Madras High Court
P.Krishnamoorthy vs The Commissioner on 8 November, 2017
Bench: T.S.Sivagnanam, P.Velmurugan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.11.2017
JUDGMENT RESERVED ON: 20.06.2017
JUDGMENT DELIVERED ON:08.11.2017
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
AND
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
W.A.(MD).Nos.1273 of 2016 to 1277 &
1247 to 1251 of 2016
AND
C.M.P.(MD)Nos.8684 to 8688 & 8492 to 8497 of 2016
W.A.(MD)No.1273 of 2016:
P.Krishnamoorthy : Appellant
Vs.
1.The Commissioner,
Hindu Religious & Charitable Endowments Department,
Nungambakkam High Road, Chennai-34.
2.The Joint Commissioner,
Hindu Religious & Charitable Endowments Department,
Madurai.
3.The Executive Officer,
Arulmigu Vigenshwarar Vagaiyara Thirukovil,
Old Ayakudi, Palani.
4.The Inspector,
Hindu Religious & Charitable Endowments Department,
Devasthanam Chathiram,
Railway Feeder Road, Palani :Respondents
PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent to against
the order passed by this Court in W.P.(MD)No.12125 of 2016 dated 17.08.2016.
!For Appellants : Mr.G.Prabhu Rajadurai
For Mr.M.P.Senthil
in W.A.(MD)Nos.1273 to 1277 of 2016
^For Appellants : Mr.V.R.Shanmuganathan,
Special Government Pleader
in W.A.(MD)Nos.1247 to 1251 of 2016
For R 1,2 & 4 : Mr.V.R.Shanmuganathan,
Special Government Pleader
For R 3 : Mr.M.Muthu Geethyan,
in W.A.(MD)Nos.1273 to 1277 of 2016
For Respondents : Mr.G.Prabhu Rajadurai
For Mr.M.P.Senthil
in W.A.(MD)Nos.1247 to 1251 of 2016
:COMMON JUDGMENT
[Judgment of the Court was delivered by T.S.SIVAGNANAM, J.] These intra-Court appeals are directed against the common order in W.P.(MD)Nos. 12125 to 12129 of 2016, dated 17.08.2016. Writ Appeal Nos. 1273 to 1277 of 2016, have been filed by the Writ Petitioners and Writ Appeal Nos. 1247 to 1251 of 2016, have been filed by the Hindu Religious and Charitable Endowments Department. As these appeals arise out of a common order, they were heard together and are disposed of by this common judgment. The parties shall be referred to as per their rank in the Writ Petitions.
2.The Writ Petitions were filed challenging the order passed by the second respondent dated 20.06.2016, superseding the board trustees (petitioners) of Arulmigu Vigneshwarar Vagaiyara Temple, Old Ayakudi, Palani and three other sub-temples, and another order dated 20.06.2016 appointing the fourth respondent as fit person of the said Temple to take over its administration.
3.The case of the petitioners is that, the temples were built by their forefathers and the complete management and administration of the temple was settled by a scheme in O.A.No.142 of 1929, modified in O.A.No.290 of 1935 and further modified by an order dated 20.01.1936, of the Board, exercising powers under Section 18 and 63 (iii) of Act II of 1927.
4.During 1978, the Deputy Commissioner of HR & CE, Madurai in O.A.No.25 of 1978 dated 28.11.1978, appointed K.Perumal, the father of the petitioner P.Krishnamurthy, and five others as hereditary trustees of the temples. During 1984, an Executive Officer was appointed to manage the affairs of the temple. The income of the temple being more than Rs.10,00,000/- (Rupees Ten Lakhs only), it was listed under Clause (iii) of Section 46 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, [hereinafter referred to ?the Act?], an order to the said effect was passed by the first respondent, dated 10.09.1990. After the demise of K.Perumal and three other trustees, the petitioner P.Krishnamurthy and three others were recorded as hereditary trustees by the second respondent by order dated 15.02.2011 and the writ petitioner, P.Krishnamoorthy, was elected as the Chairman of the Board of trustees, pursuant to order dated 24.01.1990.
5.Subsequently, petitioner, P.Krishnamoorthy, was appointed as the Chairman of the Board of Trustees by the Government, vide Government Order, dated 10.02.2015, pursuant to his election, conducted on 19.02.2014. The petitioners would state that the second respondent, the Joint Commissioner, HR & CE, Madurai, who was originally appointed as the Executive Officer of the temple during the year 2001, became inimical towards the petitioners, as the petitioners had lodged complaints against him, while he was discharging his duties as Executive officer. This appears to have resulted in complaints given by the Executive Officer against the trustees, alleging non-cooperation mismanagement and misappropriation. This was resisted by the petitioners by contending that the entire power of expenditure rests only with the Executive Officer and even the bank account is being operated by him and therefore, the petitioners are not guilty of any misappropriation of the funds or mismanagement of the temple.
6.The second respondent issued notices dated 02.05.2016, and 20.05.2016, alleging that the petitioners have acted adverse to the interest of the temple, proposed to supersede the Board of Trustees under Section 26 of the Act. The petitioners state that the second respondent has no jurisdiction to initiate proceedings under section 26(4) of the Act, more particularly, when the trustees have been appointed on succession.
