TaxTMI 
TaxTMI 
2021 (4) TMI 1404
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....low for convenience :- "ARTICLE-1 That the said Shri T.R. Rajagopalan, the then Scientist-E (Retired), Southern Region Office (SRO), Chennai, while functioning as the Scientist-E & Head, Mark Department, Chennai- (MDC-1), SRO, Chennai in the year 2003-04 had provided undue benefits to twelve BIS licensees for packaged drinking water operating under the jurisdiction of MDC-I by not imposing stop marking for the BIS licences held by the receipt of the independent test reports showing failure of samples in critical requirements thereby blatantly violating the provisions of Amendment No. 3, July 2003 to the Operating Manual for Product Certification, 1998 issued by the Central Marks Department of BIS vide circular dated 10-07-2003. 2.By his above act, Shri T.R. Rajagopalan, the then Scientist-E & Head (MD-), had unduly benefited the firm and thereby, displayed lack of devotion to duty and conduct unbecoming of a BIS employee in violation of Rule 3 (1) (ii) & (ii) of the CCS (Conduct) Rules, 1964. ARTICLE - II 1. That the said Shri T.R. Rajagopalan, the then Scientist-E (Retired), Southern Region Office (SRO), Chennai, while function ing as t....
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....f jurisdiction, a charge memo can be interfered with and there is no such ground raised by the petitioner in his Affidavit filed in support of the writ petition. The limitation point raised by him on the basis of Rule 9(2)(b)(ii) of the CCS (Pension Rules) that the 3rd Article of Charges is barred by limitation was already considered by the department and the same was decided to be dropped as evidenced from another Memorandum dated 23.08.2010 challenged by the writ petitioner. 5. They have further contended that the contentions of the Writ Petitioner on the sanction accorded by the President in 2007 to conduct enquiry against the petitioner on Articles of charges framed against him cannot be questioned at all as it is only procedural in nature. The respondents have contended vehemently that it is not necessary to place all the materials before the President for taking a decision to issue a charge memo against a retired officer and it is enough for the President to take a decision on the available materials. further contended that in the absence of any challenge to the sanction order, the validity of the Sanction Order sanctioning for enquiry against the petitioner cannot be prob....
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....eeting sometime in January 2004 to discuss and define the scope of critical requirement. No decision was taken even in that meeting. It was nearly a year later that the scope of the term was defined. Nevertheless, after return from leave and approval of Group Leader's categorization of critical requirement, I began issuing stop marking orders in cases of non compliance in the are of critical requirements in spite of the fact that the conditions attached to the grant of licence were not modified. Hence there is no case for alleging non implementation of the amendment No.3." A perusal of the above contentions would reveal that not only the petitioner but also the group leader and the officials at the Branch level got involved in the first Article of Charge and it is to be mentioned here such an averment is not refuted by the respondents in their counter even impliedly. Further, it reveals that the petitioner after getting approval on his return from the leave issued Stop Marking Orders as per the clarification given by the Group Leader on critical requirement. 8. Those facts are of course relevant to be taken note of while issuing a Sanctioning Order by the competent authority ....
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....ntion of Corruption Act is liable to be rejected in limine as the sanction under the Prevention of Corruption Act is more serious in nature as it not only casts a social stigma on the individual but also make him to undergo the ordeal of painful voyage in the departmental enquiry after his retirement. 13. As the Sanction under the Prevention of Corruption Act is more serious in nature putting a person to social stigma, I am of the strong view that the Sanctioning Authority is required to take note of each and every material placed against the petitioner to find out as to whether it is related to any procedural or substantial violation for personal gain of the individual concerned. 14. I repeatedly have gone through the 1st Article of charges and I find that the subject matter of the first article of the charges that the petitioner is accused of, is that he had not followed Circular No.3 of July 2003 to the Operating Manual for Product Certification 1998 issued by the Central Marks department of Bureau of Indian Standards. 15. Para 2 of the 1st Article of charge would clearly reveal that he had unduly benefited the firm and displayed lack of devotion to duty. There is not e....
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.... be no allegation of misconduct leveled against the petitioner for violating the circular dated 10.7.2003 which has been subsequently superseded." 21. In the common Counter Affidavit filed on behalf of the respondents, the above specific averment regarding the subsequent amendment withdrawing the circular, which is the subject matter of the first Article of Charge Memo has not even been dealt with. There are two Common Counter Affidavits filed on behalf of the respondents 1 and 2, one is dated 10.06.11 and another one is dated 22.06.11. In both the Counter Affidavits, the respondents have taken a stand as if this court has got no jurisdiction to find out the gross procedural violation causing substantial injustice to an individual and affecting his rights and interest adversely. 22. It is true that the jurisdiction of the Court under Art.226 of the Constitution of India to interfere with the disciplinary proceedings is limited in scope and that does not mean that the Courts under Art.226 of the Constitution of India should close its eyes and keep quiet even if gross injustice is brought to its notice because of the violation of the mandatory provisions of law and the procedur....
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....35) "34. ............... It is now well settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer . In this case, furthermore, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of res ipsa loquitur which was relevant for the purpose of this case and thus, failed to take into consideration an irrelevant fact not germane for determining the issue, namely, that the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which is 'preponderance of probability' and applied the standard of proof required for a criminal trial. A case for judicial review was, thus clearly made out. 35.Errors of fact can also be a subject- matter of judicial review. (See E.V.Secy.of State for the Home Deptt._ Reference in this connection may also be made to an interesting article by Paul P.Craig.Q.C.titled 'Judicial Review, Appeal and Factual Error' published in 2004 Public Law, P.788."'. ....
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....ion as they have taken a wrong decision to aver before this Court that this court has no jurisdiction to go into, even the decision making process of the respondents to issue a charge memo against the petitioner after the lapse of 3 years from the date of his retirement. This court always remembers that it cannot deal with the charges on merits and give a finding, as if it is an enquiry officer. But the power of this court is not curtailed in any manner to find out whether the decision to issue the charge memo that too after the lapse of 3 years from the date of retirement of the petitioner is based on some materials or not. 30. It is to be remembered that no disciplinary proceedings can be initiated against the petitioner after permitting him to go on voluntary retirement as early as in 2004 and the only way to proceed against him is under the CCS (Pension Rules) with the Sanction of the President. So it is clear that without the sanction of the President, the respondents have no jurisdiction to initiate disciplinary proceedings against the petitioner. In the absence of such a sanction, no disciplinary proceedings could be initiated against the petitioner. So it is the sanction....