Andhra HC (Pre-Telangana)
Ch. Jai Shankar vs The Commissioner Of Endowments, ... on 30 December, 2014
Author: Challa Kodanda Ram
Bench: Challa Kodanda Ram
HONBLE SRI JUSTICE CHALLA KODANDA RAM
WRIT PETITION No.6484 OF 2009
30-12-2014
Ch. Jai Shankar..... Petitioner
The Commissioner of Endowments, Government of A.P., Tilak Road, Hyderabad and
another.....Respondents
Counsel for the appellants: Sri Ch. Kanaka Durga
Counsel for respondent No.1:Government Pleader
^Counsel for the respondent No. 2: Sri Ch. Satish Kumar,
Standing Counsel for
Endowments.
<Gist:
>Head Note:
? Cases referred:
2008(3) ALD 372 (FB)
HONOURABLE SRI JUSTICE CHALLA KODANDA RAM
WRIT PETITION No.6484 OF 2009
ORDER:
The writ petition is filed challenging the memo dated 09.03.2009 issued by the first respondent directing the 2nd respondent to take suitable disciplinary action against the delinquent (petitioner) as per the rules.
The brief facts relevant for the purpose of this case are that the petitioner is a Superintendent working in the 2nd respondent temple. In discharge of his duties he is alleged to have committed certain irregularities and in that connection a charge memo containing eight charges was issued on 12.06.2008. Thereafter an Enquiry Officer was appointed and the Enquiry Officer said to have been submitted his report with a finding that the Charge Nos.2,5,7 and 8 are proved. However, disciplinary authority on going through the enquiry report found that there was no case made out against the petitioner and thus dropped the charges by order dated 12.06.2008. By an order dated 6.2.2009, the Commissioner purporting to be in exercise of powers conferred under Section 38 of The Andhra Pradesh Charitable & Hindu Religious Institutions & Endowments (for short, he Act) directed the 2nd respondent disciplinary authority to revisit the enquiry report and take appropriate action.
Sri Guru Gopal, Advocate appearing for Smt Ch.
Kanakadurga, the learned counsel appearing for the petitioner contends that the purported exercise of the powers by the first respondent under Section 38 of the Act is totally unsustainable in the facts of this case and further he contends that Section 38 of the Act contemplates only in cases where no action has been taken with respect to the matters mentioned therein of the subordinate authorities but not in cases where action has already been taken and an order on merits has been passed. He also submits that in the matters of disciplinary proceedings, there cannot be exercise of powers under Section 38 of the Act as disciplinary authority is required to consider the material on record independently and his decision cannot be the subject matter of further revision or scrutiny by the Commissioner. To support his contention, he places reliance on the judgment of this Court reported in N. Ravindra Murthy v. Shri Veerabhadra Swamy Temple, Bonthupally, Medak District .
On the other hand, learned Government Pleader for the 1st respondent contends that even assuming without conceding for arguments sake under Section 38 of the Act, the Commissioner does not have the jurisdiction to direct the disciplinary authority to revisit the order of exoneration such power is specifically conferred under Sections 2 and 8 of the Act. She further points out that it is not the case that the enquiry officer had given a clean chit and did not find that there were no material against the petitioner and charges having not been proved. Particularly he draws the attention of this Court to para No.6 of the Counter wherein it has been stated that the charges 2,5,7 and 8 have been proved.
Sri Satish, learned counsel appearing for the 2nd respondent submits that the 2nd respondent being the disciplinary authority at this stage has no submission to make as primary case involving the jurisdictional issue in relation to the powers of the Commissioner.
Facts are not in dispute and the issue lies in very narrow compass. A combined reading of Sections 37 and 38 of the Act, leave no manner of doubt that the Commissioner has been given power under Section 38 of the Act to take action either directly or by directing the respective authorities where the Commissioner finds that there is an element of laxity in the proceedings conducted by his subordinates mentioned in the Section. As a matter of fact exercise of power under Section 38 of the Act is directly relatable to the matters mentioned in Section 37(1) of the Act. However, this power is limited to taking action in relation to the case where there is omission and commission in relation to involvement of breach of trust, misappropriation, incapacity, disobedience of orders, misconduct, violation of the Code of Conduct or for any other sufficient cause. In other words, the power under Section 38 is no way relatable directly or otherwise with respect to the matters where an action has been proposed and taken like initiation of disciplinary proceedings and culmination of the same in one way or the other. In a case where a punishment is imposed under Section 37(1) of the Act such order being an appealable order under Section 37(3)(a) of the Act, Commissioner in exercise of powers under Section 38 of the Act cannot visit such order either directly or indirectly. There could be many other instances and situations where powers under Section 38 of the Act could be exercised by the Commissioner. However, we are not concerned with the present case in respect of the same. While there being no doubt in my opinion that exercise of powers under Section 38 of the Act is impermissible in the facts of this case Section 92 of the Act definitely confers such power in the Commissioner to direct the disciplinary authority to revisit the orders passed by him in exercise of the powers under Section 37 of the Act. While so the exercise of power under Section 92 of the Act which being a general supervisory power is hedged with certain conditions for exercise of the same. Admittedly in the present case, the procedural requirement under Sub Section 2 of Section 92 of the Act has not been complied with. On that ground, the impugned order cannot be sustained even under Section 92 of the Act. The impugned order is purported to have been made in exercise of the powers under Section 38 of the Act. Though a reference is made to Section 38 of the Act once it is possible to conceive that such order could be made under Section 92 of the Act, mere reference of wrong provision does not by itself make the order invalid. It is well settled that the reference of a wrong provision does not invalidate an act in case where such power does exist and the action can be traceable to another provision of the Act.
In the circumstances, the writ petition is allowed. However, the respondents are given liberty to take appropriate action by passing appropriate orders duly following the procedure prescribed under the Act. There shall be no order as to costs. Miscellaneous petitions, if any, pending in the writ petition, shall also stand closed.
____________________________________ JUSTICE CHALLA KODANDA RAM Date:30.12.2014