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E.S. Athithyaraman Vs. the Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, Madras - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 2660 of 1968
Judge
Reported inAIR1971Mad170
ActsConstitution of India - Article 226; Madras State and Subordinate Service Rules - Rule 39
AppellantE.S. Athithyaraman
RespondentThe Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, Madras
Cases ReferredAndrews v. District Educational Officer
Excerpt:
.....a clerk and never to post as inspector in view of the fact that he was thoroughly unreliable, the assistant commissioner, hindu religious and charitable endowment (administration) department, tirunelveli sent a communication dated 19-10-1961 enclosing a copy of the report of the assistant commissioner, coimbatore, and stating: (ii) to revert the incumbent as clerk and never to post him as inspector as he is thoroughly unreliable. these circumstances clearly show that there had been an inordinate delay on the part of the department to proceed with the matter and in the circumstances of the case, this delay, coupled with certain other features to which i shall refer immediately, showed that his explanation dated 14-12-1961 must be deemed to have been accepted by the assistant commissioner..........be guilty of certain irregularities in the discharge of his duties. consequently, on 14-4-1960 the assistant commissioner hindu religious and charitable endowments board (administration department), coimbatore, framed four charges against the petitioner and called upon him to submit his explanation within three weeks from the date of the receipt of the charges. on 25-5-1960 the petitioner submitted his explanation with reference to the said charges. by a communication dated 6-2-1961 the said assistant commissioner required the petitioner to state within fifteen days from the receipt of the communication whether he desired an oral enquiry or only to be heard on person. not having received any rely from the petitioner, the assistant commissioner sent a reminder, on 5-3-1961 asking the.....
Judgment:
ORDER

1. The petitioner jointed the service of the Hindu Religious Endowments Board on 1-4-1949. He was confirmed in the cadre of clerk on 10-10-1960. The post of Inspector also belonged to that cadre. He was promoted to the cadre of Upper Division Inspector on 1-4-1961 and confirmed in the said cadre on Assistants, including Inspectors, from 1-7-1966. When the petitioner was functioning as Inspectors, Dharapuram from 5-5-1958 to 3-11-1959, he was alleged to be guilty of certain irregularities in the discharge of his duties. Consequently, on 14-4-1960 the Assistant Commissioner Hindu Religious and Charitable Endowments Board (Administration Department), Coimbatore, framed four charges against the petitioner and called upon him to submit his explanation within three weeks from the date of the receipt of the charges. On 25-5-1960 the petitioner submitted his explanation with reference to the said charges. By a communication dated 6-2-1961 the said Assistant Commissioner required the petitioner to state within fifteen days from the receipt of the communication whether he desired an oral enquiry or only to be heard on person. Not having received any rely from the petitioner, the Assistant Commissioner sent a reminder, on 5-3-1961 asking the petitioner to acknowledged the receipt of the communication dated 6-2-1961. On 16-3-1961 the petitioner acknowledged the receipt of the communication dated 6-2-1961. Notwithstanding this acknowledgment, the petitioner did not inform the Assistant Commissioner whether he wanted an oral enquiry or to be heard only in heard only in person. Under these circumstances, the Assistant Commissioner on 30-9-1961 came to the conclusion, as a result of a perusal of the explanation of the petitioner and the records, that the charges framed against the petitioner were established. He was of the view that, as punishment, increment might to be stopped for a period of one year with cumulative effect and he also recommended that the Commissioner might be addressed to revert the petitioner as a clerk and never to post as Inspector in view of the fact that he was thoroughly unreliable, The Assistant Commissioner, Hindu Religious and Charitable Endowment (Administration) Department, Tirunelveli sent a communication dated 19-10-1961 enclosing a copy of the report of the Assistant Commissioner, Coimbatore, and stating:

'The following punishments have been proposed to be awarded:

(i) To withhold the increment for one year with cumulative effect;

(ii) To revert the incumbent as clerk and never to post him as Inspector as he is thoroughly unreliable.

Sri E. S. Athithyaraman, Inspector, Tuticorin is requested to show cause within one month from the date of receiving this communication why the above said two punishments should not be awarded to him. If no explanation is received within the stipulated time, orders will be passed on materials available.'

2. This communication came to be sent by the Assistant Commissioner, Tirunelveli, because at that time the petitioner was working under him as Inspector, Tuticorin. The petitioner sent his explanation of 14-12-1961 with reference to the finding of the Assistant Commissioner, Coimbatore. Subsequent to this date till August, 1965, the petitioner did not hear anything about the matter. However, during this interval, by an order dated 1-4-1963 the temporary promotion of the petitioner to the post of Upper Division Clerk was regularised with effect from 1-4-1961. While so, the petitioner of 25-8-1965 received a communication D/- 20-8-1965 from the Assistant Commissioner, Ramanathapuram at Madurai, since the petitioner was at that time working as Inspector, Sivaganga. The said communication is as follows:

''Sub: Disciplinary proceedings--against Sri E. S. Athithyaraman--former Inspector--Dharapuram Devasthanam--charges framed--Explanation--Enquiry--Notice--sent.

