Madras High Court
The Government Of Tamil Nadu vs Saravana Pandian on 28 March, 2017
Author: S.S.Sundar
Bench: Nooty.Ramamohana Rao, S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.03.2017
Reserved on : 30.08.2016 and 02.09.2016
Delivered on : 28.03.2017
CORAM
THE HONOURABLE MR.JUSTICE NOOTY.RAMAMOHANA RAO
and
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
Writ Appeal (MD) Nos.1133 of 2016 and 1143 of 2016,
C.M.A(MD)Nos.583, 669, 670 and 819 of 2016 and
W.P.(MD)Nos.5262, 5340, 10563, 11679, 13436 and
13493 of 2016,
and
connected Miscellaneous Petitions
Writ Appeal (MD) No.1133 of 2016
1.The Government of Tamil Nadu,
Represented by its Principal Secretary,
Tourism, Culture and Charitable (ANi3-1) Department,
Fort St. George, Secretariat,
Chennai ? 600 009.
2.The Commissioner,
Hindu Religious and Charitable Endowments Department,
Chennai ? 600 009.
3.The Joint Commissioner,
Hindu Religious and Charitable Endowments
Administration Department,
Madurai ? 625 001. : Appellants / Respondents 1 to 3
-Vs-.
1.Saravana Pandian
2.The Fit Person,
Arulmigu Pandi Muneeswarar Temple,
Melamadai, Madurai District.
3.The Executive Officer / Joint Commissioner,
Arulmigu Subramaniaswamy Thirukkovil,
Thirupparankundram, as
Executive Officer of
Arulmigu Pandi Muneeswarar Temple,
Melamadai, Madurai District.
4.Arulmigu Subramaniaswamy Thirukoil,
Thirupparankundram,
Rep. by the Deputy Commissioner /
Executive Officer. : Respondents/Respondents 4 - 6
Appeal filed under Clause 15 of Letters Patent praying to set aside the
order dated 15.07.2016 in W.P.(MD) No.10257 of 2016.
For Appellants : Mr.V.R.Shanmuganathan
Special Governance Pleader
For Respondent No.1 : Mr.J.Anandhavalli
Writ Appeal (MD) No.1143 of 2016
1.The Fit Person,
Arulmigu Pandi Muneeswarar Temple,
Melamadai, Madurai District.
2.The Executive Officer / Joint Commissioner,
Arulmigu Subramaniaswamy Thirukkovil,
Thirupparankundram, as
Executive Officer of
Arulmigu Pandi Muneeswarar Temple,
Melamadai, Madurai District.
3.Arulmigu Subramaniaswamy Thirukoil,
Thirupparankundram,
Rep. By the Deputy Commissioner /
Executive Officer. : Appellants / Respondents 4 to 6
-Vs-.
1.Saravana Pandian : Respondent / Petitioner
2.The Government of Tamil Nadu,
Represented by its Principal Secretary,
Tourism, Culture and Charitable (ANi3-1) Department,
Fort St. George, Secretariat,
Chennai ? 600 009.
3.The Commissioner,
Hindu Religious and Charitable Endowments Department,
Chennai ? 600 034.
4.The Joint Commissioner,
Hindu Religious and Charitable Endowments
Administration Department,
Madurai ? 625 001. : Respondents/Respondents 1 - 3
Appeal filed under Clause 15 of Letters Patent praying to set aside the
order dated 15.07.2016 in W.P.(MD) No.10257 of 2016.
!For Appellants : Mr.S.Parthasarathy
Senior Counsel
for Mr.S.Manohar
^For Respondent 1 : Mr.J.Anandhavalli
For Respondents : Mr.V.R.Shanmuganathan
2 to 4 Special Governance Pleader
Civil Miscellaneous Appeal (MD) No.583 of 2016
Saravana Pandian : Appellant
-Vs-.
1.The Government of Tamil Nadu,
Represented by its Principal Secretary,
Tourism, Culture and Charitable (ANi3-1) Department,
Fort St. George, Secretariat,
Chennai ? 600 009.
2.The Commissioner,
Hindu Religious and Charitable Endowments Department,
Chennai ? 600 034.
3.The Joint Commissioner,
Hindu Religious and Charitable Endowments
Administration Department,
Madurai ? 625 001. : Respondents
Appeal filed under Section 53(2)(5A) of the Tamil Nadu Hindu Religious
and Charitable Endowments Act r/w Order 43 Rule 1 of Civil Procedure Code,
praying to set aside the order passed by the First Respondent herein in
G.O.(MS) No.158, Tourism, Culture and Charitable (ANi3-1) Department, dated
13.05.2016, and to allow the appeal.
For Appellants : Ms.J.Anandhavalli
For Respondents : Mr.V.R.Shanmuganathan,
Special Government Pleader
Civil Miscellaneous Appeal (MD) No.669 of 2016
1.K.Ramesh Poosari
2.S.Karthik Poosari
3.P.M.Jagadeesh Pandian : Appellants
-Vs-.
1.The Government of Tamil Nadu,
Represented by its Principal Secretary of
Tourism, Culture and Charitable (ANi-1) Department,
Fort St. George, Secretariat,
Chennai ? 600 009.
2.The Commissioner,
Hindu Religious and Charitable Endowments Department,
Chennai ? 600 034.
3.The Joint Commissioner,
Hindu Religious and Charitable Endowments Department,
Madurai.
4.The Deputy Commissioner /
Executive Officer (Incharge)
Arulmigu Pandi Muneeswarar Thirukovil,
Melamadai,
Madurai. : Respondents
Appeal filed under Section 53(5A) of the Tamil Nadu Hindu Religious and
Charitable Endowments Act, praying to set aside the order passed by the
Respondent No.1, The Principal Secretary of HR & CE Department in G.O.(MS)
No.158, Tourism, Culture and Charitable (ANi3-1) Department, dated
13.05.2016, and to allow this appeal.
For Appellants : Mr.N.Ganagasapapathy
For Respondents : Mr.V.R.Shanmuganathan,
1 to 3 Special Government Pleader
For Respondent 4 : Mr.S.Parthasarathy
Senior Counsel for Mr.S.Manohar
Civil Miscellaneous Appeal (MD) No.670 of 2016
1.Sivaji Poosari
2.V.K.Pandian Poosari : Appellants
-Vs-.
1.The Government of Tamil Nadu,
Represented by its Principal Secretary,
Tourism, Culture and Charitable (ANi-1) Department,
Fort St. George, Secretariat,
Chennai ? 600 009.
2.The Commissioner,
Hindu Religious and Charitable Endowments Department,
Chennai ? 600 034.
3.The Joint Commissioner,
Hindu Religious and Charitable Endowments Department,
Madurai.
4.The Deputy Commissioner /
Executive Officer (Incharge)
Arulmigu Pandi Muneeswarar Thirukovil,
Melamadai,
Madurai. : Respondents
Appeal filed under Section 53(5A) of the Tamil Nadu Hindu Religious and
Charitable Endowments Act, praying to set aside the order passed by the
Respondent No.1, The Principal Secretary (Incharge) of HR & CE, Department,
vide G.O.(MS) No.158, Tourism, Culture and Charitable (ANi3-1) Department,
dated 13.05.2016, and to allow this appeal.
For Appellants : Mr.N.GA.Natraj
For Respondents : Mr.V.R.Shanmuganathan,
1 to 3 Special Government Pleader
For Respondent 4 : Mr.S.Parthasarathy
Senior Counsel for Mr.S.Manohar
Civil Miscellaneous Appeal (MD) No.819 of 2016
1.P.M.Pandiyarajan
2.R.Rebello : Appellants
-Vs-.
1.The Government of Tamil Nadu,
Represented by its Principal Secretary,
Tourism, Culture and Charitable (ANi3-1) Department,
Fort St. George, Secretariat,
Chennai ? 600 009.
2.The Commissioner,
Hindu Religious and Charitable Endowments Department,
Chennai ? 600 034.
3.The Joint Commissioner,
Hindu Religious and Charitable Endowments
Administration Department,
Madurai ? 625 001. : Respondents
Appeal filed under Section 53(2A)(5A) of the Tamil Nadu Hindu Religious
and Charitable Endowments Act r/w Order 43 Rule 1 of Civil Procedure Code,
praying to set aside the order passed by the First Respondent herein in
G.O.(MS) No.158, Tourism, Culture and Charitable (ANi3-1) Department, dated
13.05.2016, and to allow the appeal.
For Appellants : Ms.J.Anandhavalli
For Respondents : Mr.V.R.Shanmuganathan,
Special Government Pleader
W.P.(MD) No.5262 of 2016
V.K.Pandian : Petitioner
vs
1.The State of Tamil Nadu,
Represented by its Principal Secretary (in-charge),
Department of Tourism, Culture and Religious Endowments,
Fort St. George,
Chennai ? 600 009.
2.The Commissioner,
Hindu Religious and Charitable Endowments,
Chennai.
3.The Deputy Commissioner / Executive Officer,
Arulmigu Subramania Swamy Thirukovil,
Thirupparankundram.
Madurai ? 625 020. : Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorari calling for the record relating to the
order made vide G.O.(pa).No.41, dated 02.03.2016 r/w. G.O.(pa).No.42, dated
02.03.2016 issued by the first respondent and quash the same.
For Petitioner : Mr.F.Deepak
For Respondents : Mr.V.R.Shanmuganathan
1 and 2 Special Government Pleader
For Respondent 3 : Mr.S.Parthasarathy
Senior Counsel for Mr.S.Manohar
W.P.(MD) No.5340 of 2016
R.Ramesh Poojari : Petitioner
vs
1.The Secretary to Government,
Tourism, Culture and Hindu Religious &
Charitable Endowments Department,
Fort St. George,
Chennai ? 600 009.
2.The Commissioner,
Hindu Religious and Charitable
Endowments (Admn) Department,
No.119, Uthamar Gandhi Salai,
Nungambakkam,
Chennai ? 34.
3.The Joint Commissioner,
Hindu Religious and Charitable
Endowments (Admn) Department,
Madurai ? 1.
4.The Executive Officer,
Arulmigu Subramaniaswamy Temple,
Thirupparankundram.
Madurai District.
(Now appointed as fit person in
Arulmigu Pandimuneeswarar Temple,
Melamadai, Madurai North Taluk,
Madurai ? 625 020.) : Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorari calling for the records relating to the
impugned order passed by Secretary to Government, Tourism, Culture and Hindu
Religious and Charitable Endowments Department, Chennai-9, the first
respondent herein under Sec.53 of the Act 22 of 1959 in relating to
appointing the 4th respondent herein as Fit Person in Arulmigu Pandi
Muneeswarar Temple, Melamadai, Madurai North Taluk, Madurai, by issuing
G.O.No.42, Tourism, Culture and Hindu Religious and Charitable Endowment
Department, dated 02.03.2016 and quash the same.
For Petitioner : Mr.R.G.Shankar Ganesh
For Respondents : Mr.Mr.V.R.Shanmuganathan
1 to 3 Special Governance Pleader
For Respondent 4 : Mr.S.Parthasarathy
Senior Counsel for Mr.S.Manohar
W.P.(MD) No.10563 of 2016
P.M.Pandiarajan ... Petitioner
-Vs-
1.The Commissioner,
Hindu Religious and Charitable Endowments Department,
Chennai ? 600 034.
2.The Joint Commissioner,
Hindu Religious and Charitable Endowments
Administration Department,
Madurai ? 625 001.
3.The Joint Commissioner/Executive Officer / Fit Person,
(Executive Officer of Arulmigu Subramaniaswamy Thirukovil,
Thirupparankundram)
Arulmigu Pandi Muneeswarar Temple,
Melamadai, Madurai District. : Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorari calling for the records pertaining to
the impugned proceedings issued by the 3rd respondent in Na.Ka.No.13/2016/A2,
dated 13.05.2016, published in 'Dina Thanthi' Tamil daily newspaper on
29.05.2016 and quash the same in so far as Serial No.4 namely auctioning of
Roosters and Goats which are given by the devotees to the temple is
concerned.
For Petitioner : Ms.J.Anandhavalli
For Respondents : Mr.V.R.Shanmuganathan
1 and 2 Special Government Pleader
For Respondent 3 : Mr.S.Parthasarathy
Senior Counsel for Mr.S.Manohar
W.P.(MD) No.11679 of 2016
V.K.Pandian ... Petitioner
-Vs-
1.The Commissioner,
Hindu Religious and Charitable Endowments Department,
Chennai ? 600 034.
2.The Joint Commissioner,
Hindu Religious and Charitable Endowments
Administration Department,
Madurai ? 625 001.
3.The Deputy Commissioner/
Executive Officer of Arulmigu Subramaniaswamy Thirukovil,
Thirupparankundram as
Executive Officer / Deputy Commissioner of
Arulmigu Pandi Muneeswarar Temple,
Melamadai, Madurai District.
4.Fit Person / Deputy Commissioner/Executive Officer,
Arulmigu Pandi Muneeswarar Temple,
Melamadai, Madurai District. : Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorari calling for the records pertaining to
the impugned notification issued by the 4th Respondent in
Na.Ka.No.10/2016/A2, dated 13.05.2016 published in 'Dina Thanthi' Tamil
daily newspaper on 29.05.2016 and the consequential impugned rejection order
passed by the 3rd respondent in Na.Ka.No.10/2016/A.2, dated 20.06.2016 and
quash the same.
For Petitioner : Ms.J.Anandhavalli
For Respondents : Mr.V.R.Shanmuganathan
1 and 2 Special Government Pleader
For Respondents : Mr.S.Parthasarathy
3 and 4 Senior Counsel for Mr.S.Manohar
W.P.(MD) No.13436 of 2016
P.M.Chellapandi Poojari : Petitioner
vs
1.The Government of Tamil Nadu,
Represented by its Principal Secretary,
Tourism, Culture and Charitable (ANi3-1) Department,
Fort St. George,
Chennai ? 600 009.
2.The Commissioner,
Hindu Religious and Charitable Endowments Department,
Chennai ? 600 034.
3.The Joint Commissioner,
Hindu Religious and Charitable Endowments Department,
Madurai ? 625 001.
4.The Fit Person,
Arulmigu Pandi Muneeswarar Temple,
Melamadai, Madurai District.
5.The Executive Officer/ Joint Commissioner
of Arulmigu Subramaniaswamy Thirukovil,
Thirupparankundram as
Executive Officer of
Arulmigu Pandi Muneeswarar Temple,
Melamadai, Madurai District.
6.Arulmigu Subramaniaswamy Thirukovil,
Thirupparankundram
Rep. by Deputy Commissioner /
Executive Officer. : Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorari calling for the records relating to
the proceedings of the Impugned G.O.No.42, dated 02.03.16 on the file of the
1st respondent and quash the same.
