IN THE HIGH COURT OF JUDICTURE AT MADRAS DATED : 30.03.2009 CORAM: THE HON'BLE MR. JUSTICE P. JYOTHIMANI WRIT PETITION NO.13036 of 2008 and M.P.NOs.1 & 2 OF 2008 Tmt.S.Hemalatha Hereditary Trustee Arulmigu Chendrya Perumal Thirukoil Pagalpatti, Omalur Taluk Salem District. ..Petitioner vs. 1. The Joint Commissioner of Hindu Religious Charitable Endowment Department Salem 1. 2. The Assistant Commissioner of Hindu Religious Charitable Endowment Department Salem 1. 3. Vijayaraj (impleaded as R.3 as per order of the Court in MP.No.2 of 2008 dated 30.03.2009) ..Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue an order of Writ of Certiorari calling for the records relating to the order passed by the 1st respondent in Sa.Mu.Mu.Na.Ka.1959/08/A2 dated 16.05.2008 and quash the same. For petitioner : Mr. S.Ravichandran For respondents : Mr.T.Chandrasekaran Spl.Govt.Pleader for R.1 & R.2 Mr.V.Selvaraj for R.3 ORDER Heard the learned counsel for the petitioner and the learned Special Government Pleader appearing for the respondents 1 and 2 and https://hcservices.ecourts.gov.in/hcservices/ also Mr.V.Selvaraj, learned counsel appearing for the impleading respondent, viz., R.3. 2. The impleading petitioner in M.P.No.2 of 2008 is the President of Hindu Baktha Jana Sabha, Salem District Committee, who appears to have made certain complaints of irregularities regarding the maintenance of Arulmighu Chendrya Perumal Thirukoil, Pagalpatti, Omalur Taluk, Salem District, in which the writ petitioner claims to be the hereditary trustee. The impugned order dated 16.5.2008, is one by which the first respondent, by invoking the powers under section 53(4) of the Hindu Religious and Charitable Endowments Act,1959 (for short, 'HR & CE Act') has placed the petitioner under suspension pending disciplinary proceedings against her. In view of the fact that it was on the complaint of the impleading party, the impugned order came to be passed, the impleading petition stands ordered. 3. In the affidavit filed in support of the writ petition the writ petitioner admits that prior to her, her husband was the hereditary trustee and was removed on various charges. It appears that after various proceedings, by virtue of the order dated 29.11.2004, the Government has given direction that the petitioner should be appointed as hereditary trustee and it is stated that by virtue of the said order, the petitioner has been continuing in the said capacity. The first respondent has issued a show-cause notice to the petitioner on 27.2.2008 framing eight charges. It is the case of the petitioner that she has given her reply to the said charges on 24.3.2008. There was a second show-cause notice issued on 26.3.2008 for which, it is stated, a reply has been submitted on 7.4.2008. On 5.5.2008, by virtue of the third show-cause notice five additional charges were framed against the petitioner and the petitioner gave a reply on 15.5.2008. When the final decision was pending on the charges, the impugned order came to be passed by the first respondent by suspending the petitioner in public interest as well as in the interest of the temple. In the impugned order a wrong provision viz., section 53(3) of the HR & CE Act has been quoted, but a reading of the entire order shows that the purport of the order was to invoke section 53(4) for the purpose of passing an order of interim suspension of the petitioner from the post of hereditary trustee in maintaining the temple. Law is well settled that the mere wrong quoting of provision will not change the proceedings if the same is otherwise in order. 4. Even though the learned counsel for the petitioner would vehemently contend that the petitioner has given various replies to the charges and the same have not been considered before passing the order of suspension, it is relevant to refer to various charges (eight in number) and the reply given by the petitioner with reference to the original charge memo dated 27.2.2008. One of the charges is that in respect of 11.77 acres of land belonging to the https://hcservices.ecourts.gov.in/hcservices/ temple, where illegal encroachment has been made by third parties, the petitioner being the hereditary trustee, has not taken any steps to prevent the same. The other charge is in respect of 80.06 acres of land belonging to the temple, when third parties illegally obtained patta, even after repeated directions given, the petitioner being the hereditary trustee of the temple has not taken any steps to get the properties of the temple. A more serious charge is that out of 300 acres of land originally belonged to the temple, due to the improper administration of the petitioner, as on date only less than 150 acres of land is available with the temple and the petitioner is stated to be responsible for allowing others to get patta in respect of about 150 acres of land. 5. In the additional charges framed on 5.5.2008, it is seen that in spite of charges having been framed and explanation having been called for, the petitioner has been evading to give explanation and she has not even chosen to appear before the enquiry authority. One of the additional charges framed is that the petitioner having admitted not submitting the accounts in respect of income of the temple has been repeatedly asking for extension of time. The further charge is that the petitioner has not chosen to effect audit of the accounts of income of the temple. It is also stated in the additional charges that this Court in W.P.No.14609 of 2007 has directed the petitioner to fix rent of the tenants who are occupying the temple properties and the petitioner has not taken any steps in this regard. Besides the abovesaid charges other charges are also not trivial in nature. 