Ref: 1. From the Assistant Commissioner, H. R. & C. E., Coimbatore Rc. 1903/61-A1, dated 30-9-1961.

2. Rc. No. 10931/61 A5, dated 19-10-1961 of the Assistant Commissioner, Tirunelveli, issued to Sri E. S. Athithayaraman, former Inspector, Tuticorin.

3. From Sri E. S. Athithyaraman, Explanation dated 14-12-1961 and other connection records.

An enquiry into the above matter will beheld by the Assistant Commissioner, Ramnad at Madurai at his office at 9, Gokhale Street, Tallakulam, Madurai-2 at 3 p. m. on 1-9-1965. Sri E. S. Athithyaraman, now Inspector, H. R. & C. E., Sivaganga, is required to appear before the Asst. Commissioner at the time of enquiry on the above said date.'

3. The petitioner appeared before the said Assistant Commissioner as required by the said communication, on 1-9-1965, but no enquiry as mentioned in the said communication was conducted by the Assistant Commissioner. Subsequently by an order dated 5-7-1966 the Commissioner confirmed the petitioner in the cadre of Assistant (including Inspector) from 1-7-1966. Thereafter a communication dated 4-11-1967 was sent by the Commissioner, Hindu Religious and Charitable Endowments (Administration Department), Madras, calling upon the petitioner to show cause why the punishment of reduction from the rank of Assistant (including Inspector) to that of clerk should not be imposed on the petitioner. This communication referred to the finding of the Assistant Commissioner, Coimbatore, dated 30-9-1961 and the explanation of the petitioner dated 14-12-1961. On 18-12-1967 the petitioner sent his explanation. In that explanation he pointed out that inasmuch as the Commissioner had found that all the charges had been proved and as it was unlikely that the Commissioner would arrive at the finding of 'not guilty' on repetitious contentions', and the opportunity given to the petitioner was also limited in its scope, he was anxious to pled for the reduction in the quantum of punishment proposed. He also stated that he had already submitted his explanation to the charges on 25-5-1960 and a further explanation on 14-12-1961 denying the charges categorically and he craved leave of the Commissioner that the said explanation might be read as part and parcel of his representations. He once again pleaded that the charges did not stand scrutiny. After considering this explanation of the petitioner, the Commissioner, on 10-7-1968 passed an order reducing the petitioner from the rank of Assistant (including Inspector) to that of the clerk. The Commissioner pointed out that the charges had been completely examined by the Assistant Commissioner and after going through the explanation submitted by the delinquent (petitioner herein) the Assistant Commissioner had come to the conclusion that all the charges had been proved. He was, further, of the view that a careful reading of the findings, of the Assistant Commissioner, Coimbatore, dated 30-9-1961, established beyond doubt that the petitioner had not only been negligent in his duties, but on the contrary, he was submitting reports without any reference to the real facts and that he was also suppressing facts. It is to quash this order of the Commissioner that the present writ petition under Art. 226 of the Constitution of India has been filed.

4. The learned Counsel for the petitioner primarily relied upon two circumstances and grounds in support of this writ petition. The first circumstances is that prior to the arrival of the provisional conclusion by the Assistant Commissioner, Tirunelveli, there was no enquiry conducted by the said Assistant Commissioner into the charges levelled against the petitioner. The second circumstance is, as I, pointed out already, that the petitioner was called upon to show cause against the proposed punishment by a communication dated 19-10-1961 and the petitioner sent his explanation dated 14-12-1961; subsequently for a period of more than three and a half year nothing was heard about the matter by the petitioner, when on 25-8-1965 he received a communication dated 20-8-1965 from the Assistant Commissioner, Ramanathapuram at Maduari, to the effect that an enquiry would be conducted at 3 p. m. on 1-9-1965, even when the petitioner was present for the enquiry, no enquiry was actually conducted by the Assistant Commissioner, and thereafter the next things the petitioner heard was the communication of the Commissioner dated 4-11-1967 proposing to impose the penalty of reduction in rank on the petitioner. With reference to these facts the contention of the petitioner is that, as between 14-12-1967 when he submitted his explanation to the show cause notice against the pressed punishment and 20-8-1965, the date of the communication from the Assistant Commissioner of Ramanathapuram at Madurai, stating that an enquiry would be held, more than three and a half year had elapsed; even subsequently no enquiry was held and more than two years had elapsed between the said communication dated 20-8-1965 of the Assistant Commissioner of Ramanathapuram at Madurai and the notice of the Commissioner dated 4-11-1967 proposing a punishment of reduction in rank. These circumstances clearly show that there had been an inordinate delay on the part of the Department to proceed with the matter and in the circumstances of the case, this delay, coupled with certain other features to which I shall refer immediately, showed that his explanation dated 14-12-1961 must be deemed to have been accepted by the Assistant Commissioner and, therefore, the entire proceedings were dropped and could not be revived after a long lapse of time. I shall deal with these contentions immediately.

