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, TAXES (D) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE COMMISSIONER OF COMMERCIAL TAXES O/O.COMMISSIONER OF COMMERCIAL TAXES, TAX TOWER, KILLIPPALAM, THIRUVANANTHAPURAM-695 002. 3. THE DY.COMMISSIONER (APPEALS) COMMERCIAL TAXES OFFICE, TAX TOWER, KILLIPPALAM, THIRUVANANTHAPURAM-695 002. 4. P.SINDHU, MANAGING PARTNER, M/S.SALONIA, MALLOOR ROAD, VANCHIYOOR, THIRUVANANTHAPURAM @ AMMU, TC 25/3052, MALLOOR ROAD, VANCHIYOOR, THIRUVANANTHAPURAM-695 001. R BY SR. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 10384 of 2017 (W) ## APPENDIX PETITIONERS' EXHIBITS: ---------------------- EXHIBIT P1 : PHOTOCOPY OF THE COMPLAINT NO.483/13 A DATED 18-3-13 FILED BEFORE THE KERALA LOK AYUKTA, THIRUVANANTHAPURAM BY THE 4TH RESPONDENT. EXHIBIT P2 :PHOTOCOPY OF THE OBJECTION DATED 30-7-14 FILED BY THE PETITIONER BEFORE THE LOK AYUKTA, WITH ENGLISH TRANSLATION. EXHIBIT P3 : PHOTOCOPY OF THE ORDER DATED 14-11-16 OF THE KERALA LOK AYUKTA IN COMPLAINT NO.483/2013A. EXHIBIT P4 : PHOTOCOPY OF THE MEMO OF CHARGES DATED 30-1-17 OF THE 1ST RESPONDENT. EXHIBIT P5 : PHOTOCOPY OF THE ORDER NO.CT/5616/2016-A5 16/2/2017 OF R2. RESPONDENTS' EXHIBITS: ---------------------- NIL. // TRUE COPY // P.A. TO JUDGE ## **NAVANITI PRASAD SINGH, C.J. & ANTONY DOMINIC, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No.10384 of 2017** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of March, 2017** ## **JUDGMENT** ## _**Navaniti Prasad Singh, C.J.**_ By this writ petition, the petitioner who was the Intelligence Officer (Rapid Action) in the office of the Deputy Commissioner (Intelligence), Commercial Taxes Office, Killippalam, Trivandrum, prays for setting aside Ext.P3 order of the Kerala Lok Ayukta, by which the Lok Ayukta has made a recommendation to the State Government to initiate disciplinary proceedings against him and to give an action taken report. He also challenges the consequential steps taken by the State Government including the memo of charges and the recovery ordered pursuant to the order of the Lok Ayukta. 2. It appears that on 27.9.2008, certain goods alleged to have been imported were intercepted while being unloaded at Muttom, W.P.(C) No.10384 of 2017 : 2 : Aluva. Pursuant to that the Intelligence Officer issued notice. Thereafter, proceedings were initiated for alleged evasion of tax and an order was passed on 12.10.2009 by the then Intelligence Officer (Rapid Action) under Section 47(6) of the Kerala Value Added Tax Act. The security deposit amounting to Rs.1,93,605/was seized and converted into penalty. The fourth respondent preferred an appeal to the Deputy Commissioner against the said order. On 26.11.2011, the Deputy Commissioner (Appeal) allowed the appeal of the fourth respondent and remanded the matter with certain findings. In the meantime, the petitioner had assumed office of the Intelligence Officer (Rapid Action) in the office of Deputy Commissioner (Intelligence). The order of the Appellate Authority being served upon him he noticed fourth respondent and directed him to produce some documents. Thereafter, in purported compliance of the appellate order, he passed Ext.P3 order on 15.9.2012. Respondent No.4 had a grievance against this order W.P.(C) No.10384 of 2017 : 3 : and again he appealed to the Deputy Commissioner (Intelligence). This time, when the matter was taken up by the Deputy Commissioner in appeal, the Deputy Commissioner was of the view that the order of remand was not only not obeyed but virtually defied by the petitioner. He allowed the appeal, set aside the penalty order which had been reaffirmed in remand. He made certain observations against the inappropriate conduct by the petitioner. Armed with these observations as against the petitioner as made by the Appellate Authority, respondent No.4 then moved the Lok Ayukta making allegations and pleading maladministration. Lok Ayukta, after notice to the parties including the petitioner, was of the opinion that it would clearly be a case of maladministration actuated or motivated by suspected corruption. Accordingly, by the impugned order, recommended the State Government to take appropriate disciplinary action against the petitioner. It also directed the State to recover 8% interest on the refund of penalty, W.P.(C) No.10384 of 2017 : 4 : which the State had to pay to respondent No.4. State, accordingly, initiated disciplinary proceedings and Ext.P4, memo of charges have been served and State has ordered the Deputy Commissioner to recover the interest from the petitioner and reimburse the same to respondent No.4. It is against these actions that the writ petition has been filed. 