For Petitioner : Mr.G.Prabhu Rajadurai
For Respondents : Mr.V.R.Shanmuganathan
1 to 3 Special Government Pleader
For Respondents : Mr.S.Parthasarathy
4 to 6 Senior Counsel for Mr.S.Manohar
W.P.(MD) No.13493 of 2016
P.M.Chellapandi Poojari : Petitioner
vs
1.The Government of Tamil Nadu,
Represented by its Principal Secretary,
Tourism, Culture and Charitable (ANi3-1) Department,
Fort St. George, Secretariat,
Chennai ? 600 009.
2.The Commissioner,
Hindu Religious and Charitable Endowments Department,
Chennai ? 600 034.
3.The Joint Commissioner,
Hindu Religious and Charitable Endowments Department,
Madurai ? 625 001.
4.The Fit Person,
Arulmigu Pandi Muneeswarar Temple,
Melamadai, Madurai District.
5.The Executive Officer/ Joint Commissioner,
Arulmigu Subramaniaswamy Thirukovil,
Thirupparankundram as
Executive Officer of
Arulmigu Pandi Muneeswarar Temple,
Melamadai, Madurai District.
6.Arulmigu Subramaniaswamy Thirukovil,
Thirupparankundram
Rep. by Deputy Commissioner /
Executive Officer. : Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorari calling for the records relating to the
proceedings of the impugned order in Na.Ka.No.8078/2105/L5, dated 12.05.2016
on the file of the second respondent and quash the same.
For Petitioner : Mr.G.Prabhu Rajadurai
For Respondents : Mr.V.R.Shanmuganathan
1 to 3 Special Government Pleader
For Respondents : Mr.S.Parthasarathy
4 to 6 Senior Counsel for Mr.S.Manohar
:COMMON JUDGMENT
S.S.SUNDAR, J.
1.Having regard to the position that several writ petitions, writ appeals, civil miscellaneous appeals involving common legal and factual issues arise for consideration, we intend to dispose of all these matters by a common order. Hence, it is necessary to record the facts and events in the following order:
(a) The temple known as Arulmigu Pandi Muneeswarar Temple, at Melamadai, Madurai Taluk was declared to be a public temple by a judgment in A.S.No.1 of 1925 on the file of the 1st Additional Sub Court. The properties of temple were specifically held to be a grant to the temple but not service inam. The trusteeship was held by the members of a particular family and the succession to the office of pujaris was not according to law of primogeniture.
(b) In O.A.No.459 of 1933, the then Commissioner of Hindu Religious and Charitable Endowments Board decided that the temple is an excepted one (i.e, the right of succession to the offices of the Trustees of the temple is hereditary) as defined under Madras Act II of 1927. By this order the then trustee was directed to maintain proper accounts and submit the same periodically for the scrutiny of the Board and administer the temple affairs without giving room for any complaint or otherwise proceedings for settlement of a scheme will be initiated. A specific finding is rendered in this proceeding that succession to the trusteeship is hereditary and restricted to the members of one Valliammal's family.
(c) It is not in dispute that this temple has been notified as a temple falling under Section 46(iii) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as ?the Act?).
(d) It appears that the sons of Valliammal and their successors were acting as hereditary trustees and in a suit in O.S.No.383 of 1973 on the file of the District Munsif Court, Madurai filed by one of the hereditary trustees against other trustees, a compromise memo was filed whereby the hereditary trustees who were also poojaris of the temple agreed to recognise all the parties to the proceedings, as hereditary trustees, and further agreed to perform pooja on weekly turn basis. Based on the agreed terms, a compromise decree was also passed on 20.06.1973. One important clause in the compromise decree to which our attention was specifically drawn is clause 13 and the same is extracted as under:
?13. That the above said murai holders are entitled to get all incomes including hundial collections during their pooja murai subject to the result in W.A.No.487 of 1969 on the file of the High Court for hundial collections and the said murai holder incurs all expenses necessary for temple in his particular week and he is also liable for common items of expenditure if any, in respect of the temple.?
In the compromise decree, it was also agreed that each muraidhar is entitled to perform the Annual Chithirai festival services or pooja for ten days every year on turn basis and it was agreed that the Chithirai Festival muraidhar alone is entitled to collect the rent from shops and the usufructs from the trees in the temple.
(e) From the previous proceedings it is seen that the management of the temple is administered by the lineal descendants of the two sons of Valliammal and 10 trustees were elected as trustees i.e., 5 persons representing each branch. Since two of the trustees were not in office due to pendency of proceedings only 8 trustees were administering the temple at present and they constitute the Board of Trustees.
(f) By proceedings dated 21.03.2015, the Commissioner, Hindu Religious and Charitable Endowments Department, issued a show cause notice to eight of the hereditary trustees of the temple calling upon them to show cause why an action under Section 53 of the Tamil Nadu Hindu Religious and Charitable Endowments Act should not be taken against the hereditary trustees for the serious irregularities and defects in the administration of the temple which were enumerated as items 1 to 12.
(g) Challenging this notice dated 21.03.2015, one Saravana Pandian, one of the hereditary trustees filed Writ Petition (MD) No.9952 of 2015 on various grounds. During the hearing of the said Writ petition, the learned Special Government Pleader appearing for the Commissioner, Hindu Religious and Charitable Endowments Department, conceded the legal position that the power under Section 53 can be exercised only by the Government in view of the fact that the temple in question is included in the list published under clause (iii) of Section 46 of the Act. Recording this fact, the writ petition was allowed giving liberty to the Government to initiate action against the trustees as per the provisions of the Act.
(h) The Government thereafter issued a show cause notice under Section 53 of the Act framing 12 charges against the hereditary trustees by proceedings dated 02.03.2016. On the same day, the Government also passed an order temporarily suspending the hereditary trustees vide G.O.Ms.No.41, Tourism, Culture and Endowments Department, dated 02.03.2016, under Section 53 (4) of the Act since the charges against the hereditary trustees were grave in nature. On the same day i.e., on 02.03.2016, the Government also decided to appoint the Executive Officer of Arulmigu Subramaniya Swamy Temple, Thiruparankuntram, as a 'Fit Person' for the temple in question vide G.O.Ms.No.42, Tourism, Culture and Endowments Department.
(i) The nature of charges as found in the notice dated 02.03.2016 are as follows:
Charge No.1: During surprise inspection by the Joint Commissioner on 07.01.2015, one of the poojaris of the temple by name P.Praveen Pandian was found to have placed three vessels as if they are regular hundials installed by the department and a sum of Rs.2,000/- found in the vessels was confiscated by officials and put in the sealed hundial in the presence of public. Though severe action ought to have been taken against the said poojari by the hereditary trustees as provided under Section 56 of the Act, the hereditary trustees failed to perform their duties as per Section 28 and permitted the said poojari not only to perform pooja in the temple but also given share in the hundial collection thereby causing financial loss to the temple.
Charge No.2: Though CCTV cameras were installed for the purpose of preventing the poojaris from compulsory collection of money from worshippers and to supervise the collection in hundials etc, as per the directions of the Hindu Religious and Charitable Endowments Department, at the time of inspection on 07.01.2015, it was found that the entire system was hampered to ensure that nothing is recorded for 30 days prior to inspection and the trustees have indulged in such illegal activities and have conspired to do such acts.
Charge 3: Though one V.K.Pandian and P.M.Chellapandi Poojari who are the hereditary trustees of the temple were found to have installed hundials without permission during surprise inspection on 18.01.2000 and 15.03.2013, no action is taken against the said trustees. Hence, the trustees have failed in their duty and thereby acted against the interest of the temple.
Charge 4: One Shri.Jagathish Pandian, a poojari of the temple along with his wife and five others were caught red handed when they stole a sum of Rs.10,225/- from the hundials installed by the department using keys, sticks, etc., and they were handed over to the Police and a case was registered before the Karuppayurani Police Station in F.I.R. No.360/2013. No disciplinary action is taken against the said poojari by the Board of Trustees as provided under Section 56 of the Act. By this, the hereditary trustees have failed to perform their duty under Section 28(2) of the Hindu Religious and Charitable Endowments Department Act. The trustees have permitted the accused to perform pooja and get share in Hundial collections and thereby the trustees have caused financial loss to the temple. Charge No.5: Though the four shops belonging to the temple were put to public auction from 01.12.2004 for a period of three years, thereafter it was not put to public auction from 01.12.2007 thereby caused loss to the temple by forgoing the income by donation and allowed the tenants to continue for more than five years for personal gain contrary to Section 34(1) and 34(A) of the Hindu Religious and Charitable Endowments Act, 1959, and Rule 2 of Religious Institutions (Lease of immovable property) Rules 1963 and the trustees failed to fix the fair rent for the shop enjoyed by one T.K.S.Mani in terms of G.O.MS.No.456, thereby causing loss to the temple.
Charge No.6: Without permission of the department purely for personal gain of trustees tickets for Rs.25, Rs.50 and Rs.100 are printed and sold in connection with Annadhanam contrary to rules despite the fact that the donations are received by issuing miscellaneous receipts thereby preventing the legitimate income by way of doing Annadhanam in the temple.
Charge No.7: Without permission from the department and without any plan approval or estimation, a mandapam and steel arch are constructed by the trustees, in violation of Rules 12(3) and 13 of Maintenance Rules.
Charge No.8: The Board of Trustees failed to initiate any legal action for the recovery of an extent of 2.44 acres of land in Survey No.13/2 in Melamadai Village which was granted to the temple and illegally sold earlier by the trustees and thereby the trustees failed to perform their duty.
Charge No.9: The hair offered by the worshippers are not encashed as per norms prescribed under Section 116 (2) (xii-a) and thereby the trustees have caused financial loss to the temple for their personal gain.
Charge No.10: New Savings Account has been opened in Canara Bank, Karuppayurani Branch without the permission from the department and the trustees are also operating the account despite the fact that the official savings account is available for the temple in Indian Bank of Karuppayurani branch, with an intention to exclude temple funds from audit inspection.
Charge No.11: The Board of Trustees has allowed one Sivaji to hold office even though his term of office has expired on 12.08.2002. The hereditary trustees have colluded with the Managing Trustees and failed to take any action for conducting election, by allowing the said Sivaji Poojari to continue as Chairman of the Board of Trustees and by furnishing false information, without lawful order which is contrary to Section 48 (2) (ii) of Act and thereby the Trustees have failed in their duties.
Charge No.12: Suppressing the fact that this Court by order dated 05.01.2008 in W.P.No.9950 of 2005 and W.P.No.9235 of 2005 has directed to conduct election for Board of Trustees and to publish the result of the election, the Trustees have failed to initiate any action for the declaration of the result of election conducted on 07.11.2015, in a lawful manner. The Board of Trustees have also colluded with the Managing Trustees to enable him to function as a trustee as well the Chairman of Board of Trustees.
(j) By a detailed reply dated 14.03.2016, one of the hereditary Trustees by name P.Sivaji Poojari who was then functioning as the Chairman of Board of Trustees gave explanation with reference to each of the 12 charges denying them. Similar explanation was also submitted by a person by name V.K.Pandian Poojari who claimed to be an Ex-hereditary Trustee. Two other trustees also submitted similar explanations. Another explanation dated 21.03.2016 was also submitted by three other trustees. The trustees also submitted some documents referred to in their explanations. One R.Rabellow as poojari has also submitted his explanation.
(k) As seen above, most of the charges are about dereliction of duty of the hereditary trustees in taking action against the hereditary poojaris who were found to have committed several irregularities against the interest of temple. The incident of irregularity or misappropriation committed by the poojaris is not disputed and the fact that no action is taken against such erring poojaris for such acts of misfeasance or misappropriation is also not denied. However, circumstances for the inability of the trustees to take action against the poojaris alone are given in the explanation. Other charges are also relating to the maladministration of the trust resulting in loss of income or relating to the failure to follow the rules framed under the Act or other provisions of the Act which are against the interest of the temple. Hence, it is likely that the charges if proved might result in removal / dismissal of hereditary trustees.
(l) In the meanwhile, on 07.05.2016, a report was submitted by the Fit Person to the Joint Commissioner about the irregularities and defects in the administration of the affairs of the temple during the time, when the temple was fully under the management and administration of the hereditary trustees. Since the Fit Person has assumed office and took over charge on 07.03.2016, he has also pointed out that the income of the temple has been considerably increased because of the proper supervision of hundial collections and other affairs of the temple by the Fit Person. Since it is not possible to regulate the management of the temple by the hereditary trustees who are also the hereditary poojaris of the temple, it was suggested that the department alone can secure better administration of the temple by a permanent arrangement. In that context, he also recommended for appointing an Executive Officer for the temple on a permanent basis. Based on the report of the Fit Person and the report of the Inspector, the Joint Commissioner, Hindu Religious and Charitable Endowments Department, Madurai has recommended for appointment of an Executive Officer for the temple. This recommendation of the Joint Commissioner clearly indicates the fact that the temple had been mismanaged and that the income of the temple has been increased considerably because of toning up the administration by the Fit Person without the interference of the hereditary trustees. It is to be noted from the report of the Fit Person that even for a short period of about two months alone the hundial collection has increased by ten lakhs compared to the income of the previous year, during the time when the temple was under
the control of hereditary trustees. The Joint Commissioner has also pointed out that by implementing ticket system for the various services, there will be augmentation of income and that the proper administration of the temple under the supervision of an Executive Officer will be in the interest of the temple and worshippers.
(m) Considering the recommendations of the Joint Commissioner, the Commissioner, Hindu Religious and Charitable Endowments Department, passed an order on 12.05.2016 appointing an Executive Officer for the temple in exercise of his power under Section 45(1) of the Act. By this order, the Executive Officer of Arulmigu Subramaniya Swami Temple, Thiruparankundram, assumed charge as Executive Officer of Arulmigu Pandi Muneeswarar Temple.
The management of the temple, as per the order, is to be carried out by the Executive Officer along with the hereditary trustees. The duties and the power of the Executive Officer to administer the temple along with the hereditary trustees are indicated in the annexure to the said order. The appointment of the Executive Officer is for a period of five years or until further orders.
(n) On 13.05.2016, the Government after considering the explanations and documents submitted by the hereditary trustees, passed an order vide G.O.Ms.No.158, Tourism, Cultural and Endowments Department, removing all the eight hereditary trustees from office, in exercise of the power under Section 53 of the Act. The Executive Officer also took complete charge from the Fit Person on 17.05.2016.
