Partly allowed

T.Rajasekar v. the Commissioner

Madras HC20 Feb 2014WP/34229/2012

Case brief

AI extract

What is this about?

In two writ petitions, the High Court held that disciplinary orders dismissing a temple administrator without an enquiry violated natural justice and were set aside. Reinstatement was denied due to the concurrent cancellation of the administration Scheme, subject to the outcome of an appeal regarding that cancellation.

What did the court decide?

Impugned dismissal orders set aside for enquiry; reinstatement denied subject to appeal on Scheme cancellation; liberty granted to appeal against Scheme cancellation.

T.Rajasekar Vs the Commissioner — Writ and Judicial Review | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 20.02.2014

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CORAM

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THE HONOURABLE MR. JUSTICE K.RAVICHANDRABAABU

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W.P.Nos.34229 of 2012 and 30943 of 2013 and M.P.No.1 of 2012, 1 of 2014 in W.P.No.34229 of 2012 and M.P.Nos.1 and 2 of 2013 in W.P.No.30943 of 2013

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W.P.No.34229/12: T.Rajasekar .. Petitioner ..vs.. 1.The Commissioner, Hindu Religious & Charitable Endowments Department, Chennai 600 034.

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2.The Joint Commissioner, Hindu Religious & Charitable Endowments Department, Villupuram.

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3.The Assistant Commissioner, Hindu Religious & Charitable Endowments Department, Thiruvannamalai.

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4.The Executive Officer, Arulmighu Kamatchi Amman Thirukoil, Thiruvannamalai.

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5.C.M.Sivababu, District President, Hindu Makkal Katchi, No.180/32, Iyyakkannu Mudaliar Street, Tiruvannamalai 606 601. ..Respondents (R5 impleaded as per order dated 26.2.2013 by SRJ in M.P.1/13 in W.P.34229/12)

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Prayer: Writ petition filed under Article 226 of the Constitution of India for issuance of a writ of certiorari to call for the records relating to the impugned orders passed by the third respondent herein in his proceedings Se.Mu.Na.Ka.No.2451/2011/A1 dated 12.12.2012 and the consequential orders passed by the third respondent herein in the proceedings Se.Mu.Na.Ka.No.2451/2011-2/A1 dated 12.12.2012 and quash the same.

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https://hcservices.ecourts.gov.in/hcservices/

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W.P.No.30943/13:

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Arulmigu Kumara Koil Saiva Vellalar Sangam, (Society Registration S.No.167/2009) Represented by its Secretary, Mr.T.Rajasekar, S/o.C.Thirunavukarasu, 30B/44, Kumarankoil Street, Thiruvannamalai 606 601. ..Petitioner vs 1.The Commissioner, Hindu Religious & Charitable Endowments Department, Chennai 600 034.

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2.The Joint Commissioner, Hindu Religious & Charitable Endowments Department, Villupuram.

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3.C.M.Sivababu, District President, Hindu Makkal Katchi, No.180/32, Iyyakkannu Mudaliar Street, Tiruvannamalai. ..Respondents Prayer: Writ petition filed under Article 226 of the Constitution of India for issuance of a writ of certiorari to call for the records relating to the impugned order passed by the second respondent herein in O.A.No.01/2013 dated 08.10.2013 which was served on the petitioner on 07.11.2013 and quash the same.

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For Petitioner : Mr.R.Krishnamurthy in both W.Ps. Senior Counsel for M/s.G.Bala & Daisy

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For Respondents: Mr.S.Kandaswamy for R1 to R4 in W.P.34229/12 Special Government Pleader(HR&CE) Mr.J.Ashok for R5

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For Respondents: Mr.S.Kandaswamy for R1 and R2

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in W.P.30943/13 Special Government Pleader(HR&CE) Mr.J.Ashok for R3

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In W.P.No.34229 of 2012 challenge made is against the order dismissing the petitioner from the post of Administrator of the temple of Arulmigu Kumaran Thirukoil, Tiruvannamalai and the consequential order appointing the fourth respondent as Fit person.

