1. The question raised in these proceedings is whether the authorities under S. 26 (1) of the Andhra Pradesh Charitable Hindu Religious Institutions and Endowments Act (17 of 1966) (hereinafter called the Act ) have the power to suspend a hereditary trustee pending disposal of charges framed against him and appoint a fit person to discharge his duties. It involves interpretation of S. 26 (1) and (3) of the Act read with the relevant provisions of the Act.
2. The petitioner is a hereditary trustee of Sri Vallabharaya Swamy Temple, Gangipuram, Prathipadu Taluk, Guntur District by virtue of family succession. The claim of the petitioner's family as hereditary trustee was upheld by the Commissioner by order dated 23-7-1943 and since then they are functioning as such. After the death of the father of the petitioner viz. In the year 1968, the petitioner was recognised as hereditary trustee by order of the Assistant Commissioner dated 8-11-1968.
3. under the impugend order dated 22-4-1983 the 1st respondent - the Deputy Commissioner of Endowments, Guntur framed as many as 18 charges against the petitioner and directed that he shall be under suspension pending enquiry in exercise of powers under Sec. 26 (1) of the Act. Under the same order in exercise of the powers under Sec. 26 (3) one Dr. Jampani Venkatrayudu was appointed as a fit person in his place. The petitioner challenged the said order by filing Writ Petition No. 3658/83 and sought suspension of the impugned order. The learned single Judge admitted the writ petition but dismissed the application for suspension and hence the writ appeal 539/83 was field against the order refusing to suspend the impugned order. To shorten the proceedings in this Court we heard both the writ appeal and the writ petition together and that was how the proceedings are before us.
4. Sri S. Venkateswara Rao, the learned counsel for the petitioner raised three contentions before us. (1) The 1st respondent the Deputy Commissioner has no power to suspend the petitioner who is the hereditary trustee pending enquiry into the charges as Sec. 26 (3) is inapplicable. (2) Even assuming that the impugned order is valid, the 1st respondent is bound to appoint in his place only a person who would have been entitled to succeed if a permanent vacancy arises but the 1st respondent has no power to appoint a stranger to the family in his place. (3) The charges are so flimsy and marginal and as such they do not warrant suspension pending the enquiry.
5. We may state at the outset that we are not prepared to examine the tenability or the truth or otherwise of the charges or the propriety of the order if the authorities are empowered to pass the impugned order as this court cannot act as a court of appeal and hence we are not concerned with the merits of the charges.
6. It is not disputed that Sec. 26 (1) (sic) the authorities tosuspend, remove or dismiss any hereditary trustee. But the contention is that the power to suspend pending enquiry is confined to non-hereditary trustees but not hereditary trustees. For this we must examine the language of sub-secs. (1), (2) and (3) of Sec. 26 of the Act and the operative portion is in the following terms :-
'26. (1) The Government, in the case of any institution or endowment whose annual income exceeds rupees one lakh but does not exceed rupees two lakhs, the Deputy Commissioner in the case of any institution or endowment included in the list published under cl. (b) of Sec. 6 and the Assistant Commissioner in the case of any other institution or endowment, may suspend, remove or dismiss a hereditary or non-hereditary trustee, if he -
(a) fails to discharge the duties and perform the functions of a trustee in accordance with the provisions of the Act or the Rules made thereunder or xx xx xx
(2) Where it is proposed to take action under sub-sec. (1). The Government, the Commissioner the Deputy Commissioner or Assistant Commissioner, as the case may be, shall frame a charge against the trustee concerned and give him an opportunity of meeting such charge, of testing the evidence adduced agaisnt him and of adducing, evidence in his favour; and the order of suspension, removed or dismissal shall state every charge framed against the trustee, his explanation and the finding on such charge together with the reasons therefor.
(3) Pending disposal of any charge framed against a trustee, the Government Commissioner, Deputy Commissioner or Assistant Commissioner, as the case may be may suspend the trustee and appoint a fit personto discharge the duties and perform the functions of the trustee'.
The definitions of 'Hereditary trustee' in Sec. 2 (15) and 'trustee' in Sec. 2 (28) may also be noticed :-
'2 (15) 'hereditary trustee' means the trustee of a charitable or religious institution or endowment, the succession to whose office devolves according to the rule of succession laid down by the founder or according to usage or custom applicable to the institution or endowment or according to the law of succession for the time being in force, as the case maybe.
'2 (28) 'trustee' means any person whether known as mathadhipati, Mahant, dharmakarta, mutawalli, muntazeim, or by any other name, in whom either alone or in association iwht any other person, the administration and management of a chartitable or religious institution or endowment are vested and includes a Board of Trustees'.
