Madras High Court
K.S.Ramanujam vs State Of Tamil Nadu on 20 September, 2022
Author: S.S.Sundar
Bench: S.S.Sundar
W.P.No.25247 of 2022
and W.M.P.Nos.24199 & 24200 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.No.25247 of 2022
and W.M.P.Nos.24199 & 24200 of 2022
1.K.S.Ramanujam
2.K.Krishnan
3.P.B.Sampathkumar
4.Shanthi Rao ... Petitioners
versus
1.State of Tamil Nadu,
Represented by its Principal Secretary,
Tourism, Culture and Religious Endowments Department,
Tourism and Culture Department Secretariat,
Chennai - 600 009.
2.Commissioner,
Hindu Religious and Charitable Endowments,
119, Uthamar Gandi Road,
Chennai - 600 034.
3.Thakkar,
Arulmigu Adikesava Perumal and
Peyaazhvaar Temple,
Mylapore, Chennai - 600 004.
4.Enquiry Officer,
Additional Commissioner (Administration),
Hindu Religious and Charitable Endowments,
Chennai - 600 034. ... Respondents
1/20
https://www.mhc.tn.gov.in/judis
W.P.No.25247 of 2022
and W.M.P.Nos.24199 & 24200 of 2022
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, seeking for a Writ of Certiorari, calling for the records of the first
respondent in G.O.Ms.No.194, Tourism, Culture and Religious
Endowments Department, dated 08.08.2022 removing all the trustees of the
temple from the office of trusteeship and quash the same as being unlawful,
arbitrary, illegal and violative of petitioners' fundamental and statutory
rights and principles of natural justice.
For Petitioners : Mr.Satish Parasaran
Senior Advocate
for Mr.R.Parthasarathy
For Respondents : Mr.R.Shunmugasundaram
Advocate General
Assisted by Mr.N.R.R.Arun Natarajan
Special Government Pleader (HR&CE)
ORDER
This Writ Petition is filed for issuance of writ of certiorari to quash the impugned order dated 08.08.2022 passed by the first respondent in G.O.Ms.No.194, Tourism, Culture and Religious Endowments Department, removing the petitioners from Trusteeship.
2. The writ petitioners are Trustees of Arulmigu Adikesava Perumal and Peyaazhvaar Temple, Mylapore, which is an ancient Temple. It 2/20 https://www.mhc.tn.gov.in/judis W.P.No.25247 of 2022 and W.M.P.Nos.24199 & 24200 of 2022 is admitted that the administration of the Temple is governed by the Scheme framed by this Court in C.S.No.593 of 1922 as modified later in O.S.A.No.43 of 1952. One Mr.N.C.Sridhar was appointed as the Managing Trustee and he is not a party in this Writ Petition. It is admitted that petitioners were appointed as Trustees on various dates. While the first petitioner was appointed on 10.03.2018, petitioners 2 and 3 were appointed on 09.02.2021 and the fourth petitioner was appointed on 09.05.2021. It is admitted that the Temple was listed under Section 46(iii) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 [hereinafter referred to as “the Act”]. Stating that several complaints and allegations were received against the erstwhile Trustees, the first respondent framed charges against then Trustees. Pending charges against the erstwhile Trustees including the Managing Trustee, an order was also passed by the first respondent in G.O.(Ms)No.107 dated 06.08.2021, suspending all the then Trustees of the Temple under Section 53(4) of the Act. Thereafter, the said Government Order was withdrawn and a subsequent Government Order vide G.O.(Ms)No.118 dated 24.08.2021 was issued under Section 53(4) of the Act, suspending the petitioners herein from the Trusteeship. This order 3/20 https://www.mhc.tn.gov.in/judis W.P.No.25247 of 2022 and W.M.P.Nos.24199 & 24200 of 2022 also was in contemplation of the proceedings initiated by way of fresh charges against the petitioners.