(o) One Saravanapandian filed Writ Petition (MD)No.10257 of 2016 challenging the order dated 12.05.2016 appointing the Executive Officer under Section 45(1) of the Act. The writ petitioner, namely, R.Saravanapandian, is one of the eight hereditary trustees, who were removed by the order dated 13.05.2016. The learned Single Judge of this Court allowed the Writ Petition (MD)No.10257 of 2016 on the ground that the order of the Commissioner, Hindu Religious and Charitable Endowments Department, without giving an opportunity to the petitioner and other hereditary trustees is in violation of the principles of natural justice and hence, unsustainable in law. However, liberty was preserved to the Commissioner, Hindu Religious and Charitable Endowments Department, to pass fresh orders after issuing show cause notice to the trustees of the temple (including the trustees under suspension) and receiving their objections for appointment of Executive Officer. The direction was also to pass a reasoned, speaking order on merits after adverting to the objections raised and after scrupulously adhering to the relevant provisions of the Act. Liberty was also granted to the petitioner and other trustees to raise all factual and legal pleas before the Commissioner.
2. As against the order in W.P.(MD)No.10257 of 2016, dated 15.07.2016, the Government along with the Commissioner, Hindu Religious and Charitable Endowments Department, and the Joint Commissioner, Hindu Religious and Charitable Endowments Department, Madurai, who are respondents 1 to 3 in that writ petition have filed a Writ Appeal in W.A.(MD)No.1133 of 2016. As against the same order in W.P.(MD)No.10257 of 2016, the respondents 4 to 6 in the writ petition, namely, the Fit Person of the temple appointed by the Government and the Executive Officer who was appointed by the Commissioner on 12.05.2016 preferred another appeal in W.A.(MD)No.1143 of 2016 before this Court.
3) Aggrieved by the removal of the trustees by order dated 13.05.2016, vide G.O.Ms.No.158, Tourism, Cultural and Endowments Department, one Saravanapandian, the petitioner in W.P.(MD)No.10257 of 2016 has preferred the Civil Miscellaneous Appeal in C.M.A.(MD)No.883 of 2016. Similarly another trustee by name P.M.Pandiarajan has also filed an appeal in C.M.A.(MD)No.819 of 2016 against the same order. Though the Civil Miscellaneous Appeals were to be heard by a Single Judge of this Court, they were tagged along with the Writ Appeal (MD)Nos.1133 and 1143 of 2016 at the request of the counsel on both sides on the ground that common issues arise for consideration in all the matters.
4. C.M.A.(MD)No.669 of 2016 has been filed by three other hereditary trustees, namely, one Ramesh Poojari son of Kodangi Poojari and two other poojaris who are also the hereditary trustees. Similarly, C.M.A.(MD) No.670 of 2016 has been filed by one Sivaji Poojari and V.K.Pandian Poojari challenging the order removing them from hereditary trusteeship.
5. As against the appointment of Fit Person vide G.O.Ms.No.42, Tourism, Cultural and Endowments Department, dated 02.03.2016, one Pandiarajan filed Writ Petition (MD)No.5366 of 2016 and one P.Sivaji Poojari filed Writ Petition (MD)No.4741 of 2016. Again one of the appellants in the Civil Miscellaneous Appeals, namely, Saravanapandian filed another Writ Petition (MD)No.5387 of 2016. However, all the three writ petitions above referred to were withdrawn. One R.Ramesh Poojari, son of Kodangi Poojari, who is also one of the trustees and who was removed by order dated 13.05.2016 has filed Writ Petition (MD)No.5340 of 2016 challenging the order dated 02.03.2016 appointing Fit Person for the temple. Another Writ Petition (MD)No.13436 of 2016 has been filed by one P.M.Chellapandian, son of Mahamuni Poojari challenging the order dated 02.03.2016, appointing Fit Person for the temple.
6. One V.K.Pandian has filed Writ Petition (MD)No.5262 of 2016 challenging the order dated 02.03.2016 by G.O.Ms. No.41, Tourism, Cultural and Endowments Department, temporarily suspending the hereditary trustees pending disciplinary proceedings initiated against the hereditary trustees.
7. The petitioner in W.P.(MD)No.13436 of 2016 by name P.M.Chellapandian has also filed another Writ Petition (MD) No.13493 of 2016 challenging the order of the Commissioner, Hindu Religious and Charitable Endowments Department, dated 12.05.2016 appointing Executive Officer for the temple in exercise of his power under Section 45 (1) of the Act, to administer the temple along with the hereditary trustees.
8. One P.M.Pandiarajan, son of Mahamuni Poojari has filed W.P.(MD)No.10563 of 2016 to quash the public auction notice published in the daily newspaper ?Dina Thanthi? on 29.05.2016 insofar as it relates to item 4 namely auctioning of roosters and goats and the proceedings of the Joint Commissioner / Executive Officer / Fit Person of the temple dated 13.05.2016. Similarly, one V.K.Pandian, son of Veeramalai Poojari who claims poojariship on turn basis, being the adopted son of the eldest son of one Bodha Poojari filed another Writ Petition (MD)No.11679 of 2016 to quash the same auction notice published on 29.05.2016 insofar as it relates to the proposal for issuing tickets with different rates for the performance of certain services and rituals in the temple to the worshippers and the proceedings of the Executive Officer of the temple dated 20.06.2016 rejecting the petitioner's representation to give share in the income derived by public auction.
We will now consider the merits of the contentions of counsel on either side and deal with individual cases in the following order.
Civil Miscellaneous Appeals challenging the removal of Trustees in C.M.A.(MD)Nos.583, 819, 669 and 670 of 2016.
9. Mr.AR.L.Sundaresan, learned Senior Counsel appearing on behalf of the Counsel on record in C.M.A.(MD)No.670 of 2016 advanced his arguments on the following lines:
(a) the impugned order removing the trustees without holding an inquiry as contemplated under the Act vitiates the order under challenge.
Under Section 53 (3) of the Act, the trustees should be given an opportunity of meeting the charges against them and to test the evidence against the trustees and further to allow them to adduce evidence in their favour. In the present case, the Government has not considered the explanations offered by the hereditary trustees and the documents filed by them, in support of their defence, in meeting the charges against the trustees.
(b) In view of the fact that the specific rules known as Holding of Inquiries Rules have been framed under Section 116 (2)(iii) of the Act for holding enquiries, the impugned order without following the rules vitiate the impugned order of Government, removing the trustees.
10. Ms.J.Anandhavalli, learned counsel appearing in C.M.A.(MD)No.583 and 819 of 2016 has also reiterated the submissions of the learned Senior Counsel Mr.A.R.L.Sundaresan and submitted that the impugned order without considering the explanations submitted by the trustees are unsustainable in law having regard to the specific provisions of the Act, particularly, Section 53(3). Further, learned counsel, challenged the findings of the Government with regard to each charge framed against the trustees and submitted that the conclusions of the Government that 11 out of 12 charges are proved, cannot be sustained in view of the failure on the part of the Government to apply their mind to the explanations and the documents filed by the trustees, refuting the charges framed against them. She submitted further that the Commissioner, Hindu Religious and Charitable Endowments Department, who has passed the order appointing an Executive Officer under Section 45 of the Act is also the same person who has passed the impugned order acting as Secretary of the Government to remove the trustees from office and hence, the order suffers from mala fides.
11. Mr.VR.Shanmuganathan, learned Special Government Pleader advanced his arguments pointing out the serious irregularities committed by the trustees while managing the affairs of the temple. After referring to the fact that the charges are serious, he also relied upon the statement of income and other particulars furnished by them in a separate typed set of papers and submitted that the charges are proved against the trustees and that sufficient opportunity has been given to the trustees before passing the impugned order. The learned Special Government Pleader further submitted that Holding of Inquiries Rules are not applicable for an enquiry under Section 53 of the Act. Alternatively, the learned Special Government Pleader also submitted that Holding of Inquiries Rules only enable the appropriate authority to conduct an enquiry as far as practicable as a trial of suit and the trustees who have not availed the opportunity as prescribed in the rules, cannot be heard to say that the inquiry conducted by the Government is vitiated for procedural violations.
12. Mr.VR.Shanmuganathan, learned Special Government Pleader further argued that the trustees have practically admitted several charges by their own explanations and that, therefore, on the admitted facts, the charges against the trustees are held as proved and that the order removing the trustees is justified in the present case even on the admitted facts.
13. Mr.S.Parthasarathy, learned Senior Counsel appearing for the Executive Officer of the temple also advanced arguments supporting the Government and the Commissioner, Hindu Religious and Charitable Endowments Department.
14. We heard at great length the arguments of respective counsel. Considering the rival submissions of the Counsel, it is necessary to deal with the scope and nature of enquiry contemplated under Section 53 of the Act.
15.Section 53 of the Act reads as under:
?53.Powers 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, [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, [the Joint / Deputy Commissioner]; and
(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 be the appropriate authority in respect of any trustee of any religious institution.
(2) The appropriate authority may suspend, remove, or dismiss any trustee of a religious institution,
(a) ceases to profess the Hindu religion ; or
(b) fails to discharge the duties and perform the function of a trustee in accordance with the provisions of this Act or the rules made thereunder ; or
(c) disobeys the lawful orders issued under the provisions of this Act or the rules made thereunder by [the Government], the Commissioner [or Joint Commissioner or Deputy Commissioner] or the Assistant Commissioner ; or
(d) continuously neglects his duty or commits any malfeasance, misfeasance or breach of trust, in respect of the trust ; or
(e) misappropriates or deals improperly with the properties of the [the religious institution or endowment]; or
(f) is of unsound mind or is suffering from other mental defect or infirmity which would render him unfit to perform the functions and discharge the duties of a trustee or is suffering from leprosy or other loathsome disease; or
(g) is sentenced by a criminal court for an offence involving moral delinquency, such sentence not having been reversed or the offence pardoned; or
(h) is an undischarged insolvent; or
(i) is interested in a subsisting lease of any property of, or contract made with or any work being done for, the religious institution or endowment;
(ii) is in arrears or default of any kind due by him to the religious institution or endowment;
(j) acts adversely to the interests of any religious institution or endowment; or (jj) wilfully fails to pay the contribution payable under sub-section (1) of section 92 or the further sum payable under sub-section (2) of section 92 within the time allowed by or under clause (b) of sub-section (2) of section 94; or
(k) absents himself from three consecutive meetings of the trustees;
Explanation.-A meeting adjourned for want of quorum shall be deemed to be a meeting for the purpose of this clause; or
(l) in the case of a Chairman of the Board of Trustees or a Managing or Executive trustee, refuses or delays to, or does not, hand over charge to his successor.
(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 the reasons therefor.
(4) Pending the disposal of for 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 function 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 the Commissioner, to the Government];
(ii) where the order has been passed by [the Joint Commissioner or Deputy Commissioner, to the Commissioner; and]
(iii) where the orders has been passed by the Assistant Commissioner by 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 from 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 [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.?
16. Rules known as Holding of Inquiries Rules are framed by the Government in exercise of the powers conferred by clause (iii) of Section 116(2) of the Act. Section 116 (2) (iii) reads as under; ?116.Power to make rules.-(1) The Government may, by notification, make rules to carry out the purposes of this Act.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for -
...
(iii) the powers of [the Government,] [(the Commissioner or the Additional Commissioner,) a Joint Commissioner], a Deputy Commissioner or an Assistant Commissioner to hold inquiries, to summon and examine witnesses and to compel the production of documents;?
17. Section 116 of the Act empowers the Government to make rules to carry out the purpose of the Act. Clause (iii) of Section 116(2) indicates that the rules may provide for the powers of the Government, the Commissioner or the Additional Commissioner, a Joint Commissioner, a Deputy Commissioner or an Assistant Commissioner to hold inquiries, to summon and examine witnesses and to compel the production of documents. Hence, the object of framing Holding of Inquiries Rules is to confer upon the appropriate authority, the power of Civil Court in the matter of issuance of summons to any party for the attendance or to give evidence and to compel the production of records. The rules further contemplate application of the provisions of Civil Procedure Code, 1908, as far as practicable regarding appearance of pleader, filing of affidavits, production of documents, examination of witnesses, recording of evidence, permitting proof by affidavits, filing of exhibits, issue of commissions, return of documents and other connected matters. Considering the procedure contemplated under the Code of Civil Procedure and the purpose of making them applicable to the enquiries under the Hindu Religious and Charitable Endowments Act, to the extent practicable, we find that the rules provided under Holding of Inquiries Rules speak of the power conferred on the authorities under the Act.
18. The rules mandate issuance of show cause notice against any action proposed to be taken. The rules contemplate issuance of notice to the respondents at the cost of applicant when a proceeding is taken on the application of a trustee or an interested person and to communicate the final order passed in such proceeding. Rule 6 enables the authority to issue summons and rules 7 to 10 prescribe the manner in which summons should be issued and served. Rules 11 to 13 are also regarding payment of batta to witness and to seek deposit of the amount towards expenses relating to the attendance of witnesses. Rules 14 to 15 are regarding examination of witness. Rule 16 deals with the power to call for production of records either suo motu or on the application of a party. Rule 17 deals with filing of written statement and the power to permit to make representation. Rule 18 deals with right of parties to appear in person or by pleaders and to adduce oral and documentary evidence and to apply for summoning witnesses or documents. Rule 19 mandates the Deputy Commissioner, Joint Commissioner and the Commissioner to record the oral evidence of witness in his own hand writing. Rule 20 is regarding applicability of the provisions of the Code of Civil Procedure, 1908 and the Civil Rules of Practice as far as practicable in matters relating to : a) appearance of pleader and filing affidavit; b) production of documents; c) examination of witness; d) taking of oral evidence; e) proof by affidavits; f) filing of exhibits; g) issue of commissions; h) return of documents not admitted in evidence and other connected matters, so as to conduct the enquiry, as far as practicable as a trial of suit. Rule 21 deals with the procedure for return of documents produced by a party in a proceedings. It is relevant to note that no separate procedure is prescribed for the conduct of enquiry.
19. The applicability of the procedure prescribed under the Code of Civil Procedure, does not confer any right on the individuals to question the outcome of the proceeding merely on the ground that an opportunity was not given to the aggrieved party in the manner prescribed under the Code of Civil Procedure. However, it is open to a party to the proceedings to avail the opportunities available under the rules, during the course of the proceedings to defend any action against him. From the reading of Holding of Inquiries Rules, we are unable to accept the contentions of appellants that the impugned order is vitiated for non-observance of Holding of Inquiries Rules. None of the appellant has pleaded about any infraction of the rules in the conduct of enquiry. It is for the trustees to avail the benefit of the rules to prove their case in defence by producing evidence and witnesses. When the trustees have not raised an issue before the Government, during enquiry, regarding lack of opportunity, it is not open to them to question the outcome of the proceedings relying upon those rules.
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 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 impunged 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 that the impunged order is not in conformity and hence, does not accord with Section 53(3) of the Act.