6. The most astonishing factor in this case is that though the learned counsel for the petitioner would vehemently submit that the petitioner has submitted her explanation to the charges, but a reference to the explanation makes it clear that the petitioner has not chosen to give explanation and only promised to rectify the defects. In fact, in one such explanation dated 24.3.2008, the petitioner has stated in a reckless manner that she has filed the documents in civil Court and after the documents are received, she will take steps for rectifying the various irregularities. She has taken various stands one of such is about submission of explanation to the first respondent authority on the basis that some function is going on in her house and it is seen that the petitioner has impliedly admitted that some of the properties of the temple were sold to her relatives. It is not as if the first respondent has not given sufficient opportunity to the petitioner either to give explanation or to appear for enquiry. 7. It is seen that on 17.4.2008 the first respondent directed the petitioner to appear for enquiry on 23.4.2008, for which the petitioner has chosen to state as if her counsel was on summer vacation, but the fact remains that the summer vacation fell in May of that year. These are all some of the instances to show the https://hcservices.ecourts.gov.in/hcservices/ careless and lethargic way in which the petitioner has taken the charges. The petitioner has even chosen to state in one of the replies that the non-submitting of accounts is not a very serious matter. She has further stated that she is prepared to submit accounts at any point of time. 8. A reading of the impugned order and explanation of the petitioner shows that as to how the petitioner has been purposely evading to give reply and also to appear for the enquiry. In such view of the matter, it is not possible for this Court to accept the contention of the learned counsel for the petitioner that the charges are very trivial and the petitioner has been always willing to give proper explanation. The learned counsel for the petitioner would also rely upon the judgment of this Court in Soundararaja Mudaliar v. Dy.Commr., H.R.& C.Endow (1964 (1) MLJ 236) and submit that even before exercising the power under section 53(4) of the HR & CE Act in passing temporary suspension, the enquiry authority should take into consideration all the reply and other factors. That was a case where the charge framed against the party was that he has not submitted budget estimates and has not submitted the particulars about the properties of the temple. It was, considering the said aspect, this Court having held that the jurisdiction conferred upon the authority to suspend a trustee pending disposal can never be questioned, but opined that in such circumstances the authority should take into consideration the interest of the temple and while deciding the same, the nature of charge should also be taken into consideration. The operative portion is as follows: "There is undoubted jurisdiction conferred upon the authorities to suspend a trustee pending disposal of the charges against him. In the instant case, though the charges were framed in January, 1961, the authorities do not seem to have taken the view that the continuance of the trustee in charge of the temple was not in any way detrimental to the interests of the temple. After the enquiry had been posted and re-posted to several dates, and more than six months after the framing of the charges against the trustee, the Deputy Commissioner purported to place the petitioner under suspension in exercise of his powers under section 53(4). One is entitled to take note of the underlying purpose of the power that is conferred by this provision upon the Deputy Commissioner. It is that in proper cases the interests of the temple should not be jeopardised by a person who had been found to have committed acts which would endanger the interests of the temple; for instance, suppose the charge against the trustee had been that he had failed to obtain permission for absenting himself, or some such trivial ground, it would be impossible to accept the position that pending the enquiry into such a charge, it would at all be necessary looking at the matter from any point of view, to place the https://hcservices.ecourts.gov.in/hcservices/ trustee under suspension. The purpose underlying this provision is therefore, that the authorities are entitled to see