7.Further, since, the temple falls under Section 46 (iii) of the Act, it is the Government which could exercise such power by virtue of Section 53 (1) (a) of the Act, if circumstances warrant. The petitioners would allege that the rudimentary legal principles were not followed, documents sought for were not furnished and it was stated that it will be supplied only after the enquiry is over, and the question of submitting a reply to the alleged charges levelled against the writ petitioner, P.Krishnamoorthy, does not arise as the entire allegations are contrary to records. The petitioners submitted representation to the first respondent, Commissioner, HR & CE, to set aside the proceedings of the second respondent and also the enquiry, as it had no sanction of law. However, the petitioner submitted a reply to the show cause notice on 13.06.2016, with the available records. It is stated there was no hearing given to the petitioners nor the second respondent met them in person.
8.The second respondent passed the order dated 20.06.2016, invoking Section 26(1)(h) and Section 26 (4) of the Act, superseded the Board of Trustees and simultaneously, by a separate order appointed the fit person (Thakkar) for the temple and the petitioners were directed to hand over the entire affairs of the temple to the fit person / fourth respondent. These orders dated 20.06.2016, as well as the entire proceedings, commencing from the enquiry notice, was put to challenge in the writ petitions.
9. The respondent / appellants resisted the plea raised by the petitioners by contending that the writ petition is not maintainable, as the petitioners have an effective alternate remedy under Section 26 (5) of the Act. Counter affidavit was filed by the second respondent, denying the allegations made against him, during the period when he functioned as Executive Officer of the temple and certain factual averments were set out to show as to how the then Executive Officer was justified in initiating action against the Trustees. It is submitted that the Chairman of the Board of trustees acted against the interest of the temples and therefore, he had suffered disqualification within the meaning of Section 26 (h) of the Act, resulting in the issuance of show cause notice dated 02.05.2016, calling upon him (P.Krishnamurthy), to attend an enquiry. The other trustees being mute spectators to all the illegalities, abetted the Chairman of the Board of trustees, show cause notice was issued to them. After conducting an enquiry, the impugned order of supersession of the Board was passed on 20.06.2016 and a fit person was appointed as an interim measure, as the Board has been superseded.
10.That the allegation that the second respondent has no jurisdiction to invoke Section 26 of the Act, is not tenable as the authority to supersede a hereditary trustee, who is disqualified under Section 26 of the Act, is vested with the Joint Commissioner or the Deputy Commissioner as the case may be. The contention that the Government alone can invoke the power under Section 47 and Section 53 of the Act, is a misconstrued plea as Disciplinary Proceedings against existing and serving trustees, could be initiated under Section 56 of the Act, but, disqualification proceedings against trustees, either existing or serving could only be initiated under Section 26 of the Act and there is no need to invoke Section 53 of the Act, which is a power to initiate Disciplinary Proceedings against the existing and serving trustees.
11.It is submitted that the proceedings initiated by the second respondent against the petitioners are only disqualification proceedings, which is summary in nature and requires only an opportunity to show cause and explain and it cannot be equated to a quasi-judicial proceedings under Section 53 of the Act, wherein, the delinquents are to be provided opportunity to lead evidence. In the instant case, show cause notice was issued to the petitioner and they have submitted their reply and after conducting an enquiry, orders have been passed and if aggrieved, the petitioners ought to have availed the appeal remedy available under Section 26 (5) of the Act.
12.The learned Single Bench, analysed the provisions of the Act, in particular, Section 26 and Section 53 and pointed out that Section 26 (h) of the Act, says that 'if the trustee has acted adverse to the interest of the Institution', and it refers to the erstwhile acts of the trustees, whereas, Section 56 (j) of the Act reads 'acts adversely to the interest of the Institution', which refers to the present acts. Thus, Section 26 of the Act enables a Joint Commissioner / Deputy Commissioner to decide about the trustee's disqualification; Section 26 (4) of the Act speaks to the effect that if a hereditary trustee becomes subject to any of the disqualifications mentioned in Sub-Section (1), the Joint Commissioner or the Deputy Commissioner, as the case may be, may supersede a hereditary trustee under Section 26 (4) of the Act, without even issuing a show cause notice or conducting a fact finding enquiry. However, under Section 53 (3) of the Act, when action is taken under Sub-Section (2) of 53 (3) is the appropriate authority shall frame charges against the trustee concerned, giving 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 framed against the trustee, his explanation and the finding on each charge with reasons therefor.
13.Further, it was pointed out that in terms of Section 53 (4) of the Act, pending disposal of the charges framed against the trustee, the appropriate authority may place the trustee under suspension and appoint a Fit Person to discharge his duties and perform the functions of the trustee. Further, when a trustee is aggrieved by an order passed under Section 53 (2), he may prefer an appeal against the same to the Government within one month, when the order is passed by the Commissioner and in case, where the order has been passed by the Joint Commissioner or Deputy Commissioner to the Commissioner. In terms of Section 26 (5) of the Act, any person affected by the order of the Joint Commissioner or Deputy Commissioner under Section 26 (3) or Section 26 (4), may within one month from the date of receipt of the order can file an appeal against the order to the Commissioner.
14.It is further pointed out that the ingredients of Section 26 of the Act are equally applicable both to the past trustees and the continuing trustees, whereas Section 53 of the Act applies to the present conduct of the existing trustees, apart from the distinction that Section 26 of the Act, is disqualification proceedings and Section 53 of the Act, is disciplinary proceedings.
