BALAKRISHNAN NAIDU V K Vs. STATE OF MADRAS

JUDGEMENT

(1.) THIS appeal from the judgment of Jagadisan, J., raises an important question as to the scope of disciplinary proceedings initiated by the Government against their servants. The appellant was employed since the year 1942 as a lower division clerk and later as an inspector under the Hindu Religious Endowments Board. On 30 September, 1951, by reason of the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951, the Board was abolished and the control of the endowments, religious and charitable, was taken over by the Government. Under S. 104 of that enactment, such members of the Board as the Government might consider suitable may be appointed by the Government in their discretion to any offices provided for in the Act to which they may be deemed qualified. Sub-clause (2) of that section states that the conditions of service of persons so appointed shall be regulated by rules made by the Government from time to time as if they had entered service of the Government on the date of the first entertainment as a member of the Board or as its subordinate as the case may be. The appellant was one of those taken by the Government for service in their department. On 21 November, 1955 the Tribunal for Disciplinary Proceedings initiated proceedings against the appellant charging him of having misappropriated certain sums of money under the pretext that they were drawn for payment of salary of a bill collector when actually no such bill collector was in service. An adequate opportunity was given to the appellant to meet the charge. The tribunal found the charge to be proved and ultimately the Government removed the employee from service.The appellant thereupon filed an application under Art. 226 of the Constitution for quashing the order of the Government. His complaint was twofold : first, that as he should be deemed to have been in Government service only as and from 30 September, 1951, when he came to be entertained as a Government servant, any misconduct on his part while serving under the Hindu Religious Endowments Board could not legitimately form the subject-matter of a charge by the Government and second, that even during the period when he was alleged to have drawn moneys for payment of salary to the bill collector, there were complaints in regard to the matter which were investigated by one of the Commissioners of the Hindu Religious Endowment Board and found to be baseless.During the course of the disciplinary proceedings the appellant applied for the production of the file relating to that enquiry, but the Government were unable to produce it as it was not traceable.

(2.) THE appellant contended that inasmuch as that file had not been produced, it could not be held that he was given a fair opportunity to meet the charge against him.Jagadisan, J., held against the appellant on both the points. Taking up the latter question first, we accept the learned Judge's view that the Government not being in a position to trace the file, no inference, by reason of its non-production, can be drawn in favour of the appellant. It is disclosed by the record that the Tribunal for Disciplinary Proceedings had other evidence before it on which it could come to the conclusion that the appellant had drawn moneys for payment of salary of an alleged bill collector who was not in employment at all and thereby misappropriated that amount. This finding of fact cannot, in our view, be interfered with in these proceedings.THE more substantial question for consideration is whether it would be open to the Government to initiate proceedings against their employee in respect of an offence alleged to have been committed anterior to the time when he took up the service under the Government. It cannot be denied that the complaint in this case is against the probity of the employee and as such, it will be open to the Government to investigate the matter and very probably if they were aware of the fact that the appellant had been guilty of such misconduct when it decided to take him over to Government employ from 30 September, 1951, they would not have selected him to serve under them. This consideration apart, it is plain that S.104(2) of the Hindu Religious and Charitable Endowments Act creates a fiction by which an employee under the Hindu Religious Endowments Board who is taken into service by the Government after the new Act came into force, will have to be treated as if he had entered service under the Government on the date of his first entertainment by the Board.