Karnataka High Court
A. Gnanendra vs Sri Dharmaraya Swamy Temple on 3 March, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF MARCH, 2023
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION No.8577/2021 (GM-R/C)
BETWEEN:
A. GNANENDRA
S/O. LATE S. ARJUNAPPA,
AGED ABOUT 42 YEARS,
ARCHAKA,
SRI DHARMARAYA SWAMY TEMPLE,
HALASURU PETE,
BENGALURU - 560 002.
... PETITIONER
(BY SRI M.J. ALVA, ADVOCATE)
AND:
1. SRI DHARMARAYA SWAMY TEMPLE
VYAVASTHAPANA SAMITHI
THIGALARAPET,
BENGALURU - 560 002,
REP. BY ITS PRESIDENT.
2. THE EXECUTIVE OFFICER
SRI DHARMARAYA SWAMY TEMPLE,
THIGALARAPET,
BENGALURU - 560 002.
3. THE COMMISSIONER FOR HINDU RELIGIOUS
INSTITUTIONS AND CHARITABLE ENDOWMENTS,
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CHAMARAJPET,
BENGALURU - 560 018.
4. THE SPECIAL DEPUTY COMMISSIONER (MUJARAI)
BENGALURU URBAN DISTRICT,
BENGALURU - 560 009.
... RESPONDENTS
(BY SRI HARISCHANDRA MOVVAR, ADVOCATE FOR R-1 & R-2
(V.K. FILED IN R/O. R-2 ONLY);
SRI K.S. ARUN, HCGP FOR R-3 & R-4 (MA NOT FILED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED ORDER DATED 19.02.2021 PASSED
BY THE LEARNED COMMISSIONER FOR HINDU RELIGIOUS
INSTITUTIONS AND CHARITABLE ENDOWMENTS
BENGALURU/ RESPONDENT NO.3 IN APPEAL
NO.ADM7/AP01/2019-20 WHICH IS PRODUCED AT
ANNEXURE -A; SET ASIDE THE IMPUGNED ORDER DATED
02.04.2019 PASSED BY THE LEARNED EXECUTIVE OFFICER
SRI DHARMARAYA SWAMY TEMPLE BENGALURU
/RESPONDENT NO.2 WHICH IS PRODUCED AT
ANNEXURE-M.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 10/02/2023 FOR ORDERS AND COMING FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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ORDER
The petitioner herein is assailing the order dated 19.02.2021 passed by the Commissioner for Hindu Religious Institutions and Charitable Endowments-3rd respondent in Appeal No.ADM 7/AP 01/2019-20 (Annexure-A), wherein the 3rd respondent has dismissed the appeal filed by the petitioner herein and the order dated 02.04.2019 in Order No.RRC/CR 73/2015-2016 by the 2nd respondent holding that the petitioner is a probationary archaka and dismissed him from the services was confirmed.
I. Facts of the case:
2. The petitioner was appointed as Saradi Archaka of Sri Dharmaraya Swamy Temple (hereinafter referred to as "the Temple" for short) by the Special Deputy Commissioner (Muzrai) - 4TH respondent on 24.01.2006 and in furtherance of the said order, the Special Deputy Commissioner - 4th respondent, on -4- 03.10.2006, has continued the saradi to the petitioner and it is stated that the petitioner has been performing and discharging his duties as Saradi Archaka in the Temple. The Assistant Commissioner had passed an order on 05.06.2013 saradi to the petitioner for the year 2013-2014 and that the petitioner was appointed as an archaka in the said Temple and has completed fifteen years of meritorious service as the Saradi Archaka. The Temple has been categorized as 'B' category by the Muzrai Department of State of Karnataka for which the Special Deputy Commissioner is the controlling authority under Section 24 of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 (hereinafter referred to as 'the Endowments Act' for short).
3. It is stated that the Assistant Commissioner on 25.03.2017 appointed one Manu N., as the Saradi Archaka along with the petitioner and the services of -5- the petitioner were continued and the same was a fresh appointment only in respect of Manu N. It is stated that the Assistant Commissioner as administrator of the temple, passed an order on 23.09.2017 appointing the said Manu N., as a Karagada Poojari for performance of Karaga during the year 2017-18. It is stated that in the meanwhile, a Committee was constituted by the Zilla Dharmika Parishath, Bengaluru on 08.03.2018 under Section 25 of the Endowments Act and the Karaga was performed on 31.03.2018 by Manu N., along with the petitioner as Karagada Poojary. It is stated that as Manu N., failed to perform his duties as Karagada Poojary and could not carry the Karaga beyond the limits of sanctum sanctorum of the Temple and there was total failure on the part of the said Manu N., due to incapacity. It is stated that an enquiry was held against him for incapacity and disciplinary action was initiated under Rule 17(1) of the Karnataka Hindu -6- Religious Institutions and Charitable Endowments Rules, 2002 ("the Endowments Rules" for short).
