Madras High Court
K.S.Ramanujam vs State Of Tamil Nadu on 20 September, 2022
W.P.No.25247 of 2022
and W.M.P.Nos.24199 & 24200 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.No.25247 of 2022
and W.M.P.Nos.24199 & 24200 of 2022
1.K.S.Ramanujam
2.K.Krishnan
3.P.B.Sampathkumar
4.Shanthi Rao ... Petitioners
versus
1.State of Tamil Nadu,
Represented by its Principal Secretary,
Tourism, Culture and Religious Endowments Department,
Tourism and Culture Department Secretariat,
Chennai - 600 009.
2.Commissioner,
Hindu Religious and Charitable Endowments,
119, Uthamar Gandi Road,
Chennai - 600 034.
3.Thakkar,
Arulmigu Adikesava Perumal and
Peyaazhvaar Temple,
Mylapore, Chennai - 600 004.
4.Enquiry Officer,
Additional Commissioner (Administration),
Hindu Religious and Charitable Endowments,
Chennai - 600 034. ... Respondents
1/20
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W.P.No.25247 of 2022
and W.M.P.Nos.24199 & 24200 of 2022
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, seeking for a Writ of Certiorari, calling for the records of the first
respondent in G.O.Ms.No.194, Tourism, Culture and Religious
Endowments Department, dated 08.08.2022 removing all the trustees of the
temple from the office of trusteeship and quash the same as being unlawful,
arbitrary, illegal and violative of petitioners' fundamental and statutory
rights and principles of natural justice.
For Petitioners : Mr.Satish Parasaran
Senior Advocate
for Mr.R.Parthasarathy
For Respondents : Mr.R.Shunmugasundaram
Advocate General
Assisted by Mr.N.R.R.Arun Natarajan
Special Government Pleader (HR&CE)
ORDER
This Writ Petition is filed for issuance of writ of certiorari to
quash the impugned order dated 08.08.2022 passed by the first respondent
in G.O.Ms.No.194, Tourism, Culture and Religious Endowments
Department, removing the petitioners from Trusteeship.
2. The writ petitioners are Trustees of Arulmigu Adikesava
Perumal and Peyaazhvaar Temple, Mylapore, which is an ancient Temple. It
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is admitted that the administration of the Temple is governed by the Scheme
framed by this Court in C.S.No.593 of 1922 as modified later in
O.S.A.No.43 of 1952. One Mr.N.C.Sridhar was appointed as the Managing
Trustee and he is not a party in this Writ Petition. It is admitted that
petitioners were appointed as Trustees on various dates. While the first
petitioner was appointed on 10.03.2018, petitioners 2 and 3 were appointed
on 09.02.2021 and the fourth petitioner was appointed on 09.05.2021. It is
admitted that the Temple was listed under Section 46(iii) of the Tamil Nadu
Hindu Religious and Charitable Endowments Act, 1959 [hereinafter
referred to as “the Act”]. Stating that several complaints and allegations
were received against the erstwhile Trustees, the first respondent framed
charges against then Trustees. Pending charges against the erstwhile
Trustees including the Managing Trustee, an order was also passed by the
first respondent in G.O.(Ms)No.107 dated 06.08.2021, suspending all the
then Trustees of the Temple under Section 53(4) of the Act. Thereafter, the
said Government Order was withdrawn and a subsequent Government Order
vide G.O.(Ms)No.118 dated 24.08.2021 was issued under Section 53(4) of
the Act, suspending the petitioners herein from the Trusteeship. This order
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also was in contemplation of the proceedings initiated by way of fresh
charges against the petitioners.
3. It is admitted that this Court granted an interim order of
stay of operation of G.O.(Ms)No.118 dated 24.08.2021. The previous order
vide G.O.(Ms) No.107 dated 06.08.2021 was also quashed by this Court in
W.P.No.17570 of 2021 in so far as the writ petitioner, the Managing
Trustee. Simultaneously, by letter dated 24.08.2021, the first respondent
issued a charge memo containing 11 charges against the writ petitioners and
the Managing Trustee, by name N.C.Sridhar. Challenging the order of
suspension vide G.O.(Ms)No.118 dated 24.08.2021, the writ petitioners has
filed C.M.A.No.2558 of 2021 and this Court passed an interim order on
08.09.2021, which is extracted for convenience:-
“12. In view of the fact that three out of the four appellants have
been appointed as trustees for the subject Temple only in the year 2021
and one of them was appointed in the year 2018 and since no notice was
given to any of them prior to passing of the impugned order suspending
them from trusteeship of the subject Temple, this Court is inclined to grant
interim stay of the impugned order. However, the proper management and
functioning of the subject Temple will have to be safeguarded.
