IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.08.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.13993 of 2009 and M.P.No.1 of 2009 P.Natarajan ...Petitioner Vs. 1.The Commissioner, H.R & C.E. Department, Uthaman Gandhi Salai, Nungambakkam, Chennai - 600 006. 2.The Chairman, Trust Board of Arulmighu Kapalieeswara Temple, Mylapore, Chennai - 600 004. 3.The Joint Commissioner/Fit Person of Arulmighu Kapalieeswara Temple, having office at No.119, Nungambakkam High Road, Chennai - 600 034. 4.The Deputy Commissioner/Executive Officer, Arulmighu Kapalieeswara Temple, Mylapore, Chennai - 600 004. ...Respondents Writ Petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, calling for the records of the first respondent dated 03.04.2009 made in R.P.No.75/2006 D.2 and quash the same. For Petitioner : Ms.G.Thilakavathi For Respondents : Mr.S.Kandaswamy, Spl.G.P. For HR & CE for R1 Mr.N.Varadarajan for R2 to R4 O R D E R The petitioner has filed the present writ petition, seeking to challenge an order of the Commissioner HR & CE Department, Chennai https://hcservices.ecourts.gov.in/hcservices/ viz., the first respondent in R.P.No.75 of 2006 dated 03.04.2009. 2. By the impugned order, the first respondent, being the Revisional Authority, under Section 21 of the Tamil Nadu H.R & C.E. Act, 1959 (Tamil Nadu Act 22 of 1959) dismissed the revision filed by the petitioner and confirmed the order dated 23.12.2004 passed by the Chairman, Trust Board of Arulmighu Kapaleeswarar Temple, Mylapore, Chennai, being the second respondent herein. 3. The writ petition was admitted on 23.07.2009. Pending the writ petition, this Court granted an interim stay prima facie holding that though a plea was raised that subsistence allowance was not paid, such plea was not considered. 4. It is seen from the records that the petitioner was appointed as Junior Assistant of the temple with effect from 20.06.1985. He was also additionally given the responsibility of doing clerical work, purchase of stationery as well as the work of Record Clerk. The petitioner was given a memo dated 24.03.2003 stating that he had failed to inspect the immovable properties of the temple such as houses, vacant plots and leased lands, failed to make necessary entries in the Register and failed to report it to the Executive Officer cum Deputy Commissioner regarding the sub-tenancy and encroachment. The petitioner by his reply dated 26.03.2003 stated that the property of the temple is in several places and he has not been given any vehicle facilities and allowance and to the extent possible, he had stopped some of the encroachments. Thereafter, the 4th respondent framed charge memo dated 19.05.2003 against the petitioner and after getting his explanation by an order dated 10.06.2003, he was placed under suspension by the Thakkar of the temple. 5. An additional charge memo dated 22.08.2003 was given to the petitioner. An enquiry was conducted by the Thakkar of the Temple through enquiry notice dated 21.01.2004. The petitioner sent a representation dated 05.03.2004 claiming subsistence allowance. He was replied with a letter dated 23.03.2004 that he should furnish a non-employment certificate for getting subsistence allowance and he had also been asked to give explanation as to how he left the station without intimation to the Enquiry Officer. The petitioner by his communication dated 09.09.2004 informed the second respondent that in the first enquiry, he could not attend due to ailment but with reference to second and third enquiries, while he appeared nobody else was present in the enquiry. He also sent a further representation dated 25.10.2004 that he has not been paid subsistence allowance from June 2004 though it was paid from 10.06.2003 till June 2004. In the enquiry held against the petitioner, the Board of Trustees found that the charges 1 to 11 were proved and Additional Charges 1 and 2 have also been proved. It was further held that because of the petitioner's misconduct and dishonest act, his continuance in the temple is not conducive in the interest of the temple. In the light of the same, he was dismissed from service in https://hcservices.ecourts.gov.in/hcservices/ terms of Section 56(1) of the H.R. & C.E.Act. The said order of dismissal was signed by the President of the Board as well as 4 trustees. 