K. VINAYAKAREDDI Vs. STATE OF ANDHRA PRADESH, HOME (ENDOWMENTS II) DEPT, REPRESENTED BY ITS SECRETARY AND OTHERS

JUDGEMENT

(1.) The petitioner, an employee of the Tirumalai Tirupati Devasthanams is alleged to have behaved rudely to a lady pilgrim on 26-5-1962. The Executive Officer of the Devasthanam placed him under suspension on 28-5-1962 and served a charge memo on him on 30.5-1962 setting out the allegation against him and calling upon him to show cause within three days why he should not be dismissed from service. It is further stated in the notice that if no explanation is received within the stipulated time orders will be passed with reference to the material available. The notice also requires him to state if he desires an oral enquiry or only to be heard in person. The petitioner submitted his explanation, but did not however ask for an oral enquiry. He was satisfied with a personal hearing which was given to him and at which he was allowed to peruse the statements recorded from the pilgrims. The Executive Officer passed order on 9-6-1962 dismissing the petitioner from service. Thereupon the petitioner preferred an appeal to the Board of Trustees of the Devasthanams under S. 88 (2) of the Hindu Religious and Charitable Endowments Act of 1151. The board did not give the petitioner any bearing, nor did it intimate to him the date on which the appeal would be considered. On 14-7-1982 he was informed by the Executive Officer that the Board has passed a resolution on 13-7-1962 rejecting his appeal. Borne of the main complaints of the petitioner in this Writ Petition are that the Board did not give him any hearing, that while he was not present at the time when the Board considered his appeal the Executive Officer who had passed orders dismissing him was present at the meeting to guide the Board and that the Board gave no reasons for rejecting his appeal and he was therefore hampered in filing an appeal to the Commissioner for the Hindu Religious and Charitable Endowment. After receiving the communication from the Board the petitioner preferred an appeal under S. 83 (3) of the Act to the Commissioner for Hindu Religious and Charitable Endowments. He requested the Commissioner to permit bis counsel to address arguments on his behalf, but the Commissioner turned down the request and rejected the appeal without bothering to consider on merits the petitioners explanation. A Revision petition to the Government also having proved futile the Government also not considering his explanation on merits, the petitioner has filed an application for the issue of a writ of Certiorari to quash the several orders passed against him.

(2.) The first contention raised before me by Mr. Venugopala Reddy for the petitioner is that he was not given a reasonable opportunity by the Executive Officer, as there was no oral enquiry at which he could cross-examine the witnesses and since as revealed by the charge memo, the Executive Officer had made up his mind to punish him even before receiving his explanation. The charge memo issued to the petitioner was in accordance with the rules framed under S. 49 of the Hindu Religious and Charitable Endowments Act. Unlike Art. 311 of the Constitution and other Service Rules dealing with discipline and punishment, this rule does not provide for the usual double opportunity. Rule (1) in so far as it is relevant runs as follows:

(3.) It is clear that where the punishment proposed is a fine the procedure prescribed under Cl. (b) has to be followed: where the punishment proposed is other than fine the procedure prescribed under Cl. (a) has to be followed. This necessary implies that before the commencement of the enquiry the enquiring officer must come to a tentative decision as to the punishment which may be inflicted if the charges are proved. This does not and cannot mean that the enquiring officer has already made up his mind to punish the accused officer, but is only intended to warn the accused of the nature of the punishment likely to be imposed if the charges are proved. This is obviously because a second opportunity is not provided by the rule. This is not unlike a Magistrate adopting warrant procedure instead of summons procedure to try a case. It can never mean that by adopting a warrant procedure the Magistrate has made up his mind to convict an accused person of a major offence. Mr. Venugopala Reddy referred me to the decisions Mohan Das Vs. Superintendent of Police, Khammanath, (1967) 1 And W R 156 and State of Andhra Pradesh represented by its Secretary for Home Department Gov. ernment of Andhra Pradesh, having its Office at Saifabad, Hyderabad Vs. S. K. H. Khan, (1967) 2 Andh W R 121 where it has been held that an accused officer cannot be said to have been given a reasonable opportunity if the enquiring Officer has made up his mind from the very beginning and has even decided upon punishment to be imposed. They are oases where under Art. 311 of the Constitution and the relevant Departmental Rules the accused Officer had to be given a double opportunity and those cases cannot have any bearing on a situation governed by rules like the present rules where the usual double opportunity is not contemplated. The Executive Officer has strictly followed the rule and I do not think any grievance can be made of it. Nor is there any substance in the argument that no oral enquiry was held since the petitioner vas expressly asked whether he wanted an oral enquiry or a personal hearing and he chose the latter.