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2020 DIGILAW 826 (AP)

Chidipothu Venkateswarlu v. State of Andhra Pradesh

2020-12-16

U.DURGA PRASAD RAO

body2020
ORDER : U. Durga Prasad Rao, J. 1. The petitioner seeks a writ of mandamus declaring the proceedings of 3rd respondent in Rc. No. V3/20026/14/2019 dated 26.11.2019 whereby rejecting the order of 4th respondent placing 6th respondent under suspension pending disciplinary enquiry against him as illegal, arbitrary, unconstitutional and contrary to Section 8 of the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987 (for short, 'the Act 30 of 1987') and consequently command 4th respondent to complete the disciplinary enquiry. 2. The petitioner's case succinctly is thus: (a) The petitioner gave a complaint against 6th respondent who was then working as Executive Officer of the Ulavapadu Group of temples as having misappropriated the temple funds and manipulated the survey numbers of the landed properties of the temples by fabricating the records. On the said complaint, 4th respondent, who is the Deputy Commissioner of Endowments, instructed 5th respondent-Assistant Commissioner of Endowments to conduct an enquiry and submit a report, who after preliminary enquiry submitted a report vide Rc. No. A4/1266/2019 dated 20.11.2019. In his report, the 5th respondent stated as if 6th respondent misappropriated the temple funds to a tune of Rs. 54,06,028/- and also committed misappropriation in respect of the landed properties of the temple. Basing on the said report, the 4th respondent, who is the Competent authority as per G.O.Ms. No. 118, Revenue (Endowments-I) Department, dated 23.03.2017, placed 6th respondent under suspension pending enquiry vide proceedings in Rc. No. B3/1170/2019 dated 20.11.2019. (b) While so, 3rd respondent without any power or authority issued the impugned proceedings in Rc. No. V3/20026/14/2019 dated 26.11.2019 rejecting the order of suspension of 6th respondent passed by the 4th respondent. He thereby let off 6th respondent from suspension. Hence, the writ petition. 3. The second respondent, who is the Commissioner, Endowments Department, filed counter and opposed the writ petition inter alia contending thus: (a) The petitioner being a complainant against the 6th respondent has no locus standi to file the writ petition to question the authority of 3rd respondent to modify the order of suspension passed by the 4th respondent. On that ground the writ petition is liable to be dismissed in limini. (b) The impugned proceedings in Rc. No. V3/20026/14/2019 dated 26.11.2019 are issued by the order of the 2nd respondent/Commissioner of Endowments by the 3rd respondent, but not in his capacity as Additional Commissioner of Endowments. On that ground the writ petition is liable to be dismissed in limini. (b) The impugned proceedings in Rc. No. V3/20026/14/2019 dated 26.11.2019 are issued by the order of the 2nd respondent/Commissioner of Endowments by the 3rd respondent, but not in his capacity as Additional Commissioner of Endowments. Thus the impugned proceedings are issued by the Competent authority by virtue of the powers conferred as per Section 8 of the Act 30 of 1987. Hence, the petitioner cannot challenge the statutory powers of the respondents 2 & 3 in issuing the aforesaid proceedings dated 26.11.2019. As per the G.O.Ms. No. 118 dated 23.03.2017, the Government have delegated certain powers of Commissioner, Endowments Department to the Regional Joint Commissioner or any other Higher Authority and Deputy Commissioner or Higher Authority, which are conferred on the officers of the Endowments Department as per sub-section (3), (4), (5) of Section 8 & 9 of the Act 30 of 1987 and for the better administration of the Department the following powers are conferred on the subordinate officers. In case of suspension simpliciter (not amounting to punishment), while recommending charges against certain category of officers, the Competent authority is prescribed as below: Sl. No. Designation of the Employee Competent Authority to place under suspension simpliciter while recommending for charges and Subsistence Allowance (1) (2) (3) 1 Executive Officer, Grade-II & III Deputy Commissioner of any Higher Authority 2 Executive Officer Gade-I; Assistant Engineer/Assistant Executive Engineer, Assistant Sthapati Regional Joint Commissioner or any other Higher Authority (c) In view of the said Government order, the 4th respondent issued proceedings dated 20.11.2019 suspending the 6th respondent pending enquiry to the charges subject to the ratification by 2nd respondent. After examination of the record, the 2nd respondent has rejected the proposal of suspension