IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.09.2009 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.653 of 2000 B.Kaleesvar Gurukal ... Petitioner vs. 1. The Joint Commissioner Hindu Religious & Charitable Endowments Department, Madras Division, Chennai 600 034. 2. The Fit Person Arulmigu Selva Vinayagar Thirukoil, Egmore – cum – Executive officer, Arulmigu Agasthiswarar Prasanna Venkatesa Perumal Thirukoil, No.5, North Mada Street, Nungambakkam, Chennai 600 034. 3. The Executive Officer, Arulmigu Selva Vinayagar Thirukoil No.105, Gengu Reddy Road, Egmore, Chennai 600 008. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus, calling for the records relating to the order of the 2nd respondent dated 16.07.1999, the consequential proceedings of the 3rd respondent dated 17.07.1999, the proceedings of the 2nd respondent dated 07.12.1999 and the consequential proceedings of the 3rd respondent dated 15.12.1999 and quash the same and direct the respondents to reinstate the petitioner as Archagar in the 3rd respondent Temple with continuity of service and all attendant benefits. For Petitioner : Ms.R.Gowri For Respondents: Mr.T.Chandrasekaran, for R-1 Special Government Pleader Mr.Parthiban, for R2 & R3 https://hcservices.ecourts.gov.in/hcservices/ O R D E R This writ petition is filed challenging the proceedings of the 2nd respondent dated 16.07.1999, the consequential proceedings of the 3rd respondent dated 17.07.1999, the proceedings of the 2nd respondent dated 07.12.1999 and the consequential proceedings of the 3rd respondent dated 15.12.1999 and for a direction to the respondents to reinstate the petitioner as Archagar in the 3rd respondent Temple with continuity of service and all attendant benefits. 2. The case of the petitioner as put forth in the affidavit would run thus : (i) The petitioner was appointed as an Archagar in the 3rd respondent Temple on 15.07.1989 and has been rendering faithful service to the Temple. There are totally five employees including the petitioner and the 3rd respondent herein is the Executive Officer of the Temple and since the Board of Trustees has not been constituted, the 2nd respondent has been appointed as the Fit person, exercising the power of the Trustees. (ii) While that being so, based on the representation of the 2nd respondent dated 23.04.1999, the petitioner was served with a Charge Memo by the 3rd respondent containing 6 articles of charges; though the Charge Memo contained 6 articles of charges, the same pertained to a complaint said to have been lodged by one S.Kalyanasundaram, in respect of an ornament which was offered to the Temple but was recorded in the Temple's account belatedly. The petitioner appeared before the 3rd respondent and stated that one S.Kalyanasundaram wanted to make an offering to Lord Ganesha and as per his request, a chain weighing 38 grams was made ready at Mahalakshmi Jewellery and it was handed over to the said S.Kalyanasundaram, who in turn after showing it to all his family members handed over the same to the Temple and abishegam was performed in the Temple in the presence of the donor and his family members. Subsequently, the donor is said to have lodged a complaint before the 3rd respondent, stating that the gold chain has not been taken into the temple Account. On verification by the petitioner, it came to his knowledge that his assistants, namely, Narayanan and Mohan have taken the gold chain and issued a temporary receipt without filling up the counter foil by using a carbon sheet and on being questioned, the said Narayanan and Mohan returned the chain to the petitioner, who, in turn handed over the same to the 3rd respondent on 20.04.1999. The petitioner, therefore contended that he had no intention of misappropriating the said ornament nor had any intention to tamper any official record. https://hcservices.ecourts.gov.in/hcservices/ (iii) Based on the statement given by the petitioner, the 2nd respondent by a Resolution dated 30.06.1999, came to the conclusion that the petitioner had no intention to misappropriate the jewel, however, as a warning, imposed a fine of Rs.1000/- on the petitioner and further ordered that the petitioner would not be entitled for salary for the period of suspension from 23.04.1999 to 30.06.1999. Based on the said decision of the 2nd respondent, the 3rd respondent passed an order on 30.06.1999, reinstating the petitioner in service. Pursuant thereto, the petitioner joined duty on 05.07.1999 and also remitted the fine of Rs.1000/-. (iv) Thereafter, the 3rd respondent, by an order dated 17.07.1999 relying upon the resolution of the 2nd respondent dated 16.07.1999, informed the petitioner that his earlier order dated 30.06.1999 stands cancelled and that the petitioner is once