22. Submissions of Mr.VR.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 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.?
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 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 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 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 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 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.
28. For the above reasons, we have no other option except to set aside the order of the Government passed in exercise of power under Section 53 of the Act removing or dismissing the trustees of the temple namely Shri Pandimuneeswarar Temple vide G.O.Ms.No.158, Tourism, Cultural and Endowments Department, dated 13.05.2016 and remit the matter back to the Government to pass an appropriate order after holding enquiry in terms of the Holding of Inquiries Rules framed by the Government under Section 116 of the Act. The appellants and other trustees are permitted to avail the opportunity for the examination of the witness on their behalf or for marking of document and for letting in evidence both oral and documentary, as contemplated under the rules. The Government is directed to complete the enquiry and pass orders afresh in accordance with law and in the light of the observations made earlier as expeditiously as is possible preferably within a period of six months from the date of receipt of a copy of this order.
29. However, having regard to the fact that the charges framed against the trustees are serious, the order temporarily suspending the trustees during the pendency of the enquiry shall continue to be in force till the final order is passed by the first respondent. But, the trustees, being also Poojaris cannot be prevented from performing the poojas in the temple. Nor can they be prevented from exercising the said right, subject to over all supervision of the Executive Officer. The appellants as well as the trustees are directed to cooperate with the enquiry and for passing of final order within the time frame. In case of difficulty, it is also open to the Government to seek extension of time from this Court, if it is required, either in the interest of justice or for any other valid reason.
Validity of appointment of Executive Officer is the subject matter in W.P.(MD)No.13493 of 2015, W.A.(MD)No.1133 of 2016 and W.A.(MD)No.1143 of 2016.
30. Mr.VR.Shanmuganathan, learned Special Government Pleader made elaborate submissions, challenging the order passed by the learned Single Judge in the Writ Petition (MD)No.10257 of 2016. The learned Senior Counsel Mr.S.Parthasarathy also made his submissions elaborately on the legal issues.
31. The substance of the arguments of the learned counsel appearing for the State, the Commissioner, Hindu Religious and Charitable Endowments Department, and the Executive Officer are briefly summarised in the following order:
a) Section 45 of the Act gives independent power to the Commissioner of Hindu Religious and Charitable Endowment Department and the same is not controlled by any other provisions of the Act. Secondly, after the judgment of the Hon'ble Supreme Court in the case of Dr.Subramanian Swamy and another vs. State of Tamil Nadu and others reported in 2014 (1) CTC 763 holding that the power under Section 45 cannot be exercised in the absence of any prescription or circumstances / conditions in which an appointment can be made, the State Government framed the rules known as conditions for appointment of Executive Officers Rules 2015. These rules specifically enumerate the circumstances under which the power under Section 45(1) of the Act can be exercised by appropriate authority. Having regard to the nature of irregularities found against the hereditary trustees and keeping in mind the duty of the Commissioner, Hindu Religious and Endowments Department, in protecting the interest of the temple and its properties, the impugned order passed under Section 45(1) of the Act appointing an Executive Officer for the temple to administer the temple along with the hereditary trustees cannot be found fault with.
b) In the present case, the hereditary trustees of the temple are suspended, pending enquiry into the grave charges against them and that there is no permanent vacancy in the office of trustees, so as to consider the claim of any other person who is next in the line of succession before passing an order under Section 45 of the Act. Section 45 of the Act does not contemplate a show cause notice before appointing an Executive Officer.
Though this Court has ruled earlier in a catena of decisions that the power under Section 45 of the Act cannot be exercised without giving the hereditary trustees in office a show cause notice and opportunity, having regard to the factual situation where the trustees are not in office and the suspension of trustees does not bring the situation to enable the persons next in line of succession to the present hereditary trustees to act as trustees, no notice is required especially when the Commissioner, Hindu Religious and Charitable Endowments Department, cannot allow the administration of the temple to be left in lurch.
c) In the present case, the Executive officer has been appointed for a period of five years or until further orders and the Executive Officer is also directed to function along with the hereditary trustees without permanently affecting the rights of hereditary trustees.
32. Supporting the judgment of the learned Single Judge, in W.P.(MD)No.10257 of 2016 the learned counsel for the first respondent in the two Writ Appeals and the learned counsel for the writ petitioner in W.P.(MD)No.13493 of 2016 have made the following legal submissions:
(a) In view of the law settled by this Court in a catena of decisions that the Executive Officer under Section 45 of the Act cannot be appointed without issuing a show cause notice to the hereditary trustees in office, the order passed by the Commissioner appointing Executive Officer for the temple is in violation of principles of natural justice and contrary to various judgments of this Court. Hence, the judgment of learned Single Judge which is challenged in the two writ appeals is perfectly valid.
(b) Even assuming for the sake of argument that the hereditary trustees are not in office because of their suspension pending disciplinary proceedings, the family members of the hereditary trustees who are next in line of succession are entitled to notice and the impugned order without notice to any one is unsustainable.
(c) The order suffers from mala fides.
(d) The impugned order appointing the Fit Person who was earlier continuing in office, as Executive Officer of the temple is illegal and that there is no necessity to pass an order under Section 45(1) to appoint Executive Officer when the administration of the temple is in the hands of the Fit Person appointed under Section 53(4) of the Act.
(e) The learned counsel for the petitioner in W.P.(MD)No.13493 of 2016 has submitted that the writ petitioner though was removed from the trusteeship earlier, the order was challenged in a suit filed by him in O.S.No.305 of 2015 before the Sub Court, Melur. The learned counsel further submitted that he has obtained an order of stay of operation of the order of Government and further proceedings in I.A.No.127 of 2015 filed in the said suit. Hence, for all practical purposes, he is a trustee validly holding office and hence, a notice ought to have been issued to the writ petitioner before passing an order under Section 45 of the Act.
33. From the submissions made by the respective counsel the main issue in these matters is whether the order appointing an Executive Officer by the Commissioner, Hindu Religious and Charitable Endowments Department, in exercise of his power under Section 45 of the Act, without issuing a show cause notice to the hereditary trustees, can be sustained in the factual background of this case. On this issue, the learned counsel relied upon several judgments of this Court as well the Hon'ble Supreme Court. Let us examine those precedents cited before us in the following order.
34. In the case of D.R.Nagarajan vs. The Commissioner, Hindu Religious and Charitable Endowments Department reported in AIR 1971 Madras 295 a Division Bench of this Court has held as follows:
?3. In our opinion, such a power, drastic as it is, has to be exercised carefully and only where proper reasons existed showing that the temple or the math concerned has not been properly managed by the hereditary trustee. The power under Section 45(1) does not mean that the Commissioner, if he so wills, though there is no reason whatever justifying can exercise the power and appoint and Executive Officer for a religious institution. We consider, therefore, that before making the appointment he must inform the hereditary trustee of the reasons, which according to him, would justify the appointment of an Executive Officer, ask for his explanation and after considering the same if he still thinks than an executive officer is necessary, he may properly exercise his power. It is true that Section 45 does not contemplate any notice or enquiry, but that does not mean that by exercising power under Section 45 at will the Commissioner can invade the hereditary trusteeship which is property as he has done in this case. As a matter of fact, in this case the Commissioner listed certain irregularities but hardly waited to enquire of the appellant for his explanation. We are told that the Assistant Commissioner has given a date for the production of accounts; even before the expiry of that date, the Commissioner chose to make the appointment of an Executive Officer. We are satisfied that this is not a proper exercise of the power.?
35. The hereditary trustee in that case filed a writ petition challenging the order appointing Executive Officer without prior notice in compliance of principles of natural justice. In the order the Commissioner pointed out certain irregularities which are as follows:
a)The hereditary trustee failed to obtain budget sanction.
b)The hereditary trustee failed to submit the income and expenditure statement.
c)The hereditary trustee failed to get the accounts of temples audited.
d)The hereditary trustee failed to pay the contribution and audit fees.
e)The hereditary trustee failed to produce the accounts of temples for check before the Assistant Commissioner.
36. The Executive Officer therein was also appointed to function along with the hereditary trustee. Even in that context, it was held by the Division Bench that by appointing an Executive Officer with the power as prescribed in the order, the hereditary trustee was reduced to a non-entity as it were. However, it is to be noted that the allegations against the hereditary trustee are not serious so as to deprive the trustee of their legitimate right to administer the temple.
37. In the case of Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, Madras vs. K.Jothiramalingam and another reported in AIR 1985 Madras 341, a Division Bench of this Court preferred to follow the judgment of earlier Division Bench in Nagarajan vs. Commissioner, Hindu Religious and Charitable Endowments Department, (1970) 2 MLJ 599 = AIR 1971 Madras 295. The operative portion of this judgment is as follows:
?7. ... By the appointment of an Executive Officer under S. 45(l) of the Act, coupled with the conferment on him of all or almost all of the above powers, would be to relegate the hereditary trustee to the position of a nonentity. We ought not to be understood as saying that the Commissioner cannot exercise his powers under S. 45(l) of the Act, in a case, where the institution is under the administration and management of a hereditary trustee. No doubt, the power under S. 45 of the Act can be and has also to be exercised by the Commissioner appropriately in such case. The power vested in the Commissioner under S. 45(1) of the Act, being a very drastic one, it has to be exercised cautiously, reasonably and fairly as the exercise of such power may even result in the effective elimination of the hereditary trustee from management and administration of the institution. Therefore, it is that natural justice and fair play require that the Commissioner should properly exercise the power under S. 45(l) of the Act, after being satisfied that the institution has not been properly managed and the then administration leaves much to be desired and requires to be toned up or improved and the appointment of an Executive Officer is justified to secure such better administration. This can be done only after communication to the hereditary trustee of the reasons, which, according to the Commissioner, justified the appointment of an Executive Officer and after calling for an explanation from him with reference to the irregularities and maladministration and after considering the same. If after adhering to these requirements, the Commissioner still find that the interests of the institution would be served better only by the appointment of an Executive Officer, he may properly exercise the power under S. 45(l) of the Act. Though S. 45(l) of the Act, by its terms does not contemplate any notice or enquiry, it does not mean that the Commissioner, while exercising powers thereunder, can displace a hereditary trustee at his will and pleasure, throwing out even such hereditary trustees, who efficiently manage and administer the institution in their charge. We, therefore, agree with the decision in Nagarajan v. Commr. H. R. and C. E. (Administration) , which dissents from the decision in M. E., Appadurai Mudaliar v. Commr., H, R. and C. E. Madras, W. A. 101 of 1969 dated 2,5-2-1969, and has held the field all these years without its correctness having been doubted by any other decision of this Court. We may also add that the learned counsel for the appellant has not pointed out how the decision of the Division Bench in Nagarajan v. Commr. H. R. and C. E. (Administration) , is either inapplicable to this case or otherwise requires to be re- considered. We may also point out that the decisions in G. Ramachandran v. Commr. H. R. and C. E. Madras, W. P. No. 4869 of 1968, and A. K. Parvathammal v. Commr., H. R. and C. E. Madras, W. P. No. 5215 of 1976, holding that no notice to the hereditary trustee is necessary prior to the taking of action by the Commissioner under S. 45(l) of the Act proceed on the basis of the decision in M. E. Appadurai Mudaliar v. Commr. H. R. and C. E. Madras, W. A. 101 of 1969, dt. 26-2-1969 and were decided at a time when the decision in Nagarajan v. Commr. 11. R., and C. E. (Administration), was unavailable and those decisions cannot, therefore, be considered to have been rightly decided.?
38. It is to be noted that an earlier judgment of Division Bench dated 26.02.1969 in W.A.No.101 of 1969 taking a view that no notice was required to hereditary trustees before appointing an Executive Officer, if the order is not by way of punishment was held to be one which was not decided on the correct perspective. In the judgment of earlier Division Bench, it was also held that an enquiry by the commissioner or a finding that the hereditary trustee of the temple had not been properly managing the affairs of the temple is irrelevant. This view of the earlier bench was dissented from after taking support from the judgment in Nagarajan's case in AIR 1971 Madras 295. It is to be noted that the order challenged in the writ petition was an order appointing Executive Officer for the better administration of the temple without any serious allegation against the hereditary trustees, when the hereditary trustees were in office.
39. In the case of K.Ekambaram M.Kailasam vs. The Commissioner, Hindu Religious and Charitable Endowments Department reported in 1995-2-L.W. 213, it has been held that Section 45(1) of the Act does not exclude the application of principle of natural justice when the Executive Officer is to be appointed on the ground of irregularities and that in a case where power under Section 45(1) is resorted to on the ground of mismanagement by trustees, the trustees cannot be deprived of their rights without affording an opportunity to explain the allegations made against them. It is to be seen that in this judgment, it has also been held that power conferred on the commissioner to appoint an Executive Officer under the Act cannot be said to have been taken away by the failure or inaction on the part of the Government to prescribe the condition for exercising such power (Contrary to the view of Supreme Court in 2014 (1) CTC 763).
40. In the case of N.Sivasubramanian vs. The Government of Tamil Nadu, rep. By its Secretary, HR & CE Department and others reported in 2006 (2) CTC 49 it has been held as follows:
?12. As pointed out above, no doubt the second respondent is empowered to appoint Executive Officer under section 45(1) of the Act. But to exercise the said power, there must be a maladministration by the trustees and to find out whether there is any maladministration or not, it is the duty of the second respondent to issue notice to the trustees, hear their objections and only after prima facie satisfaction of the maladministration, the second respondent is empowered to exercise the power under section 45(1) of the Act and appoint the Executive Officer.?
41. In the case of Dr.Subramanian Swamy and another vs. State of Tamil Nadu and others reported in 2014 (1) CTC 763, the Commissioner of Hindu Religious and Charitable Endowments Department passed an order appointing Executive Officer under Section 45 of the Act. The writ petition filed by Dikshitars (whose right to administer the temple as a religious denomination, having the protection of Article 26 of the Constitution had already been decided) was dismissed and the writ appeal was also dismissed. However, the Hon'ble Supreme Court considering the fundamental rights of Dikshitars under Article 26 of the Constitution has observed that even if the management of a temple is taken over to remedy the evil, the management must be handed over to the person concerned immediately after the evil stands remedied. It was further observed that taking over of the management in such circumstances must be for a limited period and the order appointing Executive Officer is liable to be set aside for failure to prescribe the duration for which it will be in force. It was brought to the notice of Hon'ble Supreme Court that no rules have been framed by Government prescribing conditions subject to which an Executive Officer could be appointed. Hence, the Hon'ble Supreme Court further held that the power under Section 45 for appointment of an Executive Officer cannot be exercised in the absence of any prescription of circumstances / conditions in which an appointment may be made.
