Writ Petition No. 13036 of 2008 · Madras High Court
Case at a glance
Outcome
Dismissed
With the above direction, the writ petition is dismissed
Provisions considered
- Constitution of India art. 226
Key paragraphs
- Para 88. A reading of the impugned order and explanation of thepetitioner shows that as to how the petitioner has been purposelyevading to give reply and also to appear for the enquiry. In suchview of the matter, it is not possible for this Court to accept…
- Para 1010. Even in the judgment cited by the learned counsel for thepetitioner, the decision was that the authority should exercisediscretion in a proper manner and certainly if the charges aretrivial in nature, the authority can be expected to see the interestsof the trustee as well…
Judgment
IN THE HIGH COURT OF JUDICTURE AT MADRASDATED : 30.03.2009CORAM:THE HON'BLE MR. JUSTICE P. JYOTHIMANIWRIT PETITION NO.13036 of 2008andM.P.NOs.1 & 2 OF 2008 Tmt.S.HemalathaHereditary TrusteeArulmigu Chendrya Perumal ThirukoilPagalpatti, Omalur TalukSalem District. ..Petitionervs.
The Joint Commissioner of Hindu Religious Charitable Endowment Department Salem 1.
The Assistant Commissioner of Hindu Religious Charitable Endowment Department Salem 1.
Vijayaraj (impleaded as R.3 as per order of the Court in MP.No.2 of 2008 dated 30.03.2009) ..RespondentsWrit Petition filed under Article 226 of the Constitution of India praying to issue an order of Writ of Certiorari calling for therecords relating to the order passed by the 1st respondent inSa.Mu.Mu.Na.Ka.1959/08/A2 dated 16.05.2008 and quash the same. For petitioner: Mr. S.RavichandranFor respondents: Mr.T.Chandrasekaran Spl. Govt. Pleader for R.1 & R.2 Mr.V.Selvaraj for R.3ORDERHeard the learned counsel for the petitioner and the learnedSpecial Government Pleader appearing for the respondents 1 and 2 and https://hcservices.ecourts.gov.in/hcservices/ also Mr.V.Selvaraj, learned counsel appearing for the impleadingrespondent, viz., R.3. 2. The impleading petitioner in M.P.No.2 of 2008 is the President of Hindu Baktha Jana Sabha, Salem District Committee, whoappears to have made certain complaints of irregularities regardingthe maintenance of Arulmighu Chendrya Perumal Thirukoil, Pagalpatti, Omalur Taluk, Salem District, in which the writ petitioner claims tobe the hereditary trustee.
The impugned order dated 16.5.2008, isone by which the first respondent, by invoking the powers undersection 53(4) of the Hindu Religious and Charitable EndowmentsAct,1959 (for short, 'HR & CE Act') has placed the petitioner undersuspension pending disciplinary proceedings against her. In viewof the fact that it was on the complaint of the impleading party, theimpugned order came to be passed, the impleading petition standsordered.3. In the affidavit filed in support of the writ petition thewrit petitioner admits that prior to her, her husband was thehereditary trustee and was removed on various charges. It appearsthat after various proceedings, by virtue of the order dated29.11.2004, the Government has given direction that the petitionershould be appointed as hereditary trustee and it is stated that byvirtue of the said order, the petitioner has been continuing in thesaid capacity. The first respondent has issued a show-cause notice tothe petitioner on 27.2.2008 framing eight charges.
It is the caseof the petitioner that she has given her reply to the said chargeson 24.3.2008. There was a second show-cause notice issued on26.3.2008 for which, it is stated, a reply has been submitted on7.4.2008. On 5.5.2008, by virtue of the third show-cause notice fiveadditional charges were framed against the petitioner and thepetitioner gave a reply on 15.5.2008. When the final decision waspending on the charges, the impugned order came to be passed by thefirst respondent by suspending the petitioner in public interest aswell as in the interest of the temple. In the impugned order a wrongprovision viz., section 53(3) of the HR & CE Act has been quoted, but a reading of the entire order shows that the purport of the orderwas to invoke section 53(4) for the purpose of passing an order ofinterim suspension of the petitioner from the post of hereditarytrustee in maintaining the temple. Law is well settled that the merewrong quoting of provision will not change the proceedings if thesame is otherwise in order.
4. Even though the learned counsel for the petitioner wouldvehemently contend that the petitioner has given various replies tothe charges and the same have not been considered before passing theorder of suspension, it is relevant to refer to various charges(eight in number) and the reply given by the petitioner withreference to the original charge memo dated 27.2.2008. One of thecharges is that in respect of 11.77 acres of land belonging to the https://hcservices.ecourts.gov.in/hcservices/ temple, where illegal encroachment has been made by third parties, the petitioner being the hereditary trustee, has not taken any stepsto prevent the same. The other charge is in respect of 80.06 acresof land belonging to the temple, when third parties illegallyobtained patta, even after repeated directions given, the petitionerbeing the hereditary trustee of the temple has not taken any stepsto get the properties of the temple.
