THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY A.S. No.2180 of 2002 JUDGMENT: The appeal arises out of the judgment and decree, dated 24.10.2002, passed in O.S.No.265 of 1991 on the file of the Principal Senior Civil Judge, Guntur. The appellant was appointed as Mathadipathy of Sri Sambhu Devara Math, Chebrole, Guntur District way back on 09.06.1955. The Math is registered under the provisions of the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1966. Subsequently, it was brought under the purview of the Endowments Department in the year 1981. The Commissioner of Endowments, respondent No.1 herein, initiated proceedings against the appellant alleging acts of mismanagement of the Math. Initially, an order of suspension was passed on 18.12.1981. The same was challenged in W.P.No.3678 of 1982, which was allowed on 15.03.1983. This was followed by a Charge Memo, dated 31.03.1981. The appellant submitted his explanation on 13.06.1981. The Deputy Commissioner of Endowments was appointed as an Enquiry Officer. During the pendency of the enquiry, an additional charge memo was issued on 15.06.1989. The appellant submitted his explanation on 24.12.1989. The Enquiry Officer is said to have submitted a report on 09.01.1991 holding that all the charges framed in the first charge memo and some of the charges framed in the additional charge memo were proved. Taking the same into account, respondent No.1 issued show cause notice, dated 09.01.1991, to the appellant requiring him to explain as to why he be not removed from the Office of Mathadipathy. The appellant submitted his explanation on 21.03.1991. Not being satisfied with the explanation offered by the appellant, respondent No.1 passed order, dated 31.05.1991, removing the appellant from the office of Mathadipathy. The appellant filed the suit challenging the order of removal and for consequential reliefs. His principal contention was that no witnesses were examined before the Enquiry Officer nor any documents were filed and his statement was also not recorded. He stated that the explanation submitted by him was not taken into account and the order of removal is not only illegal, but also violative of principles of natural justice. By himself, respondent No.1 did not file any written statement. On the other hand, it was filed by his Personal Assistant. The assertions made by the appellant were denied. However, no particulars of the witnesses that were examined in the course of enquiry nor the list of documents were furnished. Respondent No.2, who was appointed as a Fit Person to manage the affairs of the Math, filed a written statement almost on the same lines. Through its judgment and decree under appeal, the trial Court dismissed the suit. Hence, this appeal. Sri G.Vidyasagar, learned counsel for the appellant, submits that the trial Court did not appreciate the evidence on record from the correct perspective and proceeded on the assumption that the burden to prove that the witnesses were examined during the course of enquiry, rested upon the appellant. He submits that the appellant filed a Memo marked as Ex.A3 with a prayer to summon the entire record of the enquiry and though the trial Court passed an order directing such production, such record was not at all produced. He contends that adverse inference ought to have been drawn on account of the failure or refusal on the part of respondent No.1 to produce such record and instead, a perverse observation was made to the effect that the burden is upon the appellant. He further submits that the trial Court committed serious error in making certain observations, which are even beyond the purport of the enquiry. The learned Government Pleader for Appeals submits that the burden squarely rested upon the appellant to prove that the order passed against him was illegal; and the trial Court has proceeded on correct lines. It is also stated that respondent No.1 has taken the report of the Enquiry Officer and the other material into account, arrived at a just and proper conclusion and accordingly, removed the appellant from the Office of Mathadipathy. Sri V.T.M.Prasad, learned counsel for respondent No.2, has argued almost on the same lines. He contends that the specific acts of mismanagement of the Math were held proved against the appellant and that neither the trial Court nor this Court can sit over such findings. On the basis of pleadings before it, the trial Court framed the following issues: (1) Whether the order of the defendant, dated 31.05.1991, is illegal and opposed the principles of natural justice? (2) Whether the plaintiff is entitled for declaration and injunction as prayed for? The appellant deposed as P.W.1 and has spoken to the facts pleaded in the plaint. On his behalf, Exs.A1 to A5 were filed. On behalf of the respondents, D.W.1, an Inspector of Endowments, and D.W.2, the Fit Person, were examined as witnesses. Exs.B1 to B22 were filed. On both the issues, the trial Court found against the appellant. After hearing the learned counsel for the appellant, the learned Government Pleader for Appeals and the learned counsel for respondent No.2, this Court is of the view that the following points arise for consideration: (1) Whether the appellant was given adequate opportunity in the proceedings initiated against him? (2) Whether the findings recorded by the Enquiry Officer and accepted by respondent No.1 were based upon any oral or documentary evidence? (3) Whether the appellant was furnished the report of the Enquiry Officer and other material relied upon in the enquiry? (4) Whether the order passed by respondent No.1 