T.V. Velayudhan vs Assistant Commissioner, Hindu Religious and Charitable Endowments (Administration) Department and Another

K.S. Palaniswamy, J.—The petitioner, who was appointed as an Executive Officer, under the Madras Hindu Reglious and Charitable

Endowments Act, 1959 (hereinafter referred to as the Act), served as an Executive Officer in Thanjavur in the year 1966 and on transfer he

served in Sri Arasaba Vimohana Perumal Temple and Sri Prahmasira Kadeeswaraswami Temple, Kandiyur, Thanjavur Taluk from June, 1969 to

August, 1969. Subsequently, he was transferred to Tiruchirapalli district, where he was serving as Executive Officer in Sri Madanagopalaswami

Temple, etc., Perambalur. The Assistant Commissioner, Kumbakonam, framed certain charge against the petitioner with regard to his work as

Executive Officer at Thanjavur and placed the petitioner under suspension pending enquiry by order dated 14th February, 1970. Against this

order, the petitioner preferred a revision to the Commissioner, who, by order dated 24th March, 1970, dismissed the revision. In this writ petition,

the petitioner challenges the jurisdiction of the Assistant Commissioner, Kumbakonam, to pass the order of suspension. His contention is that the

authority competent to suspend him is only the Commissioner and that, in any event, as he was--serving at the time of the order of suspension--

within the jurisdiction of the Assistant Commissioner, Tiruchirapalli, the Assistant Commissioner, Kumbakonam, has no jurisdiction to suspend him

pending enquiry--even though the charges relate to his work as Executive Officer at Thanjavur.

The Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, the second respondent, alleged in his counter-

affidavit--that u/s 45 of the Act he had delegated his powers of disciplinary action including suspension in favour of Assistant Commissioner that by

virtue of the delegation, the Assistant Commissioner, Kumbakonam, was competent to frame charges against the petitioner and place him under

suspension pending enquiry, that in any event the petitioner being a Government servant is governed by the Civil Services (Classification, Control

and Appeal) Rules and that the Assistant Commissioner, Kumbakonam, under whom the petitioner was serving at the time when the alleged lapses

were noticed, was competent to place the petitioner under suspension, even though the petitioner was serving at the time of suspension under the

jurisdiction of a different Assistant Commissioner.

The Act creates certain authorities for discharging various functions. Section 8 enumerates the authorities, one among them being the Assistant

Commissioner. u/s 14 (1) power is conferred upon the Commissioner to divide, with the previous approval of the Government, the State into

divisions, each of which shall be in charge of an Assistant Commissioner. Sub-section (2) of that section states that an Assistant Commissioner

shall exercise the powers conferred and discharge the duties imposed on him by the Act or the rules made thereunder in respect of his division.

Sub-section (a-A), which was inserted by Madras Act XVII of 1968, inter alia provides that without prejudice to the provisions of Sub-section

(a), an Assistant Commissioner shall exercise the powers conferred and discharge the duties imposed on him by the Act or the rules made

thereunder in respect of all temples situated in his division other than temples included in the list published u/s 46. Section 45 confers power upon

the Commissioner to appoint, subject to such conditions as may be prescribed, an Executive Officer for any religious institution other than a math

or a specific endowment attached to a match. The Executive Officer is required to discharge such duties as may be assigned to him by the

Commissioner. Sub-section (4) confers power upon the Commissioner, for any good and sufficient cause, to suspend, remove or dismiss an

Executive Officer. Sub-section (3) of Section 14 confers upon the Commissioner to delegate to an Assistant Commissioner any of the powers

conferred or duty imposed on him under the Act, except the powers and duties referred to in certain sections. Among the sections so excluded,

Section 45 is not one. Thus, u/s 14 (3), the Commissioner has got authority to delegate his power of suspension, removal or dismissal of an

Executive Officer in favour of Assistant Commissioners. By virtue of this power, the Commissioner, by proceedings dated 6th February, 1968

delegated his power of suspension to the Assistant Commissioners in respect of non-listed institutions. The institutions in which the petitioner has

served were admittedly non-listed. It is by virtue of this power of delegation that the Assistant Commissioner of Kumbakonam has purported to

take action against the petitioner and suspended him pending enquiry into the charges framed against him.

Mr. R. G. Rajan, appearing for the petitioner, put forward two contentions challenging the authority of the Assistant Commissioner,

Kumbakonam, to pass the impugned order. Firstly, he contended that u/s 45 (4), what is contemplated is suspension as substantive punishment

and not suspension pending enquiry and that, therefore, on the basis of the delegation made by the Commissioner, no Assistant Commissioner can

suspend an Executive Officer pending enquiry. His second contention was that even if an Assistant Commissioner has got power to suspend an

Executive Officer pending enquiry, such power can be exercised only by the Assistant Commissioner under whose jurisdiction the delinquent

officer for the time being serves and riot an Assistant Commissioner under whose jurisdiction the delinquent officer was serving at the time of the

alleged lapses.