5. As far as the first contention is concerned, as I pointed out already, admittedly there was a communication dated 6-2-1961 sent by the Assistant Commissioner, Coimbatore calling upon the petitioner to state whether he desired an oral enquiry or only to be heard in person. Notwithstanding the acknowledgment of the receipt of this communication, the petitioner did not send and reply to that communication and, therefore, the Assistant Commissioner proceeded to deal with the matter without conducting an enquiry, on going through the files and on going through the explanation of the petitioner dated 25-5-1960. The petitioner's contention is that, whether he wanted an enquiry or not, it was the duty of the Assistant Commissioner to have conducted an enquriy, though it may be an ex parte enquiry, but no such enquiry was actually conducted in this case. The learned Counsel wanted to reinforce this contention by reference to the fact that the Assistant Commissioner, Coimbatore, in his report dated 30-9-1961, has relied on his own personal knowledge with regard to certain explanation offered by the petitioner and in that context it was certainly the duty of the Assistant Commissioner to have given an opportunity to the petitioner by conducting an enquiry. I see considerable force this submission of the learned Counsel. But that is not all. Whether the petitioner wanted an enquiry or not, at the stage when the Assistant Commissioner called upon his to state whether he wanted an oral enquiry or only to the heard in person, admittedly on 20-8-1965 the Assistant Commissioner of Ramanathapuram at Madurai, offered to conduct an enquiry into the matter and pursuant to this notice dated 20-8-1965 the petitioner was present for the enquiry on 1-9-1965, but no enquiry was actually held. Therefore, irrespective of the fact whether the petitioner wanted enquiry or not, the departmental officers themselves offered to conduct an enquiry, and once they had made that offer, there was absolutely no justification whatever to go behind that offer and not to conduct an enquiry. There is no explanation whatever on the part of the respondent as to why a enquiry was not conducted in spite of the fact that on 20-8-1965 an offer was made by the Assistant Commissioner of Ramanathapuram at Madurai to conduct an enquiry. I have extracted that notice in full so that it may be seen from that notice that the enquiry referred to was a general one and not confined to the quantum of the punishment. Therefore, the contention of the learned counsel for the petitioner that no enquiry was conducted and that vitiated the impugned order of the respondent is well found in the circumstances of this case. Hence, I uphold the contention of the petitioner in this behalf.

6. As far as the second contention is concerned, admittedly there had been a delay of more than three and a half year in between 14-12-1961 when the petitioner sent his explanation to the show cause notice dated 20-8-1965 of the Assistant Commissioner of Ramanathapuram at Madurai offering to conduct an enquiry. There is no explanation whatever in the counter-affidavit for this delay of more than three and a half year. Even after the petitioner appeared for the enquiry on 1-9-1965, for more than two years, nothing was heard about the matter, when suddenly on 4-11-1967 the commissioner sent a notice to the petitioner calling upon him to show cause against the proposed punishment. Such a long delay in this matter, coupled with certain other circumstances, clearly leads to the conclusion that the respondent must be deemed to have dropped the entire proceeding.