while confirming the charges framed by 4th respondent against 6th respondent and ordered the transfer of 6th respondent to less focal institutions. (d) It is further stated that as per the G.O.Ms. No. 45, Finance (H.R.I-PLG & Policy) Department dated 24.06.2019, the ban on transfers shall come into force w.e.f. 06.07.2019 and as such a proposal is to be submitted to the Government for transferring the 6th respondent from present place of working i.e., the Executive Officer, Tanguturu Group of temples, Prakasam District to some other less focal institutions and after receiving orders from the Government, the 6th respondent will be transferred accordingly. It is contended that the official respondents have been discharging their duties as per the provisions of the Act 30 of 1987 and its Rules. Hence, the writ petition may be dismissed. 4. Heard the arguments of Sri Rajkumar, counsel representing Sri J.V. Phaniduth, learned counsel for petitioner, and learned Government Pleader for Endowments representing the respondents 1 to 5. Though notice served on 6th respondent and proof of service was filed, but there is no representation on his behalf. 5. While fulminating the proceedings in Rc. No. V3/20026/14/2019 dated 26.11.2019 issued by 3rd respondent, learned counsel for petitioner by referring G.O.Ms. No. 118, Revenue (Endowments-1) Department dated 23.03.2017 argued in vehemence that by virtue of the aforesaid G.O., the power of suspension simpliciter of certain categories of officers was conferred on another set of officers. Thereby, he would submit, the power of suspension simpliciter of an officer in the cadre of Executive Officer Grade-II & III is conferred on Deputy Commissioner or any Higher Authority. Learned counsel argued that in the instant case, the 6th respondent was working as Executive Officer of Vulavapadu Group of Temples, against whom the writ petitioner lodged complaint. In that context, the 4th respondent, who is the Deputy Commissioner, Endowments Department, Guntur instructed the 5th respondent to conduct a preliminary enquiry and submit his report. A Committee of officers was appointed and after conducting enquiry, a preliminary enquiry report was submitted. Thereupon, the 4th respondent passed order dated 20.11.2019 and while framing 31 charges against the 6th respondent, placed him under suspension pending enquiry invoking the powers conferred on him under G.O.Ms. No. 118 dated 23.03.2017. Copy of the said order was forwarded to all concerned including the 2nd respondent for the kind information of the said authority, but not for any ratification. Learned counsel emphasized that under the G.O.Ms. No. 118, the 4th respondent has authority to place the 6th respondent under suspension since the 6th respondent was Grade-III Executive Officer during the relevant period. In that view, the 3rd respondent, who was not sitting as an appellate authority on the order passed by the 4th respondent, cannot reject or set aside the order of suspension passed by the 4th respondent. Therefore, the impugned order suffers the vice of lack of authority on the part of the 3rd respondent. In that view, the 3rd respondent, who was not sitting as an appellate authority on the order passed by the 4th respondent, cannot reject or set aside the order of suspension passed by the 4th respondent. Therefore, the impugned order suffers the vice of lack of authority on the part of the 3rd respondent. Learned counsel further argued that the averments in the counter that the 3rd respondent passed the impugned order only on the direction of the 2nd respondent and not in his individual capacity is an afterthought as in the impugned order the said fact was not mentioned. He further argued that even assuming that the 3rd respondent only implemented the order of 2nd respondent, still the said order cannot be validated again for the reason that the suspension order passed by the 4th respondent was a valid one and covered by authority conferred under G.O.Ms. No. 118. In that view, even the 2nd respondent also cannot reject the suspension order passed by the 4th respondent unless the 6th respondent files any appeal or makes a representation to reconsider the order of 4th respondent. He thus prayed to allow the writ petition. 