It is true that Sub-section (4) of Section 45 does not explicitly state that suspension in substantive punishment as also suspension pending

enquiry. The expression found is ""the Commissioner may, for good and sufficient cause, suspend... executive officer."" In the absence of any

indication as to whether suspension is only by way of substantive punishment, it should be given its natural and liberal meaning for the purpose of

giving effect to the provision. An Executive Officer may be found to have embezzled large amount in the discharge of his duties. To avoid further

embezzlement, it is necessary to suspend him pending enquiry. That would be a good and sufficient cause to suspend the officer pending enquiry.

To hold that suspension can be imposed only by way of substantive punishment would defeat the purpose for which the power of suspension is

conferred upon the authority. To hold that the power of suspension included not only suspension by way of substantive punishment but also

suspension pending enquiry in no way affects the intention underlying the provision. Even looking at from the powers of the Commissioner, I am of

the view that he has got power to suspend an executive officer pending enquiry. Under subsection (1) of Section 45 the Commissioner has got

power to appoint executive officers. The question whether pending departmental enquiry, the appointing authority has got the power to suspend

has been the subject of consideration by the Supreme Court in a number of decisions. The general law on the subject of suspension pending

enquiry has been laid down by the Supreme Court in The Management of Hotel Imperial, New Delhi and Others Vs. Hotel Workers'' Union, , and

T. Cajee v. U. Jormanik Siem (1960) 1 S.C.R. 750. These two cases have laid down that it is well-settled that under the ordinary law of master

and servant the power to suspend the servant without pay could not be implied as a term in an ordinary contract of service between the master and

the servant but must arise either from an express term in the contract itself or a statutory provision governing such contract. It was further held that

an order of interim suspension could be passed against an employee while enquiry was pending into his conduct even though there was no specific

provision to that effect in his terms of appointment or in the rules. But in such a case he would be entitled to his remuneration for the period of his

interim suspension if there is no statute or rule existing under which it could be withheld. On general principles, the authority entitled to appoint a

public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending criminal proceeding which may

eventually result in a departmental enquiry against him. This general principle is illustrated by the provision in Section 16 of the General Clauses Act

(X of 1897), which lays down that where any Central Act or Regulation gives power of appointment that includes the power to suspend or dismiss

unless a different intention appears. Though this provision does not directly apply in the present case, it is in consonance with the general law of

master and servant. That principle was reiterated by the Supreme Court in R.P. Kapur Vs. Union of India (UOI) and Another, . I am, therefore, of

the opinion that under subsection (4) of Section 45 the Commissioner may, for good and sufficient cause suspend an Executive Officer pending

enquiry.

By virtue of the power conferred on him under Sub-section (3) of Section 14, the Commissioner delegated to Assistant Commissioner his

power of suspension of executive officers. The relevant portion of the order of delegation reads thus:

The Commissioner... hereby delegates to the Assistant Commissioner, the powers conferred and duties imposed on him under Sub-section (4) of

Section 45 of the said Act, in respect of non-listed institutions notified under Chapter VI of Madras Act XXII of 1959, namely, the power to

suspend the Executive Officers, including the Executive Officers....

Mr. Rajan, appearing for the petitioner, contended that this delegation was invalid and could not confer power upon the Assistant Commissioner to

suspend an executive officer. His argument was that though the Commissioner is given the right to delegate his powers, such delegation should be

not only with reference to taking action by way of suspension, removal or dismissal but also should include the power to appoint. His argument

was that the Commissioner cannot, while retaining the power of appointment, delegate only the power to suspend, remove or dismiss an executive

officer. I am unable to accept this argument. Though the power to suspend, remove or dismiss an executive officer arises out of the right to appoint

such an officer, it does not mean that the delegation of that power can be effective only if it includes the power to appoint also. As a matter of fact,

in the order of delegations, the commissioner did not completely divest himself of his power to suspend. The order of delegation makes it clear that

the Commissioner also could exercise the power of suspension under Sub-section (4) of Section 45. Mr. Rajan contended that under Article 311

of the Constitution, the authority competent to dismiss or remove a member of a civil service, is the authority by which the member of the civil

service was appointed and this power cannot be exercised by any authority subordinate to the authority by whom the concerned member of the

civil service was appointed. It is unnecessary to consider this question in this case, for, the Commissioner has not delegated his power of removal

or dismissal of an executive officer. All that he has delegated is only the power to suspend. Thus, the order of delegation is in no way vitiated.

It is next contended on behalf of the petitioner that even if the Assistant Commissioner has got power to suspend by virtue of the delegation

made by the Commissioner, the Assistant Commissioner, who could exercise the power, is one under whom the delinquent for the time being is

serving and not the Assistant Commissioner under whom the delinquent was previously working. In the instant case, the petitioner has been

suspended by the Assistant Commissioner of Kumbakonam at the time when he was serving under the Assistant Commissioner, Tiruchirapalli. But

the charges relate to the work of the petitioner during the period when he was serving under the Assistant Commissioner, Kumbakonam. It is for

this reason that the Assistant Commissioner, Kumbakonam, passed the order of suspension. Mr. Rajan contended that having regard to the

scheme of Section 14, an Assistant Commissioner, exercising his jurisdiction over a particular division only, cannot claim to exercise power of