42. In the case of S.C. And Weaker Section Welfare Association (Regd.) v. State of Karnataka reported in AIR 1991 SC 1117 it has been held as follows:
?15.It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas not covered by any law validly made. What particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case, the frame work of the law under which the enquiry is held and the body of persons appointed for the purpose. It is only where there is nothing in the statue to actually prohibit the giving of an opportunity to be heard, but on the other hand, the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding, that the audi alteram partem rule could be imported.?
43. In the case of C.M.Rama Rayar vs. The Deputy Commissioner, Hindu Religious and Charitable Endowments Administration Department, Tanjore, reported in 1963 (1) MLJ 225, a writ petition was filed challenging the removal of Trustee under the provisions of Tamil Nadu Hindu Religious and Charitable Endowments Act 19 of 1951. In this case, the hereditary trustee contrary to the direction of Deputy Commissioner to lease out a property of trust by public auction, proceeded to lease out the property by private negotiation. For the wilful disobedience of lawful order issued by the Deputy Commissioner, the hereditary trustee was removed from the office of trusteeship. Being unsuccessful in the appeal before Commissioner, the hereditary trustee approached this Court and submitted that his hereditary office of trustee is 'property' within the meaning of Article 19(1) of the Constitution, and that the directions of the Deputy Commissioner to the petitioner to lease out the trust lands by public auction was illegal in the sense that they amount to an infraction of the fundamental right to hold property and that the punishment of dismissal is excessive. Justice VEERA SWAMI as he then was though accepted trusteeship as a property, rejected the further contention in the following manner:
?There is still less substance in the third point urged for the petitioner. It may be, as has been now well recognised, that a right to hold hereditary office or trusteeship is property within the meaning of Article 19 of the Constitution. But I am unable to appreciate the argument in the direction of the Deputy commissioner with reference to Rule 9(1) already referred to, to the petitioner to lease out the lands by public auction amounts to an interference with the right to hold the property, namely, the hereditary trusteeship. The rule is eminently a reasonable restriction in public interest, for, it is conceived in the interests of the religious institutions. The direction does not in any way interfere with the management by the petitioner of the lands. All that it required was that the lands should be leased out by public auction, so that they might get the highest possible rent for the benefit of the institution. In matters like this, in my opinion, one should look at the question not merely from the stand-point of the hereditary trustee, but also from the stand-point of the trust itself.
There is no point in the contention that the direction of the Deputy Commissioner amounted to an infraction of the petitioner's fundamental right to hold property and, therefore, the direction was not a lawful one.
This Court, in a petition for certiorari, does not exercise an appellate jurisdiction and it cannot, therefore, interfere with the quantum of punishment decided by a competent authority. The question of punishment is not, therefore, for this Court to consider.?
44. The above judgment was cited by Ms.J.Anandhavalli and we find that this judgment does not support any of her arguments in the case on hand except the proposition that right to hold hereditary office is property. However, in the factual context, it only lends support to the arguments of learned Special Government Pleader.
45. Another judgment cited before us is the judgment in the case of M.P.Anandam Pillai (Deceased) and another vs. The State represented by its Secretary to Government reported in 2004 (4) CTC 368.
46. In this case, the specific endowment attached to a temple is governed by a scheme framed by the Hindu Religious and Charitable Endowments Department whereby the administration vests in the hereditary trustees comprising of two persons representing two branches. When one of the trustees was in management there were allegations of mismanagement and in that context, an Executive Officer was appointed to ensure better administration of the endowment by order dated 24.06.1978. This order was never challenged. However, the hereditary trustees filed a petition on 19.10.1999 seeking removal of Executive Officer on the ground that the endowment was not properly administered by Successive Officers. This petition was rejected by the Commissioner and the order of Commissioner was confirmed by the State. A Writ Petition was filed by the hereditary trustee challenging the order of Government and during the pendency of Writ Petition, the petitioner / hereditary trustee against whom allegations were made died. In that context, the learned Single Judge has allowed the writ petition for the following reasons:
?11. In the context of the merit of the impugned orders on the petition filed by the petitioner for the removal of the Executive Officer, I find that as against the materials produced by the petitioner regarding the alleged improper or ineffective management of the endowment, there is absolutely no discussion by both the authorities. In the order of the Commissioner containing 16 paragraphs, upto the 15th paragraph, the reference is only regarding the previous proceedings with regard to the endowment. It is only in paragraph 16, the objection of the petitioner is taken into account and there is absolutely no reference to any of the remarks by the audit. The dismissal of the revision is also in the same manner and there is no reference to the various objections raised by the petitioner. It is true that the learned Special Government Pleader contends that such materials were not placed before the authorities and that proceedings may be remitted to the Commissioner for re-consideration and the petitioner may also be enabled to file his detailed submissions with materials which may be duly considered by the Commissioner. Though on that issue it is true that the learned Special Government Pleader is justified in his contention that the issue may be remitted back to the Commissioner for his fresh consideration, as regards whether the administration should continue to be in the hands of the Executive Officer even after the death of Anandam Pillai, there is no justification to deny the request made by both the petitioner as well as the tenth respondent to allow them to take over the administration and to function as trustees. It is not disputed that the Executive Officer came to be appointed only by the order of the Commissioner dated 24.6.1978 after finding that the then existing trustee had committed certain irregularities and that the Commissioner considered that appointment of the Executive Officer under Section 45(1) of the Hindu Religious and Charitable Endowments Act will pave the way for ensuring better administration of the Kattalai. But, now that the said trustee is dead and no more, the reasons for appointment of the Executive Officer does not survive as on date. In the judgment referred to above, the learned Judge has held that under Section 54 of the Hindu Religious and Charitable Endowments Act, when a permanent vacancy occurs in the office of the hereditary trustee of a religious institution, the next in the line of succession shall be entitled to succeed to the office and that there is no necessity, whatever, for the next hereditary trustee to make an application for being appointed under the Act. At any rate, on the facts of this case, the Executive Officer came to be appointed only because of the alleged improper administration by the then Trustee. Now that he has expired, there can be no objection for their legal heirs to take over administration.
12. The delinquency which was attached to the then hereditary trustee which warranted the appointment of the Executive Officer does not survive anymore and now that the new set of legal heirs of the two branches have come into existence and it is also stated that there are no controversies between themselves regarding their rights, the continued administration by the Executive Officer is not warranted.?
47. In the case of Ram Rattan vs. Bajrang Lal and others reported in 1978 (3) SCC 236, the Hon'ble Supreme Court has held that the hereditary office of shebait which would be enjoyed by a person by turn, would be immovable property and that the gift of such property must be by a registered instrument. Paragraphs 11 and 13 of the judgment of the Hon'ble Supreme Court are as follows:
?11. The privileges and precedence attached to a hereditary office were termed in Hindu law as Nibandha and the text of Yajnavalkay treated Nibandha, loosely translated as corody, as immovable property. Soon thereafter the question again arose in Balyantray alias Tatiaji Bapaji v. Purshotam Sidheshvar and another(3), where, in view of a conflict in decision between Krishnabhat (supra) and Baiji Manor v. Desai Kallianrai Hukmatrai [6 Bombay High Court Reports 56], the matter was referred to a Full Bench of 5 Judges. The question arose in the context of the limitation Act in a suit to recover fees payable to the incumbent of a hereditary office, viz., that of a village Joshi (astrologer)., The contention was that such a hereditary office of village Joshi is immovable property. After exhaustively referring to the texts of Yajnavalkay and the commentaries thereon Westropp, C.J. observed that the word corody' is not a happy translation of term Nabandha. It was held that Hindu law has always treated hereditary office as immovable property. These two decisions were affirmed by the Judy Committee of the Privy Council in Maharana Fattehsangji Jaswantsangji v. Desai Kalliaraiji Hekoomutraiji (1 I.A. 34.). The principle that emerges from these decisions is that when the question concerns the rights of Hindus it must be taken to include whatever the Hindu law classes as immovable although not so in ordinary acceptation of the word and to the application of this rule within the appropriate limits the Judicial Committee sees no objection. In Raghav Pandey & Anr. v. Kasav Parey & Ors.(ILR 10 Cal 73), the Calcutta High Court held that the right to officiate as a priest at funeral ceremonies of Hindus is in the nature of immovable property. A Full Bench of the Calcutta High Court in Manohar Mukherjee v. Bhupendra Nath Mukherjee & Others (AIR 1932 Cal
791), held that the office of Shebait is hereditary and is regarded in Hindu Law as immovable property. This Court took note of these decisions with approval in Angurbala Mullick's case (supra). ....
13.The definition of immovable property in s. 3 of the Transfer of Property Act is couched in negative form in that it does not include standing timber, growing crops, or grass. The statute avoids positively defining what is immovable property but merely excludes certain types of property from being treated as immovable property. Section 2(6) of the Registration Act defines immovable property to include lands, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops or grass. Section 2 (26) of the General Clauses Act defines immovable property to include land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. It may be mentioned that the definition of immovable property in Registration Actlends assurance to treating Shebait's hereditary office as immovable property because the definition includes hereditary allowances Offence of Shebait is hereditary unless provision to contrary is made in the deed creating the endowment. In the conception of Shebait both the elements of office and property, duties and personal interest are mixed up and blended together and one of the elements cannot be detached from the other. Old texts, one of the principal sources of Hindu law and the commentaries thereon, and over a century the Courts with very few exceptions have recognised hereditary office of Shebait as immovable property, and it has all along been treated as immovable property almost uniformly. While examining the nature and character of an office as envisaged by Hindu law it would be correct to accept and designate it in the same manner as has been done by the Hindu law text writers and accepted by courts over a long period. It is, therefore, safe to conclude that the hereditary office of Shebait which would be enjoyed by the person by turn would be immovable property. The gift of such immovable property must of course be by registered instrument. Exhibit 1 being not registered, the High Court was justified in excluding it from evidence. On this conclusion the plaintiff's suit has been rightly dismissed.?
48. It has been held by a learned Single Judge of this Court in the case of Shri Mahalakshmi Temple vs. The Commissioner, Hindu Religious and Charitable Endowments Department in W.P.No.9908 of 1992 that before appointing an Executive Officer under Section 45(1) of the Act, notice is not necessary to a person whose claim that he is a hereditary trustee is not established.
49. Mr.V.R.Shanmuganathan, learned Special Government Pleader relied upon another unreported judgment of a Division bench of this Court in the case of P.Harikrishnan, Managing Trustee of Eswari Padhrakaliamman Temple vs. The Assistant Commissioner, Hindu Religious and Charitable Endowments (Admn) Department and others in W.A.No.614 of 2008, where it has been held that no previous notice is required to persons who are functioning as trustees but have not been recognised as hereditary trustees before an order is passed appointing Fit Person for the temple under Section 47 of the Act.
50. In the case of A.K.Kraipak and others vs. Union of India and others reported in 1961 (2) SCC 262, a Constitution Bench of the Hon'ble Supreme Court has ruled as follows:
?The rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened, the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.?
51. In the case of The Chairman, Board of Mining Examination and Chief Inspector of Mines and another vs. Ramjee reported in (1977) 2 SCC 256 it has been held by the Hon'ble Supreme Court in paragraph 13 as follows:
?13. ... Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt ? that is the conscience of the matter.?
52. In the case of Dharampal Satyapal Limited vs. Deputy Commissioner of Central Excise, Gauhati and others reported in 2015 (8) SCC 519, the Hon'ble Supreme Court after referring to several judgments on the issue, recognised the position that principles of natural justice may even be excluded in certain cases and every violation of facet of natural justice may not lead to the conclusion that the order passed is always null and void. Para 38 to 40 of this judgment are relevant and hence, extracted as under:
?38.But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the Courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straight-jacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the Courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral hearing but even cross-examination of witnesses is treated as necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post-decisional hearing is held to be permissible. Further, the Courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on.
39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straight-jacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason ? perhaps because the evidence against the individual is thought to be utterly compelling ? it is felt that a fair hearing 'would make no difference' ? meaning that a hearing would not change the ultimate conclusion reached by the decision-maker ? then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corporation[ (1971) 1 WLR 1578 : (1971) 2 All ER 1278 (HL)], who said that:(WLR p.1595 : All ER p.1294) ".... A breach of procedure...cannot give (rise to) a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain."
Relying on these comments, Brandon LJ opined in Cinnamond v. British Airports Authority[(1980) 1 WLR 582 : (1980) 2 All ER 368 (CA) ] that: (WLR p.593 :
Alll ER p. 377) " ... no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing."
In such situations, fair procedures appear to serve no purpose since 'right' result can be secured without according such treatment to the individual.
40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the Courts. Even if it is found by the Court that there is a violation of principles of natural justice, the Courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that order passed is always null and void. The validity of the order has to be decided on the touchstone of 'prejudice'. The ultimate test is always the same, viz., the test of prejudice or the test of fair hearing.?
53. The facts of the case before the Hon'ble Supreme Court referred to above was that the appellant therein was accorded certain benefits under the notification dated 08.07.1999 which was given retrospective effect. The legal consequences of the subsequent legislation was that the amount to which the appellant was benefited under the notification dated 08.07.1999 became refundable. When the impugned order directing the recovery was issued the appellant before the Supreme Court challenged the order unsuccessfully before the High Court on the ground that the order directing recovery was without issuing a show cause notice. The Hon'ble Supreme Court dismissed the appeal on the ground that the issuance of notice would be an empty formality and the position and the case is covered by ?useless formality theory?.
54. The learned Senior Counsel Mr.S.Parthasarathy, appearing for the Executive Officer, appointed by the Commissioner, after referring to the provisions of Hindu Religious and Charitable Endowments Department Act, particularly, Section 53 and 54 of the Act, submitted that failure to issue notice to the trustees who are not in office at the time of impugned order would not vitiate the impugned order namely the order appointing the Executive Officer for the temple under Section 45(1) of the Act. He relied upon the judgment of the Hon'ble Supreme Court in the case of Automotive Tyre Manufacturers Association vs. Designated Authority and others reported in (2011) 2 SCC 258. In the context of applicability of principles of natural justice, paragraphs 65 and 81 of the judgment are relevant and are extracted as under:
?65.More often than not, it is not easy to draw a line demarcating an administrative decision from a quasi-judicial decision. Nevertheless, the aim of both a quasi-judicial function as well as an administrative function is to arrive at a just decision. In A.K. Kraipak & Ors. Vs. Union of India & Ors.62, this Court had observed that the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power, regard must be had to: (i) the nature of the power conferred; (ii) the person or persons on whom it is conferred; (iii) the framework of the law conferring that power; (iv) the consequences ensuing from the exercise of that power and (v) the manner in which that power is expected to be exercised.?
?81. Undoubtedly, there can be exceptions to the said doctrine. As stated above, 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 these matters that the question of application of the said principle can be properly determined. (See: Union of India Vs. Col. J.N. Sinha & Anr.66.)?
