Madras High Court
Kumar @ Perumal Poosari vs The Joint Commissioner on 8 August, 2023
W.P.(MD).No.16798 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.08.2023
CORAM
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P.(MD).No.16798 of 2023
and
W.M.P(MD)No.14033 of 2023
Kumar @ Perumal Poosari ... Petitioner
Vs.
1.The Joint Commissioner,
Hindu Religious and Charitable Endowments Department,
Trichy, Trichy District.
2.The Assistant Commissioner,
Hindu Religious and Charitable Endowments Department,
Trichy, Trichy District.
3.The Thakkar / Inspector,
Arulmigu Muthumariyamman Kovil,
Karaipatti Village, Marungapurai Taluk,
Trichy District.
4.Ponnan
5.Ramasamy
6.Lakshmanan,
The Assistant Commissioner,
Hindu Religious and Charitable Endowments Department,
Trichy, Trichy District.
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W.P.(MD).No.16798 of 2023
7.Anbazhagan,
The Thakkar / Inspector,
Arulmigu Muthumariyamman Kovil,
Karaipatti Village,
Marungapuri Taluk,
Trichy District. ... Respondents
(R5 is impleaded vide Court order, dated 27.07.2023 in
W.M.P(MD)No.15070 of 2023 in W.P(MD)No.16798 of
2023)
(Respondents 6 & 7 are suo motu impleaded vide Court
order, dated 08.08.2023 in W.P(MD)No.16798 of 2023)
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, calling for the
records relating to the impugned proceedings, dated 08.07.2023 issued by the
third respondent and quash the same and consequently direct the respondents 1
to 3 reinstate the petitioner forthwith with all attendant benefits.
For Petitioner : Mr.K.R.Laxman
for Mr.P.R.Prithiviraj
For R-1 to R-3 : Mr.R.Baskaran
Additional Advocate General
for Mr.S.Kameswaran
Government Advocate
For R-4 : No appearance
For R-5 : M/s.D.Rojaramani
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W.P.(MD).No.16798 of 2023
ORDER
The present writ petition is for a Writ of Certiorarified Mandamus,
calling for the records relating to the impugned proceedings, dated 08.07.2023
issued by the third respondent and quash the same and consequently direct the
respondents 1 to 3 to reinstate the petitioner forthwith with all attendant
benefits.
2. Heard the learned Counsel for the petitioner, the learned Additional
Advocate General, representing for the learned Government Advocate for the
respondents 1 to 3 and the learned Counsel for the fifth respondent and
carefully perused the materials available on record.
3. The petitioner is the Parambarai Poosari of Arulmigu
Muthumariyamman Kovil. Arulmigu Muthumariyamman Kovil, Karaipatti is
for the community people in Karaipatti Village, Manjampatti Village and
Vadakattupatti Village. Following the petitioner's great grand-father, Perumal,
grand-father Marimuthu and father Shamugam, the petitioner is continuing to
hold the post of Parambarai Poosari in the aforesaid Temple. The petitioner
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W.P.(MD).No.16798 of 2023
claims that due to the political vengeance, the fifth respondent has foisted a
complaint, dated 02.04.2023 to the Hon'ble Minister, Urban Development
Department, Chennai stating that on 09.06.2022, while solemnizing the ear
piercing function of his son headed by the Minister in the empty space opposite
to the said Temple, the petitioner locked the Temple and went away at the time
when the Minister arrived the destination. On the said complaint, an enquiry
notice, dated 23.05.2023 was issued by the second respondent. The fifth
respondent, the petitioner and the petitioner's father appeared for the enquiry,
which was held on 05.06.2023. While so, the impugned suspension-cum-charge
memo, dated 08.07.2023 containing three charges came to be passed.
Challenging the same, this writ petition came to be filed.
4. The learned Counsel for the petitioner submitted that the impugned
suspension-cum-charge memo order is bad and non-est in law and the same is
liable to be quashed for the following reasons:
(i) the charges in three counts are vague and not specific,
(ii) especially in charge 1, the time of visit of the Minister and the time of
closure of the Temple is not specifically stated and
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W.P.(MD).No.16798 of 2023
(iii) the other two charges are with respect to the petitioner's irregularity
in the conduct of pooja of the Temple and also in giving discriminative
treatment to the devotees of the Temple without any specific details.
