IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU W.P.No.15639 OF 2011 Date:05.07.2011 Between:- S.Krishna Mohan .. Petitioner And Sri Kusuma Harinath Baba Temple, Bhadrachalam, rep.by its Executive Officer, Bhadrachalam, Khammam District and others. .. Respondents THE HON'BLE SRI JUSTICE K.C.BHANU W.P.No.15639 OF 2011 ORDER: This writ petition has been filed under Article 226 of the Constitution of India, seeking to issue a writ of Mandamus declaring the orders passed by respondent No.1 in Proceedings Rc.No.SKHB/8/2011, dated 02.04.2011, keeping the petitioner under suspension and issuing Articles of Charges at the dictation of the Deputy Commissioner, Endowments Department in Rc.No.E3/6136/2011-12, dated 31.03.2011, as illegal and arbitrary and consequently, declare that the petitioner is entitled to continue in service without there being any break with all consequential attendant benefits. 2. The brief facts that are necessary for the disposal of the present writ petition may be stated as follows: The petitioner is a permanent Junior Assistant working in Sri Kusuma Harinadha Baba Temple at Bhadrachalam. He was authorized to work as Manager by the orders of the Commissioner- respondent No.4 to discharge duties and functions under Section 29 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 30 of 1987 (for short, ‘the Act’) in respect of group of temples viz., Sri Sati Parvati Rudra Koteswara Swamy Temple, Vaddegudem Village, V.R.Puram Mandal, Sri Sundara Seetha Rama Chandra Swamy Temple, Sri Ramagiri Village, V.R.Puram Mandal, Sri Sammakka Saralamma Jatara, Toggudem Village, Manugur Mandal and Sri Kondamudi Varadaiah Satram, Bhadrachalam Town and Mandal of Khammam District. While he was working as such, the Assistant Commissioner-respondent No.3 submitted a false report on 08.02.2011 to respondent No.4 alleging misappropriation of certain amounts of group of temples, basing on which, respondent No.4 issued a memo, dated 31.03.2011, directing the Deputy Commissioner and Assistant Commissioner-respondent Nos.2 and 3 to file criminal cases against him. On the same day, respondent No.2 passed an order for repatriating the petitioner to his parent institution and directed respondent No.1 to take necessary disciplinary action under Section 37 of the Act by framing charges against him. Respondent No.3 was also further directed by respondent No.2 to place his services under suspension pending enquiry into the matter and any deviation in the matter would be viewed seriously. The order of respondent No.2 provides that the said direction was issued as per the orders of respondent No.4. As a consequence of dictation and at the instance of respondent Nos.2 and 4, respondent No.1 issued the impugned proceedings. In the said proceedings, it is also stated that the amounts misappropriated are to be recovered and the explanation to the charges framed has to be submitted within 15 days. Accordingly, along with the suspension orders, charges were framed in respect of four temples without providing any basis. 3. Respondent No.1 filed a detailed counter denying the allegations in the writ petition, which was adopted by respondent Nos.2 to 4. The brief facts in the counter may be stated as follows: Respondent No.1 is the competent authority to punish any office holder or servant under the Act which may extend to the punishment of fine or order, suspension, removal, dismissal or any other prescribed penalty or any of them for breach of trust. Respondent No.3, who is the competent authority under Section 12(1) of the Act, called for the records and accounts of the four institutions under the management and control of the petitioner and verified the accounts and records. On such verification, it was found that the petitioner committed grave irregularities and misappropriation of income of those institutions and submitted verification report to respondent No.2. Respondent No.2 passed order, dated 31.03.2011, under Section 37 of the Act to place the petitioner under suspension pending enquiry and any deviation will be viewed seriously and communicate the orders to respondent No.1. The Government, in exercise of power conferred under Sections 37 and 38 read with Section 153 of the Act, framed rules called “the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Office Holders and Servants Punishment Rules, 1987” (for short, ‘the Rules’). Rule 6 of the said rules declares that an office holder or servant attached to an institution may be ordered to be kept under suspension from office or service pending investigation or enquiry into grave charges where such suspension is necessary in public interest. The jurisdiction is conferred upon the Trustee, Executive Officer, Assistant Commissioner, Deputy Commissioner or Regional Joint Commissioner or the Additional Commissioner or the Commissioner, as the case may be. A reading of Section 37 of the Act and Rule 6 of the Rules together would make it clear that an office holder or servant of an institution may be placed under suspension pending enquiry by the Executive Officer. The Executive Officer is conferred with the jurisdiction not only to impose any penalty of imposing