disciplinary control over a subordinate working in another division, even though at one time previously the said subordinate was working in his

jurisdiction. Section 14 confers power upon the Commissioner to divide the State into divisions. Sub-section (1) says that each division shall be in

charge of an Assistant Commissioner. Sub-section (2) says that an Assistant Commissioner shall exercise the powers conferred and discharge the

duties imposed on him by the Acts or the rules made thereunder in respect of his division. Placing reliance upon this provision, Mr. Rajan

contended that an Assistant Commissioner can exercise his powers only in respect of his division and not in respect of any other division, He also

relied upon Sub-section (3) of Section 14, which inter alia says that the Commissioner may delegate to an Assistant Commissioner any of the

powers conferred or duties imposed on him by the Act or the rules, except certain powers and duties in respect of the division of the Assistant

Commissioner or of any institution or any class or group of institutions in that division. It is contended that by virtue of this provision also, the

power of delegation by the Commissioner to an Assistant Commissioner can relate only to the power over the division of the Assistant

Commissioner concerned and not over any other division. No doubt, the order of delegation is worded in a general way without any restriction as

to the territorial jurisdiction upon which the Assistant Commissioners could exercise the power delegated to them. On the basis of such a general

power, it must no doubt be conceded that an Assistant Commissioner, exercising jurisdiction over one division, cannot claim to exercise any power

as the delegate of the Commissioner in respect of matters wholly unrelated to his division. But an Assistant Commissioner, holding the powers of

the Commissioner by virtue of the delegation, can certainly take action against an executive officer with regard to the lapses on the part of the

executive officer committed at a time when that officer was serving under a particular Assistant Commissioner, though at the time of taking action,

the executive officer may happen to be serving in another division. In this view, the impugned order is sustainable.

The petitioner is a State Government servant. The contention urged on behalf of the Commissioner is that if it should be held that the

Commissioner has no power of suspension pending enquiry, then the provisions of the Madras Civil Services (Classification, Control and Appeal)

Rules, would be attracted and that the petitioner is liable to be suspended pending enquiry. The rules are applicable except to the extent that is

expressly provided by or under any law for the time being in force or in any rule (vide Rule 2). If it should be held that as there is no express

provision conferring power of suspension pending enquiry u/s 45 (4) such power cannot be claimed, then the rules would be attracted. In such a

case, Rule 17 (e) which confers power of suspension pending enquiry, would be attracted. Rule 14 specifies the authority competent to impose

suspension referred to in Rule 17 (e), which says that the authority shall be the immediate superior gazetted officer. Note 1 to that rule reads:

In this clause the expression ''immediate superior gazetted officer'' means the ''immediate superior gazetted officer'' under whom the delinquent was

working at the time when the lapses were committed and includes his successor in office.

It would follow that if for any reason it should be held that u/s 45 (4) the Commissioner has no power to suspend an executive officer pending

enquiry and that consequently his delegate, the Assistant Commissioner has also likewise no power, then the provisions of the rules dealing with

suspension pending enquiry would be attracted. In that case, the Assistant Commissioner competent to pass the order of suspension of the

petitioner pending enquiry was the Assistant Commissioner of Kumbakonam.

Mr. Rajan, appearing for the petitioner, drew my attention to the decision of Srinivasan, J., in Kothandaraman v. Commissioner W. P. No,

1446 of 1964 (unreported) in support of his argument that an Assistant Commissioner is not the immediate superior gazetted officer of an

executive officer. That case, as the instant case, related to suspension of an executive officer by an Assistant Commissioner. That case proceeded

upon the admitted fact that there was no delegation by the Commissioner of his powers of suspension in favour of the Assistant Commissioner. The

learned Judge found that on that account, the Assistant Commissioner was not entitled to pass the order of suspension. In that case it was also

contended that the delinquent Executive Officer was governed by the Madras Civil Services (Classification, Control and Appeal) Rules, and that

the Assistant Commissioner being the immediate superior gazetted officer was entitled to pass the order of suspension. The learned Judge rejected

that contention holding that though the executive officer might have to send his statements and records to the Commissioner through the Assistant

Commissioner, there was nothing to show that the Assistant Commissioner was entitled to deal with the Executive Officer directly and control him

in the performance of his duties and that, therefore, it was not possible to hold that the Assistant Commissioner was the immediate superior

gazetted officer of the executive officer. This decision was rendered prior to the introduction of Sub-section (2-A) to Section 14. By reason of

Sub-section (2-A) it now follows that the Assistant Commissioner is entitled to exercise the powers conferred on him under the Act in respect of

the temples situated in his division. In other words, he is immediate superior authority competent to exercise all the powers conferred on him under

the Act over the executive officers of temples situated in his jurisdiction. It would thus follow that the Assistant Commissioner is the immediate

superior gazetted officer of an executive officer functioning within his jurisdiction. In this view, the aforesaid decision of Srinivasan, J., is not of help

to the petitioner.

I hold that the Assistant Commissioner of Kumbakonam was competent to pass the impugned order of suspension pending enquiry. In the

result, the writ petition fails and is dismissed. No order as to costs.