3. In our view, the first issue that was raised in support of the writ petition is that the petitioner was exercising statutory quasi judicial functions and as such it would not be administrative function as contemplated within the definition of mal-administration as contained in Section 2k of the Kerala Lok Ayukta Act. That being so, the Lok Ayukta had no jurisdiction in the matter. Reliance has been placed on the Division Bench judgment of this court in the case of _**State of Kerala and others v. John Joseph and Another**_ reported in _**[2011 KHC 801]**_ and in particular what is stated in paragraph 19 thereof reads thus: W.P.(C) No.10384 of 2017 : 5 : _19. The power purported to have exercised by the District Registrar by the proceedings impugned before the Lok Ayukta may or may not be strictly within the jurisdiction of the District Registrar. It is a question which we do not propose to go into the instant appeal. For the purpose of the present appeal, it is sufficient to note that, even acts of erroneous exercise of an authority purportedly conferred by a statute, in our opinion, cannot be classified as maladministration within the meaning of the Lok Ayukta Act. It is clear from the language of the definition of the expression 'maladministration' that “unreasonable, unjust, oppressive or action taken or improperly discriminatory” purportedly taken in exercise of administrative functions alone amount to mal-administration. The power conferred under S.45B in our opinion is clearly a quasijudicial function. It may be stated here that a decision of the District Registrar under S.45B(2) is an appealable decision under S.45B(4). Therefore, if the complainant before the Lok Ayukta is of the opinion for any reason that the decision of the District Registering Officer is beyond the jurisdiction conferred under S.45B or for any other reason untenable in law, the same could have been validly before the appellate authority referred to above apart from various other remedies indicated above._ 4. We are not impressed. Looking to the facts of the case and reading what is said in the above quoted paragraph would show that the observations made by the court though generally in W.P.(C) No.10384 of 2017 : 6 : appearance do not lead to such a conclusion. In that case, the court found that the officer concerned had passed an order, which order was appealable. It is in that context, the court held that being an order which was appealable, that remedy ought to have been preferred rather than moving Lok Ayukta for its correction. In this connection, we may refer to the case of _**State of Orissa v. Sudhansu Sekhar Misra and others [AIR 1968 AIR SC 647]**_ wherein the often repeated dictum of Lord Halsbury has been quoted by the approval of the Apex Court, which reads as follows: _A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury LC said in Quinn v. Leathem, 1901 AC 495:_ _“Now before discussing the case of Allen v. Flood, (1898) AC 1 and what was decided therein , there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved,_ W.P.(C) No.10384 of 2017 : 7 : _since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seen to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.”_ 5. In that view of the matter, the issue of jurisdiction as sought to be raised cannot be sustained. 6. Now, coming to the second limb of submission as made by the learned counsel for the petitioner, he submits that as against the original appellate order passed by the Deputy Commissioner as also against the second order passed by the Deputy Commissioner in the appeal preferred again from his order passed on remand, he had recommended to the Deputy Commissioner (Law) to file appeals before the Kerala Value Added Tax Tribunal and two appeals have already been filed, which are pending before the W.P.(C) No.10384 of 2017 : 8 : Tribunal. He submits that in the event either of the appeal is allowed, the very basis of the order of the Lok Ayukta is to be taken away and thus the disciplinary proceedings as initiated and the consequential actions taken would necessarily have to fall accordingly. 7. Having considered the matter, in our opinion, the submission cannot be rejected. But at the same time, it cannot be a ground to state any further action in the matter as we are of the opinion that any action taken by the State Government pursuant to the orders of the Lok Ayukta would ultimately be subject to the result of the two appeals as pending before the Tribunal . It goes without saying that the appeals that are pending before the Tribunal since May 2013 may be expeditiously dealt with and disposed of at an early date preferably within three months from the date of receipt of a copy of the judgment. W.P.(C) No.10384 of 2017 : 9 : ## 8. With these observations and directions, this writ petition stands disposed of. All pending I.As. shall stand closed. SD/- **NAVANITI PRASAD SINGH CHIEF JUSTICE** SD/- **ANTONY DOMINIC JUDGE** _jes_