IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.01.2011 CORAM THE HONOURABLE Mrs. JUSTICE R.BANUMATHI W.P.No.16672 of 2004 G.Sridharan ... Petitioner Vs. 1.The Commissioner, Hindu Religious and Charitable Endowment, Uthamar Gandhi Salai, Ungambakkam, Chennai-34. 2.The Joint Commissioner/Fit Person, B.Raja, Enquiry Officer, Arulmighu Vadapalani Andavar Thirukoil, Vadapalani, Chennai-26. 3.The Deputy Commissioner/Executive Officer, Arulmighu Vadapalani Andavar Thirukoil, Vadapalani, Chennai-26. ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue an appropriate Writ in the nature of a Writ of Certiorarified Mandamus, calling for the records of the 2nd Respondent in so far as the impugned order dated 26.03.2004 made in Na.Ka.No.86/97 A1 and quash the same and consequently reinstate the Petitioner as a Junior Assistant in the service of the 3rd Respondent temple with continuity of service and monetary benefits thereto. For Petitioner : Ms.G.Thilakavathi For Respondents : Mr.T.Chandrasekaran Spl. G.P. for R1 and R2 Mr.S.N.Varadarajan for R3 O R D E R
Being aggrieved by the impugned order of the 2nd Respondent in Na.Ka.No.86/1997 dated 26.03.2004 dismissing the Petitioner from service, Petitioner has filed this Writ Petition.
2. Brief facts are that Petitioner was employed as Junior Assistant in 3rd Respondent temple. On 30.01.1997, Hundiyal in the temple was opened for counting and counting was done by the temple staff including the Petitioner-Sridharan under the Supervision of officials. When counting was going on, the conduct of Petitioner aroused suspicion. Therefore, Petitioner was called to the office of 3rd Respondent-Executive Officer nearby and a search of the person was made by the Superintendent of the temple. At the time of search, it was found that Petitioner had hidden in his pant pocket and banian cash amounting to Rs.11,301/-. When questioned, Petitioner admitted his guilt and gave a statement that he had taken the said amount from the Hundiyal collections and requested the temple Authorities to pardon him. Immediately, he was placed under suspension and show cause notice was also issued to him. Regarding the theft, criminal case in C.C.No.775/2000 on the file of 17th Metropolitan Magistrate, Saidapet was registered and the same ended in acquittal, however the disciplinary proceedings continued. After adjourning the enquiry from time to time to various dates, domestic enquiry was conducted by the 2nd Respondent as Fit Person of the temple under Sec.56(1) of Hindu Religious and Charitable Endowments Act [HR & CE Act]. Reiterating his earlier explanation, Petitioner gave a written explanation on 27.10.1997. Petitioner had also participated in the enquiry. On the basis of materials and records and also the evidence placed before the Enquiry Officer, 2nd Respondent as Fit Person of 3rd Respondent temple has found that Petitioner has committed theft of sum of Rs.11,301/- belonging to the 3rd Respondent temple and caused loss to the temple. By the impugned order dated 26.03.2004, punishment of dismissal from service was ordered which is challenged by the Petitioner in this Writ Petition.
3. Writ Petition is resisted by the department contending that enquiry was held as per the procedure contemplated in G.O.Ms.No.4524, Revenue, dated 5.11.1960 and ample opportunity was given to the Petitioner to cross-examine the witnesses and that there is no infirmity in conducting the disciplinary proceedings and the impugned order.
4. Petitioner was suspended on 30.1.1997. Police complaint was given on 30.1.1997 against the Petitioner for the theft committed by him and Petitioner was arrested on the same day. Petitioner gave his explanation on 27.10.1997. Criminal case in C.C.No.775/2000 on the file of 17th Metropolitan Magistrate, Saidapet, Chennai ended in acquittal on 08.11.2002. Thereafter, Petitioner has filed W.P.No.6396/2003 seeking Writ of Mandamus for reinstatement and the said Writ Petition was disposed on 22.04.2003 directing the temple to pay subsistence allowance and also to complete the enquiry within four months. Alleging failure to pay subsistence allowance, Petitioner filed Contempt Petition in C.P.No.904/2003 and the said Contempt Petition was disposed of on 14.11.2003 directing to pay the subsistence allowance from 21.08.1997 to 31.04.2003 within a period of eight weeks.
5. Contention of Petitioner is that even though Petitioner was placed under suspension, subsistence allowance was not paid to him. Further contention of Petitioner is that he is entitled to subsistence allowance from 30.01.1997 and that he was languishing without any employment or means to sustain himself and therefore, non-payment of subsistence allowance would vitiate the disciplinary proceedings.
6. As pointed out earlier even though Petitioner was placed under suspension on 30.01.1997, he has not immediately made any representation claiming subsistence allowance. In his written representation dated 27.10.1997, Petitioner has only alleged that his signature was obtained under threat by the then Joint Commissioner and then no grievance about non-payment of subsistence allowance.