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In W.P.No.30943 of 2013, the very same petitioner challenges the proceedings of the second respondent made in O.A.No.1/2013 dated 08.10.2013 in canceling the scheme made in O.A.No.10 of 1997 dated 02.09.2002.

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https://hcservices.ecourts.gov.in/hcservices/

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3.The common facts, as projected by the petitioner, in both these writ petitions are as follows:

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i)The petitioner in W.P.No.34229 of 2012 belongs to Thonda Mandala Saiva Vellalar Mudaliar Community. The petitioner's ancestors had founded Arulmighu Kumara Koil, Tiruvannamalai, several hundred years ago. From the day of inception of the above temple, the members of the said community have been administering the affairs of the temple, independently, without any interruption. They have also formed a Society called Arulmighu Kumara Koil Saiva Vellalar (Kumara Koil Street, Kanni Koil street, Thiruvoodal street, Kamatch Amman Koil Street) Sangam and registered the same under the Tamilnadu Societies Registration Act, 1975. The petitioner is the Secretary of the above said Society and the Administrator of the Temple. He, along with six others belonging to the same community, filed O.A.No.10 of 1997 before the Joint Commissioner, H.R.& C.E., Vellore under section 64(1) of the Tamilnadu H.R & C.E. Act, 1959, to settle a scheme of administration of the said temple. After an enquiry, the scheme was settled and notified in the District Gazette on 07.10.2002. As per the said scheme, the members of the Thonda Mandala Saiva Vellalar Mudaliar Community are to be appointed as non-hereditary Trustees to administer the affairs of the temple.

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ii) On 16.11.2011, the petitioner received intimation from the third respondent calling upon him to attend an enquiry based on certain complaint. The petitioner attended the enquiry on 22.11.2011 and requested for a copy of the complaint. But, it was not furnished. However, he was directed to hand over the goods of the temple to the office of the third respondent. The petitioner also made an application under the Right to Information Act, seeking for copy of the said complaint. Thereafter, on 24.12.2011, he was served with the copy of the complaint. The said complaint was without any basis and is totally a vague and false one. Even though the copy of the complaint was served on the petitioner only on 24.12.2011, the third respondent submitted an enquiry report on 27.12.2011. Based on the said report, the second respondent directed the third respondent to place the petitioner under suspension. Accordingly, the third respondent passed three separate proceedings on 09.01.2012, placing the petitioner under suspension, framing charges against him and appointing the fourth respondent as in-charge of the temple in the place of the petitioner.

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iii) The petitioner filed a writ petition in W.P.No.1193 of 2012, challenging the above said proceedings. An order came to be passed in the writ petition on 21.06.2012, whereby the orders of suspension passed against the petitioner as well as the appointment of the fourth respondent as in-charge were set aside. Further, this Court directed the petitioner to submit his explanation within two weeks and consequently, directed the respondent therein to consider the explanation and pass orders thereon on merits and in accordance with law. The petitioner submitted his explanation on 30.07.2012 to the charges leveled against him. He denied all the https://hcservices.ecourts.gov.in/hcservices/ charges. He was under the impression that an enquiry would be

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conducted and he would be given an opportunity to adduce evidence to disprove the charges. However, the third respondent passed the impugned orders on 12.12.2012, by holding that the charges leveled against the petitioner are proved.

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iv)During the pendency of the above writ petition in W.P.No.34229/2012, the Scheme framed for administering the temple itself was canceled on 08.10.2013 in O.A.No.1 of 2013. Such cancellation was in violation of principles of natural justice. The applicants in O.A.No.10 of 1997, under which the scheme was framed, were not made as party respondents in O.A.No.1 of 2013.