6. In oppugnation, learned Government Pleader argued that though the Deputy Commissioner has power to suspend the 6th respondent in view of the powers conferred on him under G.O.Ms. No. 118, still the 2nd respondent being the Commissioner of Endowments and Higher Authority has the power to review the suspension order passed by the 4th respondent by virtue of Section 8 of Act 30 of 1987. Therefore, the petitioner cannot challenge the said power of the 2nd respondent. Further, the petitioner being only the complainant, has no say in the matter of administrative decisions of the respondent authorities. He is concerned only to the extent, whether proper action has been taken up against the 6th respondent or not. Learned Government Pleader would submit, a preliminary enquiry was conducted and thereafter charges were also framed against the 6th respondent for conducting due enquiry. Hence, the petitioner cannot plead any grievance against the impugned order. 7. Now, the point for consideration is, whether there are any merits in the writ petition to allow it? 8. POINT: As can be seen, the Government have issued G.O.Ms. No. 118, Revenue (Endowments-I) Department, dated 23.03.2017, determining certain powers of the Commissioner of Endowments on the subordinate officers. Hence, the petitioner cannot plead any grievance against the impugned order. 7. Now, the point for consideration is, whether there are any merits in the writ petition to allow it? 8. POINT: As can be seen, the Government have issued G.O.Ms. No. 118, Revenue (Endowments-I) Department, dated 23.03.2017, determining certain powers of the Commissioner of Endowments on the subordinate officers. The G.O. reads thus: "ORDER: In the above read Government orders, certain powers of Commissioner, Endowments Department, were determined on the Officers of Endowments Department as per sub-sections (3), (4), (5) of Sections 8, 9 of the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987 (Act No. 30 of 1987). For the better administration of the Department, the following further powers are determined on the subordinate officers as detailed below: In case of suspension simpliciter (not amounting to punishment, while recommending charges: S. No. Designation of the employee Competent authority to place under suspension simpliciter while recommending for Charges and Subsistence Allowance 1 Executive Officer, Grade- II&III 2 Executive Officer, Grade- I; Assistant Engineer/ Assistant Executive Engineer, Assistant Sthapati Regional Joint Commissioner or any other higher authotity 2. The Commissioner, Endowments Department, Gollapudi, Vijayawada and subordinate officers shall take necessary action in the matter. (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) Sd/- xxxxxxxx J.S.V. PRASAD PRINCIPAL SECRETARY TO GOVERNMENT" Thus, the above G.O. shows that so far as the Executive Officers Grade-II & III are concerned, the competent authority to place them under suspension simpliciter, while recommending for charges and subsistence allowance, is the Deputy Commissioner or any higher authority. 9. In the instant case, the 4th respondent, after receiving the preliminary report from the 5th respondent, paced the 6th respondent under suspension pending enquiry vide proceedings in Rc. No. B3/1170/2019 dated 20.11.2019. As rightly argued by learned counsel for the petitioner, since the 4th respondent is authorized as per G.O.Ms. No. 118, the suspension order passed by him can be said to be a valid one. Now the contention of the petitioner is that the 3rd respondent and for that matter the 2nd respondent, have no authority to reject the said order, as they were not sitting on the appeal against the said order. This argument I am afraid is not correct. True that in G.O.Ms. Now the contention of the petitioner is that the 3rd respondent and for that matter the 2nd respondent, have no authority to reject the said order, as they were not sitting on the appeal against the said order. This argument I am afraid is not correct. True that in G.O.Ms. No. 118, the Government have conferred on subordinate officers, some powers, being exercised by the Commissioner of Endowments. However, it must not be forgotten that as per Section 8 of Act 30 of 1987, the 2nd respondent being the Commissioner of Endowments, has the power of general superintendence and control over the administration of the institution and in exercise of said power, he can pass any order. Section 8 of Act 30 of 1987 reads thus: "8. Powers and functions of Commissioner and Additional Commissioner:- 1) Subject to the other provisions of this Act, the administration of all Charitable and Hindu Religious institutions and endowments shall be under the general superintendence and control of the Commissioner and such superintendence and control shall include the power to pass any order which may be deemed necessary to ensure that such institutions and endowments are properly administered and their income is duly appropriated for the purposes for which they were found or exist. 