7. The other circumstances to which I want to refer are: even after the charge was framed against the petitioner, on 24-3-1961 the petitioner was promoted temporarily to act as Upper Division Clerk with effect from the forenoon of 1-4-1961 under Rule 39(a)(i) of the Madras State and Subordinate Service Rules. Subsequently after the petitioner had sent his explanation dated 14-12-1961, an order was passed on 1-4-1963 regularising the temporary promoted of the petitioner with effect from 1-4-1961. It must be noticed that when this order dated 1-4-1963 was passed, the petitioner had already submitted his explanation dated 14-12-1961 to the show cause notice against the proposed punishment and, notwithstanding that, this order did not say that the regularisation was subject to the result of the disciplinary proceedings pending against the petitioner. Secondly on 5-7-1966 the petitioner was confirmed in the cadre of Assistant (including Inspector) from 1-7-1966. Even this order did not state that the confirmation was subject to the result of the disciplinary proceedings pending against the petitioner. These two orders, coupled with the long delay and the absence of any explanation whatever for the long delay will lead to a reasonable inference that the petitioner was entitled to proceed on the basis that his explanation dated 14-12-1961 was accepted by the Department and, therefore, the entire proceedings were dropped. It is needless for me to point out that, in matters of disciplinary proceedings against a Government servant, whether the Government servant is kept under suspension or not, the proceedings must be concluded as expeditiously as possible and should not be permitted to hang as Damocles' sword over his career so that suddenly one day after a lapse of several years the Government servant may be told that as a result of the disciplinary proceedings his service conditions have been affected adversely to him. In this case in between 14-12-1961 and the final order dated 10-7-1968 there had been a lapse of nearly seven years and during that period the petitioner had been acting in the post of Upper Division Inspector to which post he had been first temporarily appointed and subsequently regularised and still subsequently confirmed. Consequently I am of the view that the most elementary precaution of concluding the disciplinary proceeding against a Government servant as expeditiously as possible has not been taken in this case and there is no acceptable explanation whatever for the inordinate delay between the explanation of the petitioner dated 14-12-1961 and the final order passed on 10-7-1968. The counter-affidavit attempted to state that in 1964 the Government passed orders as to who should be the competent authority to pass orders in such matters, but even that order of 1964 does not explain the delay between 1961 and August, 1965, when the Assistant Commissioner of Ramanathapuram at Madurai issued the communication to the petitioner offering to conduct an enquiry. Therefore, I am satisfied that, with reference to the facts and circumstances of this case, the petitioner is entitled to contend that his explanation dated 14-12-1961 must be deemed to have been accepted by the Department and the proceedings against the petitioner must be deemed to have been dropped and therefore there was no justification thereafter to revive the same and pass the impugned order after such a long lapse of time.

8. This conclusion derives support from a judgment of the Mysore High Court in Andrews v. District Educational Officer, Bangalore, 1968 LIC 756. In that case certain charges were framed against the Government servant concerned in the year 1961 to which the petitioner sent his explanation. Thereafter in March 1964, charges were again framed against the petitioner, these charges being substantially the same as those that were framed against him in 1961. In that context the Mysore High Court pointed out:

'If after the production of this explanation, the disciplinary proceedings was not continued, what should reasonably follows is that the disciplinary authority was satisfied with the explanation and dropped the charges. The strength of that inference receives reinforcement from the fact that it was only after a period of 3 1/2 years that the charges were once against revived. The great and inordinate delay in the revival of those charges and the antecedent discontinuance of the earlier disciplinary proceedings over a long tract of time can have no other meaning than that disciplinary authority was satisfied with the explanation offered by the petitioner on October 24, 1961, and that in consequence the proceedings against him were discontinue and abandoned. If that was how the earlier disciplinary proceeding terminated, it was not within the competence of the disciplinary authority to exhume those charges and to make them the subject-matter of another disciplinary proceedings, as late as in the year 1964.

We do not say that it is not permissible for a disciplinary authority to discontinue a disciplinary proceeding and start another in respect of the same matter, if there be a defect or other analogous reason for the discontinuance of one proceedings and for the commencement of another. But that was not what happened in the case before us.'

9. These observation of the learned Judges of the Mysore High Court are clearly to the point in the present case and therefore, I am of the view that the impugned order in this case cannot be sustained. I may make it clear than, if there had been an acceptable explanation for the long delay involved in the case and the petitioner during that interval had been told that the disciplinary proceedings were kept alive and had not been dropped, the position may be different. I have already pointed out that subsequent to the framing of the charges, the petitioner was temporarily promoted with effect from 1-4-1961 and subsequent to the receipt of the explanation of the petitioner dated 14-12-1961 the petitioner's service as Upper Division Inspector was regularised, and lastly as late as in 1966 the petitioner's promotion as Upper Division Inspector was confirmed. From these circumstances a reasonable inference can certainly be drawn that the explanation of the petitioner dated 14-12-1961 was accepted and the disciplinary proceedings against the petitioner were dropped.

10. One of the contentions put forwards in the counter-affidavit in answer to the claim of the petitioner is that the petitioner has an alternative remedy by way of appeal to the Government. Certainly the existence of an alternative remedy is a matter to be taken note of by the Court in the exercise of its discretion under Art. 226 of the Constitution. However, in view of the facts of this, which are glaring, I do not think that the existence of an alternative remedy should stand in the way of the petitioner getting the relief to which he is entitled in this writ petition.

11. Consequently, this Writ Petition is allowed, and the impugned order of the Commissioner is quashed. There will be no order as to costs.

12. Petition allowed.


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