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4.The third respondent filed a counter affidavit in W.P.No.34229 of 2012, wherein it is stated as follows: Arulmigu Kumaran Koil is a public religious institution under the administrative control of the Assistant Commissioner, H.R.&C.E., Tiruvannamalai. It is governed by a Scheme framed by the Joint Commissioner, Vellore in O.A.No.10 of 1997. As per the Scheme, the temple administration is vested with the trustees not less than three and not exceeding five, to be appointed from Thonda Mandala Saiva Vellalar Community who are the native of Kumara Koil Street, Sola Street and Thiruvoodal Street in Tiruvannamalai. Even though the said Scheme is framed in the year 2002, no trustee was appointed as per the Scheme. The writ petitioner was one among the petitioners in O.A.No.10 of 1997 and in management committee with a group of people and continued in management of the temple. There are several allegations against the person in management. After conducting enquiry, the Assistant Commissioner found that there is a prima facie case and it is necessary to take action against the person. Hence, the writ petitioner was suspended and a fit person was appointed. The suspension order was challenged by the writ petitioner in W.P.No.1193 of 2012 and this Court set aside the order of suspension and appointment of fit person on the ground that the petitioner was not given an opportunity. Now, the impugned order was passed after considering the explanation of the petitioner. The writ petition is not maintainable, since an alternative remedy is available to the petitioner under section 21 of the Tamilnadu H.R and C.E. Act.

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5.The fifth respondent in W.P.No.34229 of 2012 and the third respondent in W.P.No.30943 of 2013 filed an affidavit with vacate stay petition justifying the impugned orders passed against the writ petitioner. This respondent is the District President of Hindu Makkal Katchi of Tiruvannmalai District and claims to be an ardent devotee of Lord Kumarasamy.

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6.Mr.R.Krishnamurthy, learned Senior Counsel appearing for the petitioner, in both the writ petitions, submitted as follows:

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i)The charges leveled against the petitioner are totally false and without any basis. Though the petitioner had given an explanation to the charges by denying the same, the impugned orders came to be passed without conducting an enquiry and giving opportunity to the petitioner to adduce evidence in support of his https://hcservices.ecourts.gov.in/hcservices/ defence. Thus, the authorities failed to follow the due process of

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law. Not conducting an enquiry as stated supra amounts to denial of reasonable opportunity. Thus, the impugned orders suffer on the ground of violation of principles of natural justice.

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ii) In so far as the impugned order of cancellation of the Scheme in other writ petition is concerned, it is true that there is an effective alternative remedy available to the petitioner before the Appellate Authority and therefore liberty may be given to the petitioner to that effect.

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7.Per contra, Mr.S.Kandaswamy, learned Special Government Pleader appearing for the respondent Department submitted as follows:

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The impugned orders were passed by giving adequate opportunity to the petitioner and therefore, they do not suffer on the ground of violation of principles of natural justice. While setting aside the suspension order, this Court in W.P.No.1193 of 2013, has only directed the Assistant Commissioner, H.R.&C.E., Tiruvannmalai to pass appropriate orders based on the explanation submitted by the writ petitioner. Therefore, there is no need to conduct any enquiry and no such direction is issued by this court. In so far as the cancellation of the Scheme is concerned, the petitioner has got right of appeal under the statute and without resorting to such procedure, the writ petition filed in W.P.No.30943 of 2013, is not maintainable.

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8.I have heard the learned senior counsel appearing for the petitioner, the learned Special Government Pleader appearing for the H.R. and C.E. Department and the learned counsel appearing for the private respondent in both the writ petitions and perused the materials placed before me.

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9.Arulmighu Kumaran Koil situated at Tiruvannamalai is a public religious institution and is under the administrative control of the Assistant Commissioner, H.R.&C.E., Tiruvannamalai. It is not in dispute that the said temple was governed by a Scheme framed in O.A.No.10 of 1997 by the Joint Commissioner, Vellore. It is also admitted by the official respondents, more particularly, the third respondent in his counter affidavit that the writ petitioner was one among the petitioners in O.A.No.10 of 1997 and in management committee with group of people and continued in the management of the temple. However, the petitioner was placed under suspension based on certain complaint received against him. In his place, a fit person was appointed. The petitioner challenged those proceedings before this Court in W.P.No.1193 of 2012. On 21.06.2012, the learned Judge, after hearing both sides, passed an order wherein the relevant paragraphs read as follows:

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"2.At this stage of the hearing of the writ petition, the learned counsel appearing on behalf of the petitioner, had submitted that it would suffice, if the impugned order of the third respondent dated 09.01.2012, suspending the petitioner from the post of Trustee of Arulmighu Kumaran Thirukoil, Thiruvannamalai Town, https://hcservices.ecourts.gov.in/hcservices/ Thiruvannamalai District and the proceedings of the third

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respondent, dated 09.01.2012, asking him to hand over the charge of the administration of the said temple to the fit person, appointed by the third respondent, are set aside and if the petitioner is permitted to submit his explanation to the charges leveled against him, in the proceedings, issued by the third respondent, on 09.01.2012, and if the third respondent is directed to consider the same and pass appropriate orders thereon, within a stipulated period.

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3.The learned counsels appearing on behalf of the respondents has no objection for this court passing such an order.

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4.In view of the above, the impugned order of the third respondent, dated 09.01.2012, suspending the petitioner from the post of Trustee, Arulmighu Kumaran Thirukoil, Thiruvannamalai Town, Thiruvannamalai District and the impugned order of the third respondent, dated 09.01.2012, directing the petitioner to hand over the charge of administration to the fit person, appointed by the third respondent, are set aside. The petitioner shall file his explanation to the charges leveled against him, by the proceedings of the third respondent, dated 09.01.2012, within a period of two weeks from today and on such explanation being submitted, the third respondent shall consider the same and pass appropriate orders thereon, on merits and in accordance with law, within a period of four weeks thereafter.

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10.In pursuant to the above referred order passed by this court, the petitioner herein submitted his explanation on 30.07.2012, denying all the charges. On receipt of such explanation, the third respondent passed the impugned order dismissing the petitioner from the post of Administrator of the temple after holding that the five charges leveled against him were proved. Consequently, on the very same day, the third respondent also passed the other impugned order appointing the fourth respondent as the Fit person of the said temple. These impugned orders are mainly challenged on the ground of violation of principles of natural justice. It is contended that the third respondent failed to conduct an enquiry and give adequate opportunity to the petitioner to adduce his evidence to disprove the charges. However, the said contentions are resisted on the reason that this court on the earlier occasion in W.P.No.1193 of 2012, has only directed the third respondent to consider the explanation of the petitioner and pass appropriate orders on merits and in accordance with law and therefore, there is no scope for conducting any enquiry.

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11.I have given careful consideration to the submissions made by both side. In this case, admittedly, the petitioner was placed under suspension based on certain complaint made against him. When he questioned the suspension order earlier before this Court on the ground of violation of principles of natural justice, this Court https://hcservices.ecourts.gov.in/hcservices/ accepting the said contention, set aside the order of suspension

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and directed the petitioner to give explanation to the charges leveled against him. No doubt, this court has directed the third respondent to consider the explanation and pass appropriate orders in accordance with law. In my considered view, such direction cannot be construed to mean that the third respondent is not required to conduct any enquiry, especially, when the petitioner has denied all the charges. Needless to say that once an explanation is submitted to the charges by denying the same, then it is the bounden duty on the authority to conduct an enquiry by providing adequate opportunity to the delinquent so that, he would be in a position to substantiate his defense by adducing material evidence. Equally, the Department is also entitled to adduce evidence in support of the charges leveled against the delinquent. Therefore conducting of an enquiry is an inbuilt opportunity to the delinquent in disciplinary proceedings which need not be spelt out

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in so many words, as this Court on earlier occasion has only directed the third respondent to pass orders in accordance with law.

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A careful perusal of the order passed by this court in W.P.No.1193 of 2012 would also show that the enquiry was not dispensed with. It only directed the third respondent to consider the explanation and pass appropriate orders on merits and in accordance with law. It goes without saying that the law requires conducting of an enquiry to prove the charges. Admittedly, in this case, no enquiry was conducted. The impugned order came to be passed based on the charges and the explanation. Hence, I am of the view that the impugned orders were not passed in accordance with law as the principles of natural justice was not followed in its full application. Accordingly, the same is liable to be set aside for remitting the matter back to the third respondent. Since this Court is setting aside the impugned order only on the ground of not conducting the enquiry, no other view is expressed on the merits and contentions of the rival parties in respect of the charges leveled against the petitioner as well as the explanation submitted by him.