6. For most of the charges, viz. Charge Nos.2,3,4,5,6,7,8,9,10, the petitioner had apologised. In fact in the additional charges about his forging the signature of an employee of the temple by name D.S.Velayutham, the witness Velayutham stated that the petitioner's wife fell at his feet with the promise that she will pay of the money in the bank whereas the petitioner's defence was that he did not put false signature and his wife only repaid the amount and it is the bank employees who must be found fault for this fraud. But in his earlier explanation, he had stated that in the name of Velayutham, the bank Employees had taken money and on coming to know about the same, the bank employees had paid the amounts and because of this circumstances and his ill health, he had apologised for the same. Even in the additional charge No.2, he had stated that though the amounts were deducted from the salary of the employees towards credit to LIC from the year 1995, in view of the due date, he had affixed the signatures of those employees but it was only in the interest of the employees, he had affixed their signature but there was no loss to any one. 7. As against the said dismissal, the petitioner filed a revision under Section 21 of the Act before the Commissioner HR and CE. The said revision petition was taken on file as R.P.No.75 of 2006. The Commissioner ordered notice to the second respondent temple who filed a counter statement. On the basis of the records, the Commissioner passed the impugned order dismissing the revision and confirming the order passed by the Trustees. The revisional authority also found that the petitioner should have filed an appeal under Section 56(2) of the Act before the Joint Commissioner. The appeal was entertained after condoning the delay of 32 days and disposed of on merits. 8. In the meanwhile, the petitioner filed a revision petition and also a writ petition in W.P.No.16317 of 2006 seeking for a direction to dispose of the revision petition within a time frame and to restrain the respondents from evicting him from the premises rented out to him. This Court by an order dated 30.05.2006 directed the Deputy Commissioner/Executive Officer to allow the petitioner to remain in the premises till the disposal of the revision petition. 9. Three grounds urged by the petitioner in his revision petition, which are as follows;- i) Enquiry was not fair and proper ii)He was not paid subsistence allowance initially but only belatedly and beyond May 2004, no allowance was paid. iii)Enquiry report was not furnished to him before the order was https://hcservices.ecourts.gov.in/hcservices/ passed. 10. Taking the last contention, since the competent authority themselves conducted the enquiry, the question of furnishing the report will not arise. The contention that the petitioner had accepted most of the charges and he did not cross examine the witnesses, he never made any request to examine the witnesses. He only requested the Trust Board to pardon him. Therefore, the question of enquiry being opposed to principles of natural justice will not arise. On the question of non-payment of subsistence allowance beyond May 2004, since the petitioner did not provide the necessary certificate the same was not paid. On this issue, the revisional authority held that he was entitled for subsistence allowance from the date of suspension till the termination of service, but that would not amount to vitiating the enquiry. 11. In this context, the Supreme Court has held that if the employee has to comply with certain formalities for getting subsistence allowance, unless those formalities are complied with, the non-payment of subsistence allowance under such circumstance will not vitiate the enquiry. It is necessary to refer to judgment of the Supreme Court in A.V. Mohal v. Senior Supdt. of Post Office reported in 1991 Supp (2) SCC 503. The following passages found in paragraphs 3 to 5 may be usefully extracted:- "3. The High Court rejected all the contentions and dismissed the writ petition. On the first point the High Court held that under sub-rule (2) of Rule 53 of the Fundamental Rules no payment in respect of subsistence allowance during suspension period can be made unless the government servant furnishes a certificate to the effect that he was not engaged in any other employment, business, profession or vocation and since A.V. Mohal did not submit the said certificate, he was rightly denied the subsistence allowance. The High Court also rejected the other three contentions as being without any substance. This appeal via special leave petition is against the judgment of the High Court. 4. Mr M.C. Dhingra, learned counsel for the appellant has confined his arguments before us on the first point. According to him, the appellant was residing at Amravati whereas the inquiry was being held at Achalpur which he could not attend because of non- payment of subsistence allowance. The appellant by a letter dated July 4, 1969 informed the Inquiry Officer that he would be unable to come to Achalpur to attend the inquiry unless he was paid travelling allowance and in any case he asked for an advance payment of Rs 50 to meet the travelling expenses. He also complained that he was not being paid his subsistence allowance https://hcservices.ecourts.gov.in/hcservices/ and further requested the enquiry officer to hold the enquiry at Amravati. Thereafter the appellant wrote a letter dated June 16, 1971 to the Enquiry Officer