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13. Without causing prejudice to any of the parties and as an
interim arrangement, this Court passes the following direction:-
(a) there shall be an order of interim stay of the
impugned order dated 24.08.2021 passed by the first
respondent in G.O.(P)No.118 dated 24.08.2021.
(b) the third respondent is appointed as Supervisor,
who shall act on behalf of the respondents to supervise the
proper management and functioning of the subject Temple
by the appellants as well as the other trustees. The
appellants shall co-operate with the third respondent for
the proper management and functioning of the subject
Temple and shall render all assistance to him as and when
he requires the same.
(c) The appellants shall also co-operate with the
third respondent and other authorised Officials of
H.R.&C.E. Department in the investigation with regard to
the affairs of the subject Temple.
14. The above directions are issued as an interim arrangement
without going into the merits of the matter.”
4. It is admitted that pursuant to the communication dated
24.08.2021 framing charges against all the present Trustees, petitioners
have received notices from the fourth respondent. It is admitted by
petitioners themselves in the affidavit that one notice dated 26.10.2021 and
another notice dated 02.11.2021 were received by them. The first
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respondent along with the Managing Trustee attended enquiry on
09.11.2021 and petitioners 2 to 4 were unable to attend the enquiry on the
said date. However, the first petitioner submitted explanations on behalf of
the petitioners. Thereafter, petitioners after submitting their explanations
before the Enquiry Officer, namely the fourth respondent did not receive
any notice or communication in connection with any enquiry. It is also
contended by the petitioners that the first respondent never issued notice to
the petitioners.
5. From the facts admitted, it is seen that the Enquiry
Officer has submitted a report dated 01.02.2022 to the first respondent.
After receipt of the said report, the first respondent did not issue any notice
to any of the petitioners at any point of time before the impugned order was
passed. It is also admitted that copy of enquiry report is not furnished to the
petitioners. Petitioners state that to their shock and surprise, the first
respondent issued the impugned order vide G.O.(Ms) No.194 dated
08.08.2022 removing all Trustees including petitioners herein from the
office of Trusteeship. It is also stated that the order impugned was pasted in
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the notice Board of the Temple on 18.08.2022 even before it was served on
petitioners. Petitioners have raised several grounds in the writ petition.
6. It is contended that the impugned Government Order is
in violation of principles of natural justice, inasmuch as the first respondent
has failed to issue any notice before the order was passed. It is also
contended that the report of the Enquiry Officer was never communicated to
petitioners and therefore, the impugned order is liable to be set aside on the
sole ground that a copy of the enquiry report based on which the impugned
Government Order came to be passed was not made available to petitioners
to enable them to make their further submissions and explanations.
7. Learned Senior Counsel for the petitioners also relied
upon Section 53(3) of the Act, which reads as follows:-
“53(3). When it is proposed to take action under sub-section
(2), the appropriate authority shall frame charges against the
trustee concerned and given him an opportunity of meeting
such charges, of testing the evidence adduced against him and
of adducing evidence in his favour; and the order of
suspension, removal or dismissal shall state the charges
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framed against the trustee, his explanation and the finding on
each charge with the reasons therefor.”
8. Referring to Section 53(3) of the Act, the learned Senior
Counsel for the petitioners submitted that the first respondent, who is the
competent authority should give an opportunity to the petitioners of meeting
the charges, of testing the evidence adduced against them and to adduce
evidence in their favour. It is submitted by the learned Senior Counsel for
the petitioners that opportunity of meeting charges by adducing evidence to
controvert the allegations, to test the evidence against them and to submit
evidence in support of their case as required under Section 53(3) of the Act
will be meaningful only if the enquiry report is furnished to the petitioners.