again deemed to have been placed under suspension and the matter will be enquired by the 2nd respondent and fresh orders would be passed. The petitioner was called upon to appear before the 2nd respondent on 05.08.1999 at 11.30am. Though the enquiry was fixed on 05.08.1999, the same was not conducted on the said date and the 2nd respondent did not come to the Temple for conducting the enquiry. Subsequently, the same was adjourned to 20.09.1999 and thereafter, adjourned to 20.10.1999. On 20.10.1999, the 2nd respondent wrote down the statement and asked the petitioner to sign on the same. The petitioner was informed that the statement was recorded for the purpose of sending report to the 1st respondent, since the 1st respondent had called for a report by his proceedings dated 07.07.1999. Pursuant thereto, the petitioner was not informed of any further proceedings, but, the 3rd respondent, by proceedings dated 15.12.1999, relying upon a decision of the 2nd respondent, dismissed the petitioner from service. (v) Challenging the proceedings of the 2nd and 3rd respondents, on the grounds that they are arbitrary, unreasonable and are in total violation of the principles of natural justice, the petitioner is before this court. According to the petitioner, the statute does not confer any suo moto power of revision and the first respondent has no jurisdiction to act as a disciplinary authority or direct the 2nd respondent to re-open a concluded issue. It is also his contention that the impugned order is violative of the rules framed under Section 56 of the Act, as no written explanation was called for, no enquiry was conducted and no notice was issued prior to the passing of the order of dismissal. 3. In the counter affidavit filed by the second and third respondents, it is stated as follows : (i) The 2nd respondent would state that he is the Fit person of Arulmighu Selva Vinayagar Temple, Egmore (hereinafter referred to as the 'Temple') and the Executive Officer of Arulmighu Agasthiswarar Prasanna Venkatesa Perumal Temple and that the https://hcservices.ecourts.gov.in/hcservices/ petitioner was appointed as Archagar in the third respondent Temple. (ii) He would further state that on 16.04.1999, one Thiru. S.Kalayanasundaram gave a complaint to the Executive Officer of the Temple, the 3rd respondent herein stating that on 02.03.1998, he had given a cheque for Rs.15,000/- to the petitioner for making gold chain for the deity; on 21.03.1998, he met the petitioner, who handed over the receipt of Mahalakshmi Jewellers dated 17.03.1998 for the chain made and he had paid Rs.500/- extra as demanded by the petitioner; on 29.03.1998, abishekam was performed to the deity by the petitioner without the chain donated by him, who informed that the Executive Officer had taken away the chain for evaluation; the donor of the chain came to know from the erstwhile Trustees that the chain was not available in the Temple and hence, requested to have a detailed enquiry and fix responsibility and get back the chain. (iii) Thereafter, it was found out that the petitioner gave a temporary receipt No.39 dated 26.05.1998 to Thiru. K.Ramachandran, S/o.Thiru S.Kalyanasundaram for the receipt of 38 grams of gold chain as donation. But, the petitioner had made carbon entry in the corresponding counter foil copy of receipt No.39, as though a sum of Rs.10/- was received towards Abishekam from one Natarajan residing at No.20, Gengu Street, Egmore on 02.06.1998. According to the 2nd respondent, in the original receipt and in the copy of the same, different signatures have been put on 16.04.1999. He would state that the petitioner gave a letter to the third respondent accepting the donation made by the donor S.Kalyanasundaram and that the same was kept in his custody and it was taken by his Assistant, one Narayanan and pledged with a Pawn Broker and different entries were made in the original and copy of the receipts. Thereafter, on 20.04.1999, the petitioner returned the chain to the third respondent. Hence, a charge memo dated 23.04.1999 was issued to the petitioner for the charges (i) different entries made in the original and copy of the receipts and (ii) for misappropriation of the donated chain. Taking into account the statement given by the petitioner, the 2nd respondent, by his proceedings dated 30.06.1999 imposed fine of Rs.1000/- on the petitioner and also stated that the petitioner would not be entitled to salary for the period between 23.04.1999 and 30.06.1999; thereafter, the petitioner was reinstated in service. (iv) However, the 1st respondent, in his letter dated 07.07.1999 has pointed out that the petitioner, though had received the donated chain on 26.05.1999, returned the same to the Temple nearly after a year only, after