7. It is fairly well settled that mere non-payment of subsistence allowance would not ipso facto vitiate the disciplinary proceedings. It has to be specifically pleaded and established as to in what way the affected employee is handicapped because of non-receipt of subsistence allowance. Unless that is done, it cannot be held as absolute proposal in law that non-payment of subsistence allowance amounts to denial of opportunity vitiating the departmental proceedings [Vide – AIR 2004 SC 248 [Indra Bhanu Gaur v. Committee, Management of M.M. Degree College and others]
8. Petitioner has not pleaded and established as to how non-payment of subsistence allowance from 1997 to 2003 has caused prejudice to him particularly, in conducting the disciplinary proceedings. After the criminal case ended in acquittal in 2002, disciplinary proceedings continued only in 2003. After the Contempt Petition was filed during the period of enquiry, subsistence allowance was paid to the Petitioner. There is no force in the contention of the Petitioner that non-payment of subsistence allowance vitiates the disciplinary proceedings.
9. Criminal case ended in acquittal on 08.11.2002. Placing reliance upon 2005-II LLJ 307 [Union of India rep. by its Commissioner of Income Tax, Tamil Nadu-I, Chennai and another v. Central Administrative Tribunal rep. by its Registrar, Chennai and another], learned counsel for Petitioner contended that after the acquittal in the criminal case, the Authority has to apply its mind and see whether sufficient ground exists for continuing the departmental enquiry and in the instant case, there was no such application of mind and therefore, continuation of disciplinary proceedings is not justifiable.
10. In response, learned counsel for 3rd Respondent has submitted that criminal case ended in acquittal mainly because of non-examination of material witnesses like Joint Commissioner-Dhanapal and temple Superintendent-Subbarajan who searched the Petitioner. As rightly pointed out by the learned counsel for 3rd Respondent, criminal case ended in acquittal mainly by giving benefit of doubt to the Petitioner.
11. It is fairly well settled that criminal prosecution and departmental proceedings are different, distinct and independent and decision in one does not ipso facto result in decision in the other. The object of criminal trial is to punish the offender while the object of departmental action is to enforce discipline. It is therefore, incorrect to conclude that both the proceedings cannot simultaneously be proceeded with or acquittal of an accused in a criminal trial would necessarily result in exoneration of a workman/employee in departmental proceedings.
12. The Supreme Court consistently held that acquittal in criminal case would be no bar for drawing up the disciplinary proceeding against the delinquent officer. It is well settled principle of law that the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities [Vide AIR 2007 SC 199 (Suresh Pathrella v. Oriental Bank of Commerce) and AIR 2007 SC 1161 (Noida Entrepreneurs Assn. v. Noida and others)].
13. As pointed out earlier, criminal case ended in acquittal mainly because of non-examination of material witnesses. But in the disciplinary proceedings (i) P.Dhanapal, Jt. Commissioner & Fit Person; (ii) Subbarajan, Superintendent; (iii) S.Selvam, Assistant and (iv) Kaliyan, Assistant were examined as departmental witnesses. Jt. Commissioner-Dhanapal was cross-examined by the Petitioner and Petitioner did not cross-examine others. On examining the Judgment in the criminal case, Disciplinary Authority must have learnt that criminal case ended in acquittal mainly because of non-examination of material witnesses and giving benefit of doubt to the Petitioner. Having regard to the gravity of charge, it cannot be said that there was non-application of mind by the department in continuing the disciplinary proceedings.
14. Learned counsel for Petitioner mainly contended that the impugned order was passed by the Fit Person/Jt. Commissioner [2nd Respondent] and as per Sec.56(1) of HR & CE Act, the servants of the temple are punishable only by its Trustees and not by the Fit Person. Learned counsel for Petitioner contended that the order passed by the 2nd Respondent-Fit Person is without jurisdiction since only the Trustees can punish the Petitioner and lack of jurisdiction vitiates the impugned proceedings.
15. Ofcourse under Sec.56(1) of HR & CE Act, the servants of the temple are punishable only by its Trustees and not by the Executive Officer. Sec.47(1) of HR & CE Act provides for constitution of Board of Trustees by the specified authorities in specified contingencies in respect of the institutions having no hereditary trustees. As per proviso to Sec.47(1) (c) pending constitution of Board of Trustees, Government, Commissioner or Joint Commissioner or Deputy Commissioner may appoint a Fit Person to perform the functions of Board of Trustees. Pending constitution of such Board of Trustees where Fit Person was appointed, 2nd Respondent-Fit Person was competent to perform the functions of Board of Trustees. There is no force in the contention that the order passed by the 2nd Respondent-Fit Person lacks jurisdiction.
16. Learned counsel for Petitioner nextly contended that copies of statement of witnesses was not furnished to the Petitioner to enable him to cross-examine the witnesses. Learned counsel would further contend that only on 08.12.2003, Petitioner was permitted to have an assistant and on a single day [08.01.2004], four witnesses were examined and enquiry was adjourned to 22.1.2004. It was contended that on 22.1.2004, Petitioner has given a letter asking for copies of deposition of witnesses and the matter was adjourned to 05.02.2004 and Petitioner was not served with copies and on 05.02.2004, two witnesses were examined and final orders was passed. According to Petitioner, non-furnishing of copies of deposition of witnesses is in violation of principles of natural justice. It was further contended that after the conclusion of enquiry, enquiry report was not furnished to the Petitioner nor second show cause notice was issued to him which would again vitiate the impugned proceedings.