55. He also relied upon a judgment reported in 2015 (8) SCC 519 which we have referred to earlier.
56. The learned Senior Counsel has also relied upon another judgment of the Hon'ble Supreme Court in the case of Competition Commission of India vs. Steel Authority of India Limited and another reported in (2010) 10 SCC 744. The relevant portion of the said judgment found in paragraphs 68 and 79 are extracted as under:
?68.Generally, we can classify compliance or otherwise, of these principles mainly under three categories. First, where application of principles of natural justice is excluded by specific legislation; second, where the law contemplates strict compliance to the provisions of principles of natural justice and default in compliance thereto can result in vitiating not only the orders but even the proceedings taken against the delinquent; and third, where the law requires compliance to these principles of natural justice, but an irresistible conclusion is drawn by the competent court or forum that no prejudice has been caused to the delinquent and the non-compliance is with regard to an action of directory nature. The cases may fall in any of these categories and therefore, the Court has to examine the facts of each case in light of the Act or the Rules and Regulations in force in relation to such a case. It is not only difficult but also not advisable to spell out any straight jacket formula which can be applied universally to all cases without variation.?
?79.It is difficult to state as an absolute proposition of law that in all cases, at all stages and in all events the right to notice and hearing is a mandatory requirement of principles of natural justice. Furthermore, that non- compliance thereof, would always result in violation of fundamental requirements vitiating the entire proceedings. Different laws have provided for exclusion of principles of natural justice at different stages, particularly, at the initial stage of the proceedings and such laws have been upheld by this Court. Wherever, such exclusion is founded on larger public interest and is for compelling and valid reasons, the Courts have declined to entertain such a challenge. It will always depend upon the nature of the proceedings, the grounds for invocation of such law and the requirement of compliance to the principles of natural justice in light of the above noticed principles.?
57. Mr.V.R.Shanmuganathan, learned Special Government Pleader submitted that the writ petition is not maintainable as there is an alternative remedy under Section 114 to prefer revision against all the orders of commissioner. He also relied upon a judgment of this Court in the case of L.P.Narayanan Chettiyar, Hereditary Trustee of Arulmighu Suyamprakasa Eswarar Temple, Sivaganga vs. The Commissioner, H.R. & C.E., Administration Department, Chennai and others reported in 2005 (4) MLJ 252. Since we are deciding the case on merits and violation of principles of natural justice has been accepted as a good reason for entertaining a writ petition despite availability of alternative remedy, we are not entertaining this plea.
58. Ms.J.Anandhavalli, learned counsel appearing for some of the trustees relied upon a judgment of learned Single Judge in the case of Rajambal Ammal vs. The Deputy Commissioner, H.R. & C.E. (Admin) Department, Coimbatore and another reported in CDJ 1993 MHC 622. This is a case where one of the two hereditary trustees was placed under suspension, pending enquiry into grave charges and no disciplinary action had been initiated against the other hereditary trustee. In the said circumstances, the appointment of Fit Person under Section 53 (4) of the Act was challenged by the other trustee. In such circumstances, it was held as follows:
?7. But in the case on hand, it is not as if Kuppurathinam Animal, who had been placed under ad interim suspension on account of certain grave charges of acting against the interests of the temple pending enquiry, is the lone and sole hereditary trustee. But the sordid fact is that the petitioner herein, namely, Rajambal Ammal was also declared as a hereditary trustee, along with Kuppurathinam Ammal by the Deputy Commissioner in O.A. No. 100 of 1962 and no materials, worth the name, had been placed before court that she, in fact, had been removed or dismissed from the trusteeship; nor was there any material pointing out that against her also, disciplinary proceedings had been initiated for grave charges, placing her under suspension, impelling the Department to resort to the provisions of Sub-section (4) of Section 53 of the Act for appointment of a Fit Person to discharge the duties and perform the functions of the disabled hereditary trustee. When such a hereditary trustee is available, in flesh and blood, who could-very well be in effective charge of the administration of the temple, in discharging the duties as well as performing the functions of the disabled trustee Kuppurathinam Ammal, there could have been no need for the appointment of respondent-2 as a Fit Person. In such circumstances, it cannot be stated that the argument, as projected by learned Counsel for the petitioner is not without substance.?
59. In the case of Soundararaja Mudaliar vs. Deputy Commissioner, Hindu Religious and Endowments Department, reported in (1964) 1 MLJ 236 it has been held as follows:
?The other ground that the Deputy Commissioner has no jurisdiction to appoint a stranger as a fit person does not commend itself to me. It is true that in the case of a hereditary trustee,when a permanent vacancy has to be filled up the next in the line of succession is entitled to the office; equally, in a case where a temporary vacancy arises. But under Section 54(2) of the Act, the filling up a temporary vacancy by the selection of a person next in the line of succession is required only in a case where that vacancy arises a result of suspension of the hereditary trustee as a measure of punishment under Section 53(2) of the Act. In a case where a trustee is placed under interim suspension, the provision does not appear to recognise that a vacancy even of a temporary nature has come to exist. It would follow therefore, that in such case it is not necessary for the Deputy Commissioner to choose the person next in the line of succession. That a stranger can be appointed in such circumstances has been decided by this Court in Writ Appeal No. 277 of 1962. This point is without substance.?
60. Following the above judgment, Justice E.Padmanabhan as he then was in the case in V.Ariyamuthu vs. The District Temple Administration Committee reported in CDJ 1997 MHC 876 has held thus:
?When the statute does not enable the petitioner in terms of Section 53(4) for being appointed as a fit person in contra distinction to Section 54 of the Act, in my considered view, the request of the petitioner need not be considered as there is no vacancy as the 3rd respondent had been merely placed under suspension under Sub-section (4) of Section 53.?
61. Mr.V.R.Shanmuganathan, learned Special Government Pleader relied upon the judgment of the Hon'ble Supreme Court in the case of A.A.Gopalakrishnan vs. Cochin Devaswom Board and others reported in (2007) 7 SCC 482 wherein it has been held as follows:
?10. The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their Trustees/Archaks/ Sebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the concerned authorities. Such acts of 'fences eating the crops' should be dealt with sternly. The Government, members or trustees of Boards/Trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.?
62. For convenience we have already extracted relevant portions of the judgments cited before us and indicated the principles / law laid down in the factual context.
63. Section 45 of the Act reads as under:
?45.Appointment and duties of Executive Officer.-(1) Notwithstanding anything contained in this Act, the Commissioner may appoint, subject to such conditions as may be prescribed, an Executive Officer for any religious institution other than a math or a specific endowment attached to a math.
Explanation.-In this section ?math? shall not include a temple under the control of a math.
(2) The Executive Officer shall exercise such powers and discharge such duties as may be assigned to him by the Commissioner:
Provided that only such powers and duties as appertain to the administration of the properties of the religious institution referred to in sub-section (1) shall be assigned to the Executive Officer.
(3) The Commissioner may define the powers and duties which may be exercised and discharged, respectively, by the Executive Officer and the trustee, if any, of any religious institution other than a math or a specific endowment attached to a math.
(4) The Commissioner may, for good and sufficient cause, suspend, remove or dismiss the Executive Officer.?
64. Though this Hon'ble Court has repeatedly held in some of the cases above referred to that the Executive Officer of the temple to secure better administration of the temple cannot be appointed without issuing show cause notice, this Court finds that the present case on the factual matrix does not warrant application of the same proposition. As submitted and referred to by the counsel appearing for the State, the Commissioner, Hindu Religious and Charitable Endowments Department and the Executive Officer, violation of principles of natural justice does not always render the act illegal. Principles of natural justice are not inflexible rules and it is permissible in certain circumstances, to dispense with the issuance of show cause notice. First of all, it is to be noted in the present case that the hereditary trustees are not continuing in office by virtue of the order suspending them from office in contemplation of the disciplinary proceedings initiated and the serious charges framed against the trustees. A Fit Person has already been appointed in respect of the temple for the administration of the temple. However, the appointment of the Fit Person is purely temporary and his power and functions are limited to the duties and functions of the trustees who were suspended. It is the duty of the Commissioner, Hindu Religious and Charitable Endowments Department, to secure the administration for the temple to ensure that such temple is properly administered and their income is duly appropriated for the purposes for which the temple was founded. The power under Section 45 is independent of any other power or jurisdiction of the Commissioner under the Act and such power is not controlled by any other provisions of the Act. In this context, it is necessary to extract the relevant rules known as condition for appointment of Executive Officers Rules, 2015.
?RULES
1. These rules may be called the Conditions for Appointment of Executive Officers Rules, 2015.
2. In these rules, unless there is anything repugnant in the subject or context-
(1) ?Act? means the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959);
(2) ?trustee? shall have the same meaning as assigned to it in clause (22) of section 6 of the Act;
(3) Words and expressions used, but not defined in these rules shall have the meanings respectively assigned to them in the Act.
3. Where the Commissioner either suo-motu or upon the report received from the Joint Commissioner or Deputy Commissioner or Assistant Commissioner having jurisdiction, considers it necessary,-
(i) that in the interest of and ensuring better, proper and efficient administration and management of any religious institution; or
(ii) that he has reason to believe that there is persistent default in administering the affairs of any religious institution in accordance with the provisions of the Act and the rules framed thereunder; or
(iii) that there is irregularities, malfeasance, misfeasance or breach of trust; or
(iv) that there is malpractice, maladministration, mismanagement in any religious institution; or
(v) that there is misappropriation of or improper dealing with the funds and the properties of the religious institution; or
(vi) that there is gross neglect of any duty on the part of the trustee; or
(vii) that there is willful disobedience of the lawful orders issued under the provisions of the Act by the authorities under the Act or by the trustee; or
(viii) that if the trustee opts for the appointment of an executive officer to assist him in the better administration and development of the religious institution; or
(ix) that any scheme settled or deemed to have been settled to any religious institution under the provisions of the Act contains a clause as such; or
(x) for any other reason,the Commissioner may, after holding such inquiry as he may consider it necessary and expedient, in the interest of such religious institution, by order, appoint an Executive Officer for such religious institution, for such period or periods as may be specified by the Commissioner in the order not exceeding a period of five years at a time.?
65. Considering the rules, particularly Rule 3(i), 3(ii) and 3(x) of 2015 Rules, this Court is of the firm view that the rules framed under Section 45 empowers the Commissioner, Hindu Religious and Endowments Department to appoint an Executive Officer for the temple under the Act and the appointment of Executive Officer without notice to the hereditary trustees of the temple who were not in office is not vitiated because of the special circumstances and peculiar facts in the present case. It is not in dispute that the Commissioner has taken a decision on the report received from the Joint Commissioner and appointment of Executive Officer is required in the interest of and ensuring better, proper and efficient administration and management of the religious institution. Since the trustees are under suspension and the Fit Person has assumed office, it is not necessary to establish the allegations against the suspended trustees before appointing an Executive Officer on the recommendation of the Fit Person in office. When a Fit Person can be appointed pending disciplinary proceeding, without notice to them, we are of the view that, in the present case, power under Section 45 (1) can be exercised to appoint Executive Officer without notice to the trustees who are not in office. This case falls under the exceptions pointed out by Hon'ble Supreme Court in the cases referred to earlier. It is also the duty of Court to protect and safeguard the properties of religious institutions. In such circumstances, when we look at the question from the stand-point of the temple itself we hold that in the present case, the Commissioner has properly exercised the power and the order appointing an Executive Officer in the facts and circumstances of the case, without notice to the suspended hereditary trustees of the temple does not warrant interference. In view of our conclusion, the order of learned Single Judge in W.P.(MD) No.10257 of 2016, dated 15.07.2016 is set aside and Writ Appeals in W.A.(MD)No.1133 of 2016 and W.A.(MD)No.1143 of 2016 are allowed and the Writ Petition (MD)No.10257 of 2016 is liable to be dismissed.
W.P.(MD) No.13493 of 201666.Since the petitioner in W.P.(MD) No.13493 of 2016 has raised a further objection that he is also one of the hereditary trustees and that he was not suspended, the leaned Special Government Pleader pointed out that the claim of the writ petitioner on the basis of the interim order obtained by him in the civil suit is unsustainable in view of the fact that the interlocutory application filed by the writ petitioner in the suit was closed because of his non-appearance. The learned Special Government Pleader also produced record to show that the interim order obtained by the petitioner in I.A.No.127 of 2015 in O.S.No.305 of 2015 on the file of the Sub Court, Melur, is closed and not in force. Since the writ petitioner had already been removed from the trusteeship by earlier order of Government there is no scope for considering his plea that he is entitled to notice before the appointment of Executive Officer for the temple. Hence, this Writ Petition is also dismissed.
Writ Petitions challenging the order of temporary suspension of trustees and the order appointing Fit Persons for the temple in W.P.(MD)Nos.5262 of 2016, W.P.(MD) No.5340 of 2016 and W.P.(MD) No.13436 of 2016
67. The first Writ Petition above has been filed challenging the order of temporary suspension of hereditary trustee pending disciplinary proceedings on the charges framed against the hereditary trustees. The other two writ petitions mentioned above are filed, challenging the appointment of a Fit Person for the temple in question, pending disciplinary action on the charges framed against the trustees. Though several other writ petitions were also filed challenging the appointment of Fit Person for the temple, all the learned counsel appearing for the hereditary trustees have conceded that they have no strong grounds challenging the orders of Government. Hence, three of the writ petitions filed by the trustees were also withdrawn by them. Since these three writ petitions are not withdrawn, this Court has to deal with the same on merits.
68. It is a settled proposition that suspension, pending disciplinary action on the grave charges framed against the trustees, is not a punishment by itself and hence, the temporary suspension during the pendency of the disciplinary proceedings cannot be challenged on the only ground of violation of principles of natural justice. The allegations against the trustees or the charges framed against the trustees are serious and this Court is of the opinion prima facie that the trustees of the temple have not properly administered the temple.
69. Mr.V.R.Shanmuganathan, learned Special Government Pleader relied upon the judgment of a Division Bench of this Court in the case of C.Andiappan and three others vs. The Joint Commissioner, HR & CE, and three others reported in 2016 (1) CTC 9 for the proposition that no notice is required before a hereditary trustee is suspended, pending enquiry under Section 53(4). Para 32 of the judgment is extracted as under:
?32. But, the said contention does not merit acceptance. As we have pointed out earlier, the Act contemplates two types of suspension. One is a suspension pending enquiry, passed underSection 53(4) and another is a suspension by way of punishment passed under Section 53(2). Suspension as a measure of penalty cannot be imposed without following the principles of natural justice, as these principles are in-built in sub-section (3) of Section 53 itself. But, to say that even to place a trustee under suspension pending enquiry into charges is something that would actually make the procedural safeguard, completely submerge the very purpose of placing a person under suspension.?