3. It is admitted that this Court granted an interim order of stay of operation of G.O.(Ms)No.118 dated 24.08.2021. The previous order vide G.O.(Ms) No.107 dated 06.08.2021 was also quashed by this Court in W.P.No.17570 of 2021 in so far as the writ petitioner, the Managing Trustee. Simultaneously, by letter dated 24.08.2021, the first respondent issued a charge memo containing 11 charges against the writ petitioners and the Managing Trustee, by name N.C.Sridhar. Challenging the order of suspension vide G.O.(Ms)No.118 dated 24.08.2021, the writ petitioners has filed C.M.A.No.2558 of 2021 and this Court passed an interim order on 08.09.2021, which is extracted for convenience:-
“12. In view of the fact that three out of the four appellants have been appointed as trustees for the subject Temple only in the year 2021 and one of them was appointed in the year 2018 and since no notice was given to any of them prior to passing of the impugned order suspending them from trusteeship of the subject Temple, this Court is inclined to grant interim stay of the impugned order. However, the proper management and functioning of the subject Temple will have to be safeguarded.4/20
https://www.mhc.tn.gov.in/judis W.P.No.25247 of 2022 and W.M.P.Nos.24199 & 24200 of 2022
13. Without causing prejudice to any of the parties and as an interim arrangement, this Court passes the following direction:-
(a) there shall be an order of interim stay of the impugned order dated 24.08.2021 passed by the first respondent in G.O.(P)No.118 dated 24.08.2021.
(b) the third respondent is appointed as Supervisor, who shall act on behalf of the respondents to supervise the proper management and functioning of the subject Temple by the appellants as well as the other trustees. The appellants shall co-operate with the third respondent for the proper management and functioning of the subject Temple and shall render all assistance to him as and when he requires the same.
(c) The appellants shall also co-operate with the third respondent and other authorised Officials of H.R.&C.E. Department in the investigation with regard to the affairs of the subject Temple.
14. The above directions are issued as an interim arrangement without going into the merits of the matter.”
4. It is admitted that pursuant to the communication dated 24.08.2021 framing charges against all the present Trustees, petitioners have received notices from the fourth respondent. It is admitted by petitioners themselves in the affidavit that one notice dated 26.10.2021 and another notice dated 02.11.2021 were received by them. The first 5/20 https://www.mhc.tn.gov.in/judis W.P.No.25247 of 2022 and W.M.P.Nos.24199 & 24200 of 2022 respondent along with the Managing Trustee attended enquiry on 09.11.2021 and petitioners 2 to 4 were unable to attend the enquiry on the said date. However, the first petitioner submitted explanations on behalf of the petitioners. Thereafter, petitioners after submitting their explanations before the Enquiry Officer, namely the fourth respondent did not receive any notice or communication in connection with any enquiry. It is also contended by the petitioners that the first respondent never issued notice to the petitioners.
5. From the facts admitted, it is seen that the Enquiry Officer has submitted a report dated 01.02.2022 to the first respondent. After receipt of the said report, the first respondent did not issue any notice to any of the petitioners at any point of time before the impugned order was passed. It is also admitted that copy of enquiry report is not furnished to the petitioners. Petitioners state that to their shock and surprise, the first respondent issued the impugned order vide G.O.(Ms) No.194 dated 08.08.2022 removing all Trustees including petitioners herein from the office of Trusteeship. It is also stated that the order impugned was pasted in 6/20 https://www.mhc.tn.gov.in/judis W.P.No.25247 of 2022 and W.M.P.Nos.24199 & 24200 of 2022 the notice Board of the Temple on 18.08.2022 even before it was served on petitioners. Petitioners have raised several grounds in the writ petition.
6. It is contended that the impugned Government Order is in violation of principles of natural justice, inasmuch as the first respondent has failed to issue any notice before the order was passed. It is also contended that the report of the Enquiry Officer was never communicated to petitioners and therefore, the impugned order is liable to be set aside on the sole ground that a copy of the enquiry report based on which the impugned Government Order came to be passed was not made available to petitioners to enable them to make their further submissions and explanations.
7. Learned Senior Counsel for the petitioners also relied upon Section 53(3) of the Act, which reads as follows:-
“53(3). When it is proposed to take action under sub-section (2), the appropriate authority shall frame charges against the trustee concerned and given him an opportunity of meeting such charges, of testing the evidence adduced against him and of adducing evidence in his favour; and the order of suspension, removal or dismissal shall state the charges 7/20 https://www.mhc.tn.gov.in/judis W.P.No.25247 of 2022 and W.M.P.Nos.24199 & 24200 of 2022 framed against the trustee, his explanation and the finding on each charge with the reasons therefor.”