17. In so far as holding enquiry of office-holders and servants of religious institutions, G.O.Ms.No.4524, Revenue dated 05.11.1960 lays down the procedure which reads as under:-
“1. ….
2. (a) No order imposing any punishment other than a fine under sub-section (1) of section 56 (other than an order based on facts which have led to his conviction by a criminal court) shall be made against any office-holder or servant unless he has been informed, in writing, of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged, together with statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders in the case. He shall be required within a reasonable time, to put in a written statement of his defence and to state whether he desires an oral enquiry or only to be heard in person. An oral enquiry shall be held if such an enquiry is desired by the person charged or is decided upon by the trustee. At that enquiry, oral evidence shall be heard as to such of the allegations as are not admitted, and the person concerned shall be entitled to cross-examine 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 reason to be recorded in writing, refuse to call witness or require the delinquent to bear the expenses of such witnesses. After the enquiry has been completed, the person charged shall be entitled to put in, if he so desires, any further written statement of his defence. If no oral enquiry is held and if he had desired to be heard in person, a personal hearing shall be given to him. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. Every order of suspension, removal or dismissal shall state the charges, the explanation and the finding on each charge with the reasons therefor.
(b) In every case, where it is proposed to impose fine on the office-holder or servant, he shall be given a reasonable opportunity of showing cause against the action proposed to be taken against him.
3. The requirements of rule 2 shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him. All or any of the provisions of rule 2, may, in exceptional cases for special and sufficient reasons to be recorded in writing, be waived by the trustee, where there is difficulty in observing exactly the requirements of the rule and those requirements can be waived without injustice to the person charged.
4. Pending the disposal of the grave charges against the office-holder or servant, the trustee may place him under suspension when such suspension is necessary in the interest of public service.
5. Every order of punishment under sub-section (1) of section 56 shall be communicated in writing to the person against whom it is passed.”
18. Contention that non-furnishing of copies of deposition of witnesses is in violation of principles of natural justice does not merit acceptance. As pointed out earlier on 08.12.2003, Petitioner was permitted to have a assistant. Enquiry was held on 08.1.2004 on which date (i) V.Dhanapal, Jt. Commissioner & Fit Person; (ii) Subbarajan, Superintendent; (iii) S.Selvam, Assistant; and (iv) Kaliyan, Assistant were examined and Jt. Commissioner-Dhanapal was cross-examined by the Petitioner, but he did not cross-examine others. Only on 22.01.2004, Petitioner gave a letter asking for copies of deposition of witnesses. On 08.01.2004, witnesses were examined in the presence of Petitioner and the gist of their evidence was well known to the Petitioner. Therefore, non-furnishing of copies of deposition of other witnesses cannot said to have caused prejudice to the Petitioner. Enquiry was adjourned to 05.02.2004 which was also well known to the Petitioner. But on 05.02.2004, Petitioner did not choose to be present. On 05.02.2004, (i) N.Thirumagal, Asst. Commissioner, HR & CE and (ii) Raman, Asst. Commissioner & Executive Officer were examined. Petitioner having participated in the enquiry on 05.02.2004, now cannot complain of violation of principles of natural justice.
19. The procedure contemplated in G.O.Ms.No.4524, Revenue dated 05.11.1960 has been substantially complied with. In exceptional cases, requirement of rule can be waived without injustice to the person charged. Grave charges were levelled against the Petitioner that he had committed theft of Hundiyal collection. Petitioner was already under suspension for more than 7 years. In such facts and circumstances of the case, non-furnishing of enquiry report and non-issuing of second showing cause notice would not vitiate the enquiry proceedings. Grievance of Petitioner as to non-affording opportunity show action proposed to be taken against him. Having regard to the gravity of charges, it cannot be said that it has caused serious prejudice to the Petitioner.
20. In the final order, evidence of all the witnesses were extracted and the 2nd Respondent examined the matter in detail and passed an elaborate order. Exercising jurisdiction under Article 226 of Constitution of India, High Court cannot sit as a Court of Appeal and examine the sufficiency or otherwise of the matter. When findings of the Disciplinary Authority is based on materials, the same cannot be interfered with. Petitioner has not made out any valid ground for interference and the Writ Petition is liable to be dismissed.
21. In the result, the Writ Petition is dismissed. No costs.
bbr
To
1.The Commissioner,
Hindu Religious and Charitable Endowment,
Uthamar Gandhi Salai,
Ungambakkam, Chennai-34.
2.The Joint Commissioner/Fit Person,
B.Raja, Enquir Officer,
Arulmighu Vadapalani Andavar Thirukoil,
Vadapalani, Chennai-26.
3.The Deputy Commissioner/Executive Officer,
Arulmighu Vadapalani Andavar Thirukoil,
Vadapalani,
Chennai 26