Madras High Court
P.Natarajan vs The Commissioner on 6 November, 2013
Bench: R.Banumathi, K.Kalyanasundaram
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.11.2013
CORAM
THE HON'BLE MRS.JUSTICE R.BANUMATHI
and
THE HON'BLE MR JUSTICE K.KALYANASUNDARAM
W.A.No.548 of 2012
and
M.P.No.1 of 2012
P.Natarajan .. Appellant
vs.
1.The Commissioner,
HR & CE Department,
Uthamar Gandhi Salai,
Nungambakkam, Chennai-600 006
2.The Chairman,
Trust Board of Arulmighu
Kapalieeswara Temple,
Mylapore, Chennai-600 004
3.The Joint Commissioner/Fit Person
of Arulmighu Kapalieeswara Temple,
Having Office at No.110,
Nungambakkam High Road,
Chennai-600 034
4.The Deputy Commissioner/Executive Officer,
Arulmighu Kapalieeswara Temple,
Mylapore, Chennai-600 004
.. Respondents
Writ appeal against the order dated 30.8.2011 made in W.P.No.13993 of 2009.
For Appellant : Ms.G.Thilakavathi
For Respondents :Mr.S.Kandasamy,Spl.G.P.
HR & CE for R1
Mr.N.Varadharajan for R2 to R4
JUDGMENT
(Judgment of the Court was delivered by K.KALYANASUNDARAM,J) Challenging the order dated 30.8.2011 made in W.P.No.13993 of 2009, declining to entertain the writ petition and grant the relief, the writ petitioner is before this Court.
2.The brief facts are that the appellant was appointed by the Deputy Commissioner, Executive Officer, Kapaleeshwarar Temple, Mylapore, Chennai, on 20.6.1985, as a Junior Assistant. While he was performing the work, the Honourable Chief Minister had announced the programme of free marriage scheme to be performed by the temple and by the order of the Joint Commissioner, HR & CE Department, the appellant was identified as the employee responsible towards the execution of the scheme. By order dated 3.3.2003 the appellant was made responsible to assist Annadhana Scheme announced by the Government of Tamil Nadu and by an order dated 14.3.2003, he was required to execute additional duties of the Revenue Department of the temple. While so, all of a sudden, the appellant was served with an order dated 14.3.2003 alleging that there was an omission on his part in carrying out day-to-day duties of the work assigned by order dated 14.3.2003.
3.The Deputy Commissioner of Arulmighu Kapaleeswarar Temple had issued a charge memo dated 19.5.2003, enumerating eleven charges against him. After the appellant submitted his explanation, the fourth respondent/Deputy Commissioner framed certain additional charges by his proceedings dated 22.8.2003. The appellant was suspended from service on 10.6.2003, but the respondents failed to pay the subsistence allowance. The third respondent the Joint Commissioner/fit person of Arulmighu Kapaleeswarar Temple, initiated disciplinary proceedings against the appellant, as a fit person, and an enquiry was fixed on 29.1.2004 and 5.4.2004. The appellant made request for payment of subsistence allowance on 5.3.2004 and the subsistence allowance for the month of March was paid on 8.4.2004 and for the month of May, it was paid on 16.6.2004 and thereafter, the appellant was not paid any subsistence allowance.
4.The Trust Board assumed office of the fit person and the Trust Board issued a notice on 16.10.2004 calling upon the appellant for re-enquiry on 25.10.2004. The appellant presented himself on 25.10.2004 and he reiterated his explanation submitted before the authority on that day and thereupon, he was intimated that enquiry in terms of law would be conducted and he could present himself by adducing necessary evidence. But he was served with an order of termination dated 23.12.2004. Challenging the order of termination the appellant filed a revision before the Commissioner HR & CE Department, Chennai, in R.P.No.75 of 2006 and the appellate authority by order dated 23.12.2004, rejected the revision confirming the order of termination. In nutshell the case of the appellant is that after his appointment as Junior Assistant, additional works were assigned to him and within a short span of time, the respondents issued the charge memos and initiated disciplinary proceedings against him. Against the orders of the respondents, the appellant filed the writ petition.
