IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.11.2008 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.8012 of 1999 S.Shankaranarayanan ... Petitioner Vs 1. The Executive Officer, Arulmighu Poovanathaswamy Temple, Kovilpatti, Thoothukudi District. 2. The Fit Person, Arulmighu Poovanathaswamy Temple, Kovilpatti, Thoothukudi District. 3. The Joint Commissioner, HR & CE (Admin), Tirunelveli-2. ... Respondents PRAYER:- Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari calling for the records of the first respondent dated 16.2.1989 terminating the petitioner from service, which was confirmed by the order and decretal order of the third respondent dated 18.2.1999 made in A.P.No.3/89, quash the same and direct the reinstatement of the petitioner with continuity of service with all attendant service and monetary benefits. For petitioner : Mr.K.V.Subramanian, SC for Mr.R.Kannan For Respondents : Mr.S.Kamadevan for R1 Mr.T.Chandrasekaran, Spl.G.P (HR &CE) for R3 ***** O R D E R This writ petition is directed against the order of the first respondent dated 16.2.1989 as well as that of the third respondent dated 18.2.1999 and for a subsequent direction to reinstate the petitioner in service with all attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ 2. Heard Mr.K.V.Subramaniam, learned Senior Counsel for the petitioner and Mr.S.Kamadevan, learned counsel for the first respondent and Mr.T.Chandrasekaran, learned counsel for the third respondent and perused the records. This Court also directed the Special Government Pleader, HR & CE to circulate the original files, which has also been done by him. The original records were also perused by this Court. 3. The petitioner was working as an Head Clerk in Arulmighu Poovanathaswamy Thirukkoil, Kovilpatti under the control of the first respondent since 15.1.1972. The first respondent received a complaint from three night watchmen on 29.3.1988 stating that the petitioner had stolen building materials such as cement and sand from the premises of the temple and had taken it to his residence. The building materials, such as, cement and sand were kept in the temple premises by the donors. On the basis of the statements given by the watchmen and the resolution of the Fit Person, the first respondent suspended the writ petitioner from service on the same day pending enquiry. 4. Further, the first respondent framed another charge against the petitioner on 11.4.1988 stating that he had committed malpractices with reference to the supply of pooja materials to Arulmigu Sundararaja Perumal Temple, which is a sub temple of the main temple. Thereafter, the second respondent, Fit Person, decided to appoint an Enquiry Officer. The Enquiry Officer after conducting an enquiry submitted his findings on 16.2.1989. On the basis of the enquiry report, a resolution dated 16.2.1989 was passed by the Fit Person to terminate the petitioner from the service of the temple. Pursuant to the decision, the first respondent passed an order removing the writ petitioner by an order dated 16.2.1989. 5. The petitioner preferred an appeal under Section 56(2) of the HR & CE Act to the Deputy Commissioner in Appeal No.3 of 1989. The third respondent, who is an appellate authority dismissed the petitioner's appeal by an order dated 18.2.1999. It was thereafter the petitioner preferred the writ petition and the same was admitted on 15.6.1999. The petitioner's prayer for interim relief was denied by this Court by an order dated 30.12.2002. Pursuant to the notice, the third respondent has filed a detailed counter dated 27.6.2003. 6. Though the petitioner has challenged the authority of the second respondent in acting as a Fit Person of the temple, the same was sufficiently explained in the counter affidavit in para No.5, which is as follows:- ''5. It is submitted that Thiru P.S.A.Rajaguru was appointed as non-official fit person to Arulmighu Poovanathasamy Temple by the Government Order No.GO (Misc) https://hcservices.ecourts.gov.in/hcservices/ No.358, CT & RE dated 30.3.1984. The Government appointed Thiru P.S.A.Rajaguri Thiru S.Ponnusamy, Thiru S.Ramakrishna Raja as non-hereditary trustees to this temple in G.O.No.1254, CT & RE dated 12.11.1987. The appointment of Thiru S.Ponnusamy as trustee was challenged by one M.Balakrishnan in a writ petition in the High Court in W.P.No.12597/87. Meanwhile, the Assistant Commissioner, HR & CE Department, Tirunelveli was appointed as official fit person by the order of Government No.1228/dated 12.9.1988 in the place of non-official fit person. Thiru P.S.A.Rajaguru filed a writ petition in High Court in W.P.No.11471/88 against the official fit person appointment and he was continuing his office till 30.5.1991." 7. The learned Senior Counsel contended that the Enquiry Officer (by name one Nataraj Iyer, who is an advocate) was appointed to conduct the enquiry, a copy of the said resolution was not given to him. It was also stated that though he was permitted to peruse the documents in support of the charges, the documents requested by him were not furnished. Thereafter, he made a request for the supply of copies of the documents. Despite his request, though some documents were given on 26.8.1988, two basic documents were not furnished to him. It was also stated that the resolution only authorised the Fit Person to conduct the enquiry and he cannot delegate it to any other person. The enquiry was posted on 08.10.1988, but the petitioner sought for an adjournment on the ground that he was suffering from some ailment. Even the Enquiry Officer denied the petitioner the supply of documents, but insisted on his giving an explanation. 8. When the enquiry was posted on 29.10.1988, his condition became worse and he could not attend. Therefore, the enquiry was further postponed to 19.11.1988. He also submitted that the charges were vague. He appeared before the Enquiry Officer on 19.11.1988 stating that the manner in which the enquiry was conducted was not correct and he should be given the list of documents and list of persons to be examined. While it was stated that the management witnesses were present, no witnesses were examined. He was informed by the Enquiry Officer that the resolutions of the fit person dated 29.3.1988 and 10.4.1988 cannot be given to him. The enquiry thereafter was adjourned to 17.12.1988. 