15.Referring to the charges levelled against the petitioners, it was observed by the learned Single Bench that they all pertain to the past conduct of the petitioners and therefore, the Joint Commissioner has powers to supersede the petitioners / trustees. The Court after discussing about the aspects of principles of natural justice, pointed out that eventhough, Section 26 of the Act does not speak of conducting a full-fledged enquiry by the Joint Commissioner, in regard to hereditary trustees who has acted adverse to the interest of the Institution and has suffered any disqualification mentioned in Section 26 (1), the trustees should be given notice and provided with an opportunity to show cause against the charges levelled against them.
16. In the opinion of the Writ Court there was violation of principles of natural justice as a regular enquiry was not conducted by the second respondent notwithstanding the fact that Section 26 of the Act, speaks of a summary proceedings. Further, it was held that by superseding the Board of trustees, results in serious civil consequences and without following the rules of natural justice, the impugned order ought not to have been passed. It was therefore held that the petitioners need not be directed to avail the alternate remedy. Thus, the writ petitions were allowed and the order dated 20.06.2016, passed by the second respondent was set aside on the ground of violation of Principles of Natural Justice and liberty was granted to the second respondent to pass fresh orders by providing adequate opportunity to the writ petitioners / hereditary trustees of the temple, including the Chairman of the Board of Trustees, by supplying the copies of documents on written requests from them and if they are desirous of leading oral or documentary evidence, a direction was given to the second respondent to permit the same and to pass a reasoned, speaking order afresh on merits.
17.The writ petitioners as well as the department are aggrieved by the orders passed by the learned Single Bench. The petitioners being largely aggrieved that the proceedings were not quashed on the ground of total lack of jurisdiction. The department is aggrieved by the finding rendered by the Court that a full-fledged enquiry is required to be conducted by the second respondent before passing an order of supersession, though the proceedings are summary in nature. Apart from the above, there are factual contentions raised by both parties which are incidental and ancillary to the primary contention, mentioned above.
18.Mr.G.Prabhu Rajadurai, learned Counsel appearing for Mr.R.Senthil, learned counsel for the petitioners, would contend that the second respondent had no jurisdiction to pass the impugned order and if at all, proceedings could be initiated, it is only the Government which can do so, by exercising its powers under Section 53 of the Act, as the temple in question has been classified under Section 46 (iii) of the Act. It is further submitted that the Writ Court, misconstrued that all charges levelled against the petitioner are relating to their past conduct, even though adverting to the very charges levelled against them and there is no decision rendered already thereon, by the Competent Authority, namely the Government as provided under Section 53(3) of the Act.
19.Further, it is submitted that Section 26 (1) (h) of the Act cannot be invoked by the second respondent, especially, when the question whether the petitioners have acted adverse to the interest of the Institution, could only be decided by the authority provided under Section 53 (1) (a) of the Act. Further, the powers provided under Section 26 are not akin to Section 53 of the Act and that Section 26 (3) of the Act has to be read independently and the said provision does not apply to hereditary trustees and only Section 26 (4) would come into play, that too, only to the extent of superseding the trustees, which could be done only at the time of recognising a person as hereditary trustee at the initial stage and not at a later point of time.
20.In support of his contentions, the learned counsel referred to the decision of the learned Single Bench in the case of S.V.Ramasamy Poosari Vs. The Deputy Commissioner HR & CE reported in 1973 (1) MLJ 320, for the proposition that it is the Government alone, who is entitled to take action if at all, there is a need and not the Joint Commissioner. Reliance was placed on the unreported decision of the Division Bench in the case of S.Ramakrishnan Vs. S.Marimuthu and others in Writ Appeal No. 673 of 2008 dated 23.12.2009, wherein it was held that ?whenever a succession of a trustee takes place to the vacancy in the office of the hereditary trustee, the provisions of Section 54 alone would apply and not the provisions of Section 26 which relate to fresh appointment and that too only in respect of a trustee and not to a hereditary trustee and disqualification provided under Section 26 (1), if at all to be relied upon can be only in the case of fresh appointment to the office of trustee and not to the office of hereditary trustee?.
21.To buttress his submission with regard to the point as to when the provisions of Section 26 and when the provisions of Section 53 of the Act would be attracted, reference was made to the observations made by the Hon'ble Supreme Court in the case of Election Commission, India Vs. Saka Venkata Rao reported in A.I.R. 1953 SC 210. Further, reference was also made to the decision of the Division Bench in S.Chockalingam Poosari and others Vs. S.V.Ramasamy Poosari and others reported in A.I.R. 1977 Madras 169, the judgment arising out of an appeal against the order in S.V.Ramasamy Poosari (supra).
22.Mr.V.R.Shanmuganathan, learned Special Government Pleader appearing for the respondent / appellant, after reiterating the factual position, submitted that the petitioner, P.Krishnamoorthy, was elected as Chairman of the Board of trustees on 19.02.2014, for a period of two years and was approved by the Government Order dated 10.02.2015, and his tenure was over by 18.02.2016. The then Executive Officer of the temple, colluded with the Board of Trustees engaged themselves in maladministration, misusage of funds etc. Charges have been framed against the then Executive Officer and he has been suspended from service and facing disciplinary proceedings. Since, the petitioners / trustees had acted against the interest of the temple and had acquired disqualification within the meaning of Section 26 (h) of the Act, show cause notice was issued to the trustees on 20.05.2016 by the second respondent, enquiry was held on 23.05.2016, 08.06.2016 and 13.06.2016 and the petitioners submitted their objections / explanation and the second respondent passed three independent orders, all dated 20.06.2016, superseding the trustees under Section 26 (4) of the Act and appointing a fit-person as an interim measure.