5.In the writ petition, the respondents did not file counter. The learned single Judge, having not accepted the contentions of the appellant that no fair and proper enquiry was conducted; non-payment of subsistence allowance would vitiate the enquiry proceedings and that the appellant is entitled for enquiry report before the order was passed, dismissed the writ petition.
6.Being aggrieved by the dismissal of the writ petition, the appellant has filed the present writ appeal.
7.In the writ appeal, the fourth respondent has field the counter affidavit, stating that during the relevant period there was no Trust Board and the third respondent-Joint Commissioner was acting as fit person and based on the resolution dated 4.8.2003, additional charge memo dated 22.8.2003 was given to the appellant. As per the provisions of the HR & CE Act and the Rules framed thereunder the Trustee or the Trust Board has got power to initiate disciplinary proceedings against the employee of the temple. So, after constitution of the Trust Board on 29.7.2004, oral enquiry was held on 25.10.2004 by the Chairman of the Trust Board. During the enquiry, the appellant and six witnesses connected with the additional charges were orally examined and the appellant did not cross-examine the witnesses nor he made any request to examine the witnesses on his side. During the enquiry, the appellant gave a statement in writing with regard to the additional charges and requested the Trust Board to pardon him.
8.The counter further proceeds that the appellant himself had admitted in his statement dated 25.10.2004 that he has forged the signatures of D.S.Velayudham - an employee of the temple, in the loan application to the Taico Bank and he has also forged the signatures of the other employees, namely, Mr.Sunderlingam and Mr.Sampath in the LIC Policy application and obtained money. The oral evidence of D.S.Velayudham and Sampath also proved the charges against the appellant herein. Based on the deposition of witnesses and the statement given by the appellant in writing on 25.10.2004, the Trust Board held that the charges framed against the appellant was proved and decided to dismiss the appellant for the charges of negligence of duty, disobedience of orders, breach of trust, dishonesty and misconduct for bringing bad name and disrespect to the temple.
9.It is further stated in the counter that subsistence allowance was paid to the appellant till May 2004 at his request and on production of non payment certificate. But subsequently, from May 2004, the appellant did not request payment of subsistence allowance and he did not produce non-employment certificate also.
10.The fourth respondent has further stated in the counter that a house bearing Door No.19, Vayalur Nayanar Colony, Mylapore, Chennai-4 belonging to the temple was allotted to the appellant at the concessional rate of rent at Rs.408 per month and even after dismissal from service on 23.12.2004, the appellant has been squatting upon the property without paying rent from 1.11.2002.
11.We have heard the learned counsel for the appellant as well as the respondents and perused the documents.
12.Mrs.G.Thilagavathy, the learned counsel for the appellant submitted that the enquiry was not fair and proper and no opportunity was given to the delinquent; the enquiry report was not furnished and therefore there is violation of principles of natural justice and that the subsistence allowance was not paid as per the Rules, which would vitiate the entire disciplinary proceedings. It was submitted that the writ Court did not properly appreciate the contention raised.
13.Mr.N.Varadharajan-the learned counsel for respondents 2 to 4 submitted that the enquiry was conducted as per Section 56(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act and in the light of G.O.Ms.No.4524, Revenue dated 5.11.1960. The charge memos were issued to the delinquent and proper notice was given to him for enquiry and the appellant also appeared for the enquiry held on 25.10.2004. The disciplinary authority having found that the charges against the appellant have been proved, imposed the punishment of dismissal from service, which is in order. The learned counsel further submitted that as per the provisions of the HR & CE Act, disciplinary authority conducted enquiry. So, the report of the enquiry officer need not be given to the appellant. The fourth respondent by letter dated 23.3.2004 directed the appellant to submit his individual claim application for subsistence allowance indicating that he is not employed and he was also directed to produce non-employment certificate. Since the appellant failed to furnish non-employment certificate, subsistence allowance was not paid to him after May 2004 and hence, the enquiry is not vitiated for non-payment of subsistence allowance. Hence, he submitted that the order of the single Judge need not be interfered with in this appeal.
14.Mr.S.Kandasamy, the learned Special Government Pleader submitted that the charges against the appellant are serious in nature, which were proved in the enquiry and considering the gravity of the charges, he was imposed with the punishment of dismissal from service.
