Telangana High Court
WP/6484/2009 of Ch. Jai Shankar Vs The Commissioner of Endowments on 30 December 2014
CHALLA KODANDA RAM + WRIT PETITION No.6484 OF 2009 %30.12.2014 # Ch. Jai Shankar ..... Petitioner And The Commissioner of Endowments, Government of A.P., Tilak Road, Hyderabad and another .....Respondents ! Counsel for the appellants: Sri Ch. Kanaka Durga ^ Counsel for respondent No.1:
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Conclusion
*HON’BLE SRI JUSTICE CHALLA KODANDA RAM
+ WRIT PETITION No.6484 OF 2009
%30.12.2014
Ch. Jai Shankar
And
..... Petitioner
The Commissioner of Endowments, Government of A.P., Tilak Road,Hyderabad and another
.....Respondents
! Counsel for the appellants: Sri Ch. Kanaka Durga^ Counsel for respondent No.1: Government Pleader^ Counsel for the respondent No. 2: Sri Ch. Satish Kumar, Standing Counsel for Endowments.
< Gist:
> Head Note:
? Cases referred: 2008(3) ALD 372 (FB)
HONOURABLE SRI JUSTICE CHALLA KODANDA RAM
ORDER:
WRIT PETITION No.6484 OF 2009
The writ petition is filed challenging the memo dated 09.03.2009issued by the first respondent directing the 2[nd] respondent to takesuitable disciplinary action against the delinquent (petitioner) as perthe rules.
The brief facts relevant for the purpose of this case are that thepetitioner is a Superintendent working in the 2[nd] respondent temple. Indischarge of his duties he is alleged to have committed certainirregularities and in that connection a charge memo containing eightcharges was issued on 12.06.2008. Thereafter an Enquiry Officer was appointed and the Enquiry Officer said to have been submitted hisreport with a finding that the Charge Nos.2,5,7 and 8 are proved. However, disciplinary authority on going through the enquiry reportfound that there was no case made out against the petitioner and thusdropped the charges by order dated 12.06.2008. By an order dated6.2.2009, the Commissioner purporting to be in exercise of powersconferred under Section 38 of The Andhra Pradesh Charitable &Hindu Religious Institutions & Endowments (for short, ‘he Act’)directed the 2[nd] respondent disciplinary authority to revisit the enquiryreport and take appropriate action.
Sri Guru Gopal, Advocate appearing for Smt Ch. Kanakadurga,the learned counsel appearing for the petitioner contends that thepurported exercise of the powers by the first respondent under Section38 of the Act is totally unsustainable in the facts of this case and furtherhe contends that Section 38 of the Act contemplates only in caseswhere no action has been taken with respect to the matters mentionedtherein of the subordinate authorities but not in cases where action hasalready been taken and an order on merits has been passed. He alsosubmits that in the matters of disciplinary proceedings, there cannot beexercise of powers under Section 38 of the Act as disciplinary authorityis required to consider the material on record independently and hisdecision cannot be the subject matter of further revision or scrutiny bythe Commissioner. To support his contention, he places reliance onthe judgment of this Court reported in N. Ravindra Murthy v. Shri Veerabhadra Swamy Temple, Bonthupally, Medak District[[1]].
On the other hand, learned Government Pleader for the 1[st]respondent contends that even assuming without conceding forarguments sake under Section 38 of the Act, the Commissioner doesnot have the jurisdiction to direct the disciplinary authority to revisit theorder of exoneration such power is specifically conferred under Sections 2 and 8 of the Act. She further points out that it is not thecase that the enquiry officer had given a clean chit and did not findthat there were no material against the petitioner and charges havingnot been proved. Particularly he draws the attention of this Court topara No.6 of the Counter wherein it has been stated that the charges2,5,7 and 8 have been proved.
Sri Satish, learned counsel appearing for the 2[nd] respondentsubmits that the 2[nd] respondent being the disciplinary authority at thisstage has no submission to make as primary case involving thejurisdictional issue in relation to the powers of the Commissioner.
Facts
Facts are not in dispute and the issue lies in very narrowcompass. A combined reading of Sections 37 and 38 of the Act, leaveno manner of doubt that the Commissioner has been given powerunder Section 38 of the Act to take action either directly or by directingthe respective authorities where the Commissioner finds that there isan element of laxity in the proceedings conducted by his subordinatesmentioned in the Section. As a matter of fact exercise of power underSection 38 of the Act is directly relatable to the matters mentioned inSection 37(1) of the Act. However, this power is limited to takingaction in relation to the case where there is omission and commissionin relation to involvement of breach of trust, misappropriation,incapacity, disobedience of orders, misconduct, violation of the Codeof Conduct or for any other sufficient cause. In other words, the powerunder Section 38 is no way relatable directly or otherwise with respectto the matters where an action has been proposed and taken likeinitiation of disciplinary proceedings and culmination of the same inone way or the other. In a case where a punishment is imposed underSection 37(1) of the Act such order being an appealable order underSection 37(3)(a) of the Act, Commissioner in exercise of powers underSection 38 of the Act cannot visit such order either directly or indirectly. There could be many other instances and situations wherepowers under Section 38 of the Act could be exercised by theCommissioner. However, we are not concerned with the present casein respect of the same. While there being no doubt in my opinion thatexercise of powers under Section 38 of the Act is impermissible in thefacts of this case Section 92 of the Act definitely confers such power inthe Commissioner to direct the disciplinary authority to revisit theorders passed by him in exercise of the powers under Section 37 ofthe Act. While so the exercise of power under Section 92 of the Actwhich being a general supervisory power is hedged with certainconditions for exercise of the same. Admittedly in the present case,the procedural requirement under Sub Section 2 of Section 92 of theAct has not been complied with. On that ground, the impugned ordercannot be sustained even under Section 92 of the Act. The impugnedorder is purported to have been made in exercise of the powers underSection 38 of the Act. Though a reference is made to Section 38 of theAct once it is possible to conceive that such order could be madeunder Section 92 of the Act, mere reference of wrong provision doesnot by itself make the order invalid. It is well settled that the referenceof a wrong provision does not invalidate an act in case where suchpower does exist and the action can be traceable to another provisionof the Act.
In the circumstances, the writ petition is allowed. However, therespondents are given liberty to take appropriate action by passingappropriate orders duly following the procedure prescribed under theAct. There shall be no order as to costs. Miscellaneous petitions, ifany, pending in the writ petition, shall also stand closed.
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JUSTICE CHALLA KODANDA RAMDate:30.12.2014Gk.
THE HONOURABLE SRI JUSTICE CHALLA KODANDA RAM
WRIT PETITION No.6484 OF 2009
Gk.
Date:30.12.2014.
[1]2008(3) ALD 372 (FB)