informing him that he had already despatched the non- employment certificate on May 19, 1971 to Senior Superintendent of Post Offices, Amravati. Mr Dhingra has taken us through various other letters written by the appellant and has contended that the appellant had done what was required to be done under the rules but in spite of that the subsistence allowance was not paid to him. We are inclined to agree with Mr Dhingra that there was no reason whatsoever for the appellant not to send the non-employment certificate to enable him to receive the subsistence allowance. At the same time we are conscious that the High Court, on the basis of the pleadings and appreciation of the documents before it, has come to the finding that the appellant did not send the non-employment certificate. The High Court observed as under: "However, the fact remains that till November 26, 1971 the subsistence allowance was not paid to the petitioner simply because he did not furnish the non-employment certificate. Now if this was the attitude taken by the petitioner, the authorities concerned cannot be blamed for not paying the subsistence allowance. The petitioner by his own conduct prevented the authorities from making payment of the said allowance". 5. Mr Dhingra has also questioned the interpretation placed on Rule 53(2) of the Fundamental Rules by the respondents and has gone to the extent of challenging the vires of the said rule." 12. Further the Supreme court in Anwarun Nisha Khatoon v. State of Bihar reported in (2002) 6 SCC 703, has held that if an employee demands subsistence allowance and the employer do not insist on production of necessary records, they cannot later take the contention that the necessary formalities were not fulfilled. Hence, it is necessary to refer to the following passages found in paragraphs 9 and 10: "9. In our view, this authority, far from assisting the respondents, is against them. This authority shows that there is no requirement to mark attendance. To us also no rule could be shown which required a suspended employee to mark attendance. The respondents can at the most ask for a certificate that the appellant's husband was not engaged in any other employment, business, profession or vocation. The appellant's husband having died, he could not have furnished such a certificate. At no stage have the respondents asked https://hcservices.ecourts.gov.in/hcservices/ the appellant to give such a certificate. Thus the grant of subsistence allowance cannot be denied on the ground that such a certificate is not given. 10. This view of ours is supported by an authority of this Court in the case of Jagdamba Prasad Shukla v. State of U.P.In this case, on identical facts, it has been held that if the State requires a certificate they should ask for it. It has been held that without asking for such a certificate the State cannot reject a claim for subsistence allowance." 13. If it is seen in the context of the above two decisions, the petitioner was specifically informed by the second respondent that he had not produced the non-employment certificate vide letter dated 23.03.2004. Therefore, the petitioner cannot later take the ground that the non-payment of subsistence allowance will vitiate the enquiry. Further, the Commissioner being the Revisional Authority had upheld the claim of the petitioner to get subsistence allowance paid for the aforesaid period. This will satisfy the case of the petitioner in getting his entitlement by way of subsistence allowance, but certainly this Court cannot hold the petitioner's contention that the enquiry has been vitiated. While his appeal was pending before the Deputy Commissioner, the petitioner got an order to stay in the quarters allotted to him by the temple and even after the dismissal of his revision petition, the petitioner got a stay order from this Court even though no such stay can be granted especially after the dismissal from service and his appeal and revision were also rejected. 14. In the light of the above, this Court is not inclined to entertain the writ petition. The Revisional Authority had not committed any irregularity in not entertaining the revision. Accordingly, the writ petition stands dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar svki https://hcservices.ecourts.gov.in/hcservices/ To 1.The Commissioner, H.R & C.E. Department, Uthaman Gandhi Salai, Nungambakkam, Chennai - 600 006. 2.The Chairman, Trust Board of Arulmighu Kapalieeswara Temple, Mylapore, Chennai - 600 004. 3.The Joint Commissioner/Fit Person of Arulmighu Kapalieeswara Temple, having office at No.119, Nungambakkam High Road, Chennai - 600 034. 4.The Deputy Commissioner/Executive Officer, Arulmighu Kapalieeswara Temple, Mylapore, Chennai - 600 004. +1cc to Mr.G.Thilakavathi, SR 54481 +1cc to Govt. Pleader Sr 54186 KA(CO) km/11.10. W.P.No.13993 of 2009 https://hcservices.ecourts.gov.in/hcservices/