15.We will first discuss as to whether the enquiry was conducted in a fair and proper manner and opportunity was given to the delinquent or not. Sec.56(1) of the Hindu Religious and Charitable Endowments Act, contemplates that all office-holders and servants attached to a religious institution shall be controlled by the trustee and the trustee may suspend or dismiss any of them for breach of trust, incapacity, disobedience of orders, misconduct or other sufficient cause. Section 56(1) of the HR & CE Act is usefully extracted hereunder:
"Sec.56.Punishment of office-holders and servants in religious institutions-(1)All office-holders and servants attached to a religious institution or in receipt of any emolument or perquisite therefrom shall be controlled by the trustee and the trustee may, after following the prescribed procedure, if any, fine, suspend, remove or dismiss any of them for breach of trust, incapacity, disobedience of orders, neglect of duty, misconduct or other sufficient cause."
16.The Government of Tamil Nadu issued a G.O. prescribing the procedures to be followed before imposing punishment of the office-holders and servants. G.O.Ms.No.4524, Revenue dated 5.11.1960 reads as under:
"1. . . . . .
2.(a) No order imposing any punishment other than a fine under sub-section (1) of section 56 (other than an order based on facts which have led to his conviction by a criminal court) shall be made against any office-holder or servant unless he has been informed, in writing, of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged, together with statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders in the case. He shall be required within a reasonable time, to put in a written statement of his defence and to state whether he desires an oral enquiry or only to be heard in person. An oral enquiry shall be held if such an enquiry is desired by the person charged or is decided upon by the trustee. At that enquiry, oral evidence shall be heard as to such of the allegations as are not admitted, and the person concerned shall be entitled to cross-examine witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the trustee may, for special and sufficient reason to be recorded in writing, refuse to call witness or require the delinquent to bear the expenses of such witnesses. After the enquiry has been completed, the person charged shall be entitled to put in, if he so desires, any further written statement of his defence. If no oral enquiry is held and if he had desired to be heard in person, a personal hearing shall be given to him. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. Every order of suspension, removal or dismissal shall state the charges, the explanation and the finding on each charge with the reasons therefor.
(b)In every case, where it is proposed to impose fine on the office-holder or servant, he shall be given a reasonable opportunity of showing cause against the action proposed to be taken against him.
3.The requirements of rule 2 shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him. All or any of the provisions of rule 2, may, in exceptional cases for special and sufficient reasons to be recorded in writing, be waived by the trustee, where therehis difficulty in observing exactly the requirements of the rule and those requirements can be waived without injustice to the person charged.
4.Pending the disposal of the grave charges against the Office-holder or servant, the trustee may place him under suspension when such suspension is necessary in the interest of public service.
5.Every order of punishment under sub-section (1) of Section 56 shall be communicated in writing to the person against whom it is passed."
17.In the case on hand, the charge memos were duly communicated to the appellant together with the statement of allegations on which each charge is based. The Trust Board conducted the enquiry on 25.10.2004. On that day, oral enquiry was conducted by the Chairman of the Trust Board. The appellant also appeared for the enquiry. During enquiry, the appellant made statement in writing admitting the number of serious charges levelled against him, and requested the Trust Board to pardon him. More over, the appellant and six witnesses connected with the additional charges were orally examined. Based on the depositions of witnesses and the statement given by the appellant in writing on 25.10.2004, the Trust Board held that the charges framed against the appellant were proved. The appellant was afforded adequate opportunity of defending himself. Therefore, we are of the view that enquiry conducted is fair and proper and in accordance with Section 56(1) of the Act and in the light of the procedure laid down in G.O.Ms.No.4524.
18.It is well settled that when enquiry officer is other than the disciplinary authority, the delinquent is entitled to a copy of enquiry officer. In the present case, the trustee, who is the disciplinary authority conducted the enquiry. So, furnishing of enquiry report does not arise and the same will not amount to violation of principles of natural justice. Therefore, the contention that enquiry report was not furnished and that there is violation of principles of natural justice does not merit consideration.
