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1990 DIGILAW 513 (MAD)

S. S. Chinnaswamy Gounder, Periyar District v. The Assistant Commissioner, Periyar District,

1990-07-16

A.S.ANAND, D.RAJA

body1990
Judgment :- 1. The appellant was a Member of the Board of Trustees and subsequently served as Managing Trustee of Selliyandiamman Tirukoil, Sevandapur. The term of the Board expired. After the expiry of the term of the Board of Trustees, Respondent No. 1 appointed appellant vide order dated 4th June, 1985 as a Fit Person. In the order of appointment it was stated (hat the appellant would continue to act as the Fit Person and his term would terminate with the appointment of a New Board of Trustees after taking charge from him vide order impugned in Writ Petition No. 618 of 1987. The appellant was removed as a Fit Person and was replaced by Respondent No. 2 herein. In this writ petition the appellant contended that since he had been removed without the appointment of a Board of Trustees and without any Board of Trustees taking charge from him his termination was not in accordance with the conditions stipulated in the appointment order dated 4-6-1985. It was also submitted in the alternative that the appellant had been replaced by Respondent No. 2 and that before removing him he had not been given any opportunity to show cause apainst his removal. The learned Single Judge, however, vide the judgment dated 22nd January, 1987 dismissed the writ petition in limine stating that he has no vested right to continue as a Fit Person and that if the order of his appointment is cancelled and a new Fit Person was appointed, it was purely a matter of discretion exercised by the Deputy Commissioner, H.R. & C.E. and could not have caused any prejudice to him. 2. In our opinion, the learned Single Judge has failed to take notice of the grievances projected by the appellant in the writ petition. 3. When the appeal was admitted, an interim order was granted whereby the appellant was continued in his position as a Fit Person throughout. 4. Since the writ petition had been dismissed in limine , the State had no opportunity to file any counter. However, the learned Government Pleader by reference to the record, did not dispute the factual position as emerging in this case viz., that by order dated 4-6-1985 the appellant was appointed as a Fit Person and directed to continue till a new Board of Trustees is appointed and charge taken from him. However, the learned Government Pleader by reference to the record, did not dispute the factual position as emerging in this case viz., that by order dated 4-6-1985 the appellant was appointed as a Fit Person and directed to continue till a new Board of Trustees is appointed and charge taken from him. That contingency did not arise as no new Board of Trustees was appointed. The factual position that the appellant was replaced by Respondent No 2 also as a Fit Person only without being afforded any opportunity of showing cause against his removal is also not disputed. That being the position, we are unable to eschew the observations of the learned Single Judge while dismissing the writ petition. The appellant could either be removed with the appointment of the Board of Trustees after charge was taken from him, or in the event it was found that he was not fit any longer to continue in office, he could be removed and another Fit Person appointed; but for following that course, the rule of audi alteram partem had to be observed. It is no longer a moot question that the principles of natural justice have to be read into even the statutes where civil rights are involved. Since the appellant was removed from the Office of a Fit Person without being afforded any opportunity to show cause, the order impugned in the writ petition bearing No. Na. Ka. 713/85-A3 dated 23-12-1986 cannot be sustained. Consequently this writ appeal succeeds and as a result, the writ petition would stand allowed. The order bearing No. Na. Ka. 713/85-A3 dated 73-12-1986 is hereby quashed. The learned Government Pleader submits that we should clarify that the quashing of the order dated 23-12-1936 shall not preclude the first respondent to proceed further, if so advised, in accordance with law and that the grant of this appeal or the allowing of the writ petition will not stand in his way. We do so hereby clarify that position. In the peculiar facts of the case, there shall be no order as to costs.