4. When the facts stood thus, the petitioner carried the Karaga on 11.04.2017 and the 1st respondent - Managing Committee of the Temple being inimical towards the petitioner, initiated disciplinary action against the petitioner and an enquiry officer was appointed. The enquiry officer conducted the proceedings and framed the charges. The petitioner having participated in the proceedings defended himself. However, the enquiry officer submitted his report holding that charge Nos.1, 2, 3 and 6 are proved and the remaining charges stand unproved. It is stated that the charges against the petitioner are minute and trivial in nature and the 4th respondent-the Special Deputy Commissioner (Muzrai) by an order dated 11.03.2019, appointed the petitioner as the Karagada Poojary for the performance of Karaga Shakthyothsava -7- during the year 2019 and in furtherance of the order, the Assistant Commissioner directed the 2nd respondent-Executive Officer of the Temple to appoint the petitioner as the Karagada Poojary on 13.03.2019. It is stated that, though the enquiry report and charges framed against the petitioner, the 2nd and 4th respondents appointed the petitioner as Karagada Poojary and in continuation of the said order the 2nd respondent passed an order on 16.03.2019 appointing the petitioner to perform Karaga Shakthyothsava and directed Manu N., to handover the charges to the petitioner. This being so, the 2nd respondent has issued a memo dated 18.03.2019 withdrawing the appointment of the petitioner in its order dated 16.03.2019 and simultaneously, on 19.03.2019, the 1st respondent had passed the resolution appointing the said Manu as the Karagada Poojary for performance of Karaga Shakthyothsava. Circumventing the order of the Deputy Commissioner dated 11.03.2019 at -8- Annexure-G and the order of the Assistant Commissioner dated 13.03.2019 at Annexure-H as well as the order of the 2nd respondent dated 16.03.2019 at Annexure-J appointing the petitioner as the Karagada Poojary.
5. Aggrieved by the resolution dated 18.03.2019 passed by the 2nd respondent, the petitioner has preferred an appeal before the 2nd respondent and the 2nd respondent dismissed the petitioner from the service holding that the petitioner is a probationary Archaka (Annexure-M). Aggrieved by the said order, an appeal was preferred under Section 16 (2) of Endowments Act and the Commissioner-3rd respondent dismissed the appeal holding that the petitioner has submitted his resignation to the 1st respondent and dismissed the appeal. However, continued the service till the performance of ensuing Karaga Shakthyostava. The petitioner being aggrieved -9- by the order of the 2nd and 3rd respondents in terminating the services of the petitioner and the order of the 3rd respondent holding that the petitioner has submitted the resignation, the petitioner is before this Court.
II. Contention of the 2nd respondent:
6. The 2nd respondent-the Executive Officer of the Temple has filed statement of objections inter alia contending that the petitioner was appointed as a temporary archaka of the Temple by the Special Deputy Commissioner - 4th respondent and it is stated that the petitioner and one Manu were appointed as Saradi Archaka and as the petitioner failed to perform his duties as a Saradi Archaka for the Karaga Festival, 2017 and there being total failure on the part of the petitioner as he could not carry the Karaga beyond the limit of sanctum sanctorum of the temple, a show-
cause notice was issued to the petitioner seeking
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explanation with regard to dereliction of the duty and negligence during the Karaga festival. It is stated that the committee not being satisfied with the reply tendered by the petitioner, passed a resolution to conduct enquiry and appointed an enquiry officer. It is stated that the enquiry officer on verifying the documents and evidence, submitted a report holding that few charges levelled against the petitioner were proved and recommended to take appropriate action in accordance with law.
It is further stated that after enquiry, final notice was issued to the petitioner and the reply submitted by the petitioner was that the charges would not amount to misconduct of graver nature and its minute and sought to drop the further proceedings seeking unconditional apology. Being unsatisfied with the reply, the committee proceeded to initiate disciplinary action and a resolution was passed directing the Executive
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Officer to pass appropriate order. The Executive Officer dismissed the petitioner from the post of Saradi Archaka with immediate effect, aggrieved by which the present petition is preferred by the petitioner. It is stated that, in light of the order passed by the 2nd and 3rd respondents relieving the petitioner from the post of Saradi Archaka, the 2nd respondent has invited applications from eligible candidates by issuing notification to the post of Saradi Archaka. It is stated that the petitioner apart from submitting 1st resignation earlier has also tendered one more resignation to the President of the committee during the committee meeting. It is stated that the petitioner has no legal right to prosecute the present petition and hence, the petition is liable to be dismissed.