2) Without prejudice to the generality of the foregoing provisions, the Commissioner shall exercise the powers conferred on him and perform the functions entrusted to him by or under this Act in respect of such institutions or endowments in the State as are included in the lists published under Clause (a), Clause (d) and Clause (e) of Section 6. 3) The powers and functions of the Additional Commissioner shall be such as may be determined by the Government from time to time. 3) The powers and functions of the Additional Commissioner shall be such as may be determined by the Government from time to time. 4) The Commissioner may delegate to a Deputy Commissioner any of the powers conferred on or functions entrusted to the Commissioner by or under this Act including the powers and functions of an Assistant Commissioner which may be exercised or performed by the Commissioner under sub-section (1), Sections 6, 15, 49, 51, 66, 90, 92 and 132 in respect of any institutions or endowments or any class or group of institutions or endowments in the State subject to such restrictions and control as the Government may by general or special order lay down and subject also to such limitations and conditions, if any, as may be specified in the order of delegation. 5) The Commissioner may delegate to an Assistant Commissioner any of the powers conferred on or functions entrusted to the Commissioner by or under this Act except the powers and functions of the Commissioner under sub-section (1), Sections 6, 15, 49, 51, 66, 90, 92 and 132 in respect of any institution or endowment in the sub-division in charge of the Assistant Commissioner subject to such restrictions and control as the Government may, by general or special order, lay down and subject also to such limitations and conditions if any, as may be specified in the order of delegations. 6) Notwithstanding anything in Sections 10 and 11, the Commissioner may, by order in writing, declare that the exercise and performance of all or any of the powers or functions by the Deputy Commissioner or the Assistant Commissioner, as the case may be, shall be subject to such exceptions, limitations and conditions as may be specified in the order and he may himself exercise any power or perform the functions so excepted." 10. Thus as can be seen from Section 8(1), the power of general superintendence and control over the administration of Charitable and Hindu Religious Institutions and Endowments vests with the Commissioner, in exercise of which, he can pass any order, which he deems necessary to ensure that such Institutions and Endowments are properly administered. Therefore, the scope and amplitude of the power of the Commissioner is wide enough to rectify the orders of the subordinates for proper administration. Therefore, the scope and amplitude of the power of the Commissioner is wide enough to rectify the orders of the subordinates for proper administration. In the instant case, the contention of the 2nd respondent is that the impugned proceedings are issued by the 3rd respondent by the order of the 2nd respondent but not in his individual capacity. Probably, the 2nd respondent, who is at the helm of affairs, might not have considered it exigent to place the 6th respondent under suspension and thereby rejected the order passed by the 4th respondent, while ratifying the charges framed against the 6th respondent. His order cannot be interpreted that the suspension order was rejected because the 4th respondent has no authority to pass such order. On the other hand, the 2nd respondent in the course of exercising his administrative powers, might have contemplated that there was no exigency to place the 6th respondent under suspension. By virtue of Section 8(1) of Act 30 of 1987, the 2nd respondent is vested with such power. Of course, any authority shall exercise the powers vested in him with due care, caution and diligence to the extent required. The petitioner only questions the authority of the 2nd respondent to upturn the suspension order but not challenges the same on the ground of lack of power. Such argument cannot stand to judicial scrutiny in view of the power conferred on the 2nd respondent by Section 8(1) of Act 30 of 1987. Therefore, I find no merits in the contention of the petitioner. So far as the locus is concerned, as rightly argued by learned Government Pleader, the petitioner being complainant is concerned only with his complaint and consequential action taken thereon but not with regard to other aspects, particularly the suspension of the 6th respondent and revocation, etc. 11. Accordingly, this Writ Petition is dismissed. There shall be no order as to costs. As a sequel, interlocutory applications, if any, pending for consideration shall stand closed.