70. In the case of Pandian Zamindar of Uthumalai vs. Deputy Commissioner, Hindu Religious and Charitable Endowments Department reported in 1996 (1) MLJ 288, a Division Bench of this Court has held that while appointing a fit person under Section 53(4) of the Act, it is not necessary to have due regard to the claims of the members of the family of such trustee. The ratio laid down by the Division Bench is as follows:
?The scheme of Section 54, appears to be that, where a vacancy arises, whether permanent or temporary, it should be filled up by the next in the line of succession, but if there is any dispute about succession or the vacancy cannot be filled up for other reasons, instead of filling up the vacancy, power is given for appointment of a fit person, so that the functions of the heredity trustee may be continued to be discharged pending filling up of the vacancy. Sub-section (2) which is we said relates to a temporary vacancy, covers cases of suspension under Sub-section (2) of Section 53 and a perusal of Sub-section (2) of Section 53 shows that a suspension need not necessarily be by way of punishment. Clause (a) of Sub- section (2) empowers suspension on the ground that the trustee 'Ceases to profess the Hindu religion. Similarly, clauses (f) and (h) of the sub-section enable suspension in case of the trustee being of unsound mind or an undischarged insolvent. It is, therefore, clear that Sub-section (2) of Section 54 not merely covers a temporary vacancy arising from suspension by way of punishment, but also extends to a suspension not by way of punishment. It may be possible therefore, to assume that Sub-section (2) of Section 53, because of the power to suspend on enquiry, may include also a power of suspension pending an enquiry. But Sub-section (4) of Section 53 specifically provides for such a contingency, while suspension by punishment is separately dealt with by Sub-section (2) of Section 53 and also by Sub-section (5) of Section 53, which provides for appeal against the orders made under Sub-section (2) of that section. It becomes, therefore, clear that as Sub-section (4) makes a specific provision for suspension pending an enquiry, such a power is, therefore, not covered by the other provisions which provide for suspension following an enquiry, we are of the view, therefore, that suspension pending an enquiry does not fall within the ambit of Section 54 on the principle that a special provision excludes the general. Sub-section (4) while providing for power to appoints fit person to discharge the duties and perform the functions of the trustee. The sub-
section does not speak of filling up a vacancy unlike Section 54(1) and (2). Nor does Sub-section (1) prescribe any procedure to be followed in appointing a fit person, as for instance the Explanation to Sub-section (3). The statutory provisions, as they stand now, do not require that, when appointing a fit person, the claims of the members of the trustee's family should be taken into account."
71. Having regard to the provisions of Sections 53 and 54 of the Act, We have no hesitation to hold that the Commissioner has power to place an erring trustee under temporary suspension pending initiation of disciplinary proceedings and in that event, to appoint a Fit Person for the administration of the temple. Before temporarily suspending a trustee or appointing a Fit Person during the suspension of a hereditary trustee, it is not necessary that the Commissioner should issue any show cause notice. Hence, for the reasons stated above, all the three writ petitions above referred to are liable to be dismissed.
W.P.(MD)Nos.10563 and 11679 of 2016
72.When the temple was under the administration of the Fit Person, the Fit Person pursuant to the order dated 02.03.2016 issued three notifications on 13.05.2016. By the first notification, the Fit Person proposed to conduct public auction to grant licence to collect coconuts, hair, ear-boring and to collect the fowls and animals offered to the deity. By the third notification dated 13.05.2016 the Executive Officer proposed to introduce ticket system for the services and rituals in the temple. These notifications were published inviting objections from the public or persons interested.
73.W.P.(MD)No.10563 of 2016 has been filed by one V.K.M.Pandian, who claimed to be one of the poojaris of the temple, challenging the proceedings of the Fit Person dated 13.05.2016 insofar as it relates to the auction of fowls and animals which are offered by the devotees to the temple and in the writ petition, he has specifically stated that he has filed the writ petition in his capacity as poojari.
74.The petitioner in W.P.(MD)No.10563 of 2016 has filed the Writ Petition (MD)No.11679 of 2016 challenging the notification dated 13.05.2016 whereby the Fit Person of the temple proposed to introduce ticket system for the services and rituals that are being performed in the temple. The petitioner in his representation earlier raised an objection to introduce the ticket system without fixing the share of the poojaris in the income that would be collected from the worshippers by selling the tickets. The said representation was also rejected by the Executive Officer by the proceedings dated 20.06.2016. The writ petitioner has also challenged the said proceedings dated 20.06.2016. At the outset no arguments were advanced by the learned counsel for the petitioner in these two writ petitions.
75.In W.P.(MD) No.10563 of 2016, it is the case of the writ petitioner that the poojari acts as a median between the worshippers and the deity to receive the offering and after offering the fowls and animals to God, to partake in the sharing of the offering, the poojaris absorb the difficulties that prevail upon the worshippers and return to the worshippers the blessings of deity. The service rendered by the poojari are remunerated by the offerings of cash, fowls and animals. Commercialising these aspects, by the impugned notification is nothing but interfering with the customary rights of poojaris and the custom and usage peculiar to the temple. The grounds on which the writ petitioner challenges the notification are as follows:
(a) The third respondent in the writ petition is no more a Fit Person as the order appointing Fit Person dated 02.03.2016 has become infructuous pursuant to the order of removal of trustees dated 13.05.2016.
(b) The proceedings of the third respondent is in violation of the principles of natural justice.
(c) By issuing the impugned proceedings, the third respondent has interfered with the sentiments of the devotees who offered the fowls and animals as part of their mode of prayer.
(d) Auctioning of fowls and animals are impermissible inasmuch as the same were given to the poojaris by the worshippers as per custom followed by the temple regarding the disbursement of the fowls and animals which cannot be interfered with by the third respondent.
76.The other grounds raised in the writ petitions are on the basis of the custom or practices that were in vogue. The Commissioner of Hindu Religious and Charitable Endowment Department and the third respondent namely the Fit Person filed independent counter affidavits denying the contentions of the writ petitioner. The first respondent in his counter submitted that the third respondent decided to get permission from the Commissioner in order to augment the financial resources of the temple by selling the offerings of the devotees in the form of goat and cock to the deity of the temple through public auction-cum-tender from the fasli 1426. On the basis of the report submitted to the Commissioner through the Joint Commissioner who recommended the resolution of the Fit Person, the Commissioner by order dated 06.04.2016 permitted the Fit Person to conduct public auction-cum-tender for all four items including the item which relates to sell the goat and cock offered by the devotees to the deity of the temple. The first respondent specifically denied the contentions of the writ petitioner and submitted in his counter that all the offerings made by the devotees wether in cash or by kind belong to the deity of the temple concerned and that the poojari has no right in this offerings.
77.It was further submitted that similar contention of another poojari was negatived by this Court in W.P.(MD)No.9887 of 2016 with a liberty to the writ petitioner to work out their remedy under Section 63(e) of the Hindu Religious and Charitable Endowment Act, 1959. The Commissioner also relied upon some of the precedents defining the status of the poojari and the right of the temple to augment the financial resources of the temple by the process undertaken by the Fit Person in the impugned notification.
78.As contended by the first respondent in the counter affidavit, it is seen that the petitioner has no right to question the notification in his capacity as poojari. All the offerings made by the devotees whether in the form of cash or kind belong to the deity of the temple concerned and the writ petitioner as poojari has no right in any of the amount collected by way of selling the articles that were offered to the deity. It has been repeatedly pointed out by Courts that the offerings are only made to the deity and not to the poojaris or sevaks. The offerings that are made to the deities therefore cannot be the properties of the sevaks. Even if the petitioner has got any right, he can only approach the authorities to establish such right in terms of Section 63(e) of the Tamil Nadu Hindu Religious and Charitable Endowment Act. Hence, the Writ Petition is wholly misconceived and liable to be dismissed. Accordingly, this Writ Petition (MD) No.10563 of 2016 is dismissed.
79.In W.P.(MD)No.11679 of 2016 the prime objection that was raised by the writ petitioner is that he is entitled to a share in the income that may be derived by the temple administration by introducing ticket system and that the temple administration has no right under Section 57 of the Act to introduce such ticket system without even deciding the share of the income that should be given to the poojaris. The representation of the writ petitioner was rejected by the Executive Officer by order dated 20.06.2016. In the order, the Executive Officer referred to the pendency of A.S.No.801 of 2002 before this Court which was in relation to 50% share that is being given to the poojaris on the hundial collections. Since the matter regarding the entitlement of poojari is pending before this Court in the first appeal, the Executive Officer rejected the representation of the writ petitioner on the ground that the petitioner's request to get share in the ticket collections will be decided after the judgment in the pending first appeal in A.S.No.801 of 2002. Section 57 of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959, reads as follows:
?57. Power to fix fees for services, etc., and to determine their appointment.- Notwithstanding anything contained in any scheme settled or deemed to have been settled under this Act, or any decree or usage to the contrary, the trustee of a religious institution shall have power, subject to such conditions as [the Commissioner] may, by general or special order, direct, to fix fees for the performance of any service, ritual or ceremony in such religious institution and determine what portion, if any, of such fees shall be paid to the archakas or other office-holders or servants of such religious institution.?
80.One of the contentions of the writ petitioner in the present writ petition is that Section 57 does not authorise the Executive Officer or the Fit Person to fix the fees as he is not the trustee. In this case, appointment of the Executive Officer has been upheld by this Court in this judgment. The Fit Person appointed earlier has issued the impugned notification wherein he has only advertised the proposal to introduce the ticket system for the services and rituals that are offered to the deities in the temple on behalf of devotees. On the basis of the objection if any received from the public or by the persons interested, the Executive Officer may subject to the condition, the Commissioner may impose or specify, will implement the ticket system in the temple. It is not open to the poojari of the temple to raise an objection without getting his right established either under Section 63(e) or in terms of Section 57 by approaching the authorities. The order rejecting the objection of the writ petitioner is perfectly in order and the petitioner cannot have any grievance in the light of the reasons that are stated in the order of the Executive Officer dated 20.06.2016.
81.As pointed out by the third respondent, in the counter affidavit in W.P.(MD)No.10563 of 2015, the poojaris are getting 50% share of the entire hundial collections. From the counter affidavit of the third respondent filed in W.P.(MD)No.10563 of 2015, over a period of three months i.e., from 14.03.2016 to 13.06.2016, nearly a sum of Rs.47,77,523/- has been received by temple by way of Hundial collections. Hence, the annual income will be around Rs.2 Crores. The poojaris are getting nearly around Rs.1 Crore per annum through hundial collections alone. Having regard to the several allegations against the trustees and poojaris and the possible misuse of power by the poojaris, the Executive Officer has issued the impugned notification to augment the income of the temple. After appointment of the Fit Person, the income for the temple by way of hundial collections has increased at least by two times. In the circumstances pointed out above I find neither merit nor any bonafides in the writ petition. Hence, Writ Petition (MD)No.11679 of 2016 is dismissed.
82.In the result, C.M.A.(MD)Nos.583, 669, 670 and 819 of 2016 are allowed and the order of Government passed in exercise of power under Section 53 of the Act removing the hereditary trustees of the temple from office vide G.O.Ms.No.158, Tourism, Culture and Endowments Department, dated 13.05.2016, is set aside and the matter is remitted to the Government to pass an appropriate order after holding enquiry by exercising the power prescribed in Holding of Inquiries Rules framed by the Government under Section 116 of the Act. The appellants and other trustees are permitted to avail the opportunity of examination of the witness on their behalf or for marking of document and for letting in evidence both oral and documentary, as contemplated under the rules. The Government is directed to complete the enquiry and pass orders afresh in accordance with law and in the light of the observations made earlier within a maximum period of six months from the date of receipt of a copy of this order. Having regard to the fact that the charges framed against the trustees are serious, the order temporarily suspending the trustees during the pendency of the enquiry shall continue to be in force till the final order is passed by the first respondent, subject of course to their rights of performing poojas in the temple. The appellants as well as the trustees are directed to cooperate with the enquiry and for passing of final order within the time frame. In case of difficulty, it is also open to the Government to seek extension of time from this Court, if it is required, either in the interest of justice or for any other valid reason.
83. Writ Appeals in W.A.(MD)Nos.1133 and 1143 of 2016 are allowed and consequently, W.P.(MD)No.10257 of 2016 stands dismissed. This Court find that the order impugned in the Writ Petition (MD)No.10257 of 2016 is an order appointing Executive Officer with a direction to the Executive Officer to administer the temple as per the rules along with the hereditary trustees. The powers conferred to the Executive Officer also have been defined in the annexure to the order dated 12.05.2016. Since the Executive Officer was appointed during the time when the hereditary trustees were suspended from office pending enquiry the status quo as on the date of appointing the Executive Officer shall continue and it is open to the Executive Officer to get appropriate directions from the Commissioner, Hindu Religious and Charitable Endowment Department for the smooth administration of the temple from time to time and the Commissioner, Hindu Religious and Charitable Endowment Department shall pass appropriate orders purely in the interest of the religious institution and the devotees.
84. Writ Petitions (MD)Nos.5262, 5340, 10563, 11679, 13436 and 13493 of 2016 are dismissed. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are closed.
To
1.The Principal Secretary, Tourism, Culture and Charitable (ANi3-1) Department, Fort St. George, Secretariat, Chennai ? 600 009.
2.The Commissioner, Hindu Religious and Charitable Endowments Department, Chennai ? 600 034.
3.The Joint Commissioner, Hindu Religious and Charitable Endowments Administration Department, Madurai ? 625 001.
4.The Fit Person, Arulmigu Pandi Muneeswarar Temple, Melamadai, Madurai District.
5.The Executive Officer/ Joint Commissioner of Arulmigu Subramaniaswamy Thirukovil, Thirupparankundram as Executive Officer of Arulmigu Pandi Muneeswarar Temple, Melamadai, Madurai District.
6.The Deputy Commissioner / Executive Officer.Arulmigu Subramaniaswamy Thirukovil, Thirupparankundram.
W.P.MD.No.5262 OF 2016 & BATCH CASES Nooty.Ramamohana Rao,J.
and S.S.Sundar,J.
Per Nooty.Ramamohana Rao, J.
I had the benefit of going through the judgment proposed by My Learned Brother S.S.Sundar,J. Though, to a large measure, I agree with his opinion, yet, I express my inability to concur with the opinion of My Learned Brother, on the question relating to placing the trustees of the temples/endowed institutions under suspension, without putting them on notice. I, therefore, propose to record my opinion independently in that regard.
