The Kerala High Court, in major relief to Ex Assistant Tax Commissioner, G.Santosh Kumar ruled that the criminal proceedings can not be initiated against a Public Servant for passing incorrect quasi-judicial order or against the government.
The petitioner, G.Santosh Kumar who was the assessing authority was alleged to have deliberately omitted to verify the assessment files, audited statement of accounts, revised returns and other records including bank accounts relating to M/s.Nano Excel Enterprises for the years 2008-09 and 2009-10. He ignored the suppression of turn over made by M/s.Nano Excel Enterprises and without following the statutory provisions and in violation of the written directions given by the Deputy Commissioner, Commercial Taxes, passed an order dated 04.05.2011 for refunding an amount of Rs.48,20,606/- to the above company as excess tax remitted by the company for the year 2009-10. He also passed an order dated 31.05.2011 for refunding an amount of Rs.1,98,000/- as excess amount of tax remitted by the company for the year 2008-09. As a result, the Government sustained a loss of Rs.50,18,606. The aforesaid orders were passed and refund of amount was made by the petitioner pursuant to a conspiracy hatched between him and the other accused.
Advocate C.S. Manu appearing on behalf of the petitioner contended that the prosecution against the petitioner is based on acts done or committed by him in good faith in discharge of his duties under the KVAT Act and therefore, he is entitled to get the protection under Section 79 of the KVAT Act.
Mr. Manu further added that the prosecution against the petitioner is based on orders of assessment of sales tax passed by him as a quasi-judicial authority. He is entitled to get the protection envisaged under Section 3(1) of the Judges (Protection) Act, 1985.
On the other hand, Mr. A. Rajesh, Public Prosecutor has submitted that the assessment orders were passed by the petitioner not in good faith and he had violated the written directions given by the Deputy Commissioner. The petitioner is not entitled to claim any protection or immunity under any law in respect of mala fide acts of corruption committed by him.
The Single Judge Bench of Justice R.Narayana Pisharadi relied on the Ramesh Chennithala v. State of Kerala wherein it was held that in all cases of malfeasance or misfeasance or wrong administration, or in all cases of loss caused to the Government by the discharge of duty by public servants, a prosecution under the P.C.Act cannot be initiated. If it is only a case of dereliction of duty or wrong administration or malfeasance or misfeasance detected on enquiry, only disciplinary action can be initiated against the erring public servant.
The Court concluded that the petitioner is entitled to get the protection envisaged under Section 3(1) of the Judges (Protection) Act, 1985 in respect of the assessment orders passed by him and that the prosecution against him, which is based merely on those assessment orders, is barred and not maintainable in law. The criminal proceedings against the petitioner, based on the charge-sheet, are liable to be quashed also for the other reasons stated earlier.
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