A more serious charge is thatout of 300 acres of land originally belonged to the temple, due tothe improper administration of the petitioner, as on date only lessthan 150 acres of land is available with the temple and thepetitioner is stated to be responsible for allowing others to getpatta in respect of about 150 acres of land.
In the additional charges framed on 5.5.2008, it is seen thatin spite of charges having been framed and explanation having beencalled for, the petitioner has been evading to give explanation andshe has not even chosen to appear before the enquiry authority. Oneof the additional charges framed is that the petitioner havingadmitted not submitting the accounts in respect of income of thetemple has been repeatedly asking for extension of time. The furthercharge is that the petitioner has not chosen to effect audit of theaccounts of income of the temple. It is also stated in the additionalcharges that this Court in W.P.No.14609 of 2007 has directed thepetitioner to fix rent of the tenants who are occupying the templeproperties and the petitioner has not taken any steps in this regard. Besides the abovesaid charges other charges are also not trivial innature.
The most astonishing factor in this case is that though thelearned counsel for the petitioner would vehemently submit that thepetitioner has submitted her explanation to the charges, but areference to the explanation makes it clear that the petitioner hasnot chosen to give explanation and only promised to rectify thedefects. In fact, in one such explanation dated 24.3.2008, thepetitioner has stated in a reckless manner that she has filed thedocuments in civil Court and after the documents are received, shewill take steps for rectifying the various irregularities. She hastaken various stands one of such is about submission of explanationto the first respondent authority on the basis that some function isgoing on in her house and it is seen that the petitioner hasimpliedly admitted that some of the properties of the temple weresold to her relatives. It is not as if the first respondent has notgiven sufficient opportunity to the petitioner either to giveexplanation or to appear for enquiry.
It is seen that on 17.4.2008 the first respondent directedthe petitioner to appear for enquiry on 23.4.2008, for which thepetitioner has chosen to state as if her counsel was on summervacation, but the fact remains that the summer vacation fell in Mayof that year. These are all some of the instances to show the https://hcservices.ecourts.gov.in/hcservices/ careless and lethargic way in which the petitioner has taken thecharges. The petitioner has even chosen to state in one of thereplies that the non-submitting of accounts is not a very seriousmatter. She has further stated that she is prepared to submitaccounts at any point of time.
A reading of the impugned order and explanation of thepetitioner shows that as to how the petitioner has been purposelyevading to give reply and also to appear for the enquiry. In suchview of the matter, it is not possible for this Court to accept thecontention of the learned counsel for the petitioner that the chargesare very trivial and the petitioner has been always willing to giveproper explanation. The learned counsel for the petitioner wouldalso rely upon the judgment of this Court in Soundararaja Mudaliar v.Dy.Commr., H.R.& C.Endow (1964 (1) MLJ 236) and submit that evenbefore exercising the power under section 53(4) of the HR & CE Act inpassing temporary suspension, the enquiry authority should take intoconsideration all the reply and other factors. That was a case wherethe charge framed against the party was that he has not submittedbudget estimates and has not submitted the particulars about theproperties of the temple.
It was, considering the said aspect, this Court having held that the jurisdiction conferred upon the authorityto suspend a trustee pending disposal can never be questioned, butopined that in such circumstances the authority should take intoconsideration the interest of the temple and while deciding the same, the nature of charge should also be taken into consideration. Theoperative portion is as follows: "There is undoubted jurisdiction conferred upon theauthorities to suspend a trustee pending disposal of thecharges against him. In the instant case, though the chargeswere framed in January, 1961, the authorities do not seem tohave taken the view that the continuance of the trustee incharge of the temple was not in any way detrimental to theinterests of the temple. After the enquiry had been postedand re-posted to several dates, and more than six months afterthe framing of the charges against the trustee, the DeputyCommissioner purported to place the petitioner undersuspension in exercise of his powers under section 53(4).
Oneis entitled to take note of the underlying purpose of thepower that is conferred by this provision upon the DeputyCommissioner. It is that in proper cases the interests of thetemple should not be jeopardised by a person who had beenfound to have committed acts which would endanger theinterests of the temple; for instance, suppose the chargeagainst the trustee had been that he had failed to obtainpermission for absenting himself, or some such trivial ground, it would be impossible to accept the position that pending theenquiry into such a charge, it would at all be necessarylooking at the matter from any point of view, to place the https://hcservices.ecourts.gov.in/hcservices/ trustee under suspension. The purpose underlying thisprovision is therefore, that the authorities are entitled tosee that the temple is looked after properly during the periodwhen the charges are under enquiry and it is in that contextthat one had to examine the action of the Deputy Commissionerin the present case.