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13.Once the impugned order of dismissal is set aside, normally, it follows the reinstatement. But, in this case, it cannot be done in view of the subsequent development that had taken place in pursuant to the filing of the writ petition in W.P.No.34229 of 2012. Admittedly, the petitioner was holding the post of Administrator of the temple based on the Scheme framed in O.A.No.10 of 1997. Now, the very Scheme itself is canceled by the impugned order dated 08.10.2013, challenged in W.P.No.30943 of 2013. Once the Scheme itself is canceled, then there is no question of administering the temple by the petitioner or any other persons belonging to the petitioner's community as per the said Scheme. Unless and until they succeed in their attempt in challenging the cancellation of the Scheme, the continuation of the writ petitioner as Administrator does not arise.

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https://hcservices.ecourts.gov.in/hcservices/

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14.In so far as the W.P.No.30943 of 2013 is concerned, the learned senior counsel for the writ petitioner fairly submitted that as against the order of cancellation of the Scheme, the petitioner would approach the Appellate Authority contemplated under the Act. Since the cancellation of Scheme was made during the pendency of W.P.No.34229/2012, this Court feels that liberty can be given to the petitioner to approach the Appellate Authority. As this court is inclined to grant liberty to the petitioner for filing appeal, the question of limitation will not stand in the way of the appellate authority in considering the said appeal on merits.

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15.In the result,

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A) the writ petition in W.P.No.34229 of 2012 is allowed in part as follows:

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i) the impugned order of the third respondent in his proceedings Se.Mu.Na.Ka.No.2451/2011/A1 dated 12.12.2012 is set aside and the matter is remitted back to the third respondent for passing fresh order after conducting an enquiry.

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ii) Conducting of such enquiry is subject to the result of the appeal to be filed by the petitioner against O.A.No.1/2013 dated 08.10.2013.

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iii)Setting aside the order of dismissal will not entitle the petitioner to get reinstatement as Administrator in view of the order made in O.A.No.1/2013 dated 08.10.2013.

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iv)Consequently, the other impugned order passed by the third respondent in Se.Mu.Na.Ka.No.2451/2011-2/A1 dated 12.12.2012 is sustained for the present pending disposal of the appeal to be filed by the petitioner against the order made in O.A.No.1/2013 dated 08.10.2013.

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B) W.P.No.30943 of 2013 is dismissed with liberty to the petitioner to file an appeal before the Appellate Authority within a period of two weeks from the date of receipt of copy of this order. No costs. The connected miscellaneous petitions are closed.

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Sd/Asst.Registrar (CS V ) Dated: 26. 2.2014 /true copy/ Sub Asst. Registrar

vri

1.The Commissioner,

Hindu Religious & Charitable Endowments Department, Chennai 600 034.

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https://hcservices.ecourts.gov.in/hcservices/

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2.The Joint Commissioner, Hindu Religious & Charitable Endowments Department, Villupuram.

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3.The Assistant Commissioner, Hindu Religious & Charitable Endowments Department, Thiruvannamalai.

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4.The Executive Officer,
Arulmighu Kamatchi Amman Thirukoil,
Thiruvannamalai.
5.C.M.Sivababu,
District President,
Hindu Makkal Katchi,
No.180/32, Iyyakkannu Mudaliar Street,
Tiruvannamalai 606 601.
1 cc t Mr.J. Ashok, Advocate, sr. 7929
1 cc to Government Pleader, Sr. 8296
W.P.Nos.34229 OF 2012
AND 30943 OF 2013
VSN (CO)
kk 27/2

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https://hcservices.ecourts.gov.in/hcservices/

T.Rajasekar v. the Commissioner

Case brief

What is this about?

What did the court decide?

T.Rajasekar v. the Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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