The learned Government Pleader Sri N. V. Suryanarayana Murthy and Sri M. Ramaiah contend that once the power to suspend, remove or dismiss is inhered in the authorities, the power to suspend is incidental or ancillary and the omission to mention non-hereditory trustee in sub-sec. (3) is not fatal. Sri N. V. Suryanarayana Murthy further amplified his submission that once the procedure for boht hereditary and non-hereditary trustees was stipulated, there is no ostensible reason to deprive the authorities to exercise similar powers of suspension pending enquiry in respect of a hereditary trustee. He also referred to Sec. 16 of the Act which prescribed disqualifications for trusteeship and pointed out that the other provisions of the Act do not make any distinction between a hereditary trustee and a non-hereditary trustee and a hereditary trustee cannon claim any special privilege once he was brought under the jurisdiction of the authorities to take disciplinary action against him for misconduct.
7. We must make it clear that we are not resting our conclusion on mere omission of the words 'hereditary trustees' in sub-sec. (3). The scheme of the Act and the relevant provisions would disclose that the hereditary trustee is allowed to enjoy certain privileges and the omission in sub-sec. (3) of the words 'hereditary trustee' is not an inconsequential one but deliberate consistent with the scheme of the Act and also keeping in mind the distinction between hereditary and non-hereditary trustees. This is the view taken by the Division Bench consisting of Kumarayya C. J. (as he then was) and Kondaiah, J., in Writ Petition No. 5240/68 when the identical question was raised before them. Their Lordships on the construction of sub-secs. (1) and (3) held that 'with regard to the provisions of sub-sec. (3) of S. 26 with which we are concerned, it must be said that there is no mention of hereditary trustee as in sub-sec. (1), nor is there an expression 'the trustees concerned' as in sub-sec. (2) of S. 26. The legislature used only the expression 'the trustee' in sub-sec. (3)' and accordingly they ruled that a hereditary trustee admittedly stands on a better footing than a trustee as defined under S. 2 (28) properly within the meaning of Art. 19(1)(f) of the Constitution.
8. Sri Ramaiah contended that the authority of this judgment is very much shaken as the Supreme Court in Kakinada Annadana Samajam v. Commissioner of Hindu Religious and Charitable Endowments, Hyderabad : 2SCR878 held that the office of the hereditary trustee is not property within the ..........ing of Art. 19(1)(f) of the Constitution. Grover, J., held that a hereditary trustee has no proprietary or beneficial interest either in the corpus or in the usufruct of the estate and the office of the hereditary trustee cannot be equated to a Shebait of a religious institution or a Mathadhipathi or a Mahant and his duties and obligations are same as that of a Dharmakarta or a mere manager or custodian of an institution or endowment and hence there is no justification in holding that the office of the heretaryship is a property within the meaning of Art. 19(1)(f).
9. No doubt as ruled by the above judgment when there is a bare right to manage and administer the secular estate of the institution or the endowment without any proprietary or beneficial interest either in the corpus or in the usufruct of the estate there cannot be any ownership in the property. Further after the deletion of Art. 19(1)(f) by Forty Fourth Amendment to the Constitution to the right to hold property is no longer a fundamental right. However, the above judgment did not rest its conclusion solely on the ground that the hereditary trusteeship is a property and the proceedings cannot violate Art. 19(1)(f). the conclusion is based upon the construction of Sec. 26 (1) and (3) read with the other provisions of the Act and we are not prepared to accept the contention that the view expressed by the Division Bench is shaken in view of the fact that the hereditary trusteeship is not a property within the meaning of the Constitution. The decision in Soundarraja Mudaliar v. Dy. Commr. H. R. & C. E. (1964) 1 Mad LJ 236 which arose out of the Madras Act XXII of 1959 is of no avail to the respondents as the case proceeded on the basis that the authorities have got undoubted jurisdiction conferred upon them to suspend a hereditary trustee pending disposal of the charged against him.