23.It is submitted that the petitioners have challenged the order of the second respondent dated 20.06.2016, only on two grounds namely, that the second respondent has no jurisdiction to pass the order and there has been violation of principles of natural justice. It is submitted that the Hon'ble Single Bench, having held that the second respondent has jurisdiction under Section 26 (4) of the Act to disqualify the trustees, ought to have upheld the orders dated 20.06.2016. It is further submitted that there is no violation of principles of natural justice, as detailed enquiry was conducted and objections given by the petitioners were considered and orders were passed. The petitioners did not request for supply of any documents before the second respondent, but they made certain queries under the Right to Information Act [for brevity, ?RTI Act?]. The documents sought for under the first query were furnished on 05.05.2016, and in respect of the second query, it was informed that the same can be furnished only after the conclusion of the enquiry. The appeal filed under the RTI Act, against the said reply furnished by the Information Officer is pending before the appellate authority. Further, the petitioners have not pleaded that they have been put to prejudice on account of non supply of documents, but submitted their explanation and participated in the enquiry. The documents sought for are the copies of the complaint given against the petitioner which has been verbatim, reproduced in the charges. The order passed by the second respondent dated 20.06.2016, is a speaking and reasoned order, and so passed after conducting an enquiry, adhering to the principles of natural justice though, there is no such requirement, under Section 26 of the Act, as the proceedings are only summary in nature. The proceedings under Section 26 of the Act cannot be equated to an enquiry under Section 53 (3) of the Act as there is no such corresponding provision in Section 26. Further, the writ petitions ought to have been dismissed on the ground of availability of alternate remedy under Section 25 (5) of the Act.
24. Mr.M.Muthu Geethayan, learned counsel appearing for the third respondent submitted that the show cause notice, dated 02.05.2016, was issued, pertaining to mismanagement and misuse the funds of the temple during the fasli years 1420 to 1425 i.e., in respect of things which had occurred in the past. This submission is made to support the stand taken by the Department that they were justified in invoking Section 26 of the Act, as the charges pertain to past actions. To substantiate the contention that the allegations against the petitioners were serious, the learned counsel referred to the order of supersession and pointed out various features, which have substantial financial implication and the allegations being serious, action initiated for supersession was justified. Further, by referring to the decision of the Hon'ble Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma reported in (2002) 2 SCC 244, it is submitted that the well settled rule of interpretation is that no part of statute shall be construed as unnecessary or superfluous and the provision cannot be diluted. Referring to the observations made by the Writ Court in paragraph 26.20 of the impugned order, it is submitted that the statute does not provide for a full fledged enquiry under Section 26 of the Act and therefore, the direction issued in the Writ Petition to conduct a full fledged enquiry is against the statutory provision.
25.Heard the learned counsels for the parties and carefully perused the materials placed on record. The order which was impugned in the Writ petitions was passed by the second respondent under Section 26 of the Act, by virtue of which, the petitioners / trustees have been superseded. The proceedings commenced with the issuance of a show cause notice under Section 26 (h) of the Act.
26.Section 26 (1) of the Act, states that a person shall be disqualified for being appointed as, and for being a trustee of any religious institution, if any one of the disqualifications as mentioned in Clauses (a) to (h) are attracted. While issuing show cause notice, the second respondent alleged that the petitioner suffered disqualification under Clause
(h) in as much as, they have acted adverse to the interest of the institution. It is not in dispute that the petitioners have received the show cause notice and objections were filed by the petitioners dated 09.06.2016 and 13.06.2016.
27.In the mean time, the chairman of the Board of Trustees addressed a letter to the first respondent on 13.06.2016, alleging that they were not afforded sufficient opportunity by the second respondent / Enquiry Officer. Similarly, complaint was sent by the petitioners to the Honourable Chief Minister on 15.06.2017. Though, such stand was taken by the petitioners by addressing the Commissioner, they participated in the enquiry, which was conducted by the second respondent after the receipt of the objections on two dates namely, 08.06.2016 and 13.06.2016. Even prior to that there was an enquiry on 23.05.2016 in which the petitioners had participated.
28.In the objection / explanation to the charge memo dated 13.06.2016, given by the petitioners to the show cause notice, which appears to be a very elaborate explanations, one of the contentions raised by the petitioner is that, action could not have been initiated under Section 26 of the Act, and if at all action could be initiated, it could be done only under Section 53 of the Act.
29.On a careful reading of the objection / reply dated 13.06.2016, it appears that there was no specific request made by the petitioners for supply of documents nor there was a stand taken by them that on account of non-supply of certain documents, already made by them, they were put to prejudice. After participating in the enquiry on 13.06.2016, the petitioners alleged that the second respondent, abruptly closed the enquiry proceedings and therefore, requested the Commissioner to cancel the same. It appears that the said representation was not pursued by the petitioner.
30.As pointed out earlier, two contentions were raised by the petitioners in the challenge to the order of supersession. Firstly, by referring to Section 43 (3) of the Act and submitting that the institution has been classified under the said provision as its annual income is not less than Rs.10,00,000/- (Rupees Ten Lakhs only) and in terms of Section 47 (1) (a) (iii) of the Act, it is the Government, which shall constitute the Board of Trustees as done in the instant case. Therefore, it is submitted that the appropriate authority, who has power to suspend, remove or dismiss the trustee who has been appointed by the Government, shall be the Government in terms of Section 53 (1) (a). Therefore, it is submitted that the Joint Commissioner had no jurisdiction to invoke Section 26 (h) of the Act, and disqualify and supersede the Board of Trustees.