8. Referring to Section 53(3) of the Act, the learned Senior Counsel for the petitioners submitted that the first respondent, who is the competent authority should give an opportunity to the petitioners of meeting the charges, of testing the evidence adduced against them and to adduce evidence in their favour. It is submitted by the learned Senior Counsel for the petitioners that opportunity of meeting charges by adducing evidence to controvert the allegations, to test the evidence against them and to submit evidence in support of their case as required under Section 53(3) of the Act will be meaningful only if the enquiry report is furnished to the petitioners.
9. A Division Bench of this Court in the case of Government of Tamil Nadu and others vs. Saravana Pandian and others [Writ Appeal (MD) No.1133 of 2016 dated 28.03.2017] has considered the scope of Section 53(3) of the Act in the following lines:-
“20. However, the submission of the learned counsel for the appellants on other points merit consideration in view of the specific language employed in Section 53 of the Act. Section 53(3) reveals that the trustees are entitled 8/20 https://www.mhc.tn.gov.in/judis W.P.No.25247 of 2022 and W.M.P.Nos.24199 & 24200 of 2022 to an opportunity of meeting the charges and the evidence in support of the charges against them and they are also entitled to adduce evidence to support their case in defence. The trustees should also be given an opportunity to test the evidence adduced against them. This presupposes supply of all the adverse materials / documents / evidence to the trustees or making them available for inspection so as to enable the trustees to test the relevance or admissibility and effect of the adverse materials or to contradict those materials by letting in further evidence. Further, Sub- section (3) of Section 53 mandates the competent authority to state the charges framed against the trustees and the explanations offered by them in the order imposing the punishment. It is also mandatory that the appropriate authority has to render his findings on each charge with reasons supporting his findings. In the impugned order passed by the Government, though charges are enumerated in order, the explanations offered by the hereditary trustees are not even adverted to or stated nor were dealt with. Though the findings on each charge is given under the impugned order promptly, there is no discussion or reasons given in the impugned order for not accepting the explanations. None of the documents filed along with the explanations are exhibited nor was their content considered. In paragraph 7 of the impugned order, there is reference to some documents related to the charges. Those documents were not even exhibited.
21. When explanations are offered by the hereditary trustees denying charges, arriving at conclusions that charges are proved without any application of mind to the explanations so offered, is not appropriate.
Section 53(3) specifically contemplates recording of the explanations and the finding on each charge with the reasons therefor. Considering the plain language employed in Section 53(3) of the Act, we are of the opinion 9/20 https://www.mhc.tn.gov.in/judis W.P.No.25247 of 2022 and W.M.P.Nos.24199 & 24200 of 2022 that the impunged order is not in conformity and hence, does not accord with Section 53(3) of the Act.
22. Submissions of Mr.V.R.Shanmuganathan that the charges are admitted even in the explanations offered by the trustees is not an acceptable argument. In this case, charges are not accepted. Only certain instances relating to the charges are set forth and are sought to be explained away. When explanations were offered by the trustees, against the specific charges, it is for the Government or the appropriate authority to deal with the explanations so offered by the trustees and reject them if not acceptable in the factual context. However, it is not appropriate to ignore totally the explanations at the time of passing the impugned order and then try to establish before this Court that the explanations have no merits. It is a well settled proposition of law that the reasons have to be seen from the order and cannot be supplemented by way of affidavit or otherwise before this Court when the order is challenged. In this context, it is relevant to refer to the judgment of the Hon'ble Supreme Court in the case of Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others reported in MANU/SC/0209/1977 :
AIR 1978 SC 851 wherein the Hon'ble Supreme Court has held as follows:
“8.The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out.” 10/20 https://www.mhc.tn.gov.in/judis W.P.No.25247 of 2022 and W.M.P.Nos.24199 & 24200 of 2022
23. It has been held by the Hon'ble Supreme Court in the case of Union of India vs. M.L.Capoor and others reported in MANU/SC/0405/1973 : AIR 1974 Supreme Court 87, in paragraph 27 as follows:
“28..... Reasons are the links 'between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable.”
24. In the case of S.N.Mukherjee vs. Union of India reported in MANU/SC/0346/1990 : AIR 1990 Supreme Court 1984, the Hon'ble Apex Court, in paragraph 35, has held as follows:
“35.Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the re-cording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision- making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of 11/20 https://www.mhc.tn.gov.in/judis W.P.No.25247 of 2022 and W.M.P.Nos.24199 & 24200 of 2022 the fact whether the decision is subject to appeal, revision or judicial review.” In the same judgment, the Hon'ble Supreme Court has held that giving reasons is an essential requirement of rule of law.