III. Contention of the 3rd and 4th respondents:
7. The 3rd and 4th respondents have filed their statement of objections stating that the Government
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was asked to interfere in the selection process by virtue of the directions issued by this Court in W.P. No.31091/2013 dated 10.10.2013 and accordingly, the then Assistant Commissioner, Muzrai, based on the said order appointed the petitioner and one Manu as Archakas and the terms and conditions of the appointment were not challenged and were accepted by the petitioner and other beneficiaries. It is stated that by order dated 28.06.2016 passed in W.P. Nos.57676- 678/2014 on account of challenge by one Lokesh, this Court opined that the question relating of Archakas by a rotation has to be considered by the competent authority. It is stated that by virtue of appointment of petitioner and one Manu came to be challenged by the other applicants and the order dated 13.08.2019 is within the knowledge of the petitioner. It is also stated that under the Endowments Act the authorities concerned are bound to consider all the aspects of the allegations and to take necessary action and
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accordingly, for the charges being leveled against the petitioner, notice under Rule 17 of the Endowments Rules was issued. These respondents admit about the enquiry, the charges framed and about the notice issued as well as the termination of the petitioner under Rule 17(2) of the Rules. This respondent deny the petition averments and would contend that the authorities have taken proper action in accordance with law, particularly, under Rule 17 (1) of the Endowments Rules.
8. In light of the pleadings by the learned counsel for the parties, this Court heard the learned counsel for the parties at lis.
IV. Arguments advanced by learned counsel for the Petitioner:
9. That the order of the Special Deputy Commissioner is apparent on the face of it a colorful exercise of its statutory powers, functions and duties
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and the Special Deputy Commissioner has failed to consider that the petitioner was appointed by the Special Deputy Commissioner-the appointing authority way back in the year 2006 and the petitioner has put in continuous service right from the year 2006. The 3rd respondent being the appellate authority ought to have exercised its jurisdiction and could not have dismissed the appeal holding that the petitioner has tendered resignation when the fact remains that no such resignation has been submitted by the petitioner either at that point of time or during the pendency of this writ petition as stated by the 2nd respondent in its statement of objections. Learned counsel would contend that the 2nd respondent was misdirected himself in holding that the petitioner is a probationary archaka and the person under probation under Rules 13(1) and (2) of the Endowments Rules and state that the persons under probations if found unsuitable for the post, he may be discharged from his duties. Learned counsel would
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submit that in view of holding an enquiry by the 2nd respondent cannot contend that the petitioner is not a permanent archaka. Learned counsel would further submit that the charges which were leveled against the petitioner by taking disciplinary action under Rule 17(1) of the Endowments Rules were minute and trivial in nature and this is how inspite of the charges against the petitioner the 3rd and 4th respondents had appointed the petitioner as Karagada Poojary for the year 2019 and this aspect of the matter was not considered by the 2nd and 3rd respondents while passing the impugned orders. Stating these grounds, learned counsel for the petitioner would seek indulgence of this Court to allow the writ petition. V. Arguments advanced by learned counsel for the 2nd respondent:
10. That the appointment as an Archaka as alleged by the petitioner is not an appointment, but it is
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only a permission given to the petitioner and one Lokesh to hold Karaga in the year 2005-2006 and 2006-2007. Learned counsel would contend that the order according permission to the petitioner and two other persons was challenged by one Abhimanyu before the Commissioner. According to the learned counsel, every year there is an appointment of Archaka for Karaga Shakthyothsava by the managing committee and the appointment as alleged by the petitioner that the order on 24.01.2006 is only a permission and the appointment of the petitioner was on 25.03.2017 for the first time and as the petitioner misconducted in the Karaga Festival in the year 2017 within the period of his probation. It is stated that all the charges leveled against the petitioner are serious in nature. It is also canvassed that the resignation was submitted before the committee on 18.04.2020 and the Commissioner- 3rd respondent, considering the resignation has terminated the services of the petitioner. It is also
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contended that the petitioner has submitted his second resignation on 06.03.2021 before the Committee after the disposal of the appeal before the 3rd respondent. Learned counsel would also submit that in view of resolution passed by the committee i.e., Executive Officer the said power has been exercised under Section 9 of the Endowments Act and it is submitted that the resignation submitted to the committee, if accepted cannot be withdrawn. In support of his contention, learned counsel has relied upon the judgment of the Apex Court in the case of Raj Kumar Vs. Union of India [AIR 1969 SC 180] and in the case of State of Meghalaya and Others Vs. Meeken Singh N. Marak [AIR 2008 SC 2862]. VI. Conclusion:
11. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record.