31.The second limb of the argument is that though, Sub Section 3 of Section 26 of the Act only states that if any question arises as to whether a Trustee has become subject to any disqualification mentioned in Sub Section 1 of Section 26, the question shall be referred for the decision of the Joint Commissioner / Deputy Commissioner, and while taking a decision on such reference, it is necessary that an enquiry is conducted affording full opportunity to the aggrieved persons permitting the aggrieved persons to produce documents, lead oral evidence and cross-examine the witnesses that may be placed before the Joint Commissioner / Deputy Commissioner, and then only an order could have been passed as the supersession of the trustee, results in permanent disqualification, thereby, having civil consequences and under the guise of summary proceedings, a trustee cannot be superseded. At this stage, it would be beneficial to refer to the statutory provisions relevant to the case:
Section 26:
Qualification of trustees:
(1) A person shall be disqualified for being appointed as, and for being, a trustee of any religious institution"
(a) ----
(b) ----
(c) ----
(d) ----
(e) ----
(f) ----
[(ff) ----
(g) ----
(h) ----
(2) -------
(3) If any question arises as to whether a trustee has become subject to any of the disqualifications mentioned in sub-section (1), the question shall be referred for the decision of 4[the Joint / Deputy Commissioner.] (4) If a hereditary trustee becomes subject to any of the disqualifications mentioned in sub-section (1), [the Joint Commissioner or the Deputy Commissioner, as the case may be], may supercede the trustee.
[(5) Any person affected by an order of the Joint / Deputy Commissioner under sub-section (3) or sub-section (4) may, within one month from the date of receipt of the order by him, appeal, against the order to the Commissioner.] [46.Commissioner to publish list of certain institutions:
The Commissioner shall publish, in the prescribed manner, a list of religious institutions whose annual income, as calculated for the purposes of the levy of contribution under sub-section (1) of Section 92.
(i)is not less than ten thousand rupees but is less than two lakh rupees;
(ii)is not less than two lakh rupees but is less than ten lakh rupees;
(iii)is not less than ten lakhs rupees,and may, from time to time, modify such list in the prescribed manner:
Provided that the Commissioner shall not remove any institution from such list unless its annual income calculated as aforesaid has fallen below ten thousand rupees for three consecutive years:
Provided further that if the annual income of any such institution calculated as aforesaid has
(a)exceeded the limits specified in clause (i)and (ii); or
(b)fallen below the limits specified in clause (ii) or clause(iii), for three consecutive years, the Commissioner may alter the classification assigned to such institution in the list and enter the same under the appropriate classification in the said list.] Section 53:
Power to suspend, remove or dismiss trustees:
(1) In this section, the expression, "appropriate authority" shall, unless the context otherwise requires, means"
[(a) in respect of any trustee of any religious institution included in the list published under clause (iii) of section 46, 2[the Government] ;
[(b) in respect of any trustee of any religious institution included in the list published under clause (ii) of section 46; the Commissioner] ;
(c) in respect of any trustee of any religious institution included in the list published under clause (i) of section 46 and in respect of any hereditary trustee of any religious institution not included in the list published under the said section 46, 4[the Joint / Deputy Commissioner].
(d) in respect of any non-hereditary trustee of any religious institution not included in the list published under section 46 [the Assistant Commissioner].
[(1-A) Notwithstanding anything contained in sub-section (1) for the purpose of this section, the Government shall also by the appropriated authority in respect of any trustee of any religious institution.] (2) The appropriate authority may suspend, remove or dismiss any trustee, if he"
(a) ----
(b) ----
(c) ----
(d) ----
(e) ----
(f) ----
(g) ---
(h) ----
(i) ----
(j) ----
[(jj) ----
(k) ----
(l) ----
(3) When it is proposed to take action under sub-section (2), the appropriate authority shall frame charges against the trustee concerned and give 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 framed against the trustee, his explanation and the finding on each charge with reasons therefor.
(4) Pending the disposal of the charges framed against the trustee, the appropriate authority may place the trustee under suspension and appoint a fit person to discharge the duties and perform the functions of the trustee.
(5) A trustee who is aggrieved by an order passed under sub-section (2), may within one month from the date of the receipt by him of the order of suspension, removal or dismissal, appeal against the order"
(i) where the order has been passed by 10[the Commissioner, to the Government];
(ii) where the order has been passed by 11[the Joint Commissioner or Deputy Commissioner, the Commissioner]; and [(iii) where the order has been passed by the Assistant Commissioner, to the Joint /Deputy Commissioner].
[(5-A) A Trustee who is aggrieved by an order passed by the Government under sub-section (2) may, within ninety days form the date of the receipt of such order by him, appeal against such order to the High Court].
(6) A hereditary trustee aggrieved by an order passed by 2[the Commissioner] or the Government under sub-section (5) may, within ninety days from the date of the receipt of such order by him, institute a suit in the Court against such order.
32.To decide the controversy in this matter, we are to first decide under what circumstances, the power under Section 26 can be invoked and in what circumstances, the power under Section 53 can be invoked. Sub Section 1 of Section 26, states that a person shall be disqualified for being appointed as, and for being a trustee of any religious institution. The disqualifications are mentioned in Clause (a) to (h). Thus, the person, who has suffered any one of the disqualifications adumbrated in Clause (a) to (h) cannot be appointed as a trustee or being a trustee of any religious institution.
