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M. Dakshinamurthi Gurukkal Vs. the State of Tamil Nadu Represented by the Secretary to the Government of Tamil Nadu, Commercial Taxes and Religious Endowments Department and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai High Court
Decided On
Reported in(1979)2MLJ406
AppellantM. Dakshinamurthi Gurukkal
RespondentThe State of Tamil Nadu Represented by the Secretary to the Government of Tamil Nadu, Commercial Tax
Excerpt:
.....17--sections 17, 13 (4); [a.p.shah, c.j., f.m. ibrahim kalifulia &v. ramasubramanian, jj] scope of enquiry under section 17 held, the main purpose of the securitisation act, and in particular section 13 thereof, is to enable and empower the secured creditors to take possession of their securities and to deal with them without the intervention of the court. therefore, in an application under section 17, the tribunal is concerned only with the validity of the acts of the secured creditor in taking possession of the securities and dealing with the same under section 13. all such grounds, which would render the action of the bank/financial institution illegal, can be raised before the tribunal in the proceedings under section 17. it is for the tribunal to decide in each case whether the..........not been followed, that is to say, the order of dismissal from service has not been made by the board of trustees of the temple. the petitioner has prayed for quashing the order of the first respondent confirming the orders of other respondents 2, 3 and 5 for the aforesaid reasons.4. respondents 1 to 3 contend that the allegation that no enquiry was held is false and that the orders of suspension and dismissal were passed only by the board of trustees of the temple and were merely communicated by the executive officer of the temple. they further contend that it is not necessary that the order of dismissal should be accompanied by a resolution of the board of trustees and that it is open to the petitioner to obtain a certified copy of the resolution of the board of trustees. it is.....
Judgment:
ORDER

A. Varadarajan, J.

1. This writ petition, under Article 226 of the Constitution of India, is for the issue of a writ of certiorari or any other appropriate writ or direction calling for the records of the first respondent in G.O. Ms. No. 22 Commercial Taxes and Religious Endowments Department dated 8th January, 1975, confirming the order of removal of the petitioner from service made by the fifth respondent, the Executive Officer of Sri Subramaniaswami Temple, Vallimalai, North Arcot District as confirmed by the orders of respondents 2 and 3 and for quashing the same as illegal, incompetent and without jurisdiction.

2. The petitioner is a hereditary Miras Archaka in Sri Subramaniaswami Temple, Vallimalai in North Arcot District for over thirty years. According to the practice and custom in the temple in regard to emoluments and perquisites of the Archaka, the petitioner should be paid 50 per cent. of archana fees collected by the temple authorities by issue of archana tickets for the service rendered by him. He was suspended by the fifth respondent, the Executive Officer of the Devasthanam by order dated 20th April, 1971 with effect from 26th April, 1971 'till he was dismissed from service by a further order'. The petitioner was dismissed by the Executive Officer by his order dated 11th April, 1972, on the ground that his explanation was not acceptable and the reason given by him for his absence in the enquiry said to have been held on 11th January, 1972, was not acceptable. The appeal preferred by the petitioner before the Deputy Commissioner, Hindu Religious and Charitable Endowments against the order of the Executive Officer removing him from service was dismissed on 1st August, 1973. The revision petition filed by the petitioner before the Commissioner, Hindu Religious and Charitable Endowments, Madras against the order of the Deputy Commissioner was dismissed on 15th October, 1973, and the further revision preferred by the petitioner against the Commissioner's order was rejected by the Government by G.O. Ms. No. 22, Commercial Taxes and Religious Endowments Department dated 8th January, 1975.

3. The petitioner's case is that the Executive Officer has passed the order of dismissal and he has no right to do so, though he has power to suspend the servants of the temple, that no enquiry was held prior to the order of dismissal from service made on 11th April, 1972, and that the procedure prescribed in Section 56 (1) of the Tamil Nadu Act XXII of 1959 has not been followed, that is to say, the order of dismissal from service has not been made by the Board of Trustees of the temple. The petitioner has prayed for quashing the order of the first respondent confirming the orders of other respondents 2, 3 and 5 for the aforesaid reasons.

