V.K. Balakrishnan Naidu vs The State of Madras

S. Ramachandra Iyer, C.J.—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 30th 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. u/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 the section

states that the conditions of the 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 21st 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 Article 226 of the Constitution for quashing the order of the Government. His complaint was

two-fold; first that as he should be deemed to have been in Government service only as and from 30th 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 monies for

payment of salary to the bill collector, there were complaints in regard to that matter which were investigated by one of the Commissioners of the

Hindu Religious Endowments 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. The appellant contended that in as much 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 monies 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 Service under the Government. It cannot be denied that

the complaint in the 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 aware1 of the fact that the appellant had been guilty of such misconduct when it decided to take him over to Government

employ from 30th September, 1951, they would not have selected him to serve under them. This consideration apart, it is plain that Section 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. That would obviously give the employee rights such as the length of his service,

etc., in the matter of emoluments and perhaps retirement benefits as well. In such circumstances, can it be said that he could not be treated as

Government servant from the date of his first appointment for the purpose of taking disciplinary proceedings against him for misconduct ? In our

view the logical effect of the fiction created by Sub-section (2) of Section 104 of the Act will be to render him liable for disciplinary action in

respect of any such misconduct as well. In East and Dwelling Co., Ltd. v. Finsbury L.R. (1952) A.C. 109 Lord Asquith observed:

If you are bidden to treat an imaginary state of affairs as real, you must surely unless prohibited from doing so, also imagine as real the

consequences and incidents which if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.

Applying this principle to the interpretation of Section 104(2) of the Act, an employee of the Board who has been taken in by the Government

after 30th September, 1951 will have to be treated as having been employed by it even during the time when he was serving under the

Endowments Board. Unless there be anything in the statute to the contrary he will also be liable for any disciplinary action in respect of any offence

committed by him subsequent to his first entertainment in the service of the Board and before the Government actually took him under their service.

This is consequence of the fiction which the Court should not hesitate to apply. As observed by Lord Asquith in the case cited above, the statute

states that one should imagine a state of affairs ; it does not say that having done so one must cause or permit his imagination to boggle when it

comes to the inevitable corollaries of that state of affairs.

We are of opinion that the inevitable corollary of treating the employee as having been in service under the Government from the date when he

entered service under the Hindu Religious Endowments Board will be that he would be liable for disciplinary action by the Government in respect

of any offence committed by him during that period. We, therefore, agree with the learned Judge that there is no justification for interference with

the order of the Government removing the appellant from service. The appeal fails and is dismissed. There will however be no order as to costs.