removing the appellant from the Office of Mathadipathy is vitiated in law? Point No.1: One of the contentions urged by the appellant was that he was not given an opportunity in the proceedings and that the proceedings are violative of principles of natural justice. However, in his plaint itself, he has furnished the dates on which he appeared before the Enquiry Officer and on their part, the respondents have marked the notices of hearing as Exs.B11 to B15. Therefore, it cannot be said that the appellant was not given an opportunity to participate in the proceedings. Point No.2: The appellant categorically stated in his plaint that no witnesses were examined in the course of enquiry nor any documents were marked and even his statement was not recorded by the Enquiry Officer. The relevant portion of the plaint reads as under: “The plaintiff attended the enquiry before the Deputy Commissioner, Guntur. Nobody was examined to prove the charges. The plaintiff was asked to submit if he has got any books. He was not asked whether he had to depose anything for himself or whether he had any witnesses to examine. His statement was not recorded”. In the written statement filed by respondent Nos.1 and 2, this contention was not at all dealt with in the manner required under law. They have only denied the averment. The law of pleadings mandates that whenever a specific submission is made in a plaint, mere denial of the same in the written statement would not suffice. The further facts as to how the statement is not correct must be stated. The only way in which the plea raised by the appellant could have been dealt with was to name the witnesses that were examined in the enquiry and to furnish the list of the documents that were relied upon by the Enquiry Officer. Nothing of that sort was pleaded by the respondents. Curiously, the trial Court placed the burden on this aspect also, upon the appellant. It is not out of place to mention the principle of evidence underlying Section 103 of the Evidence Act, 1872 (for short ‘the Act’). It reads as under: “Section 103: Burden of Proof as to particular fact:- The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” Though Section 103 of the Act places the initial burden on the plaintiff to prove the facts pleaded by him, the burden to prove a particular fact would always lie on that person, who wishes the Court to believe in existence, unless it is provided by law that the proof of that fact shall lie on any particular person. In the instant case, the appellant discharged his initial burden by deposing to the facts pleaded by him. He took a specific plea that no witnesses were examined in the course of enquiry. From his point of view, it amounts to a negative fact and he cannot be expected to prove that nobody was examined. The only person who could have vouched for whatever has happened in the course of the enquiry was the Enquiry Officer himself, or any witnesses who have deposed on his behalf. D.W.1 stated that he was authorized by the Deputy Commissioner. It is a different matter, that he did not have any authorization from respondent No.1 and the Enquiry Officer was not a party to the proceedings. For all practical purposes, there was no evidence worth its name on behalf of respondent No.1. Assuming that the evidence of D.W.1 would enure to his benefit, it needs to be seen as to the terms in which he spoke to that fact. The knowledge and concern of this witness with the proceedings in enquiry, in his own words are as under: “I have no personal knowledge about the enquiry conducted by Deputy Commissioner of Endowment. Deputy Commissioner of Endowment or Assistant Commissioner did not inform me about the enquiry proceedings. I do not know whether the then Assistant .Commissioner and Deputy Commissioner appeared before the Enquiry Officer or not. I do hot know whether Enquiry Officer examined any persons at the time of enquiry. I do not know whether any person or parties filed any documentary evidence before the Enquiry Officer.” D.W.2 has absolutely no concern with the enquiry and he did not utter a word about it. Therefore, it emerges that respondent No.1 failed to discharge his burden as to the witnesses that were examined or documents that were filed in the course of enquiry. There is another angle from which this very point needs to be examined. Faced with a situation of not being supplied with any record or material, the appellant filed a Memo into the Court with a prayer to direct respondent No.1 to produce the record relating to the enquiry. The Memo is marked as Ex.A3. The trial Court passed an order directing respondent No.1 to produce the entire record relating to the enquiry. This was not complied with. The matter did not rest at that. The Government Pleader, who was representing the respondents before the trial Court, has also addressed a letter to respondent No.1 to produce the documents required under Ex.A3. On his part, D.W.1 addressed a letter, dated 01.08.2002, marked as Ex.B17. In addition to this, he has also got issued a notice, dated 31.07.2002 marked as Ex.B18 and the acknowledgement thereof is Ex.B19. None of these have impressed upon respondent No.1 to produce the record, much less the report of the Enquiry Officer. The only consequence was to draw an adverse inference as provided under Section 114 of the Act. However, the learned Senior Civil Judge has not only recorded a finding to the effect that the Enquiry Officer conducted the enquiry following the procedure prescribed under rules, but also held that the burden was upon the appellant to produce the enquiry report etc., before