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2002 Supreme(Ker) 66
Judges : K.BALAKRISHNAN NAIR
S.Anilkumar - Appellant
Versus
State Of Kerala - Respondent
Case No : OP No 1623 OF 2002
Decided On : 01/28/2002
Advocates Appeared :
For the Petitioner: K.R.B. Kaimal, V.P. Sukumar, Advocates. For the Respondent: Raju Joseph, Special Government Pleader.
Headnote:
Constitution of India – Art. 226 – Kerala General Sales Tax Act – S. 13 59A – Validity of Suspension Order –The order that is challenged in this Original Petition is Ext. P5 issued by the Government suspending the petitioner from service –Petitioner prays for the issue of a writ of certiorari to quash Ext. P5– The gravamen of the allegations against the petitioner is that he did not inform the Government about various court orders on the issue – He also did not inform the Government about the issuance of Ext. P2 proceedings – Thus, the petitioner has failed to give full information – Thus, he has committed dereliction of duty as well as negligence in the performance of his duty – Held, What is under challenge is a suspension order – A court exercising the power of judicial review may interfere with a decision if on the given set of facts, no man in his senses could arrive at such a decision – The validity of the suspension order has to be tested within the above parameters – Court is not inclined to hold that the stand of the Government in Ext. P5 is "so absurd that no sensible person could ever dream that it lay within the powers of the authority – The view taken by the Government is certainly a plausible view –The non-mentioning of the existence of Ext. P2 clarification in Ext. R1(b) Note made all the difference– What the Writ Petitioner prepared was for the consumption of a layman (in legal matters) and he should have explained the impact of Ext. P2 and should have further explained that it being a clarification will not amount to grant of exemption – The Government thought that such a proper explanation with meticulous materials should have been provided by the petitioner – Failure to perform the said duty amounted to negligence and also misconduct, according to the Government – Even if a different or better view is possible, this Court cannot interfere and substitute its decision for that of the Government – This Court under the guise of judicial review cannot usurp executive functions – This Court is also not concerned whether an administrative decision is wise or foolish – It is trite law that, if a decision is intra vires, this Court is not concerned whether that decision is right or wrong according to its notions, because such examination is the function of an appellate authority– In fact, this Court is concerned whether the decision is ultravires– The juristic basis of judicial review is the doctrine of ultra vires– Even in the light of the above mentioned extended principles of ultra vires, Court is not inclined to hold that Ext. P5 is ultra vires – The view taken by the Government is certainly a plausible view – What Court meant is that no grounds have been made out for interfering with the order under Art. 226 – Subject to the above observation, the Original Petition is dismissed – Petition Dismissed
K. Balakrishnan Nair, J.
The order that is challenged in this Original petition is Ext.P5 dated 9.1.2002 issued by the Government suspending the petitioner from service. Petitioner prays for the issue of a writ of certiorari to quash Ext.P5. The brief facts necessary for the disposal of the case are the following:
2. The commissioner, Commercial Taxes, as per Ext.P2 order dated 27.9.2001 has issued a clarification under Section 59A of the Kerala General Sales Tax Act. The said order contained the following clarification:
"(a) A hatchery owing a poultry farm in a leased land can register the farm as a branch of the hatchery under Sec.13 of the KGST Act.
(b) The chicks hatched in the hatcheries of the applicant and reared in her farms inside Kerala, on leased land as per the lease agreement , terms of which have been quoted above will be entitled for exemption, as per notification, on the sale of poultry."
3. This was issued on a clarification sought by a hatchery owner of Tamil Nadu who brought chicks from Tamil Nadu, reared them in the farms in kerala taken on lease and sold the grown up chickens in Kerala . As per Notification SRO No.1727/93 and SRO No.1090/99, the hatcheries and poultry farms of Kerala were enjoying exemption from the payment of sales tax on the sale of chicks and chickens. The said exeption was given to grant protection to the farmers of Kerala as against the aggressive marketing of chicken brought from neighboring States. But the clarification issued by the Commissioner as per Ext. P2 has considerably diluted the protection given to Kerala farmers and the hatcheries of neighbouring States started taking advantage of it. A political controversy, it appears, was brewing around the said notification. While so, the Leader of opposition gave notice for making a submission under Rule 304 of the Rules of Procedure and Conduct of Business in the Kerala Legislative Assembly. The submission was relating to the crisis faced by the farmers of Kerala as a result of the tax exemption given by the Government to big hatcheries from other States. It appears, only by 8 P.M. on 6.12.2001 the Secretary, Taxes was informed of the same and the petitioner was directed by about 10 P.M. on the same day to prepare a Note for the use of the Minister for replying in the Assembly .Petitioner was informed of this telephonically. The direction was to submit a Note by 9 A.M on 7.12.2001 to the Finance Minister. It appears, the petitioner went to the Assembly premises in the next morning and gave a Note to enable the Minister to reply to the discussion in the Legislative Assembly. The said Note is Ext.R1(b). In the said Note , the petitioner has stated that the chicken reared in the farms in the State are eligible for exemption even if the owners of the farms are persons belonging to Tamil Nadu. He also clarified that if a person from Tamil Nadu runs a farm in Kerala taking it on lease, he will be considered the owner of the farm and the chicken from the said farm will be eligible for exemption from tax. He concluded the Note stating that after this Government came to power no new concession was granted in this sector.
4. Relying on the above said Note , the Finance Minister replied to the submissions made by the Leader of opposition in the Assembly . It appears , the reply of the Finance Minister basing on Ext.R1(b) Note given by the petitioner landed the Government in a politically embarrassing position . The Government thought that the petitioner did not state all the correct facts in the Note .Therefore, the Government by Ext.P5 order dated 9.1.2002 suspended him from service.
5. The petitioner challenge Ext.P5 on various grounds. He claims that every word stated by him in his Note given to the Minister is correct. In fact, the Government did not issue any exemption notification favouring the poultry farmers of the neighboring states .Petitioner submits that he is an Officer of greatreputation and the mechanical and whimsical act