33.Section 53 of the Act is the power to suspend, remove or dismiss the trustees, and the appropriate authority may suspend, remove or dismiss any trustee if any one of the circumstances set out in Clause (a) to (k) of Section 53(2) of the Act are attracted. When action is proposed to be taken under Sub Section 2 of Section 53, the appropriate authority shall frame charges against the trustee concerned and give him an opportunity of meeting such charges, testing the evidence adduced against him. The order of suspension, removal or dismissal shall state the charges framed against the trustee, his explanation and the finding on each charge with reasons thereon. The appropriate authority has power to suspend a trustee pending disposal of charges and appointing a fit person by invoking his power under Section 53(4). The trustee who is aggrieved by an order passed under Sub Section 2 of Section 53 has an alternate remedy of appeal as provided under Sub Section 5 of Section 53.
34.Thus, a plain reading of Section 53, would show that the power conferred on the appropriate authority is a disciplinary power, it pre-supposes that the trustee should be holding office. Unless it is so, the appropriate authority cannot suspend, remove or dismiss him. It is obvious a past trustee, who has demitted office, cannot be suspended, removed or dismissed. Therefore, we have no hesitation to hold that Section 53 would stand attracted, only when a trustee is in office. That apart, the power under Section 53 as mentioned earlier, is a disciplinary power, vested with the appropriate authority, as this power is to be used by the appropriate authority, to dislodge a trustee from his office or to keep him out of office by way of suspension or to remove him, is undoubtedly a matter involving civil consequences and precisely for such reason, the framers of the legislation have introduced Sub Section 3 in Section 53, clearly enumerating the procedure to be followed, while proposing to take action under Sub Section 2 of Section 53. Thus, the power under Section 53 should not be mixed or confused with the power under Section 26 of the Act.
35.Section 26 is worded in the negative ie., to say, it lists out contingencies, under which a person would be disqualified for being appointed as a trustee or for being a trustee. In other words if the contingencies in Clauses (a) to (h) of Section 26 (1), are attracted such person, shall be disqualified for being appointed as a trustee and for being a trustee of any religious institution. Thus, at the very inception, when the Competent Authority decides to appoint a trustee or recognise a person as a hereditary trustee, he is required to see as to whether the said candidate suffers from any of the disqualifications mentioned in Clauses (a) to (h) of Section 26 (1). Thus, if a question arise, as to whether a trustee has become subject to any disqualification mentioned in Section 26(1), such question shall be referred for the decision of the Joint Commissioner / Deputy Commissioner, in terms of Sub Section 3 and Sub Section 4, which deals with hereditary trustee, who become subject to any disqualification and if it is so, the Joint Commissioner / Deputy Commissioner as the case may be may supersede the trustee.
36.Thus, on a plain reading of Section 26, in its entirety, a clear picture emerges that the decision to be taken by the Joint Commissioner / Deputy Commissioner, as to whether a trustee has become subject to any disqualification, is a summary decision and such decision cannot be placed in the same pedestal as a decision which is required to be taken under Section 53 (2) of the Act, which deals with the power to suspend, remove or dismiss any trustee.
37.Therefore, we have no hesitation to hold that the procedure required to be followed to decide the question of disqualification under Section 26 (3) or (4) is a decision to be taken in a summary manner adhering to the principles of natural justice. If we are to read the procedure under Sub Section 3 of Section 53 into Sub Section 3 of Section 26, we would be rewriting the statute, which cannot be done.
38.Admittedly, the allegations which resulted in the issuance of show cause notices to the petitioners pertain to certain past omissions and commissions. If the trustees had come to adverse notice of the appropriate authority, while in the discharge of the duties as trustees, the appropriate authority would be entitled to suspend, or remove or dismiss the trustee by referring to the power under Section 53 of the Act. In contra-distinction, the power to supersede the trustee under Section 26(1) for certain reasons which had happened in the past, which falls within one of the Clauses (a) to
(h), such question shall be referred to the decision of the Joint Commissioner. Thus, we are of the clear view that the second respondent has sufficient jurisdiction to initiate proceedings against the petitioners for supersession.
39.The next aspect that has to be considered is whether the petitioners are justified in contending that a thorough enquiry ought to have been conducted, the documents should have been furnished, permission to lead oral evidence should have been given, opportunity to cross-examine should have afforded etc. As mentioned earlier, the power under Section 26, (3) or (4) is a power exercisable in a summary manner. Though, the provision does not contemplate issuance of such show cause notice, principles of natural justice demands a show cause notice is to be issued and reasonable opportunity should be afforded to the aggrieved person.