4. Respondents 1 to 3 contend that the allegation that no enquiry was held is false and that the orders of suspension and dismissal were passed only by the Board of Trustees of the temple and were merely communicated by the Executive Officer of the temple. They further contend that it is not necessary that the order of dismissal should be accompanied by a resolution of the Board of Trustees and that it is open to the petitioner to obtain a certified copy of the resolution of the Board of Trustees. It is further contended that the petitioner had expressed his unwillingness to appear at the enquiry on 11th January, 1972, and that the Board of Trustees have unanimously resolved to remove the petitioner from service and the decision to remove him from service has been m rely communicated by the Executive Officer.

5. The order dated 11th April, 1972, of the fifth respondent removing the petitioner from service with effect from 13th April, 1972, no doubt says that the Board of Trustees have unanimously resolved on 11th January, 1972, to remove the petitioner from service. The alleged unanimous resolution dated 11th January, 1972, of the Board of Trustees to remove the petitioner from service has not been produced. There is nothing on record to show that the order to remove the petitioner from service has itself been made by the Board of Trustees, though as stated earlier, the Executive Officer's order dated 11th April, 1972, refers to the unanimousresolution dated 11th January, 1972 of the Board of Trustees to remove the petitioner from service. A perusal of the Executive Officer's order dated 11th April, 1972, shows that the resolution to remove the petitioner from service is by the Board of Trustees and that the order to remove the petitioner from service in pursuance of that resolution is by the Executive Officer. Section 56 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 lays down that 'all office-holders and servants attached to a religious institution or in receipt of any emoluments or perquisite therefrom shall be controlled by the trustee and the trustee may, after following the prescribed procedure, if any, fine, suspend, remove or dismiss any of them for breach of trust, incapacity, disobedience of orders, neglect of duty, misconduct or other sufficient cause,' A perusal of the order of suspension itself shows that it has been made only by the Executive Officer and not by the Board of Trustees. It is also stated in that order thus:

It is hereby ordered that you are suspended from doing archakam service and receiving all your share of income, i.e., from 26th April, 1971, till you are dismissed from the service by further order.

This order shows that the Executive Officer had already decided to dismiss the petitioner from service even while suspending him from service with effect from 26th April, 1971 and without holding any enquiry which had not been held by that date. It is admitted that the petitioner had not admitted any of the charges framed against him and it is stated that his explanation was not accepted. Rule 2 of the Rules framed in exercise of the powers conferred by Section 56 of the aforesaid Act in S.R.O. No. A-584 of 1960 is inter alia to the effect that 'an oral enquiry shall be held if such an enquiry is desired by the person charged or is decided upon by the trustee and at that enquiry, oral evidence shall be heard as to such of the allegations as are not admited, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses, called as he may wish, provided that the trustee may, for special and sufficient reasons to be recorded in writing, refuse to call a witness or require the delinquent to hear the expenses of such witnesses.' No doubt, the records show that the petitioner had expressed his unwillingness to appear at the enquiry on 11th January, 1972. But since it is admitted that the petitioner had not admitted in his explanation, any of the charges framed against him, it was incumbent upon the Board of Trustees to hear the oral evidence in support of the charges framed against the petitioner notwithstanding the fact that he had not chosen to appear at the enquiry held on 11th January, 1972 and come to the conclusion that the charges have been proved he oral evidence not having been heard rule 2 of the aforesaid rules had not been complied with. Moreover, the order dated 11th April, 1972 of the Executive Officer, does not in terms say that the charges have been proved. Since the alleged resolution dated 11th January, 1972, of the Board of Trustees has not been produced and it has been only contended in the counter of respondents 1 to 3 that it is not necessary that the order of dismissal should be accompanied by the resolution of Board of Trustees and it is open to the petitioner to obtain a certified copy of the resolution, it has to be held that the respondents have not proved that any resolution was passed by the Board of Trustees on 11th January, 1972 for removing the petitioner from service. Moreover, the order of suspension with effect from 26th April, 1971 itself shows that the Executive Officer had decided on 20th April, 1971 itself that the petitioner should be dismissed, for that order says that he was being suspended from 26th April, 1971 till his dismissal from service by further order. Therefore, I am of the opinion that the principles of natural justice have not been complied with in this case, that no proper enquiry had been held before the petitioner was removed from service, that the order of dismissal passed by the Executive Officer of the Devasthanam is not in compliance with Section 56 (1) of the Act and that the petitioner is, therefore, entitled to the relief prayed for in this writ petition. The writ petition is accordingly allowed with costs. Advocate's fee Rs. 150.


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