2. Section 53 of The Tamil Nadu Hindu Religious and Charitable Endowments Act,1959, in short, "the Act", dealt with the power to suspend, remove or dismiss trustees. Sub-Section (2) of Section 53 enables the appropriate authority to suspend, remove or dismiss any trustee of a religious institution, if he is guilty of the various misdemeanours, listed out in Clauses (a) ? (l) of the said Sub-Section. It may not be really relevant for determining the legal issue that arises for consideration, as to how far the misdemeanours described in those clauses get attracted to the present case. Suffice it to proceed that the misdemeanours enumerated in the clauses spelt out in Sub-Section (2) of Section 53 do get attracted to the fact situation prevailing in the case and, on that basis, I proceed to consider the matter.
3. Sub-Section (2) empowered the appropriate authority to suspend, remove or dismiss a trustee. Removal or dismissal of a trustee may not cause a serious problem, in the sense that they automatically convey the 'punitive element' attached to those very expressions. There is hardly any doubt that removal or dismissal of a trustee can be resorted to only by way of infliction of a punishment. The question, therefore, to be examined is, when Sub-Section (2) of Section 53 speaks of suspension, whether the said suspension is also as a measure of punishment or not.
4. The expression 'Suspension' conveys that it can be resorted to by the competent authority, as a substantive measure, and also, simultaneously, as a temporary measure. The difference in between the two being, suspension, as a temporary measure, is essentially resorted to, for enabling the competent authority to gather the necessary material against the trustee, for framing charges of misdemeanour indulged in. At the initial stage, or at the very outset, the competent authority may not have possessed of all the relevant material against the trustee, excepting allegations of misdemeanour. Sometimes, gathering material against the trustee may not be very easy so long as he is in office of influence and effectively controlling the institution. To facilitate easy collection of material, one may require such a trustee to be placed under suspension, as a temporary measure, so that, as soon as the purpose is achieved, such a temporary measure of suspending the trustee can be reviewed. The decision depends upon the gravity of the charges that surface and also a prima facie assessment of the quality of material thus far gathered. If the charges, as suspected at the initial stage, turn out to be not very grave, in such an event, the temporary measure of suspending the trustee has got to be recalled and the trustee should be restored and be allowed to function. Similarly, if the quality of material gathered is considered to be not very strong or fool-proof, then also, the interim measure of suspension resorted to has got to be lifted. In juxta- position to the temporary measure of suspending a trustee, a trustee can also be suspended, as a substantive measure. If such a substantive suspension is resorted to, it partakes punitive characteristics. Thus, while a suspension, as a temporary measure, is not liable to be viewed as punitive in character, suspension, as a substantive measure, has got invariably to be treated as one of a punishment.
5. If we look at Sub-Section (3) of Section 53 of the Act, it becomes instantaneously clear to us that the suspension talked of in Sub- Section (2) can be resorted to by the competent authority only when charges are framed against the trustee and giving him an opportunity of meeting such charges, by testing evidence adduced against him, while simultaneously allowing the trustee to adduce evidence in his favour and evaluating the same. At that stage, the decision is required to be taken as to whether the proved misdemeanour warrants the grave penalty of dismissal or removal or it would be enough to inflict the punishment of suspension for a specified duration. That exercise is called 'proportionality assessment'. There should be a reasonable nexus between the punishment proposed to be inflicted and the quantum/gravity of misdemeanour, held established. Sub-Section (3) of Section 53, therefore, completely regulates the exercise provided for and contemplated by Sub-Section (2). Thus, the contents of Sub-Sections (2) and (3) when read together, as they should be, it becomes crystal clear that the exercise contemplated and provided for by Sub-Section (2), including suspension of a trustee, is only provided for, as a measure of imposition of punishment. Hence, the suspension contemplated by Sub-Section (2) is intended to be for a specified duration or period and it cannot be an open- ended one, lest, the distinction between removal from the office of trusteeship and that of suspension ceases to exist and both become one and the same. Hence, the substantive suspension can only be for a shorter duration in contrast to removal, which can be an open-ended one. The legislature, it is too obvious, has clearly in mind a distinction between suspension as a substantive punishment and removal from trusteeship. While removal from trusteeship is going to have a long term impact, in contrast thereto, suspension, as a substantive measure, is only intended for a period of shorter duration.
6. Therefore, I am of the opinion, that the interim suspension of a trustee, which is non-substantive in nature, is not covered by the scheme of Sub-Section (2) of Section 53.
7. That is the reason, hence, Sub-Section (4) of the Act clearly provides for the trustee to be placed under suspension, pending disposal of the charges. As such, there is a well marked distinction between suspension contemplated and provided for under Sub-Section (2) and the one contemplated under Sub-Section (4) of Section 53. While the earlier unmistakably partakes punitive element, the latter is a non-punitive one.
8. In the light of the above, the question raised in these cases to be answered is, whether a trustee can be placed under suspension, as an interim measure under Sub-Section (4) of Section 53, without putting him on notice ?
9. While considering such a question, it is absolutely appropriate to notice the essential distinction between a Government/public servant and a trustee of an endowed/religious institution. The Government/public servant is required to faithfully follow and observe the conduct rules, framed by the employer. Such conduct rules do prescribe the standard of conduct, required to be exhibited by the servant concerned. Hence, there can be a set of general rules, which will have universal application, while some others may be specific to a particular class or section of servants. Any violation of such conduct rules is liable to be viewed not only with disfavour, but, sometimes, even seriously. Similarly, a Government/public servant is also required to maintain an absolutely good conduct even beyond normal working hours of the office, even when he is not on duty or while he is availing approved leave. Any misconduct committed by him even in such situations is liable to be viewed seriously by the employer; that is because, not adhering to the approved conduct is incompatible to discharge of functions attached to the office/post held by the Government/public servant. Far from that, it will also bring disrepute to the organisation/employer. Therefore, to deal with the erring employees, and also more essentially to maintain discipline amongst the rank and file, the employer can resort to placing the employee concerned under suspension, pending inquiry. By taking recourse to such an action, the relationship of master and servant does not get extinguished, but, on the other hand, it gets merely suspended. Even during this period of suspended animation of the relationship, the other rights and privileges of the servant concerned are not to be deprived of, but, the person concerned is only prevented from discharging the functions effectively. He is otherwise eligible to all other benefits and perquisites attached and associated with the office/post held by him. All this apart, such a servant is also entitled to be paid "subsistence allowance". Such payment is obligated to be made in recognition of two principles :
(i) the employee is otherwise willing to render services, but, it is the employer, who does not seek to extract services from such a willing employee. Therefore, the employer is obligated to suitably remunerate the otherwise willing employee, by tendering a portion of the normal wages which he would have been earning in the form of "subsistence allowance", provided there is a specific condition of service, which contemplated for such suspension and/or payment of subsistence allowance. If, on the other hand, there is no such term contained for either placing him under suspension or payment of "subsistence allowance", law required the employer to tender full wages to the employee. The first question therefore that falls for consideration is the extent of the power of the employer to suspend an employee under the ordinary law of master and servant. It is now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, but that such a power can only be the creature of either a statute governing the contract, or of an express term in the contract itself.
Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay full wages during the so-called period of suspension. See Management of Hotel Imperial v. Hotel Workers' Union, AIR 1959 SC 1342.
(ii) Employer is under a liability to ensure that the employee survives and sustains himself during the period the relationship of master and servant gets suspended. Such payment alone will ensure the very survival of the employee and his dependants. Receipt of such allowance forms part of a valuable right in the hands of an employee. Further, receipt of subsistence allowance alone obliges the employee to put forth his defence and effectively and meaningfully defend his case. Any failure to make the payment of subsistence allowance, apart from taking the form of a demeaning status, also, renders the very proceedings taken against such employee vitiated. Right to receive 'subsistence allowance' is now considered as forming part of human right. It is appropriate to notice as to how the significance of payment of subsistence allowance has been set out in Capt.M.Paul Anthony v. Bharat Gold Mines Ltd, AIR 1999 SC 1416:
"29. Exercise of right to suspend an employee may be justified on facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by "suspension syndrome" and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse which has often resulted in suspension. Suspension notwithstanding, non-payment of Subsistence Allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of 'Subsistence Allowance', so that the employee may sustain himself. This Court, in O.P. Gupta vs. Union of India & Ors. (1987) 4 SCC 328 made the following observations with regard to Subsistence Allowance :
"An order of suspension of a government servant does not put an end to his service under the government. He continues to be a member of the service in spite of the order of suspension. The real effect of suspension as explained by this Court in Khem Chand v. Union of India is that he continues to be a member of the government service but is not permitted to work and further during the period of suspension he is paid only some allowance -- generally called subsistence allowance -- which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression 'subsistence allowance' has an undeniable penal significance. The dictionary meaning of the word 'Subsist' as given in Shorter Oxford English Dictionary, Vol.II at p. 2171 is "to remain alive as on food; to continue to exist". "Subsistence" means -- means of supporting life, especially a minimum livelihood." (Emphasis supplied).
30. If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non-payment of Subsistence Allowance can be likened to slow-poisoning as the employee, if not permitted to sustain himself on account of non-payment of Subsistence Allowance, would gradually starve himself to death.
31. On joining Govt. service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Govt. The Govt., only because it has the power to appoint does not become the master of the body and soul of the employee. The Govt. by providing job opportunities to its citizens only fulfils its obligations under the Constitution, including the Directive Principles of the State Policy. The employee, on taking up an employment only agrees to subject himself to the regulatory measures concerning his service. His association with the Government or any other employer, like Instrumentalities of the Govt. or Statutory or Autonomous Corporations etc., is regulated by the terms of contract of service or Service Rules made by the Central or the State Govt. under the Proviso to Article 309 of the Constitution or other Statutory Rules including Certified Standing Orders. The fundamental rights, including the Right to Life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee. The provision for payment of Subsistence Allowance made in the Service Rules only ensures non-violation of the right to life of the employee. That was the reason why this Court in State of Maharashtra vs. Chanderbhan 1983(3) SCR 337 = 1983 (3) SCC 387 = AIR 1983 SC 803 struck down a Service Rule which provided for payment of a nominal amount of Rupee one as Subsistence Allowance to an employee placed under suspension. This decision was followed in Fakirbhai Fulabhai Solanki vs. Presiding Officer & Anr. (1986) 3 SCC 131 = 1986(2) SCR 1059 = AIR 1986 SC 1168 and it was held in that case that if an employee could not attend the departmental proceedings on account of financial stringencies caused by non- payment of Subsistence Allowance, and thereby could not undertake a journey away from his home to attend the departmental proceedings, the order of punishment, including the whole proceedings would stand vitiated.?
10. In contrast to a public servant or a Government servant, where does a trustee of a religious endowment or institution stand ? For that purpose, we need to understand as to the status of a trustee. The traditional and conventional view under Hindu Law is that the hereditary office of a trustee is considered as 'immovable property'. May be, the trustees get remunerated or not is not so much relevant. When a similar question fell for consideration, the Supreme Court, in Ram Rattan v. Bajrang Lal, 1978 (3) SCC 236, has held that it is safe to conclude that the hereditary office of Shebait is immovable property. (In fact, My Learned Brother has extracted, in his opinion, the relevant portion from the said judgment and, hence, I am not reproducing it again). The significance of the ratio of the Supreme Court in Ram Rattan's case, cited above, is that it makes the office of a trustee of a religious endowment or institution a case of proprietary right and consequently a case of holding 'office of status'. If a person has to be deprived, even if it is for a temporary duration, his right to enjoy rights in a property/status, he has to be put on prior notice; all the more so, if there is no provision, such as, payment of subsistence allowance to a trustee, as a measure of intermediary compensation for depriving his existing right to property. It is further important to notice that if a person is entrusted with exercise of any power or authority, such power or authority is to be exercised fairly and reasonably and in conformity with the principles of natural justice. Any arbitrary exercise of power is incompatible to the concept of equality, enshrined in Article 14 of our Constitution. Though right to hold property is no longer a fundamental right, nonetheless, its unauthorised deprivation is frowned upon. When the Constitution in Article 300-A has provided for any such deprivation only in accordance with law, the Constitutional guarantee against deprivation of rights in property can only be acted in accordance with law, but not in derogation thereof. It is, by now, too well settled that the least expected to be done before any such deprivation is resorted to is, to put the person concerned on notice, hear his objections and then decide objectively, but not otherwise. It is only apt to notice, in this context, the following passage from the judgment of the Supreme Court in Thukaram Kana Joshi v. Maharashtra Industrial Development Corporation, (2013) 1 SCC 353 :
"9. The right to property is now considered to be not only a constitutional or a statutory right but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right. Human rights are considered to be in realm of individual rights, such as the rights to health, the right to livelihood, the right to shelter and employment etc. Now however, human rights are gaining an even greater multi faceted dimension. The right to property is considered, very much to be a part of such new dimension."
11. In the above context, Sub-Section (4) of Section 53 undoubtedly enables a trustee to be placed under suspension pending inquiry into the charges that are required to be framed under Sub-Section (3) leading to taking action under Sub-Section (2). Viewed in this perspective, the power exercisable against a trustee under Sub-Section (4) must also be in accord with the principles of natural justice. Even if the statute is silent in that respect, the principles of natural justice have got to be read into such a provision, unless their application is specifically excluded. It cannot be contrary or in derogation thereof. In fact, it would be profitable to recall the principles enunciated by the Supreme Court in Dr.Subramanian Swamy v. State of Tamil Nadu, 2014 (1) CTC 763, as under :
"Supersession of rights of administration cannot be of a permanent enduring nature. Its life has to be reasonably fixed so as to be co-terminus with the removal of the consequences of maladministration. The reason is that the objective to take over the management and administration is not the removal and replacement of the existing administration but to rectify and stamp out the consequences of maladministration. Power to regulate does not mean power to supersede the administration for indefinite period."
After the very primary objective, for which interim suspension can be resorted to being collection of adverse material, was already accomplished, inasmuch as charges are already framed against the trustees, the need or necessity to resort to suspension ceases.
12. Keeping these factors in mind, this Court has consistently taken the view that before a trustee is placed under suspension and deprived of his right to hold the office of trustee, he has to be necessarily put on notice. In my opinion, therefore, the order of suspension, passed in G.O.Ms.No.41, Tourism, Culture and Endowments Department, dated 02.03.2016, passed against the trustees, is not sustainable in law. Hence, I have no hesitation to set aside the said order and restore their status as trustees.
13. There is also an additional dimension to the issue. So far, the inquiry has not been conducted and no final order has been passed in accordance with law. In the given situation, the suspension, pending inquiry, becomes an open-ended one and, consequently, the distinction between it and removal from service will vanish. It is, therefore, for the said reasons also, I hold that the order of suspension requires to be set aside, and it is, accordingly, set aside. The status as trustees stands restored.