fine, suspension, removal, dismissal or any other prescribed penalty but also to place the office holder or servant under suspension pending enquiry. The expression to impose any penalty in Sub Section (2) of Section 37 of the Act is of wide connotation and amplitude and includes the power to place an office holder or servant of an institution under suspension. The power to impose penalty includes the power to place an office holder or servant under suspension pending enquiry. So, respondent No.4 exercised his powers under Section 38 of the Act and directed his subordinate to take disciplinary action against the petitioner. Therefore, respondent No.2 passed the impugned order in conformity with the procedure prescribed by the Act. Against this order, an appeal lies to the Commissioner of Endowments. Without availing the alternative remedy, the petitioner straightaway approached this Court. Respondent No.1 suspended the petitioner pending enquiry and framed 18 charges and called for explanation for the charges within 15 days and the orders were served on the petitioner on 02.04.2011. The petitioner submitted an explanation to respondent No.1 on 21.05.2011 and further, supplementary charge sheet was issued on 10.06.2011. An Enquiry Officer was appointed by respondent No.4 to enquire into the charges and the enquiry is in progress. The reinstatement of the petitioner as Junior Assistant will be done only after finalisation of the enquiry on the charges by the Enquiry Officer and basing on his report that may be submitted to respondent No.4 after examination and prays to dismiss the writ petition with costs. 4. Learned counsel for the petitioner contended that Section 37 of the Act can only be invoked to suspend an employee by way of punishment; that suspension pending enquiry is by way of punishment that can be resorted to after enquiry; that simultaneously framing 18 charges, the recovery of penalty amount and suspension pending enquiry were passed in the same order; that the higher authority cannot direct the lower authority to pass a suspension order; that the appointing authority has not examined the facts of the case independently, but passed the same mechanically as per the dictation of respondent No.2; that ordering to give explanation for recovery of the amount without adjudication is nothing but pre-judging the case and therefore, he prays to set aside the impugned order. 5. On the other hand, learned Government Pleader for respondent Nos.2 to 4 contended that Sections 37 and 38 of the Act have to be read together, which show that respondent No.2 can give a direction to the appointing authority to place the petitioner under suspension; that respondent No.1 passed the impugned order by perusing the record and examining the case independently in respect of the articles of charges levelled against the petitioner, that taking into consideration of the explanation that may be given by the petitioner with regard to recovery of the amount, appropriate orders would be passed and therefore, there are no grounds to interfere in this writ petition and hence, he prays to dismiss the writ petition. 6. Ordinarily, this Court would not interfere with the order of suspension unless attribution of mala fides on the person, who passed the order. Suspension pending enquiry or contemplation of enquiry is regulated by service rules governing the service conditions of any post. It is not a case where the authority, which passed the order, lacks jurisdiction. It is not in dispute that respondent No.1 is the disciplinary authority to take any disciplinary action. The contention of the learned counsel for the petitioner is that suspension pending enquiry is not contemplated under Section 37 of the Act, but Section 37 of the Act can be exercised only by way of punishment after conducting enquiry even for suspension and therefore, the order is illegal. 7. On this aspect, the learned Government Pleader placed reliance on a decision of this Court reported in N.B.Gangadarayya vs. Executive Officer, Sri Bramaramba Mallikarjuna Swamy Devasthanam, Srisailam[1], wherein it is held at Para No.10 as under: “Be that as it may, the power of appointment of an office-holder or a servant in respect of a religious institution whose annual income exceeds rupees ten lakhs is exclusively conferred upon the Executive Officer. The appointing authority shall always have the requisite power and jurisdiction to exercise disciplinary control over all the office-holders and servants and such power of discipline and control shall always include the power to place an office-holder or servant under suspension pending inquiry into grave charges or investigation. The scheme of the Act read together with the said Rules would undoubtedly reveal that the Executive Officer is the competent authority to place an office-holder or servant of an institution whose annual income exceeds rupees ten lakhs under suspension pending inquiry into grave charges or investigation. The conclusion is inescapable. It would be absurd to interpret Section 37 of the Act in the manner suggested by the learned Counsel for the petitioner. The contention, if upheld, would