25. In the case of The Tamil Nadu Civil Supplies Corporation Limited and another vs. S.Sampath, W.A.No.84 of 2000, dated 18.02.2005, the Division Bench of this Court, has held as follows:
“8.In the present case the respondent (writ petitioner) had furnished explanations to the show cause notices. It was, therefore, incumbent on the Corporation to have considered that explanation and given its reasons why it is not accepting the same. That however has not been done in the impugned orders of the Corporation. Hence the said orders cannot be sustained in law.”
26. In Mohd. Yunus Khan vs. State of Uttar Pradesh and others reported in MANU/SC/0767/2010 : 2010 (10) SCC 539 wherein the Hon'ble Supreme Court has held as follows:
“16. We have to proceed, keeping in mind the trite law that holding disciplinary proceedings against a government employee and imposing a punishment on his being found guilty of misconduct under the statutory rules is in the nature of quasi-judicial proceedings. Though, the technical rules of procedure contained in the Code of Civil Procedure, 1908 and the provisions of the Indian Evidence Act, 1872 do not apply in a domestic enquiry, however, the principles of natural justice require to be observed strictly. Therefore, the enquiry is to be conducted fairly and reasonably and the enquiry report must contain reasons for reaching the conclusion that the charge framed against the delinquent stood proved against him. It cannot be an ipse dixit of the inquiry officer. Punishment for misconduct 12/20 https://www.mhc.tn.gov.in/judis W.P.No.25247 of 2022 and W.M.P.Nos.24199 & 24200 of 2022 can be imposed in consonance with the statutory rules and principles of natural justice. (See Bachhittar Singh v. State of Punjab & Anr., AIR 1963 SC 395; Union of India v. H.C. Goel, AIR 1964 SC 364; Anil Kumar v. Presiding Officer & Ors., AIR 1985 SC 1121; Moni Shankar v. Union of India & Anr. (2008) 3 SCC 484; and Union of India & Ors. v. Prakash Kumar Tandon, (2009) 2 SCC 541).”
27. Having regard to the principles enunciated in the above judgments of the Hon'ble Supreme Court, we find that the order removing trustees without considering the explanations and without assigning reasons for the non acceptance of the explanations vitiated the order of Government removing / dismissing the trustees.”
10. In relation to a service matter while answering specific questions referred to the Constitutional Bench of Hon'ble Supreme Court, in the case of Managing Director, ECIL, Hyderabad and others vs. B.Karunakar and others, reported in (1993) 4 SCC 727, held as follows:-
“30.(iii) Since it is the right of the employee to, have the report to defend himself effectively, and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the, report or not, the report has to be furnished to him.
(iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence 13/20 https://www.mhc.tn.gov.in/judis W.P.No.25247 of 2022 and W.M.P.Nos.24199 & 24200 of 2022 against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd.
Ramzan Khan's case (AIR 1991 SC 471) (supra) should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.”
11. In the present case, it is admitted that though the Enquiry Officer, namely the fourth respondent has submitted a report on 01.02.2022, it was not actually served on petitioners on any date before enquiry was commenced by the first respondent. The first respondent never thought of issuing notice before holding them guilty of charges. Therefore, petitioners are totally unaware of the enquiry report and the basis on which the conclusions were reached by the Enquiry Officer. When the impugned order was passed based on the enquiry report which was drawn after holding enquiry and hearing the petitioners, they are entitled to get a copy of the 14/20 https://www.mhc.tn.gov.in/judis W.P.No.25247 of 2022 and W.M.P.Nos.24199 & 24200 of 2022 enquiry report. As pointed out by a Division Bench of this Court earlier, petitioners should be supplied with all adverse materials including the copy of the enquiry report before proceeding with the enquiry. The first respondent can pass final order under Section 53 of the Act, only after receiving the objections of petitioners to the enquiry report and any other adverse materials that may be relied upon by first respondent.
12. It is also stated by the learned Senior Counsel for the petitioners that inspite of specific request made by petitioners 2 to 4 to give further opportunity as they were unable to attend the enquiry on the first occasion, the fourth respondent neither allowed them to participate nor rejected the request of petitioners 2 to 4 herein.
