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2014 Supreme(Mad) 915
High Court of Judicature at Madras
N. PAUL VASANTHAKUMAR, J.
B. Sethuramalingam
Versus
State of Tamil Nadu, rep.by its Secretary, Department of Tamil Development Culture, & Others
W.P. No. 5750 of 2011 & M.P. Nos. 1 & 2 of 2011
Decided On : 25-04-2014
Advocate Appeared:
For the Petitioner:T.S. Vijaya Raghavan, Advocate.
For the Respondents: S. Kandaswamy, Special Government Pleader (HR&CE).
The central legal point established in the judgment is that for imposing surcharge under Section 90(2) of the HR&CE Act, 1959, there must be a finding of willful or mala fide acts causing loss to the Temple, and the principles of natural justice must be followed in the proceedings.
Headnote:
Surcharge - HR&CE Act - Section 90(2) - Summary of Acts and Sections: Section 90(2) of the HR&CE Act, 1959 - The court discussed the provisions of Section 90(2) of the HR&CE Act, 1959, which deals with the initiation of surcharge proceedings against a Temple servant. The court highlighted the requirement for conducting an inquiry and proving willful or mala fide acts of the Temple servant causing loss to the Temple. The court emphasized the need for positive proof and the violation of principles of natural justice in the surcharge proceedings.
Fact of the Case:
The petitioner, an Executive Officer in a temple, retired and was later issued a show cause notice for surcharge of Rs.10,46,067 for alleged non-collection of bid amount. The petitioner denied the allegations and explained the steps taken to recover the amount. The third respondent passed the surcharge order without conducting an inquiry or providing a personal hearing to the petitioner.
Finding of the Court:
The court found that the surcharge proceedings were initiated without proving willful or mala fide acts of the petitioner causing loss to the Temple. The court also noted the violation of principles of natural justice in the proceedings.
Issues: The main issue was whether the surcharge proceedings against the petitioner were valid under Section 90(2) of the HR&CE Act, 1959.
Ratio Decidendi: The court held that for initiating surcharge proceedings against a Temple servant, an inquiry and positive proof of willful or mala fide acts causing loss to the Temple are required. The court emphasized the need for conducting an inquiry and proving guilt before imposing surcharge.
Final Decision: The court set aside the surcharge proceedings initiated by the third respondent and confirmed by the first respondent, allowing the writ petition.
1. By consent the writ petition is taken up for final disposal.
2. This writ petition is filed to quash the order of the third respondent dated 29.6.2009 imposing surcharge of Rs.10,46,067/-, which was confirmed in the order of the first respondent in G.O.Ms.No.649 dated 3.12.2010.
3. The facts necessary for disposal of this writ petition are as follows:
(a) Petitioner has joined in the services of HR&CE Department in the year 1985 as an Executive Officer Grade-III and he was promoted as Executive Officer Grade-II in the year 2000, and he retired as such on attaining the age of superannuation on 31.1.2008. During his tenure, he served in various Temples in the Districts of Cuddalore, Tanjore, Nagapattinam, Virudhunagar and finally at Salem.
(b) In Salem District he served as Executive Officer in Arulmigu Mariamman Temple, Sanjeevirayanpettai, Salem Taluk. The said Temple was administered by the Fit Person, the 8th respondent herein. The predominant income to the Temple is by way of collection of toll in the Temple market.
(c) According to the petitioner, for conducting auction pertaining to collection of toll in the Temple property, a resolution has to be passed by the Trustees of the Temple (Fit Person in this case) and based on the directions/resolution, the Executive Officer shall sent proposal to the Joint Commissioner to conduct auction and it is the general practice to request the presence of the Department officials viz., the concerned Inspector of the Temple and the Assistant Commissioner of HR&CE. The Joint Commissioner will permit the Executive Officer to conduct auction in the presence of the Inspector and Assistant Commissioner at the time of auction. The said two authorities shall independently send a detailed report confirming the conduct of auction. The auction papers will be placed before the Board of Trustees (Fit Person in this case) for confirmation and resolution will be passed.
(d) During the tenure of the petitioner as Executive Officer in the Arulmigu Mariamman Temple, Salem, he had conducted three auctions to collect toll for the periods from 1.7.2005 to 30.6.2006 (Fasli 1415); 1.7.2006 to 30.6.2007 (Fasli 1416); and 1.7.2007 to 30.6.2008 (Fasli 1417) respectively. Petitioner conducted auction for the above three periods by following the procedures stated above. For Fasli 1414 i.e, from 1.7.2004 to 30.6.2005, auction was conducted by the then Executive Officer.
(e) The auctions conducted by the petitioner for the above periods were also confirmed by the Fit Person, 8th respondent herein. One of the condition to the bidders participated in the auction was that the Auction Purchaser should make payment in one lumpsum. However, considering the ground realities, the officials in whose presence auctions were conducted, directed the petitioner to collect the auction amount in installments. The 8th respondent also passed resolution to collect the auction amount in installments. Petitioner implemented the said directions.
(f) Auction for Fasli 1417 was conducted on 17.6.2007 and confirmation was granted for a sum of Rs.16,09,999/-and the senior officials present at the time of auction permitted the petitioner to collect the amount in installments as per the practice in vogue for long time.
(g) On 31.1.2008 petitioner retired on attaining the age of superannuation and at that time, five months were remaining for expiry of the auction period i.e, 30.6.2008. Even prior to his retirement the petitioner sent several reminders to the Auction Purchaser to remit the amount payable for five months. After his retirement he could not collect the balance amount.
(h) A show cause notice was issued by the third respondent on 18.11.2008 asking as to why surcharge of Rs.28,23,347/- should not be imposed on the petitioner. Petitioner gave a reply on 1.12.2008 and without verifying any records an order was passed on 29.6.2009 by the third respondent to pay a sum of Rs.10,46,067/-by way of surcharge and directed