amount to a saying that the Executive Officer would have the jurisdiction to impose penalty of even dismissal upon the office-holder or servant of an institution, whose annual income exceeds rupees ten lakhs; but would have no jurisdiction to place such an office-holder or servants under suspension pending inquiry. Such an interpretation cannot be placed upon Section 37 of the Act.” So from the above decision, it is clear that Section 37 of the Act can be invoked even for suspension pending enquiry into grave charges or investigation. The contention of the learned counsel for the petitioner is no longer res integra in view of the fact that this Court has already held that Section 37 of the Act could be invoked for suspension pending enquiry. The contention of the learned Counsel for petitioner that conducting enquiry even for suspension is wholly untenable and devoid of merit. 8. The second contention of the learned counsel for the petitioner is that respondent No.2-Deputy Commissioner, who is the higher authority, directed respondent No.1-Executive Officer to place the petitioner under suspension, failing which the matter will be viewed seriously. He further contented that higher authority cannot give such a direction to the disciplinary authority to place an officer under suspension. On this aspect, he placed reliance on a decision of this Court reported in D.Ramesh Sinha vs. Cadre Authority for Key Personnel of Co-operative Central Banks/Apex Bank, Hyderabad[2], wherein at para No.10, it is held as under: “Having regard to the aforementioned notings in the records, we have no doubt whatsoever that the impugned orders of suspension have been passed pursuant to and in furtherance of the directions issued by the State Government. Power to initiate disciplinary proceedings against an employee or place him under suspension emanates from a statute. While exercising such statutory power, the competent authority, must therefore, apply its mind independently as to whether the conditions precedent for exercising such power exist. It is now trite that if a statutory authority acts at the behest of some other authority, however high he may be, who has no statutory role to play in the matter, then such action/or any order passed by him, would be a non est in the eye of law. It is also well settled that while passing an order, if the statutory authority ignores the relevant factors or takes into considerations, factors not germane for the passing of the order, then such action or the order flowing from such action, would be vitiated in law. Equally well settled is the principle that the statutory authority while exercising statutory powers, must pose correct questions so as to apply correct legal principles and arrive at correct conclusions basing on the actual and exact state of affairs, and if he fails to do so, the same would amount to misdirection in law. Although decisions on this score are galore, suffice it to refer to the decision of the Apex Court in Commissioner of Police v. Gordhandas, AIR 1952 SC 16 and the decision of the Court of Appeal, Civil Division, in Secretary of State v. Tameside, (1976)3 All.ER 665”. No doubt, the above decision would clearly go to show that the statutory authority, at the behest of the higher authority, has no statutory role to play in the matter and such an order would be non est in the eye of law. He also placed reliance on a decision of the Hon’ble Supreme Court reported in Orient Paper Mills Ltd., Appellant v. Union of India, Respondent[3] wherein at para No.4, it is held as under: “Now it is common ground, it being admitted in the statement of case filed on behalf of the respondent that the paper was assessed to duty in accordance with the instructions from the Collector. The main question is whether an assessment made by a subordinate officer in accordance with the instructions issued by the Collector to whom an appeal lay against the order of that subordinate officer can be called a valid assessment in the eye of law. As has been pointed out in Orient Paper Mills Ltd. V. Union of India, (1969) 1 SCR 245 = (AIR 1969 SC 48) in which the parties were the same as before us now no authority, however high, can control the decision of a judicial or a quasi-judicial authority that being the essence of our judicial system. In the present case, when the assessment is to be made by the Deputy Superintendent or the Assistant Collector, the Collector, to whom an appeal lies against his order of assessment, cannot control or fetter his judgment in the matter of assessment. If the Collector issues directions by which the Deputy Superintendent or the Assistant Collector is bound no room is left for the exercise of his own independent judgment.” He also placed reliance on a decision of the Hon’ble Supreme Court reported in Mahadayal Premchandra, Appellant vs. Commercial Tax Officer, Calcutta and another, Respondents[4], wherein at para No.19, it is held as under: “We are really surprised at the manner in which the first respondent dealt with the matter of this assessment. It is clear that he did not exercise his own judgment in the matter and faithfully followed the instructions