it was pointed out by the public. As misappropriation of the Temple jewels is a serious offence, the 1st respondent advised the 2nd and 3rd respondents to take severe action and report the same to him. On the advice of the 1st https://hcservices.ecourts.gov.in/hcservices/ respondent and in pursuance of the Resolution of the 2nd respondent dated 16.07.1999, the 3rd respondent cancelled the order dated 30.06.1999 passed by him and fixed the enquiry on 05.08.1999. The petitioner, by his letter dated 17.07.1999 agreed to attend the enquiry on 05.08.1999 and commenced handing over the charge to the temporary Archakar. Due to other works, the enquiry was adjourned and was held on 20.10.1999, wherein the petitioner's statement accepting the charges was recorded. According to the 2nd respondent, the petitioner's allegation that he was informed that the statement was recorded for the purpose of sending report to the 1st respondent, since the 1st respondent has called for a report is not correct. The statement of the petitioner was recorded as part of the fresh enquiry initiated. Having agreed to participate in the fresh enquiry, the petitioner is estopped from contending that the 2nd and 3rd respondents have no right to conduct fresh enquiry. As the charges were almost accepted by the petitioner and proved by documents and as the offences are of grave nature, the 2nd respondent passed a Resolution dated 07.12.1999, dismissing the petitioner from service. Thereafter, the 3rd respondent by his proceedings dated 15.12.1999 dismissed the petitioner from service relying upon the Resolution of the 2nd respondent dated 07.12.1999. (v) According to the 2nd respondent, the petitioner having not challenged the order of the 3rd respondent dated 17.07.1999 cancelling the earlier order dated 30.06.1999 and having participated in the enquiry proceedings cannot now challenge the impugned order contending that the 2nd respondent has re- jurisdiction to review its own order. He would further submit that the petitioner alone was employed as Archagar in the Temple and he was not provided with any assistants. As such, the allegations that his assistants, one Narayanan and Mohan had taken the jewels and on coming to know of the same, he had taken steps and immediately restored it to the 3rd respondent on 20.04.1999 is incorrect; only when a complaint was lodged by the donor and the public, the petitioner redeemed the jewel from the pawn broker and restored it to the 3rd respondent. It is his contention that as misappropriation of Temple jewels is a serious offence, the order dismissing the services of the petitioner was passed after following all the procedures and that the order is a well considered one. 4. Heard Ms.R.Gowri, learned counsel for the petitioner, Mr.T.Chandrasekaran, learned Special Government Pleader for the 1st respondent and Mr.Parthiban, learned counsel for respondents 2 and 3. 5. Learned counsel for the petitioner would strenuously submit that proceedings were initiated against the petitioner by issuing charge memo and after obtaining an explanation from the petitioner and on consideration of the same, the competent https://hcservices.ecourts.gov.in/hcservices/ authority passed an order stating that the petitioner had no intention to misappropriate the jewel nor had any intention to tamper any official record and therefore imposed fine of Rs.1000/- and also made clear that he would not be entitled to salary for the period between 24.03.1999 and 30.06.1999. She would also submit that a Resolution was passed by the 2nd respondent and the 3rd respondent reinstated the petitioner into service and the petitioner joined duty on 05.07.1999 and that he has also remitted the fine of Rs.1000/- imposed on him; hence, the 2nd respondent has no jurisdiction to review its own orders. 5a. She would further submit that an enquiry on the charges framed against the petitioner was fixed on 05.08.1999; however, it was adjourned to 20.09.1999 and later to 20.10.1999. It is her contention that on 20.10.1999, the 2nd respondent obtained a statement from the petitioner only to send a Report to the 1st respondent and that the 1st respondent has no jurisdiction to act as a disciplinary authority or direct the 2nd respondent to re-open a concluded issue. According to the learned counsel, the petitioner was not given any opportunity to cross-examine the complainant, no written explanation was called for, no enquiry was conducted and no notice was issued prior to passing the order of dismissal and therefore, the impugned orders are arbitrary and violative of the principles of natural justice. 