40. The learned Single Judge though conscious of the fact that Section 26 of the Act does not provide for an enquiry to be conducted, opined that as supersession of the board of trustees results in civil consequences, a full fledged enquiry is required to be conducted. The Hon'ble Supreme Court in the case of M/s.Sahara India (Firm), Lucknowm vs. CIT reported in (2008) 14 SCC 151, explained the expression ?civil consequences?, and stated that it encompasses infraction of not merely property or personal rights, but of civil liberties, material deprivations and non-pecuniary damages, anything, which affects a citizen in his civil life comes under its wide umbrella and when an order entails civil consequences, the rule of audi alteram partem is required to be observed. Further, it was pointed out that it is trite that unless a statutory provision either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the Court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences for the party affected. The principle will hold good irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial. Further, it was held that no general rule of universal application can be laid down as to the applicability of the principle audi alteram partem, in addition to the language of the provision. It was further held that there can be exceptions to the said doctrine and therefore, refrained from giving an exhaustive catalogue of the cases where the said principle should be applied. It was further held that the question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; the nature of the power conferred and the purpose for which the power is conferred and the final effect of the exercise of that power. It is only upon a consideration of all these matters that the question of application of the said principle can be properly determined. Explaining as to what are the Rules of natural justice, it was held that the Rules of natural justice are not embodied rules and the phrase is also not capable of a precise definition, the underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by the State or its functionaries. Therefore, the principle implies a duty to act fairly, i.e. fair play in action and to prevent miscarriage of justice and these Rules can operate only in areas not covered by any law validly made and they do not supplant the law, but supplement it.
41.In Canara Bank vs. VK Awasthy reported in (2005) 6 SCC 321, it was held that Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute, what particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held.
42. Section 26 of the Act, does not contain any express provision for the affected parties being given an opportunity to be heard, again there is no express provision in Section 26, barring the issuance of a show cause notice or reasonable opportunity to show cause nor there is anything in the language of Section 26, which could lead to such an implication. Therefore in our view, the requirement of an opportunity to show cause before an order of supersession is passed either under Section 26(3) or Section 26(4) of the Act, must be read into the said provision. If such requirements were not read into the provisions of Section 26, it would be open to challenge on the ground of non-compliance with principles of natural justice and violative of Article 14 of the Constitution of India. As pointed out by the Hon'ble Supreme Court in M/s.Sahara India (supra), the phrase ?natural justice? is not capable of a precise definition and it is to check arbitrary exercise of power by the State or its functionaries and it aims to prevent miscarriage of justice.
43.Therefore, by reading the principles of natural justice into the statute, the authority was bound to afford reasonable opportunity to the party against whom a decision may be taken on a question as to whether he has suffered a disqualification. If we are to expand and read into Sub Section 3 of Section 26, the procedure as found in Section 56 (3), we would be substituting our opinion to that which is not contained in the statute. In the instance case, the second respondent had issued a show cause notice and the petitioners have filed their objections / reply, raising legal and factual issues, enquiry was conducted on three dates in which the petitioners participated after which order of suspension has been passed.
44.Parallely or even earlier, the petitioners sought to scrap the enquiry proceedings itself. Nevertheless, the petitioners participated in the enquiry conducted by the second respondent and have put forth their submission. Upon considering the materials, order of supersession has been passed by the second respondent. Thus, the petitioners had been provided reasonable opportunity to put forth their plea, which they have done in the form of objections, afforded an opportunity of personal hearing, which they have availed. Nothing more is required to be done in a summary proceedings.
45.That apart, the petitioners have failed to come out with a specific case as to any prejudice that had been caused to them, on account of alleged non- supply of documents or refusing to receive documents from their side etc. In fact,records show that the petitioners did not make any written request to the second respondent for supply of documents. But, certain queries were raised under RTI Act and the petitioners would not be justified in referring to the reply received from the Information Officer under the RTI Act to state that the order passed by the second respondent is vitiated. In fact, an appeal is pending as against the information furnished by the Information Officer before the Appellate Authority under the RTI Act.
46.Thus, for the aforesaid reasons, we are fully convinced that the petitioners had been afforded reasonable opportunity to put forth their case and the second respondent has passed the impugned order assigning reasons and it is a speaking order.
47.Having held that the petitioners have been afforded reasonable opportunity to put forth their plea before the second respondent, we hold that there is no violation of principles of natural justice, in the manner in which the second respondent proceeded to decide the issue with particular reference to the scope under Section 26 (3) of the Act. The salient features of fair hearing have been complied with by the second respondent, namely, issuance of prior notice, right to make representation and right to be heard.
48.The learned counsel for the petitioner referred to the decision in the case of S.V.Ramasamy Poosari (supra), to buttress his submission that the appropriate authority to take action is only the Commissioner, who would have jurisdiction to enquire into the dispute in question. At the out set, we would point out that the said decision has been overruled by the Division Bench in the case of S.Chockalingam Poosari and others (supra).
49. Nevertheless, the learned counsel for the petitioner submitted that paragraph 8 of the judgment in S.V.Ramasamy Poosari (supra), as his argument to state that it is only the Commissioner, who could take the action against a trustee, if at all it warrants to do so, in the light of the classification of the temple under Section 46(3) of the Act. We have noted the findings rendered in paragraph 8 in S.V.Ramasamy Poosari (supra), and we find that the Court did not decide the question as to whether the Commissioner would be the competent authority to take action under Section 26(1) of the Act.