10. It is urged strenuously by the learned Government Pleader Sri N. V. Suryanarayana Murthy that the power to suspend, remove and dismiss is wide enough to include as an interim measure to suspend pending enquiry and for that purpose he relied upon R. P. Kapur v. Union of India : (1966)IILLJ164SC and Khem Chand v. Union of India : (1963)ILLJ665SC . In the first case while considering the rights of member of the Former Secretary of State's Services construing the Art. 314 of the Constitution their Lordships held that suspension pending departmental enquiry or pending criminal proceedings is a disciplinary matter within the meaning of Art. 314 and held that 'on general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. This general principle is illustrated by the provision in Sec. 16 of the General Clauses Act 10 of 1897 which lays down that where any Central Act Regulation gives power of appointment that includes the power to suspend or dismiss unless a different intention appears. Though this provision does not directly apply, in the present case, it is in consonance with the general law of master and servant. Their Lordships ruled that 'suspension pending enquiry is generally to facilitate a departmental enquiry and to ensure that while such enquiry is going on - it may relate to serious lapses on the part of a public servant - he is not in a position to misuse his authority in the same way in which he might have been charged to have done so in the enquiry.' This dicta was pressed before us to show that suspension pending enquiry into the charges. But one should not overlook that this power to suspend pending enquiry was based upon jural relationship of master and servant and that was why as ruled by the very same case the civil servant is entitled to full salary unless the rules provide otherwise. The power to suspend pending enquiry is inhereint in the employer and the consequences of such suspension pending enquiry is that the employee is entitled to full salary unless the rules provide otherwise. In the case in Khem Chand v. Union of India : (1963)ILLJ665SC the Court observed that the Civil Servant continues to be a member of the service in spite of the order of suspension. That is a case where the validity of R. 12 (4) of Central Civil Services (Classification, Control & Appeal) Rules 1957 was questioned which provides that where a penalty of dismissal or other punishment was set aside by Court, and if the authority decides to hold further enquiry against the officer, the officer shall be deemed to have been placed under suspension from the date of the original order. Where the order of dismissal made agaisnt the plaintiff was ultimately set aside by the Supreme Court, the authorities invoked the above rule and decided to make fresh enquiry. The effect of the decision is that he officer must be deemed to have been suspended from the date of the original order. While upholding the validity of the rule as not being contrary to Arts. 142 and 144 of the Constitution, their Lordships observed in that context that the real effect of the order of suspension is that though he continued to be a member of the Government service he was not permitted to work, and further, during the period of his suspension he was paid only some allowance - generally called 'Subsistence allowance' - which is normally less than his salary - instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that the order of suspension affects a Government servant injuriously. It is not possible to equate the position of the hereditary trustee as that of a Civil Servant whose tenure of office depends on the pleasure of the State though subject to certain limitations, and where the jural relationship is that of a master and servant. This position is made clear by judgment of the Supreme Court in S. D. O., Faizabad v. S. N. Singh, : 1SCR151 where the power of the State Government to suspend a pradhan of a Gaon Sabha pending enquiry into the charges was questioned.
Their Lordships held that in the absence of any specific power to suspend a Pradhan pending enquiry into the charges the Government have no power to pass such order. The submission that the the civil servant can be suspended pending enquiry even though there is no rule to that effect was held to be inapplicable. It was ruled that there is no contractual relationship between the Pradhan and the Government much less the relationship of master and servant and hence the rule laid down in R. P. Kapur v. Union of India : (1966)IILLJ164SC and other cases of the same line were held to be wholly inapplicable. Their Lordships also examined the further question whether the power to suspend enquiry can be said to be implied and held that 'it is well recognised that where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means as are essentially necessary to its execution. But before implying the existence of such a power the court must be satisfied that the existence of that power is absolutely essential for the discharge of the power conferred and not merely that it is convenient to have such a power'. We are not satisfied that the power to place under suspension an officer is not absolutely essential for the proper exercise of the power conferred under the Act. It cannot be said that the power in question cannot be properly exercised without the power to suspend pending enquiry. The mere possibility of interference with the course of enquiry or of further misuse of powers are not sufficient to enlarge the scope of a statutory power. No doubt in that case they also found that there is no provision to appoint a new person in the place of the Pradhan after his removal. But the principle laid down by the learned Judges is clear that the power of suspension pending enquiry cannot be invoked unless there is relationship of master and servant and such power cannot be implied.
11. Recently Gangadhara Rao, J., in Writ Petition No. 823/83 dated 7-10-1982 (sic) held that a founder trustee if he is a hereditary trustee can be kept under suspension pending enquiry. The learned Judge did not notice the Bench judgment which we referred above. Further a founder trustee need not necessarily be a hereditary trustee. The definition of S. 2 (15) of the Act postulates the succession to whose office devolves according to the rule of succession laid down by the founder or according to usage or custom applicable to the institution or endowment or according to the law of succession for the time being in force. A founder who simply founded the trust or endowment without prescribing the rule of succession would not become a hereditary trustee. Gangadhara Rao, J. dealing with the case of founder-trustee proceeded on the basis of that if he is a hereditary trustee he can be suspended pending enquiry. We respectfully disagree with the view expressed by the learned Judge that if a founder-trustee is a hereditary trustee in a given case S. 26 (3) is attracted.