5b. Learned counsel for the petitioner, in support of her case, has relied on the following : (i) a decision of this court reported in 1979 MLJ 406 in the case of M.Dakshinamurthi Gurukkal vs. The State of Tamil Nadu, Madras and others "... No doubt, the records show that the petitioner had expressed his unwillingness to appear at the enquiry on 11th January, 1972. But since it is admitted that the petitioner had not admitted in his explanation, any of the charges framed against him, it was incumbent upon the Board of Trustees to hear the oral evidence in support of the charges framed against the petitioner notwithstanding the fact that he had not chosen to appear at the enquiry held on 11th January 1972, and come to the conclusion that the charges have been proved. The oral evidence not having been heard, rule 2 of the aforesaid rules had not been complied with. " (ii) yet another decision of this court reported in 1999 (III) CTC 657 in the case of M.Natanam vs. The Assistant Commissioner, H.R. & C.E., and another "14. Rules have been framed as early as 1960 called as "the punishment of office holders and servants of Religious Institutions (other than Maths and specific https://hcservices.ecourts.gov.in/hcservices/ Endowments attached thereto) rules : "Rule (2)(a) provides that no order imposing any punishment other than a fine under Sub Section (1) of Section 56 shall be made against any servant unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an affordable opportunity of defending himself. Such grounds shall be reduced to the form of a definite charge or charges which shall be communicated to the delinquent together with statement of allegations on which each charge is based. The delinquent shall be required to put in a written statement of the defence and to state whether he desires an oral enquiry or only to be heard in person. An oral enquiry shall be held if such an enquiry is decided by the person charged or is decided upon by the trustee. At that enquiry oral evidence shall be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross examine the witnesses, to give evidence in person and to have such witnesses called as he may wish. After the enquiry has been completed, the person charged shall be entitled to put in, if he so desires, any further written statement of his defence. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. Every order of suspicion, removal or dismissal shall state the charges, the explanation and the finding on each charge with the reasons there for. 27. Though Mr.R.Balasubramanian, learned Special Government Pleader contended that the petitioner had rushed to this Court without exhausting the statutory remedy of appeal, it has been repeatedly held that when there is failure of principles of natural justice, and when the contention goes not only to the root of the matter but also renders the proceedings a nullity or non est, it is not necessary for the writ petition to prefer an appeal and thereafter approach of this Court. As the failure of principles of natural justice is evident on the face of the record, this Court is well justified in entertaining the writ petition and deciding the two contentions raised by the writ petitioner. " 6. Per contra, learned Special Government Pleader appearing for the 1st respondent would submit that the 1st respondent after hearing the public and on noticing that there was misappropriation of ornament had called for a Report by his proceedings, dated 07.07.1999, without knowing about the conclusion of the earlier proceedings on 30.06.1999. While justifying the action of the 2nd https://hcservices.ecourts.gov.in/hcservices/ and 3rd respondents and the orders passed by them, learned Special Government Pleader would submit that the petitioner has got an appeal remedy and that the 1st respondent has got instructions to issue such a direction to the 2nd respondent to proceed further. 7. On the other hand, learned counsel appearing for respondents 2 and 3 would submit that the 1st respondent, in his letter dated 07.07.1999 has directed the 2nd respondent to proceed further and stated that the petitioner, though received the donated chain on 26.05.1999, returned the same to the Temple nearly after a year only, after the same was pointed out by the public. According to the learned counsel, as misappropriation of Temple jewels is a serious offence, the 1st respondent advised the 2nd and 3rd respondents to take severe action and report the same to him. Based on the same, the 2nd and 3rd respondents proceeded further, conducted enquiry by following the procedures contemplated under law and therefore, there is no infirmity in the orders passed by the 2nd and 3rd respondents. 