50. To explain this further we may take note of the facts of the said case. The petitioners therein addressed a letter to the Commissioner complaining that the respondents therein were disqualified to be hereditary trustees of the said temple on the ground that they did not attend three consecutive meetings of the Trust Board. The respondents contended that there was no such absence from three meetings of such Board of Trustees as the board did not meet at all nor they had any notice of such meetings of the board. In the said factual background, the Court observed that if the Deputy Commissioner supersedes a hereditary trusty under Section 26, it would not be impossible to conceive that under Section 53(1), it is the Commissioner who is the appropriate authority to decide whether the respondents therein have absented themselves for three consecutive meetings of the board of trustees and whether further action would have to be taken by him as contemplated in Section 53(c) of the Act. Thus, the Court while noting that power is vested with the Deputy Commissioner under Section 26(4) of the Act to supersede the board of trustees, but observed that it is impossible to conceive that under Section 53(1), the Commissioner would not have such a power. Thus, the decision has not laid down a principle, that it is the Commissioner alone who has to deal with the matter and the observations is on the ground that if the Deputy Commissioner can supersede, the Commissioner can also look into the same. We find that this observation is due to the factual position of the said case, as the petitioners therein gave a representation to the Commissioner stating that the respondents therein had suffered a disqualification. Thus, the decision is clearly distinguishable on facts, apart from the fact that it has been overruled by the Division Bench in S.Chockalingam Poosari and others (supra).
51. In S.Ramakrishnan Vs. S.Marimuthu (supra), the case was pertaining to alleged disqualification under Section 26(1)(h), before a person was appointed as a hereditary trusty. Against the order of disqualification passed by the Joint Commissioner, the appellant therein filed an appeal before the Commissioner, who remanded the matter back to the Joint Commissioner to verify whether the first respondent therein had purchased the kattalai properties of the said temple. The order of remand was questioned in the Writ Petition by the first respondent therein. The learned Single Judge found that the order of the Commissioner in directing the Joint Commissioner to decide the succession based on the Will cannot be sustained as the Joint Commissioner has no jurisdiction to go into that question and the same should be decided only in a Suit. Sofar as the application of Section 26(1)(h) is concerned, the learned Single Judge found that it is applicable only if an individual acted adverse to the interest of that temple and not in any other temple. Thus, the question was what is the meaning of ?the institution?, employed in Section 26(1)(h) and should it be read conjointly with the expression ?any religious institution employed in Section 26 of the Act?. However, the Court did not go into the said question, but for different reasons dismissed the Writ Appeal and affirmed the order passed in the Writ Petition, as the question was whether the first respondent therein was appointed in terms of Section 26(1)(h) of the Act or he succeeded to the vacancy that arose in terms of Section 54 of the Act. What is important to note is that the Division Bench did not consider the cases of disqualification falling under Section 26(1)(e)(f)&(h) and it was pointed out that the disqualifications enumerated under those clauses are to be applied depending upon the situation. In the said factual background, it was held that the provision of Section 54 alone would apply. Furthermore, the case did not pertain to a case of supersession of the board of trustees and therefore, the said case is also clearly distinguishable on facts.
52. The learned counsel referred to the decision of the Hon'ble Supreme Court in the case of Election Commission, India Vs. Saka Venkata Rao (supra), wherein the interpretation was with regard to Article 192(1) of the Constitution of India, wherein the Court interpreted the expression ?has become subject to any disqualifications? and it was held that Article 190(r)(1) is applicable only to disqualifications to which a member become subject after he is ejected as such and that neither the Governor nor the Commission has jurisdiction to enquire into the respondent's disqualifications which arose long before his election. Thus, the interpretation was with regard to the expression ?has become? in Article 192(1), whereas Section 26(1) uses the expression ?for being appointed?, and ?for being a trustee?. Thus, Section 26(1), envisages both contingencies i.e., disqualifications even ?for being considered for being appointed? or ?for being a trustee?. This distinction becomes clearer on reading of a sub- section (2) of Section 26 of the Act, which uses the expression ?becomes subject to any?. Thus, the material difference in the statutory provision when compared with the constitutional provision renders the decision in applicable to the facts and circumstances of the case on hand.
53. One more submission made by the petitioners is that the religious institution having been classified under Section 46 (3), as its annual income is more than Rs.10,00,000/- (Rupees Ten Lakhs only), the Government alone is empowered to take action and that too under Section 53 and not under Section 26. This argument is not tenable for the reason that Section 46 of the Act operates in a different field pertaining to classification of religious institutions based on their annual income. It is no doubt true that the appropriate authority, who can take action against the trustees has been named, based on a classification done under Section 46 (3). Whereas, Section 26 is an independent provision, though falling under Chapter III, dealing with General Provisions.
54. As we have held that the power of supersession of the Board of trustees is distinct from the power under Section 53 to suspend, remove or dismiss the trustee, the power under Section 26 is exercisable by the Joint Commissioner / Deputy Commissioner as the case may be and in this case, by the second respondent.
55.Having held so, the only remedy open to the petitioners is to file an appeal to the first respondent under Sub Section 5 of Section 26 of the Act.
56.In the result W.A.(MD)Nos.1247 to 1251 of 2016 are allowed. W.A.(MD).No.1273 to 1277 of 2016 are dismissed. The Writ Petitioners are granted thirty days time from the date of receipt of a copy of this judgment to prefer an appeal as against the order of supersession dated 20.06.2016, before the first respondent and if such appeal is filed within the time permitted, the first respondent shall decide the same on merits and pass orders in accordance with law. No costs. Consequently, connected Miscellaneous Petitions are closed.
To
1.The Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam High Road, Chennai-34.
2.The Joint Commissioner, Hindu Religious & Charitable Endowments Department, Madurai.
3.The Executive Officer, Arulmigu Vigenshwarar Vagaiyara Thirukovil, Old Ayakudi, Palani.
4.The Inspector, Hindu Religious & Charitable Endowments Department, Devasthanam Chathiram, Railway Feeder Road, Palani .