12. Once it is ruled by the Supreme Court that the power to suspend pending enquiry cannot be said to be essential for the discharge of power conferred upon the authority to take action, the omission of the words 'hereditary trustee' in S. 26 (3) cannot be held to be inconsequential. We also hold that the power to suspend pending enquiry must necessarily be conferred on the authorities as even the ordinary trustee without any hereditary rights holds a statutory post and the authorities cannot exercise the powers on the analogy of the power of the State vis--vis a civil servant. The special rule provided for suspending a trustee pending enquiry is confined to trustee but does not include a hereditary trustee. Further the hereditary trustee is not appointed by any authority. The definition of 'hereditary trustee' under S. 2 (15) of the Act contemplates his succeeding to the office as it devolves on him according to the rule of succession. The scheme of the Act also discloses certain privileges and preferences to the hereditary trustee. Under S. 15 of the Act the authorities may appointa Board of Trustees when there is a hereditary trustee or may not appoint a Board of Trustees and it is not obligatory to appoint a Board of Trustees invariably. Section 16(1) also postulates a person to act as a hereditary trustee by his own right without being appointed as the section contemplates that a person shall be qualified to be appointed or for being a trustee. Similarly, S. 16 (1) (g) (i) provides special privileges and exceptions in favour of hereditary trustee while prescribing general disqualifications to the office of trustee. Similarly, a special provision if made in favour of hereditary trustee for becoming a Chariman under S. 17. Further under S. 20 (2) the rules of succession has to be implemented even in case of a temporary vacancy. The said action contemplates temporary vacancy either by reason of suspension under sub-sec. (1) of S. 26 or otherwise. It is clear that sub-sec. (1) of S. 26 contemplates suspension of the substantive punishment. A hereditary trustee may suffer any disqualification contemplated under S. 16 and thus a temporary vacancy may arise in which event it must be filled in accordance with S. 22. Hence the fact that same disqualifications are stipulated to hereditary and non-hereditary trustees is not an indication in favour of the respondents' contention as the very provision made exception in some cases. The cessation of the office of hereditary trustee does not contemplate removal of the person and appointing the new incumbent in his place. The new incumbent is entitled to succeed by the force of rule of succession and it is not by way of an appointment by the authorities. Viewed in any way the provisions of the Act do not contemplate an appointment of the hereditary trustee. Hence we hold on point No. 1 that in view of the provisions of the Act. The hereditary trustee is entitled to succeed to the officer under the rule of succession and he can be suspended, removed or dismissed after following the procedure under sub-sec. (2) but the authorities have no right to suspend the hereditary trustee pending disposal of the charges framed against him.
13. Regarding the second point the language of S. 20 (2) of the Act is very clear and admits of no doubt which is in the following terms:-
'Where a temporary vacancy occurs in such office by reason of the suspension of the hereditary trustee under sub-sec. (1) of S. 26, or otherwise, the person who would have been entitled to succeed under sub-sec. (1) if it were a permanent vacancy shall, with the permission of the Commissioner, perform the functions of the trustee during the period of such vacancy.'
If a temporary vacancy arises the authorities under this provision must appoint the person hwo would have bee entitled to succeed under sub-sec. (1) if it were a permanent vacancy. The fiction enacted under the sub-section must be given its full effect. The authorities cannot treat a temporary vacancy as a vacancy and appoint a fit person under sub-sec. (3) of S. 26 and at the same time refuse to follow the mandate under sub-sec. (2) to S. 20. It cannot be disputed that a suspension pending enquiry also gives a vacancy temporary and in such event S. 20 (2) has to be followed by appointing a person in the next line of succession. It is contended by the learned Government Pleader that if the hereditary trustee cannot be suspended pending enquiry there is no question of temporary vacancy arising except in cases contemplated under Section. It is not so. Section 26 (1) contemplates suspension as the substantive punishment as already observed by us and the clauses under S. 20 (2) are clearly intended to govern cases of temporary vacancies, either under S. 26 (1) or otherwise. The word 'otherwise' is one relating to vacancies that may arise under S. 16. So Ramaiah drew our attention to Pandian, Zamindar of Uthumalai v. Deputy Commr. Of H. R. C. E. (1966) 1 Mad LJ 288 where the provisions of Madras Act 22 of 1959 were construed and it was held that the power to appoint a fit person under S. 53 (4) of that Act was held to be discretionary and if the claims of the members of the family were considered there cannot be any infirmity in the order of appointment appointing a stranger. But in view of the clear language of S. 20 (1) we cannot import the decisions rendered under different Acts and the authorities are bound to follow the rule of succession embodied under S. 20 (2) of the Act in cases where temporary vacancy arises and hence we hold that the order appointing a stranger (the second respondent) is also illegal and is liable to be set aside.
14. Regarding the third point, we have already indicated at the forefront that we are not inclined to examine the same.
15. In the result we allow the petition and so far it relates to suspension pending enquiry and appointing a fit person quash the impugned order as being without jurisdiction under the provisions of the Act. As we quashed the impugned order the writ appeal which arose out of the interlocutory proceedings has become infructuous and the same is dismissed. We make no order as to costs in both. Advocate's fee Rs. 250/-.
16. Order accordingly.