19.The learned counsel for the appellant relies on the judgment reported in (2010) 13 Supreme Court cases 494 PUNJAB NATIONAL BANK AND OTHERS V. K.K.VERMA and contends that the appellant is entitled for the report of the enquiry officer and as the report was not furnished to the appellant, the entire proceedings is vitiated. In the judgment, the Honourable Apex Court has considered the judgment of the Constitution Bench reported in 1993(4) SCC 727-MANAGING DIRECTOR, ECIL, HYDERABAD AND OTHERS V. B.KARUNAKAR AND OTHERS, wherein it was held that non-supply of enquiry report is inconsequential if the employee does not show as to how he is prejudiced thereby. Further, considering the factual position of the case that the disciplinary authority reversed the finding of the enquiry officer, the Apex Court has held that the delinquent was denied the opportunity and thereby he was certainly prejudiced. The facts of the present case are totally different. So, the cited judgment is not applicable to this case.
20.The next limb of contention is that the appellant was not paid the subsistence allowance and the same vitiates the disciplinary proceedings. In support of her contention, the learned counsel relies upon the judgment of the Honourable Apex Court reported in (2000) 7 SUPREME COURT CASES 90 JAGDAMBA PRASAD SHUKLA V. STATE OF U.P.AND OTHERS, wherein the Honourable Apex Court, taking into consideration the fact that inspite of the appellant's repeated requests for payment of subsistence allowance, the respondent did not respond to the same and due to the financial crunch, the appellant did not participate in the enquiry proceedings, held as follows:
"8.The payment of subsistence allowance, in accordance with the Rules, to an employee under suspension is not a bounty. It is a right. An employee us entitled to be paid the subsistence allowance. No justifiable ground has been made out for non-payment of the subsistence allowance all through the period of supension i.e.from suspension till removal. One of the reasons for not appearing in inquiry as intimated to th authorities was the financial crunch on account of non-payment of subsistence allowance and the other was the illness of the appellant. The appellant in reply to the show-cause notice stated that even if he was to appear in inquiry against medical advice, he was unable to appear for want of funds on account of non-payment of subsistence allowance. It is a clear case of breach of principles of natural justice on account of the denial of reasonable opportunity to the appellant to defend himself in the departmental enquiry. Thus, the departmental enquiry and the consequent order of removal from service are quashed."
21.The facts of the present case are distinct. Here, the appellant was suspended from service on 10.6.2003. Subsistence allowance was paid to the appellant till May 2004 at his request and on production of non payment certificate. Thereafter, inspite of the letter of the fourth respondent dated 23.3.2004, the appellant did not make any request for payment of subsistence allowance and did not produce non-employment certificate. Trite the proposition of law is that the employee has to comply with certain formalities for getting subsistence allowance and unless those formalities are complied with, the subsistence allowance will not be paid. Therefore, the appellant is not entitled for subsistence allowance and non-payment of subsistence allowance does not vitiate the enquiry proceedings.
22.The writ Court considered all the contentious points urged by the appellant and held that none of the points raised would vitiate the disciplinary proceedings and rightly dismissed the writ petition.
23.In view of our discussion supra, we do not find any ground warranting interference in the order passed by the learned single Judge. Accordingly, the writ appeal is dismissed. However, there is no order as to costs. Consequently connected miscellaneous petition is closed.
(R.B.I.J.) (M.K.K.S.J.)
06.11.2013
msk
Index:Yes/No
Internet:Yes/No
To
1.The Commissioner,
HR & CE Department,
UthamaR Gandhi Salai,
Nungambakkam, Chennai-600 006
2.The Chairman,
Trust Board of Arulmighu
Kapalieeswara Temple,
Mylapore, Chennai-600 004
3.The Joint Commissioner/Fit Person
of Arulmighu Kapalieeswara Temple,
Having Office at No.110,
Nungambakkam High Road,
Chennai-600 034
4.The Deputy Commissioner/Executive Officer,
Arulmighu Kapalieeswara Temple,
Mylapore, Chennai-600 004
R.BANUMATHI,J. and K.KALYANASUNDARAM,J
msk
Pre-delivery judgment in
W.A.No.548 of 2012
06.11.2013