9. A Division Bench of this Court in the case of
Government of Tamil Nadu and others vs. Saravana Pandian and others
[Writ Appeal (MD) No.1133 of 2016 dated 28.03.2017] has considered the
scope of Section 53(3) of the Act in the following lines:-
“20. However, the submission of the learned counsel for the appellants on
other points merit consideration in view of the specific language employed
in Section 53 of the Act. Section 53(3) reveals that the trustees are entitled
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to an opportunity of meeting the charges and the evidence in support of
the charges against them and they are also entitled to adduce evidence to
support their case in defence. The trustees should also be given an
opportunity to test the evidence adduced against them. This presupposes
supply of all the adverse materials / documents / evidence to the trustees
or making them available for inspection so as to enable the trustees to test
the relevance or admissibility and effect of the adverse materials or to
contradict those materials by letting in further evidence. Further, Sub-
section (3) of Section 53 mandates the competent authority to state the
charges framed against the trustees and the explanations offered by them
in the order imposing the punishment. It is also mandatory that the
appropriate authority has to render his findings on each charge with
reasons supporting his findings. In the impugned order passed by the
Government, though charges are enumerated in order, the explanations
offered by the hereditary trustees are not even adverted to or stated nor
were dealt with. Though the findings on each charge is given under the
impugned order promptly, there is no discussion or reasons given in the
impugned order for not accepting the explanations. None of the
documents filed along with the explanations are exhibited nor was their
content considered. In paragraph 7 of the impugned order, there is
reference to some documents related to the charges. Those documents
were not even exhibited.
21. When explanations are offered by the hereditary trustees denying
charges, arriving at conclusions that charges are proved without any
application of mind to the explanations so offered, is not appropriate.
Section 53(3) specifically contemplates recording of the explanations and
the finding on each charge with the reasons therefor. Considering the
plain language employed in Section 53(3) of the Act, we are of the opinion
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that the impunged order is not in conformity and hence, does not accord
with Section 53(3) of the Act.
22. Submissions of Mr.V.R.Shanmuganathan that the charges are
admitted even in the explanations offered by the trustees is not an
acceptable argument. In this case, charges are not accepted. Only certain
instances relating to the charges are set forth and are sought to be
explained away. When explanations were offered by the trustees, against
the specific charges, it is for the Government or the appropriate authority
to deal with the explanations so offered by the trustees and reject them if
not acceptable in the factual context. However, it is not appropriate to
ignore totally the explanations at the time of passing the impugned order
and then try to establish before this Court that the explanations have no
merits. It is a well settled proposition of law that the reasons have to be
seen from the order and cannot be supplemented by way of affidavit or
otherwise before this Court when the order is challenged. In this context,
it is relevant to refer to the judgment of the Hon'ble Supreme Court in the
case of Mohinder Singh Gill and another vs. The Chief Election
Commissioner, New Delhi and others reported in MANU/SC/0209/1977 :
AIR 1978 SC 851 wherein the Hon'ble Supreme Court has held as follows:
“8.The second equally relevant matter is that when a statutory
functionary makes an order based on certain grounds, its validity must be
judged by the reasons so mentioned and cannot be supplemented by fresh
reasons in the shape of affidavit or otherwise. Otherwise, an order bad in
the beginning may, by the time it comes to court on account of a
challenge, get validated by additional grounds later brought out.”
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23. It has been held by the Hon'ble Supreme Court in the case of Union of
India vs. M.L.Capoor and others reported in MANU/SC/0405/1973 : AIR
1974 Supreme Court 87, in paragraph 27 as follows:
“28..... Reasons are the links 'between the materials on which certain
conclusions are based and the actual conclusions. They disclose how the
mind is applied to the subject matter for a decision whether it is purely
administrative or quasi-judicial. They should reveal a rational nexus
between the facts considered and the conclusions reached. Only in this
way can opinions or decisions recorded be shown to be manifestly just
and reasonable.”
24. In the case of S.N.Mukherjee vs. Union of India reported in
MANU/SC/0346/1990 : AIR 1990 Supreme Court 1984, the Hon'ble Apex
Court, in paragraph 35, has held as follows:
“35.Reasons, when recorded by an administrative authority in an
order passed by it while exercising quasi-judicial functions, would no
doubt facilitate the exercise of its jurisdiction by the appellate or
supervisory authority. But the other considerations, referred to above,
which have also weighed with this Court in holding that an administrative
authority must record reasons for its decision, are of no less significance.
These considerations show that the re-cording of reasons by an
administrative authority serves a salutary purpose, namely, it excludes
chances of arbitrariness and ensures a degree of fairness in the process of
decision- making. The said purpose would apply equally to all decisions
and its application cannot be confined to decisions which are subject to
appeal, revision or judicial review. In our opinion, therefore, the
requirement that reasons be recorded should govern the decisions of an
administrative authority exercising quasi-judicial functions irrespective of
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the fact whether the decision is subject to appeal, revision or judicial
review.”