the Court. He did not choose to respect his own order passed on the Memo filed as Ex.A3. Once it emerges that the respondents did not state as to how the charges levelled against the appellant were proved, the inescapable conclusion is that the findings are based on no evidence and that cannot be sustained in law. The Office of Mathadipathy carries with its respect, honour and dignity. The allegations made against the appellant are mostly as regards administration of the property. Except making a bald allegation that the ceremonies were not being conducted properly, the order impugned in the suit did not make any allegation about it. It must not be forgotten that the appellant was functioning as Mathadipathy for the past more than half a century. Now-a-days, it has become almost tempting for the officials of the Endowments Department to denigrate, if not insult the priestly personalities with the sole object of having absolute control over the properties attached to the religious institutions and the income which they are deriving. This, in turn, has resulted in a situation where the lowest category of the employee on secular side draws more income and commands more respect than head priest of many religious institutions. The result is that no person with respect and honour is forthcoming to associate himself with the spiritual activities of such institutions. The manner in which respondent No.1 conducted the proceedings and accorded treatment to the appellant is deplorable, if not despicable. The lack of regards for the institution on the part of respondent No.1 is evident from the fact that not even an attempt was made to find a suitable successor to the appellant for continuing the spiritual activities and the entire institution is left to the whims and fancies of the Fit Person, who hardly has any idea about the spiritual activities. Therefore, this point is answered in favour of the appellant. Point No.3: Serious doubt existed as to whether the report of the Enquiry Officer was furnished to the appellant at all. Though no specific plea was raised by him in the plaint, the very fact that he filed memo, Ex.A3, with a prayer to produce the report and other documents discloses that he did not have the benefit of seeing it. An important aspect of the matter is that in his evidence, D.W.1 stated that the report is with respondent No.1 at Hyderabad and his efforts to get a copy thereof for production before the Court did not fructify. The relevant portion of his evidence, that too, in the chief examination, reads as under: “After enquiry, the enquiry officer submitted his report to D1. D-1’s Office is situated at Hyderabad. Except the enquiry report, all the documents are in the Deputy Commissioner’s Office at Guntur. The Deputy Commissioner, Endowments has addressed letter to D-1 to send the enquiry report.” The plea raised by the appellant in this regard was resisted by the respondents by making a reference to an endorsement made in Ex.B16 to the effect that a report of the Enquiry Officer is enclosed. Even if the benefit of doubt is to be given to the respondents, they were under obligation to place the report of the Enquiry Officer before the trial Court, so that the manner in which the Enquiry Officer arrived at the conclusions could have been known. The trial Court unfortunately placed the blame on the appellant and inferred that the enquiry proceeded on correct lines without even seeing the report. The finding in this regard is a typical example of perversity and the same cannot be sustained in law. Having regard to the conduct of respondent No.1 in not even responding to the order of the trial Court passed under Ex.A3 or to the letter addressed by his own Government Pleader, much less to the notice got issued by P.W.1, and that the sole witness deposed on his behalf to place the record before the Court, there is no other option, but to hold that the report of the Enquiry Officer was not furnished to the appellant at all. Therefore, this point is answered in favour of the appellant. Point No.4: The findings on Point Nos.2 and 3 would, in a way, provide answer to this point. It has already been mentioned that the findings recorded by the Enquiry Officer are based on no evidence and that the appellant was not furnished with the copy of the report. In addition to that, in the order of removal itself, respondent No.1 did not even choose to extract the charges, much less, the nature of explanation offered by the appellant and the conclusions arrived at by him. The discussion is scanty and the order is vitiated on account of there not being any evidence. It reflects arbitrary and capricious exercise of power by respondent No.1. Hence, the appeal is allowed and the judgment and decree passed by the trial Court are set aside. The suit is decreed as prayed for with costs throughout. In addition, it is directed that: (a) the administration of the Math shall be forthwith handed over to the appellant; (b) the appellant shall not transfer by way of sale or lease any immovable property of the Math, except with the specific approval of the Commissioner and by conducting public auction; (c) he shall maintain regular accounts of the Math and submit copies of the same to the jurisdictional Deputy Commissioner of Endowments once in every three months; and (d) he shall ensure that all the spiritual activities of the Math are conducted meticulously and in accordance with the customs of the Math, without any deviation. ______________________ L.NARASIMHA REDDY,J Dt: 13.04.2010. Note: (1) L.R. copy to be marked. (2) Issue cc in ten days. (B/o) kdl