5. The learned Counsel for the petitioner vehemently submitted that the
Temple was one following the Saiva Agamam. No doubt under the Saiva
Agamam, it is mandatory that the Temple has to be opened from 06.00 am till
noon 01.00 pm and it should remain closed during noon time and should be
open again in the evening after 04.30 pm and be kept open till 08.00 pm and the
petitioner is functioning as Poosari by strictly following the Saiva Agamam and
he had kept the Temple close during noon time and he cannot be fixed with a
liability of taking disciplinary action against him for keeping the Temple close
during noon time.
6. He further relied upon the judgment passed by the Hon'ble Apex Court
in Shri Anant R.Kulkarni Vs. Y.P.Education Society and Others, dated
26.04.2013. The relevant portion, which is applicable to this case is extracted
as follows:
“Enquiry – on vague charges:
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W.P.(MD).No.16798 of 2023
9. In Surath Chandra Chakravarty Vs. The State of West
Bengal, AIR 1971 SC 752 this Court held, that it is not permissible
to hold an enquiry on vague charges, as the same do not give a
clear picture to the delinquent to make out an effective defence as
he will be unaware of the exact nature of the allegations against
him, and what kind of defence he should put up for rebuttal thereof.
The Court observed as under:- “The grounds on which it is
proposed to take action have to be reduced to the form of a definite
charge or charges which have to be communicated to the person
charged together with a statement of the allegations on which each
charge is based and any other circumstance which it is proposed to
be taken into consideration in passing orders has to be stated. This
rule embodies a principle which is one of the specific contents of a
reasonable or adequate opportunity for defending oneself. If a
person is not told clearly and definitely what the allegations are on
which the charges preferred against him are founded, he cannot
possibly, by projecting his own imagination, discover all the facts
and circumstances that may be in the contemplation of the
authorities to be established against him.” (Emphasis added)”
7. Relying upon the same, the learned Counsel for the petitioner
submitted that the allegations are not specific and no definite description of the
charge as against the petitioner is also furnished and since all the three counts
of charges are vague, the enquiry which was conducted after issuance of the
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W.P.(MD).No.16798 of 2023
said charge and suspension order stands vitiated and on that ground alone this
impugned order has to be quashed.
8. Per contra, the learned Additional Advocate General, representing for
the learned Government Advocate for the respondents 1 to 3 pointing out the
fact that the petitioner himself has admitted that he was given sufficient
opportunity by the conduct of enquiry and it can never be construed as a case,
where there is a violation of principles of natural justice for want of giving
appropriate opportunity to the petitioner and the petitioner has not conducted
himself in proper terms in performing his duties as a Poosari and though the
time is not specifically mentioned in the first charge, in view of the fact that the
petitioner himself has made an admission by giving a statement that he attended
the ear piercing function conducted by the fifth respondent. He has the
knowledge of the conduct of the said ear piercing function and it is implied that
ear piercing function will never be conducted during noon time and hence,
naturally the Minister should have attended the function only during the
morning time when the said function was held. In view of the same, the learned
Counsel for the petitioner's argument that the Temple was closed only during
noon time is not sustainable. He further vehemently submitted that the entire
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W.P.(MD).No.16798 of 2023
exercise of passing the impugned order, dated 08.07.2023 has been done as
contemplated under Section 56(1) of the Tamil Nadu Hindu Religious and
Charitable Endowment Act, 1959 and he further submitted that Section 56(2) of
the aforesaid act has mandated that if any office-holder or servant, who is
punished under sub section (1) may, within one month from the date of the
receipt of such an order may appeal against the said order to the Joint
Commissioner or the Deputy Commissioner within a period of one month.
Having not availed the alternate remedy which is mandated in the Tamil Nadu
Hindu Religious and Charitable Endowment Trust, 1959, this writ petition is
not maintainable. On that ground alone, this writ petition is liable to be
dismissed. For which, he relied upon the order passed by this Court in
W.P(MD)No.17897 of 2014, dated 08.07.2014. The relevant portion of which
is extracted as follows:
“3. A perusal of the impugned order of suspension would
disclose that the petitioner is having an effective alternative remedy
under Section 56(2) of the Tamil Nadu Hindu Religious and
Endowments Act. According to the petitioner, he has also preferred
an appeal on the file of the second respondent.
4. The learned Counsel appearing for the petitioner, would
submit that the third respondent is not competent to pass the
impugned order of suspension and therefore, the petitioner has
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W.P.(MD).No.16798 of 2023
chosen to file this writ petition though he has also invoked the
appeal remedy.