conveyed to him by the Assistant Commissioner (C.S.) without giving the appellants an opportunity to meet the points urged against them. The whole procedure was contrary to the principles of natural justice. The procedure adopted was, to say the least, unfair and was calculated to undermine the confidence of the public in the impartial and fair administration of the sales-tax Department concerned. We would have, simply on this ground, set aside the assessment order made by the first respondent and remanded the matter back to him for his due consideration in accordance with law; but as the matter is old and a remand would lead to unnecessary harassment of the appellants, we have preferred to deal with the appeal on merits.” So basing on the above decisions, learned counsel for the petitioner vehemently contended that the statutory authority cannot give such a direction to the disciplinary authority to place an employee under suspension. But, when source of power is available to the higher authority in giving direction to the disciplinary authority to place an employee under suspension, it can exercise the same in the manner as provided under the statute. 9. Learned Government Pleader contended that under Section 38 of the Act, the Commissioner, the Deputy Commissioner or the Assistant Commissioner having jurisdiction that any office-holder or servant attached to an institution or endowment has not been dealt with suitably by the trustee or the Executive Officer as the case may be under Section 37 of the Act for any of the lapses specified in sub- section (1) thereof, the Commissioner, the Deputy Commissioner or the Assistant Commissioner, as the case may be, may direct the trustee or the Executive Officer to take action under Section 37, failing which the Commissioner, the Deputy Commissioner or the Assistant Commissioner as the case may be, may after following the prescribed procedure, impose by an order in writing any of the penalties specified in sub-section (1) of that section on such office-holder or servant. 10. Therefore, from the above provision, it is very clear that under Section 38 of the Act, the superior or higher authority of respondent No.1 can direct the disciplinary authority to place an employee under suspension pending enquiry, especially when the disciplinary authority has not taken any decision under Section 37 of the Act. Therefore, when a statutory power is available to the higher authority, it can as well direct the disciplinary authority to take appropriate decision. Therefore, such a direction cannot be said to be contrary to the provisions of the Act. 11. The other contention of the learned Counsel for the petitioner is that the Executive Officer has not independently dealt with the matter, but he only acted in pursuance of the directions given by the Deputy Commissioner. The impugned order, dated 02.04.2011, passed by the Executive Officer would go to show that he has applied his mind and framed 18 articles of charges against the petitioner, which are appended to the suspension order. Therefore, in framing of articles of charges, the disciplinary authority has applied its mind to take an independent decision. 12. The other contention of the learned counsel for the petitioner with regard to the direction to submit explanation as to the recovery of misappropriated funds is concerned, it should not have been ordered by the Executive Officer for the reason that whether the petitioner has misappropriated the funds of the temples or not has to be decided during the course of enquiry. So, calling the petitioner to give explanation on this aspect is not proper and correct. Therefore, the petitioner need not give any explanation with regard to the recovery of the misappropriated funds from him because that stage has not come. However, it is left open to the enquiry officer to decide whether there is any misappropriation and whether recovery of misappropriated amount can be ordered. By directing the petitioner to give explanation for recovery, it cannot be inferred that the disciplinary authority has come to a pre-conclusion. As many as 18 charges were framed with regard to the alleged misappropriation of certain amounts belonging to the temples. So, whether the allegations in the articles of charges are correct or not, and whether recovery of misappropriated amount can be effected or not have to be decided and determined during the course of enquiry. 13. In view of the fact that respondent No.1 exercised the power contemplated under Section 37 of the Act, he can suspend the petitioner for the alleged charges pending disciplinary enquiry. Therefore, the impugned order does not suffer from any infirmity so as to call for any interference by this Court and this petition is devoid of merit and is liable to be dismissed. 14. The Writ Petition is dismissed. There shall be no order as to costs. ______________________ JUSTICE K.C.BHANU 05th July, 2011. Note:- Furnish C.C. in one week. B/O. AMD THE HON'BLE SRI JUSTICE K.C.BHANU W.P.No.15639 OF 2011 Date:05.07.2011 AMD [1] 2000 ALT (1) page 103 [2] 2002 Suppl.(2) ALD 687 (DB) [3] AIR 1970 SUPREME COURT 1498 [4] A.I.R.1958 S.C.667 (V 45, C 88)