As I have stated, the charges are onlythat he failed to prepare certain accounts and nothing moreserious than that. It is, no doubt, true that it is notwithin the province of this Court to measure the gravity ofthe charges. But, looking at the matter in the light of theneed for this particular provision, it is difficult to seewhat grounds the Deputy Commissioner thought existed whichmade it necessary to deprive the petitioner of his chargeof the temple during the conduct of the enquiry. As I havesaid, more than six months had elapsed from the date on whichthe charges had been framed and before the date on which anorder of interim suspension was made. Though the DeputyCommissioner is not bound to give his reasons, the fact thatthe order of interim suspension was made after suchconsiderable delay would, to my mind, require the existence ofsome supervening reasons which necessitated such a course.
Nothing is stated either in the order suspending the trusteeor even in the counter affidavit to show that anycircumstances justifying the suspension of the trustee hadcome into existence, in the management. The counter affidavitreads as if the respondent is under the impression that inevery case where the charges are framed against a trustee, the Deputy Commissioner is entitled to, or even obliged to, underthe provisions of the law, place the trustee under suspension. This view of the relevant provision is grossly erroneous. "
A reference to section 53(4) of the HR & CE Act which is asfollows; "Section 53. Power to suspend, remove or dismisstrustees.-(1) xxxx(2) xxxx(3) xxxx(4) Any person aggrieved by an order of [the JointCommissioner or the Deputy Commissioner, as the case maybe], under Sub-section (3) may, within one month from thedate of receipt of the order by him, appeal against theorder to the Commissioner. " https://hcservices.ecourts.gov.in/hcservices/ certainly gives the power to the authority viz., the first respondentto place a trustee under suspension and even to appoint a person as afit person to discharge the duties as trustee pending disposal ofthe disciplinary proceedings in which charges had been levelledagainst the trustee.
Even in the judgment cited by the learned counsel for thepetitioner, the decision was that the authority should exercisediscretion in a proper manner and certainly if the charges aretrivial in nature, the authority can be expected to see the interestsof the trustee as well as the temple, but, the facts of the case, asI have enumerated above, especially few of the charges which I havenarrated, make it very clear that the charges can never be treated astrivial in nature and they are certainly serious in the maintenanceof the temple and the correctness or otherwise of the charges are tobe decided in the full-fledged enquiry. It is not even the case ofthe petitioner that the petitioner has not been given adequateopportunity for defending herself in the enquiry conducted by thefirst respondent. In such view of the matter, I am of the consideredview that the impugned order does not suffer from any illegality onthe face of it even in the light of the judgment relied upon by thelearned counsel for the petitioner, and taking into consideration theinterest of the temple, the action taken by the first respondent inplacing the petitioner under suspension pending enquiry is perfectlyin order.
Operative part
11. In view of the same, the writ petition is liable to bedismissed as it is not possible to interfere with the impugned orderpassed by the first respondent. However, taking into considerationthat the petitioner had made her reply in respect of various chargesand the first respondent has been issuing several notices forenquiry, the first respondent is directed to give sufficientopportunity to the petitioner, conduct proper enquiry and passappropriate orders on merits and in accordance with law in respect ofthe charges levelled in the disciplinary proceedings initiatedagainst the petitioner, expeditiously, in any event, within a periodof three months from the date of receipt of copy of this order. Itis made clear that the petitioner shall co-operate with the firstrespondent in conducting the enquiry. With the above direction, the writ petition is dismissed. Nocosts. M.P.No.2 of 2008 is ordered.
In view of dismissal of themain writ petition, connected miscellaneous petition, viz., M.P.No.1of 2008 is also dismissed. sd/-Asst. Registrar/true copy/kWhSub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Joint Commissioner of Hindu Religious Charitable Endowment Department Salem 1.2. The Assistant Commissioner of Hindu Religious Charitable Endowment Department Salem 1.+ 1 c.c. to Mr. S. Ravichandran, Advocate. S.R.No.10674.+ 1 c.c. to Mr. V. Selvaraj, Advocate. S.R.No.10594. W.P.No.13036/2008MG (CO)GSK 17.04.2009.
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: With the above direction, the writ petition is dismissed
Which statutory provisions did this judgment involve?
Constitution of India — art. 226.
Which court decided this case, and when?
Madras High Court, on 30 Mar 2009. The bench was P JYOTHIMANIWRIT.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.