In the same judgment, the Hon'ble Supreme Court has held that giving
reasons is an essential requirement of rule of law.
25. In the case of The Tamil Nadu Civil Supplies Corporation Limited and
another vs. S.Sampath, W.A.No.84 of 2000, dated 18.02.2005, the Division
Bench of this Court, has held as follows:
“8.In the present case the respondent (writ petitioner) had furnished
explanations to the show cause notices. It was, therefore, incumbent on
the Corporation to have considered that explanation and given its reasons
why it is not accepting the same. That however has not been done in the
impugned orders of the Corporation. Hence the said orders cannot be
sustained in law.”
26. In Mohd. Yunus Khan vs. State of Uttar Pradesh and others reported
in MANU/SC/0767/2010 : 2010 (10) SCC 539 wherein the Hon'ble
Supreme Court has held as follows:
“16. We have to proceed, keeping in mind the trite law that holding
disciplinary proceedings against a government employee and imposing a
punishment on his being found guilty of misconduct under the statutory
rules is in the nature of quasi-judicial proceedings. Though, the technical
rules of procedure contained in the Code of Civil Procedure, 1908 and the
provisions of the Indian Evidence Act, 1872 do not apply in a domestic
enquiry, however, the principles of natural justice require to be observed
strictly. Therefore, the enquiry is to be conducted fairly and reasonably
and the enquiry report must contain reasons for reaching the conclusion
that the charge framed against the delinquent stood proved against him. It
cannot be an ipse dixit of the inquiry officer. Punishment for misconduct
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can be imposed in consonance with the statutory rules and principles of
natural justice. (See Bachhittar Singh v. State of Punjab & Anr., AIR 1963
SC 395; Union of India v. H.C. Goel, AIR 1964 SC 364; Anil Kumar v.
Presiding Officer & Ors., AIR 1985 SC 1121; Moni Shankar v. Union of
India & Anr. (2008) 3 SCC 484; and Union of India & Ors. v. Prakash
Kumar Tandon, (2009) 2 SCC 541).”
27. Having regard to the principles enunciated in the above judgments of
the Hon'ble Supreme Court, we find that the order removing trustees
without considering the explanations and without assigning reasons for
the non acceptance of the explanations vitiated the order of Government
removing / dismissing the trustees.”
10. In relation to a service matter while answering specific
questions referred to the Constitutional Bench of Hon'ble Supreme Court, in
the case of Managing Director, ECIL, Hyderabad and others vs.
B.Karunakar and others, reported in (1993) 4 SCC 727, held as follows:-
“30.(iii) Since it is the right of the employee to, have the report to
defend himself effectively, and he would not know in advance whether the
report is in his favour or against him, it will not be proper to construe his
failure to ask for the report, as the waiver of his right. Whether, therefore,
the employee asks for the, report or not, the report has to be furnished to
him.
(iv) In the view that we have taken, viz., that the right to make
representation to the disciplinary authority against the findings recorded
in the inquiry report is an integral part of the opportunity of defence
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against the charges and is a breach of principles of natural justice to deny
the said right, it is only appropriate that the law laid down in Mohd.
Ramzan Khan's case (AIR 1991 SC 471) (supra) should apply to
employees in all establishments whether Government or non-Government,
public or private. This will be the case whether there are rules governing
the disciplinary proceeding or not and whether they expressly prohibit the
furnishing of the copy of the report or are silent on the subject. Whatever
the nature of punishment, further, whenever the rules require an inquiry to
be held, for inflicting the punishment in question, the delinquent employee
should have the benefit of the report of the Inquiry Officer before the
disciplinary authority records its findings on the charges levelled against
him. Hence question (iv) is answered accordingly.”
11. In the present case, it is admitted that though the Enquiry
Officer, namely the fourth respondent has submitted a report on 01.02.2022,
it was not actually served on petitioners on any date before enquiry was
commenced by the first respondent. The first respondent never thought of
issuing notice before holding them guilty of charges. Therefore, petitioners
are totally unaware of the enquiry report and the basis on which the
conclusions were reached by the Enquiry Officer. When the impugned order
was passed based on the enquiry report which was drawn after holding
enquiry and hearing the petitioners, they are entitled to get a copy of the
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enquiry report. As pointed out by a Division Bench of this Court earlier,
petitioners should be supplied with all adverse materials including the copy
of the enquiry report before proceeding with the enquiry. The first
respondent can pass final order under Section 53 of the Act, only after
receiving the objections of petitioners to the enquiry report and any other
adverse materials that may be relied upon by first respondent.