that the temple is looked after properly during the period when the charges are under enquiry and it is in that context that one had to examine the action of the Deputy Commissioner in the present case. As I have stated, the charges are only that he failed to prepare certain accounts and nothing more serious than that. It is, no doubt, true that it is not within the province of this Court to measure the gravity of the charges. But, looking at the matter in the light of the need for this particular provision, it is difficult to see what grounds the Deputy Commissioner thought existed which made it necessary to deprive the petitioner of his charge of the temple during the conduct of the enquiry. As I have said, more than six months had elapsed from the date on which the charges had been framed and before the date on which an order of interim suspension was made. Though the Deputy Commissioner is not bound to give his reasons, the fact that the order of interim suspension was made after such considerable delay would, to my mind, require the existence of some supervening reasons which necessitated such a course. Nothing is stated either in the order suspending the trustee or even in the counter affidavit to show that any circumstances justifying the suspension of the trustee had come into existence, in the management. The counter affidavit reads as if the respondent is under the impression that in every case where the charges are framed against a trustee, the Deputy Commissioner is entitled to, or even obliged to, under the provisions of the law, place the trustee under suspension. This view of the relevant provision is grossly erroneous." 9. A reference to section 53(4) of the HR & CE Act which is as follows; " Section 53. Power to suspend, remove or dismiss trustees.- (1) xxxx (2) xxxx (3) xxxx (4) Any person aggrieved by an order of [the Joint Commissioner or the Deputy Commissioner, as the case may be], under Sub-section (3) may, within one month from the date of receipt of the order by him, appeal against the order to the Commissioner." https://hcservices.ecourts.gov.in/hcservices/ certainly gives the power to the authority viz., the first respondent to place a trustee under suspension and even to appoint a person as a fit person to discharge the duties as trustee pending disposal of the disciplinary proceedings in which charges had been levelled against the trustee. 10. Even in the judgment cited by the learned counsel for the petitioner, the decision was that the authority should exercise discretion in a proper manner and certainly if the charges are trivial in nature, the authority can be expected to see the interests of the trustee as well as the temple, but, the facts of the case, as I have enumerated above, especially few of the charges which I have narrated, make it very clear that the charges can never be treated as trivial in nature and they are certainly serious in the maintenance of the temple and the correctness or otherwise of the charges are to be decided in the full-fledged enquiry. It is not even the case of the petitioner that the petitioner has not been given adequate opportunity for defending herself in the enquiry conducted by the first respondent. In such view of the matter, I am of the considered view that the impugned order does not suffer from any illegality on the face of it even in the light of the judgment relied upon by the learned counsel for the petitioner, and taking into consideration the interest of the temple, the action taken by the first respondent in placing the petitioner under suspension pending enquiry is perfectly in order. 11. In view of the same, the writ petition is liable to be dismissed as it is not possible to interfere with the impugned order passed by the first respondent. However, taking into consideration that the petitioner had made her reply in respect of various charges and the first respondent has been issuing several notices for enquiry, the first respondent is directed to give sufficient opportunity to the petitioner, conduct proper enquiry and pass appropriate orders on merits and in accordance with law in respect of the charges levelled in the disciplinary proceedings initiated against the petitioner, expeditiously, in any event, within a period of three months from the date of receipt of copy of this order. It is made clear that the petitioner shall co-operate with the first respondent in conducting the enquiry. With the above direction, the writ petition is dismissed. No costs. M.P.No.2 of 2008 is ordered. In view of dismissal of the main writ petition, connected miscellaneous petition, viz., M.P.No.1 of 2008 is also dismissed. sd/- Asst.Registrar /true copy/ kWh Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Joint Commissioner of Hindu Religious Charitable Endowment Department Salem 1. 2. The Assistant Commissioner of Hindu Religious Charitable Endowment Department Salem 1. + 1 c.c. to Mr. S. Ravichandran, Advocate. S.R.No.10674. + 1 c.c. to Mr. V. Selvaraj, Advocate. S.R.No.10594. W.P.No.13036/2008 MG (CO) GSK 17.04.2009. https://hcservices.ecourts.gov.in/hcservices/