6. It is also made clear in the impugned order of suspension,
that the said order can be challenged by invoking Section 56(2) of
the Tamil Nadu Hindu Religious and Endowments Act. It is the
specific case of the petitioner that he has also preferred an appeal
before the second respondent. In the light of the availability of
effective alternative remedy, this Court is not inclined to entertain
this writ petition, and therefore, the same is dismissed at the
admission stage itself. However, the second respondent is directed
to entertain the statutory appeal preferred by the petitioner, if the
papers are in order, and dispose of the same on merits and in
accordance with law as expeditiously as possible and not later than
six weeks from the date of receipt of copy of this order.”
9. Following the order passed in the aforesaid judgment, he insisted that
this writ petition has to be dismissed. Such an argument of the learned
Additional Advocate General was resisted by the learned Counsel for the
petitioner by submitting that Rule 2(a) of the Punishment of Office-holders and
Servants of Religious Institutions (Other than Maths and Specific Endowments
Attached Thereto), Rules, 1960 contemplates a specific procedure to be
followed in case of disciplinary action as against the servants of religious
institution and when a specific procedure has been contemplated under a
statute, the entire exercise ought to have been done as contemplated in the
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W.P.(MD).No.16798 of 2023
aforesaid rules. Though enquiry was conducted in terms of Section 2(a) of the
aforesaid Rule and the petitioner was offered with an opportunity of giving an
explanation, he was not furnished with an enquiry report. As a result of which,
the entire disciplinary action would stand vitiated and would be nugatory.
10. Rule 2(a) of the Punishment of Office-holders and Servants of
Religious Institutions (Other than Maths and Specific Endowments Attached
Thereto), Rules, 1960 is extracted as follows:
“2(a). No order imposing any punishment other than a fine
under sub-section (1) of section 56 (other than an order based on
facts which have led to his conviction by a Criminal Court) shall be
made against any office-holder or servant unless he has been
informed, in writing, of the grounds on which it is proposed to take
action and has been afforded an adequate opportunity of defending
himself. The grounds on which it is proposed to take action shall be
reduced to the form of a definite charge or charges which shall be
communicated to the person charged, together with statement of the
allegations on which each charge is based and of any other
circumstances which it is proposed to take into consideration in
passing orders in the case. He shall be required, within a
reasonable time, to put in a written statement of his defence and to
state whether he desires an oral enquiry or only to be heard in
person. An oral enquiry shall be held if such an enquiry is desired
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W.P.(MD).No.16798 of 2023
by the person charged or is decided upon by the trustee. At that
enquiry, oral evidence shall be heard as to such of the allegations
as are not admitted, and the person concerned shall be entitled to
cross-examine witnesses, to give evidence in person and to have
such witnesses called as he may wish, provided that the trustee
may, for special and sufficient reason to be recorded in writing,
refuse to call witness or require the delinquent to bear the expenses
of such witnesses. After the enquiry has been completed, the person
charged shall be entitled to put in, if he so desires, any further
written statement of his defence. If no oral enquiry is held and if he
had desired to be heard in person, a personal hearing shall be
given to him. The proceedings shall contain a sufficient record of
the evidence and a statement of the findings and the grounds
thereof. Every order of suspension, removal or dismissal shall state
the charges, the explanation and the finding on each charge with
the reasons therefor.”
11. The learned Counsel for the petitioner further relied upon the order
passed by this Court in the case of M.Natanam Vs. The Assistant
Commissioner, Hindu Religious and Charitable Endowments and Fit Person
Arulmighu Thillai Kallamman Thirukovil Chidambaram and Another
reported in 1999 (III) CTC 657, the relevant portion of which is extracted as
follows:
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W.P.(MD).No.16798 of 2023
“14. Rules have been framed as early as 1960 called as “the
punishment of office holders and servants of Religious Institutions
(other than Maths and Specific Endowments attached thereto)
rules.” Rule 2(a) provides that no order imposing any punishment
other than a fine under Sub Section (1) of Section 56 shall be made
against any servant unless he has been informed in writing of the
grounds on which it is proposed to take action and has been
afforded an adequate opportunity of defending himself. Such
grounds shall be reduced to the form of a definite charge or
charges which shall be communicated to the delinquent together
with statement of allegations on which each charge is based. The
delinquent shall be required to put in a written statement of the
defence and to state whether he desires an oral enquiry or only to
be heard in person. An oral enquiry shall be held if such an enquiry
is decided by the person charged or is decided upon by the trustee.