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12. The petitioner was appointed as a Saradi Archaka on 24/01/2006 by the Special Deputy Commissioner for performing his duties as an Archaka of the Temple. In furtherance of said order, the petitioner was again continued as the Saradi Archaka of the Temple and it appears that in the year 2013, the Assistant Commissioner also passed an order fixing the saradi of the petitioner for the year 2013-14 and services of the petitioner was continued for a long period of fifteen years as a Saradi Archaka and it is at that time on 25/03/2017, the Assistant Commissioner appointed the one Manu N., along with petitioner as Saradi Archakas.
13. According to the learned counsel appearing for the petitioner, the appointing of the said Manu as the Saradi Archaka for the first time was in the year 2017, however, the petitioner being appointed way back in the year 2006, the appointment of the Assistant
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Commissioner could not be termed as the petitioner being appointed for the first time as contended by the learned counsel for the respondents.
14. It is also not in dispute that the petitioner was appointed as an archaka on 24/01/2006 by the Special Deputy Commissioner. The material on record do not depict that the appointment order dated 24/01/2006 appointing the petitioner was a temporary archaka or nor the term of probation is mentioned in the said appointment order. It is also relevant to note that on 25/3/2017, the petitioner and Sri Manu N., were appointed as Saradi Archakas under Sections 9, 10 and 58 of the Endowments Act, 1997 and Rule 9(2)(8) of the Endowments Rules. It appears that in the year 2017, certain charges were levelled against the petitioner for the failure of his duties to perform the Karaga festival as a Saradi Archaka and the show-cause notice was issued to the petitioner in a charge memo
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for dereliction of duty as contemplated under Rule 17 of the said Rules. The petitioner replied to the said show- cause notice and the Managing Committee held a meeting being unsatisfied with the reply given by the petitioner and passed a resolution to conduct an enquiry by appointing a retired District Judge as an Enquiry Officer and the Enquiry Officer conducted the enquiry, framed the charges, which reads as under:
"I. Charge No.1. The petitioner was carried the Karaga during Karaga Festival on 11/04/2017. The petitioner failed to maintain timings; he delayed Karaga Festival and proceeded with Karaga which was leaning to aside during the procession. The petitioner had failed to maintain secrecy and behaved against the post of Archaka.
II. Charge No.2. That the petitioner during the time of Karaga Festival disappointed the devotees who were waiting for Karaga Darshana by diverting the route of
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Procession and he had not taken the Poojas from the devotees during the Festival.
III. Charge No.3. The petitioner had refused entry to Sri. Manu N the other Saradi Archaka to enter in to the Sanctum sanctorum of the Temple after his appointment dated 25/03/2017.
IV. Charge No.4. The petitioner had illegally allowed Sri. Hemanth Kumar and Sri. Deepak Chandra to perform Poojas in the temple in his absence.
V. Charge No.5. The petitioner had failed to handover the charge to Sri. Manu N on 16/11/2017.
VI. Charge No.6. That the petitioner had trace passed into the Managing Committee meeting held on 19/04/2018 and acted in derogation to his position as the Archaka of the Temple.
VII. Charge No.7. The petitioner without permission of the higher authorities had allowed the subject of the temple to be discussed in the media and acted in a way which
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is not befitting to his position as the Archaka of the Temple.
15. The Enquiry Officer granted opportunity to the petitioner and after verifying the documents and evidence under Rules 17(2) of the said Endowments Rules and submitted a report on 11/02/2019 holding the charge Nos.1, 3 and 6 were proved against the petitioner and charge Nos.4 and 5 have not been proved and the enquiry report was submitted. Subsequent to the enquiry report, a final show-cause notice was issued to the petitioner, asking him to reply as to why an action should not be taken against him under Rule 17 of the Endowments Rules, 2002. The petitioner replied to the said notice and the charges levelled against him will not amount to misconduct of graver nature and they are minute things and sought to drop the proceedings. The petitioner also sought for an unconditional apology for the misconduct, if any.
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16. The Managing Committee without considering the reply, proceeded to initiate disciplinary action and passed a resolution on 27/3/2019 and directed the Managing Committee submitted the report to the Executive Officer. The Executive Officer vide his order dated 02/04/2019 dismissed the petitioner from the post of Saradi Archaka with immediate effect holding that the petitioner is a probationer.