13. From the admitted facts, it is seen that the first respondent has passed the impugned order in a hurry without issuing notice to petitioners under the pretext that petitioners, who have failed to avail an opportunity or appear before the Enquiry Officer is not entitled to them. Factually, it is pointed out that the petitioners have participated in the 15/20 https://www.mhc.tn.gov.in/judis W.P.No.25247 of 2022 and W.M.P.Nos.24199 & 24200 of 2022 enquiry by submitting objections which are common to every one of them. In such circumstances, the first respondent in order to establish that the enquiry is in accordance with Section 53(3) of the Act has to supply the enquiry report and to give an opportunity to petitioners to submit their objections and explanations to the charges as well as the report of the Enquiry Officer. In the absence of a notice before passing the impugned order this Court has no hesitation to hold that the order impugned is in violation of principles of natural justice.
14. A submission was made by the learned Advocate General earlier that an alternate remedy is available to the petitioners by way of appeal before this Court as against the impugned order. Having regard to the admitted fact that the impugned order is in violation of principles of natural justice and an order removing the Trustees from the Trusteeship has been passed without giving an opportunity of hearing to the petitioners and furnishing a copy of the enquiry report, which is the very basis of the impugned order, this Court is of the view that alternate remedy 16/20 https://www.mhc.tn.gov.in/judis W.P.No.25247 of 2022 and W.M.P.Nos.24199 & 24200 of 2022 is not a bar in this case to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
15. This Court without going into the merits of the case and disputed issues, is of the view that the impugned order is liable to be set aside / quashed on the simple ground that the same is in violation of principles of natural justice. Therefore, this writ petition is allowed and the impugned order of the first respondent in G.O.(Ms) No.194, Tourism, Culture and Religious Endowments Department, dated 08.08.2022 is quashed in so far as petitioners 2 to 4 are concerned.
16. Since the impugned order is set aside only on the ground that it is in violation of principles of natural justice, it is open to the first respondent to reopen the enquiry afresh. It is made clear that the first respondent shall serve a copy of the enquiry report submitted by the fourth respondent dated 01.02.2022 to petitioners. The first respondent shall issue notice to petitioners inviting them for enquiry and give them adequate and fair opportunity to them to submit their objections to the enquiry report or 17/20 https://www.mhc.tn.gov.in/judis W.P.No.25247 of 2022 and W.M.P.Nos.24199 & 24200 of 2022 any adverse material that may be relied upon by first respondent. The petitioners are permitted to adduce evidence if it is necessary. Final order shall be passed keeping in mind the requirement of Section 53(3) of the Act as interpreted by this Court.
17. It is admitted now that even before the impugned order was passed, the third respondent was acting as a Supervisor and this Court has recognised the appointment of the third respondent as Supervisor while granting interim order as it is extracted by this Court in this order earlier. Hence, the Trustees namely the petitioners will be reinstated in office and they shall function under the supervision of the third respondent. In short the status quo ante as on the date of impugned order shall be restored and maintained till fresh order is passed as directed above. No costs. Consequently, connected Miscellaneous Petitions are closed.
20.09.2022
Speaking order / Non-speaking order
Index : Yes / No
Internet : Yes
sri
18/20
https://www.mhc.tn.gov.in/judis
W.P.No.25247 of 2022
and W.M.P.Nos.24199 & 24200 of 2022
To
1.State of Tamil Nadu,
Represented by its Principal Secretary,
Tourism, Culture and Religious Endowments Department, Tourism and Culture Department Secretariat, Chennai - 600 009.
2.Commissioner, Hindu Religious and Charitable Endowments, 119, Uthamar Gandi Road, Chennai - 600 034.
3.Thakkar, Arulmigu Adikesava Perumal and Peyaazhvaar Temple, Mylapore, Chennai - 600 004.
4.Enquiry Officer, Additional Commissioner (Administration), Hindu Religious and Charitable Endowments, Chennai - 600 034.
19/20 https://www.mhc.tn.gov.in/judis W.P.No.25247 of 2022 and W.M.P.Nos.24199 & 24200 of 2022 S.S.SUNDAR, J.
sri W.P.No.25247 of 2022 and W.M.P.Nos.24199 & 24200 of 2022 20.09.2022 20/20 https://www.mhc.tn.gov.in/judis