12. It is also stated by the learned Senior Counsel for the
petitioners that inspite of specific request made by petitioners 2 to 4 to give
further opportunity as they were unable to attend the enquiry on the first
occasion, the fourth respondent neither allowed them to participate nor
rejected the request of petitioners 2 to 4 herein.
13. From the admitted facts, it is seen that the first
respondent has passed the impugned order in a hurry without issuing notice
to petitioners under the pretext that petitioners, who have failed to avail an
opportunity or appear before the Enquiry Officer is not entitled to them.
Factually, it is pointed out that the petitioners have participated in the
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enquiry by submitting objections which are common to every one of them.
In such circumstances, the first respondent in order to establish that the
enquiry is in accordance with Section 53(3) of the Act has to supply the
enquiry report and to give an opportunity to petitioners to submit their
objections and explanations to the charges as well as the report of the
Enquiry Officer. In the absence of a notice before passing the impugned
order this Court has no hesitation to hold that the order impugned is in
violation of principles of natural justice.
14. A submission was made by the learned Advocate
General earlier that an alternate remedy is available to the petitioners by
way of appeal before this Court as against the impugned order. Having
regard to the admitted fact that the impugned order is in violation of
principles of natural justice and an order removing the Trustees from the
Trusteeship has been passed without giving an opportunity of hearing to the
petitioners and furnishing a copy of the enquiry report, which is the very
basis of the impugned order, this Court is of the view that alternate remedy
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is not a bar in this case to invoke the extraordinary jurisdiction of this Court
under Article 226 of the Constitution of India.
15. This Court without going into the merits of the case and
disputed issues, is of the view that the impugned order is liable to be set
aside / quashed on the simple ground that the same is in violation of
principles of natural justice. Therefore, this writ petition is allowed and the
impugned order of the first respondent in G.O.(Ms) No.194, Tourism,
Culture and Religious Endowments Department, dated 08.08.2022 is
quashed in so far as petitioners 2 to 4 are concerned.
16. Since the impugned order is set aside only on the ground
that it is in violation of principles of natural justice, it is open to the first
respondent to reopen the enquiry afresh. It is made clear that the first
respondent shall serve a copy of the enquiry report submitted by the fourth
respondent dated 01.02.2022 to petitioners. The first respondent shall issue
notice to petitioners inviting them for enquiry and give them adequate and
fair opportunity to them to submit their objections to the enquiry report or
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any adverse material that may be relied upon by first respondent. The
petitioners are permitted to adduce evidence if it is necessary. Final order
shall be passed keeping in mind the requirement of Section 53(3) of the Act
as interpreted by this Court.
17. It is admitted now that even before the impugned order
was passed, the third respondent was acting as a Supervisor and this Court
has recognised the appointment of the third respondent as Supervisor while
granting interim order as it is extracted by this Court in this order earlier.
Hence, the Trustees namely the petitioners will be reinstated in office and
they shall function under the supervision of the third respondent. In short
the status quo ante as on the date of impugned order shall be restored and
maintained till fresh order is passed as directed above.
No costs. Consequently, connected Miscellaneous Petitions are closed.
20.09.2022
Speaking order / Non-speaking order
Index : Yes / No
Internet : Yes
sri
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and W.M.P.Nos.24199 & 24200 of 2022
To
1.State of Tamil Nadu,
Represented by its Principal Secretary,
Tourism, Culture and Religious Endowments Department,
Tourism and Culture Department Secretariat,
Chennai - 600 009.
2.Commissioner,
Hindu Religious and Charitable Endowments,
119, Uthamar Gandi Road,
Chennai - 600 034.
3.Thakkar,
Arulmigu Adikesava Perumal and
Peyaazhvaar Temple,
Mylapore, Chennai - 600 004.
4.Enquiry Officer,
Additional Commissioner (Administration),
Hindu Religious and Charitable Endowments,
Chennai - 600 034.
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and W.M.P.Nos.24199 & 24200 of 2022
S.S.SUNDAR, J.
sri
W.P.No.25247 of 2022
and W.M.P.Nos.24199 & 24200 of 2022
20.09.2022
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