TMI Blog1989 (6) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... ant before us was the Joint Commercial Tax Officer, Salem Town (North), at the relevant time. Hotel Vinayaga, Salem, was an assessee on the file of the appellant. The said Hotel Vinayaga was finally assessed on a turnover of Rs. 3,62,862 by way of best judgment assessment under section 12 of the Tamil Nadu General Sales Tax Act. The said assessment was based on a "D-3" proposal sent by the Deputy Commercial Tax Officer, Salem Town (South). The appellant had also levied a penalty of Rs. 14,970 as proposed in the said "D-3" proposal. At this juncture, it is relevant to quote that part of the assessment order which runs thus: "Recovery of 4 quarter size note books (A, B, C and D) and 4 bundles of slips (A, B, C and D) revealed certain purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly, he was personally heard by the Secretary, Board of Revenue (CT), Madras, on 27th June, 1977. He tried to defend his case by stating (i) that it was by oversight; and (ii) that the "wilfulness" need not be stated in explicit terms. In support of this, he also cited certain judgments. However, the Board of Revenue discountenanced the defence and ultimately came to the conclusion that he be awarded the punishment of stoppage of increment for one year with cumulative effect. Against this order, he preferred an appeal to the Government. The appeal was dismissed in G.O. Ms. No. 1661, Commercial Taxes and Religious Endowments Department, dated 22nd October, 1979. However, the stoppage of increment was directed not to affect the pension ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner known to law; of course, it is a different matter if motivation is alleged as against the appellant; that is not so in this case; the decision reported as Govinda Menon v. Union of India AIR 1967 SC 1274 would have no application to the facts of this case; therefore, the rulings mentioned by the learned single Judge cannot be said to be correct. 10.. The learned Government Pleader in supporting the order with regard to stoppage of increment, as confirmed by the learned single Judge, would contend that this is a case in which the appellant himself admitted that he had not cared to look into the correct principles of law because of oversight; under these circumstances, there was no other go than to take disciplinary action and that such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority is upheld by the appellate authority invariably. It may be reversed or it may be set aside. But on that score, to call upon a judicial functionary which the appellant undoubtedly is, to explain for his lapses, which according to him, have been caused by inadvertence or error of judgment, which is not disputed by the respondent, is something which will be difficult to support. Of course, if he had passed a bad order or an order even opposed to elementary principles of law, that is a matter for censure. We would go to the extent of saying that that could be entered in the confidential file, so as to deprive him of increment, promotion, etc. However, by no stretch of imagination, according to us he could be exposed to the peril of disci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because no man is infallible. Therefore, where a judicial order can be corrected only by another judicial order of a higher authority and merely because the higher authority finds that a particular provision has not been looked up by the original authority, we cannot subscribe to the proposition that such original authority could be proceeded against by way of disciplinary action. But while saying so, we are fully aware that it would be an entirely different matter if dishonesty, recklessness, negligence, motivation or even want of good faith is attributed. Fortunately for the appellant, that is not the case against him. 14.. In this background, we shall now look at the decision in Govinda Menon v. Union of India AIR 1967 SC 1274. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... propriety and legality of the sanction to the leases may be questioned in appeal or revision under the Act, the Government is not precluded from taking disciplinary action if there is proof that the Commissioner had acted in gross recklessness in the discharge of his duties or that he failed to act honestly or in good faith or that he omitted to observe the prescribed conditions which are essential for the exercise of the statutory power. We see no reason why the Government cannot do so for the purpose of showing that the Commissioner acted in utter disregard of the conditions prescribed for the exercise of his power or that he was guilty of misconduct or gross negligence......." 15.. Therefore, these elements that were prevalent in that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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