8. On the background pleadings, a short question that arises for consideration in this case is whether the enquiry conducted by the 2nd respondent on 20.10.1999 is in violation of the principles of natural justice in the light of the earlier proceedings which was concluded on 30.06.1999 by imposing fine of Rs.1000/- on the petitioner and also stating that he is not entitled for salary during the period of suspension. 9. Before proceeding to deal with the matter, it would be worth referring to the relevant Statutory Rules, which would read thus: "Section 56 of the H.R. & C.E. Act provides that all office holders, servants attached to religious institutions shall be controlled by the trustee and the trustee may after following the procedure prescribe fine, suspend, remove or dismiss any of them for breach of trust, incapacity, disobedience of order, neglect of duty, misconduct or other sufficient causes. Subsection (2) of section 56 provides for an appeal against the punishment imposed under Section (1) of Section 56. Rules have been framed as early as 1960 called as "the punishment of office holders and servants of Religious Institutions (other than Maths and specific Endowments attached thereto) rules. Rule 2(a) provides that no order imposing of any punishment other than a fine under sub-section (1) of section 56 (other than an order based on facts which have led to his conviction by a criminal court) shall be made against any office-holder or servant unless he has been informed in writing of the grounds on which it is proposed to take action and has https://hcservices.ecourts.gov.in/hcservices/ been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged, together with statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders in the case. He shall be required within a reasonable time, to put in a Written Statement of his defence and to state whether he desires an oral enquiry or only to be heard in person. An oral enquiry shall be held if such an enquiry is decided by the person charged or is decided upon the trustee. At that enquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the trustee may, for special and sufficient reason to be recorded in writing refuse to call a witness or require the delinquent to bear the expenses of such witnesses. After the enquiry has been completed, the person charged shall be entitled to put in, if he desires, any further written statement of his defence. If no oral enquiry is held and if he had desired to be heard in person, a personal hearing shall be given to him. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. Every order of suspension, removal or dismissal shall state the charges, the explanation and the findings on each charge with the reasons therefor." 10. As regards the maintainability of the writ petition, learned Special Government Pleader would contend that the peitioner had rushed to this court without exhausting the statutory remedy of appeal. It is seen that this writ petition was admitted and only after issuance of Rule Nisi, the matter was taken up for disposal. At this point of time, the contention of the Special Government Pleader cannot be a good ground for dismissing the plea of the petitioner, as it is a settled law that when there is failure of principles of natural justice, and when the contention goes not only to the root of the matter but also renders the proceedings a nullity or non est, it is not necessary for the writ petitioner to prefer an appeal and thereafter approach this court. 11. In the instant case, earlier, proceedings were initiated against the petitioner and it was concluded by the 2nd respondent by an order dated 30.06.1999, imposing fine of Rs.1000/- on the petitioner with a direction that the petitioner is not entitled to claim salary during the period of suspension and only on https://hcservices.ecourts.gov.in/hcservices/ instructions from the 1st respondent by proceedings dated 07.07.1999, the 2nd respondent proceeded to conduct fresh enquiry. Initially, the enquiry was fixed on 05.08.1999, and later, it was adjourned to 20.09.1999 and finally on 20.10.1999. On 20.10.1999, there was no examination of witnesses, but, the 2nd respondent obtained a statement from the petitioner to send a Report to the 1st respondent. Though, the petitioner was served with a notice regarding the charges framed against him in the earlier proceedings and he submitted an explanation to the charge memo and the proceedings were concluded by imposing fine on him, later, when the same proceedings was re-opened, the respondents have not followed the above Rule and the procedures prescribed and their action is violative of the principles of natural justice. 12. From the submissions of the learned Special Government Pleader appearing for the 1st respondent, it is seen that the 1st respondent was not aware of the earlier proceedings initiated on the petitioner, when he issued instructions to the 2nd respondent by proceedings dated