At that enquiry oral evidence shall be heard as to such of the
allegations as are not admitted and the person charged shall be
entitled to cross examine the witnesses, to give evidence in person
and to have such witnesses called as he may wish. After the enquiry
has been completed, the person charged shall be entitled to put in,
if he so desires, any further written statement of his defence. The
proceedings shall contain a sufficient record of the evidence and a
statement of the findings and the grounds thereof. Every order of
suspension, removal or dismissal shall state the charges, the
explanation and the finding on each charge with the reasons there
for.
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W.P.(MD).No.16798 of 2023
15. Thus an elaborate procedure has been prescribed by the
rules. The rules do provide for compliance with the principles of
natural justice and provides for sufficient opportunity to defend to
the delinquent. It cannot even be suggested that the said statutory
rule excludes the principles of natural justice in any manner. It is
the contention of Mr.T.S.Sivagnanam, learned Counsel for the
petitioner that on the face of the said statutory rule the failure to
communicate a copy of the report, call for objections of the
petitioner, on the findings reported by the enquiry officer, violates
the principles of natural justice and this goes to the root of the
proceedings and that the impugned proceedings is liable to be
quashed by this Court on that score.
27. Though Mr.R.Balasubramanian, learned Special
Government Pleader contended that the petitioner had rushed to
this Court without exhausting the statutory remedy of appeal, it has
been repeatedly held that when there is failure of principles of
natural justice, and when the contention goes not only to the root of
the matter but also renders the proceedings a nullity or non est, it is
not necessary for the writ petitioner to prefer an appeal and
thereafter approach of this Court. As the failure of principles of
natural justice is evident on the face of the record, this Court is
well justified in entertaining the writ petition and deciding the two
contentions raised by the writ petitioner.
28. It follows that the impugned proceedings has to be
quashed and the first respondent, Disciplinary Authority is directed
to proceed further communicating the enquiry officer's report,
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W.P.(MD).No.16798 of 2023
inviting objections and thereafter pass orders on merits and
according to law after considering the objections raised by the writ
petitioner.
29. Merely because enquiry report had not been
communicated, the same will not result in the entire Disciplinary
proceedings being quashed, nor it would enable the writ petitioner
to seek for a de nov proceedings. Such a request advanced by the
petitioner cannot be sustained.”
12. M.Natanam Vs. The Assistant Commissioner, Hindu Religious and
Charitable Endowments and Fit Person Arulmighu Thillai Kallamman
Thirukovil Chidambaram and Another reported in 1999 (III) CTC 657 would
squarely cover this case. Though the learned Additional Advocate General
submitted that the petitioner did not avail the alternate remedy which is
contemplated under Section 56(2) of the HR&CE Act, 1959 and that the
petitioner was given appropriate opportunity without violating the principles of
natural justice by permitting him to participate in a fullfledged enquiry, the
entire exercise of initiating a disciplinary proceeding as against him is vitiated
by the fact that the final enquiry report was not furnished on him. Having not
furnished the enquiry report to the petitioner, the third respondent proceeded to
pass the impugned order of suspension-cum-charge memo, dated 08.07.2023 in
a hurry burry manner and such an exercise is per se illegal.
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W.P.(MD).No.16798 of 2023
13. Hence, this Court is inclined to quash the impugned order, dated
08.07.2023 and following the order passed by this Court in the case reported in
1999 (III) CTC 657, this Court is also inclined to hold that merely because
enquiry report has not been communicated to the petitioner that will not result
in nullifying the entire disciplinary proceeding nor it would enable the writ
petitioner to seek for a denova enquiry. However, the impugned suspension
order-cum-charge memo is hereby quashed and consequently the disciplinary
authority is directed to proceed further furnishing the enquiry officer's report to
the petitioner and thereafter inviting objections and thereafter pass orders on
merits according to the law after considering the objections raised by the writ
petitioner.
14. This writ petition stands disposed of, accordingly. There shall be no
order as to costs. Consequently, connected Miscellaneous Petition stands
closed.
08.08.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes
BTR
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W.P.(MD).No.16798 of 2023
To
1.The Joint Commissioner,
Hindu Religious and Charitable Endowments Department,
Trichy, Trichy District.
2.The Assistant Commissioner,
Hindu Religious and Charitable Endowments Department,
Trichy, Trichy District.
3.The Thakkar / Inspector,
Arulmigu Muthumariyamman Kovil,
Karaipatti Village, Marungapurai Taluk,
Trichy District.
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W.P.(MD).No.16798 of 2023
L.VICTORIA GOWRI, J.
BTR
W.P.(MD).No.16798 of 2023
08.08.2023
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