9. In the meantime, the petitioner was directed to submit his explanation on or before 30.11.1988. On 17.12.1988, the enquiry was said to have been postponed to an unspecified date. The petitioner was informed by the Executive Officer on 18.1.1989 that he should submit his explanation before 02.2.1989, otherwise, the enquiry will be held exparte. It is stated that the petitioner has submitted his explanation on 01.12.1989. The petitioner once again raised an https://hcservices.ecourts.gov.in/hcservices/ objection that an outsider cannot be appointed as an Enquiry Officer. 10. However, by an order dated 14.2.1989, he was dismissed by the Enquiry Officer and it was received by him on 21.2.1989. It is alleged that no evidence was recorded in the enquiry. These allegations were totally denied by the respondents. It was stated that despite reasonable opportunities being given to him, he has not cared to make use of those opportunities in his favour. 11. From the original file, it is seen that the Enquiry Officer found that the petitioner was responsible for non-supply of coconut for the Sunday worship for one year and he had passed bills for Rs.20/- every month for the alleged purchase of coconut. On an examination of one Sakthivel, who was a shopkeeper and supplier of food materials, it was found that the petitioner was only purchasing betel nut and betel leaves but had insisted on getting his signature as if coconuts were supplied. Even the statements given by one Agastheeswaran and the store helper Gomathinayagam in their letters stated that only betel leaves and betel nuts were supplied. It is only on the basis of the enquiry report, the Thakkar had passed a resolution based on which the Executive Officer had passed the final order of removal. 12. It is clear that the only attempt of the petitioner is to drag on the enquiry proceedings by one pretext or other and he had no intention of getting on with the enquiry with any sincerity. His objection that the power of the fit person cannot be delegated is only stated to be rejected. In the absence of any rule, the competent authority can appoint an outsider to conduct an enquiry and for which there is no necessity to have any delegation to be provided under the law. Further, the attempt by the petitioner to seek copies of such delegation is an attempt in vain. Only because he was making repeated adjournments under one pretext or other, he was set exparte and the enquiry was concluded in his absence. The petitioner not having utilised the same cannot make a grievance of the same. 13. Learned Senior Counsel placed reliance upon the judgment of the Supreme Court in Bareilly Electricity Supply Co.Ltd.-vs- The workmen and others reported in AIR 1972 SC 330. This is on the proposition that though strict rules of evidence will not apply to a domestic enquiry, it does not mean that the issues which are seriously contested and established and their requirement relating to the proof cannot be dispensed with. No materials can be relied upon in an enquiry if the authors of such statements were not examined. But the petitioner fails to note that in the present case, the petitioner has not utilised the opportunity of cross-examination of the witnesses. In the absence of any such cross-examination, the statements can be accepted as part of the evidence. https://hcservices.ecourts.gov.in/hcservices/ 14. He also placed reliance upon the judgment of the Supreme Court in Kuldeep Singh -vs- Commissioner of Police and others reported in (1999) 2 SCC 10 for the purpose of showing that if there are any arbitrariness or perverse findings, the same can be set aside and no reliance can be placed on document which was not mentioned in the chargesheet. 15. Similarly, the learned counsel placed reliance upon the decision of the Supreme Court in M.V.Bijlani -vs- Union of India and others reported in (2006) 5 SCC 88 and submitted that on analysing the documents there has to be a preponderance of probabilities, but while doing so, one cannot take into consideration only irrelevant facts or refuse to consider relevant facts. 16. Further reliance was also placed upon the judgment of the Division Bench in P.Erajan, Inspector of Police, District Crime Branch, Salem -vs-The Deputy Inspector General of Police, Tirunelveli Range, Tirunelveli and others reported in 2005 (4) CTC 202. This is for the purpose of establishing that non-examination of material witness despite request by the delinquent will vitiate the enquiry. 17. It is not clear as to how these judgments render any assistance to the petitioner in the facts and circumstances of this case. The attempt of the petitioner was to drag on the proceedings and even the only appearance that he made before the Enquiry Officer was only made use of for further adjournment. The so-called basic documents requested by him were only relatable to the appointment of the Enquiry Officer and the power of delegation. They have no relevance to the case on hand. Even though in the enquiry report, certain other informations have been recorded, the same thing is not relevant in considering whether the petitioner is guilty or not. The two charges levelled against the petitioner that he has removed the building materials from the temple premises and that he did not supply coconut for the Sunday Poojas and made a false claim had been sufficiently proved. 18. Under the circumstances, it is not a fit case where this Court can entertain a writ petition under Article 226 of the Constitution of India. Hence, the writ petition is dismissed. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ js To 1. The Executive Officer, Arulmighu Poovanathaswamy Temple, Kovilpatti, Thoothukudi District. 2. The Fit Person, Arulmighu Poovanathaswamy Temple, Kovilpatti, Thoothukudi District. 3. The Joint Commissioner, HR & CE (Admin), Tirunelveli-2. 1 cc To Government Pleader, Advocate, SR.66670 1 cc To Mr.M.A.Abdul Wahab, Advocate, SR.66684 1 cc To Mr.S.Mani, Advocate, SR.66527 W.P.No.8012 of 1999 SGL(CO) SRA(03/12/2008) https://hcservices.ecourts.gov.in/hcservices/