17. Aggrieved by the order of the Executive Officer, holding that the petitioner is to be dismissed from the post of Saradi Archaka on the report submitted by the Enquiry Officer, the petitioner preferred an appeal before the 3rd respondent by filing an appeal under Section 16(2) of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997. The Deputy Commissioner - 3rdrespondent by its impugned order, confirmed the order of the Executive Committee on two folds:(i) that the petitioner has
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voluntarily tendered resignation dated 18/04/2020 to the President, Committee of Management, stating that he is unable to perform his duty in the post of Pradhan Archaka. (ii) that the charges leveled against the petitioner to perform the Karaga festival has been proved. However, the 3rd respondent permitted the petitioner to perform the Karaga festival during 2021 as a temporary Archaka and directed, to relieve him from the post of Saradi Archaka immediately after the Karaga festival. The 3rd respondent further directed the 1st and 2nd respondents to appoint a new Saradi Archaka under Sections 9, 10 and 58 of the Endowments Act, 1997 and Rule 12 of the Endowments Rules, 2002.
18. Assailing the orders of the Commissioner and the Executive Committee, this present petition came to be filed and an interim order was granted by this Court on 28/04/2021, wherein the order relieving the petitioner from the services and
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terminating the petitioner as a probationer was stayed. As the fact stood thus, it is relevant to note three aspects that the petitioner, after the charges were leveled against him and an enquiry was held by the Executive Committee had continued the petitioner and permitted to extend the services even though misconduct levelled against the petitioner was proved. The 3rdrespondent Executive Committee held that the petitioner is termed as a probationer. The resignation letter as stated in the Commissioner's order is seriously disputed by the petitioner on the ground that no such resignation has been submitted and that was not the subject matter during the pendency of the proceedings before the 3rdrespondent nor the petitioner has submitted any resignation subsequently during the pendency of the present writ petition which are stated in the statement of objection filed by the respondents.
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19. It is relevant to note that the Commissioner in the portion of his order holds that on 18/04/2020, the petitioner has submitted his resignation, whereas the material does not depict any such resignation having been submitted by the petitioner during the course of the proceedings before the Commissioner and when there is a serious dispute about the tendering of resignation by the petitioner and the Commissioner having not assigned any reasons as to how this resignation was submitted by the petitioner and having not heard the petitioner on the said resignation letter, the order passed by the Commissioner would not be an order in accordance with law and the same would be without affording an opportunity to the petitioner to submit his grievance about the resignation as alleged by the respondents herein, amounting to violation of principles of natural justice, which has been held in catena of judgments in line:
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"The rules of natural justice are not embodied rules. The extent of the application depends upon the particular statutory frame work where under jurisdiction has been confirmed on the administrative authority. While passing a order or giving a decision by an administrative authority exercising quasi judicial functions achieves this object by excluding the chances of arbitrariness and ensuring a degree of fairness in the process of decision making. Thus, no decision shall be given against a party without affording him an opportunity of hearing."
20. Thus, the impugned order by the 3rd respondent - Commissioner confirming the Executive Committee order, is on the face of it, without affording proper and reasonable opportunity of hearing to the petitioner. It is also relevant to note that the 2nd respondent has removed the petitioner from the services holding that he is a probationer by conducting the enquiry under Rule 17(1) of the Endowments Rules, 2002. Since the order passed by the 3rd
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respondent - Commissioner is without hearing the petitioner, the impugned order of dismissal is not legally sustainable and is liable to be quashed and set aside on the touchstone of fair play, principles of natural justice and principles of audi alteram partem.
21. For the reason stated supra, this Court is of the considered view that the order of the 3rd respondent - Commissioner without affording an opportunity to the petitioner is not sustainable and liable to be set aside. Accordingly, this Court pass the following:
ORDER
(i) The writ petition is allowed.
The order dated 19/2/2021 passed by the Commissioner for Hindu Religious Institutions and Charitable Endowments, Bengaluru - 3rd respondent at Annexure - A is hereby set aside.
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(ii) The parties are relegated to the 3rd respondent and the 3rd respondent shall reconsider the matter afresh and pass appropriate orders by affording sufficient and reasonable opportunity to the petitioner in accordance with law.
(iii) The parties are at liberty to file additional documents, if any, before the 3rd respondent- Commissioner and the 3rd respondent-Commissioner to pass appropriate orders in accordance with law and order relieving the petitioner from services is hereby set aside.
SD/-
JUDGE S*