Chairman, Trustee Board, Sree Tirurkkad Devaswom, Tirurkkad (PO), Malappuram District v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **TUESDAY, THE 14TH DAY OF AUGUST 2012/23RD SRAVANA 1934** ## **WP(C).No. 1242 of 2007 (W)** **-------------------------------------** **PETITIONER(S): ----------------------** **CHAIRMAN, TRUSTEE BOARD, SREE TIRURKKAD DEVASWOM, TIRURKKAD (PO) MALAPPURAM DISTRICT.** **BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA SRI.PRASANTH KRISHNAN** **RESPONDENT(S):** - **------------------------** **1. STATE OF KERALA - REPRESENTED BY SECRETARY TO GOVERNMENT, DEVASWOM DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENTS, (HR & CE) ADMINISTRATION DEPT., CIVIL STATION, KOZHIKODE.** **3. THE DEPUTY COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENTS, (HR & CE) CIVIL STATION, KOZHIKODE.** **4. THE ASSISTANT COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENTS, MALAPPURAM DISTRICT OFFICE AT TIRUR.** **5. C.ANIL KUMAR, CHENTHROTHIL HOUSE, TIRURKKAD (PO), MALAPPURAM DISTRICT.** **R1 TO R4 BY GOVERNMENT PLEADER SMT.LISHA M.G. R5 BY ADV. SMT.ANU SIVARAMAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-06-2012, THE COURT ON 14/08/2012 DELIVERED THE FOLLOWING:** **MJL** ## **WP(C).No. 1242 of 2007 (W)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF THE ENQUIRY REPORT DATED 23/12/04 EXT.P2: TRUE COPY OF THE PROCEEDINGS OF THE PETITIONER DATED 19/01/05 EXT.P3: TRUE COPY OF THE ORDER OF THE 3[RD] RESPONDENT DATED 20/02/06 IN A.P.4/2005 EXT.P4: TRUE COPY OF THE APPEAL FILED BY THE 5TH RESPONDENT DATED 4/5/2006 BEFORE THE 2ND RESPONDENT. EXT.P5: TRUE COPY OF THE DELAY PETITION FILED 5TH RESPONDENT BEFORE THE 2ND RESPONDENT DATED 24/08/06.** **EXT.P6: TRUE COPY OF THE OBJECTION DATED 22/9/06 FILED BY THE PETITIONER. EXT.P7: TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT NO.J2/3377/06 DATED 7/12/06. EXT.P8: TRUE COPY OF THE FIR AND CHARGE SHEET FILED IN CC NO.372/04 ON THE FILES OF THE JFCM COURT, PERINTHALMANNA.** ## **RESPONDENTS' EXHIBITS: NIL** ## **/TRUE COPY/** ## **P A TO JUDGE** **MJL** ## **A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.1242 of 2007 ---------------------------------------- Dated this the 14[th] day of August 2012 ## **J U D G M E N T** The petitioner challenges Ext.P7 order passed by the 2[nd] respondent in an appeal filed by the 5[th] respondent herein under Section 49(3) of the Hindu Religious and Charitable Endowments (Administration) Act (hereinafter referred to as 'the Act'). 2. A memo of charges was issued to the 5[th] respondent while he was working as a Vazhipadu Clerk in Sri.Thirurkkad Devaswom. When disciplinary proceedings were initiated against him, 5[th] respondent along with certain persons, trespassed into the temple office on 02/07/2003 and brutally manhandled the petitioner for which criminal case is pending. An additional charge memo was also issued with reference to the said incident. The charges include misappropriation, dereliction of duty, tampering of documents, delegation of duty, acting against the interest of the Devaswom, violation of the directions issued by the Trustee Board and various other misconducts including criminal activity of the 5[th] respondent. 2 W.P.C.No.1242/2007 3. Enquiry was conducted and the enquiry officer found that out of 13 charges 12 charges were proved. Ext.P1 is the enquiry report. On the basis of Ext.P1, proceedings were initiated against the petitioner and he was dismissed from service as per Ext.P2 order with effect from the date of suspension order, that is 15/05/2003. 5[th] respondent filed an appeal before the 3[rd] respondent. Ext.P3 is appellate order in which the findings in the enquiry were approved and the order of dismissal was confirmed. In a further appeal filed by the 5[th] respondent, the 2[nd] respondent, by Ext.P7 order directed a fresh enquiry to be conducted as dismissal from service was a harsh step and directed to reinstate the 5[th] respondent in service without prejudice to the outcome of the fresh enquiry. 4. 2[nd] respondent has filed a counter affidavit supporting Ext.P7. According to the 2[nd] respondent, since the direction is only to conduct a fresh enquiry in the matter especially in a case where a person is dismissed from service, there is no reason to challenge Ext.P7. It is also contended that a further revision is provided by the Government as against Ext.P7 and that remedy has not been chosen. W.P.C.No.1242/2007 3 5. Heard the learned counsel appearing on either side. It is argued by the learned counsel for the petitioner that in the enquiry proceedings, it was found that 5[th] respondent is guilty of misconducts in respect of 12 charges and by a speaking order the 3[rd] respondent after application of mind confirmed the findings in the enquiry and order of dismissal. Second appellate authority namely the 2[nd] respondent, without considering any of the factual circumstances involved in the matter, had, apparently on some compassionate grounds, directed a fresh enquiry to be conducted in the matter. This according to the learned counsel for the petitioner, is bad in law and mala fide and hence seeks the reliefs as prayed for. The judgment of the Division bench of this Court in **N.Sukumaran v. The Guruvayoor Devaswom Board** [2005(2)I.L.R Kerala 299] is also relied upon to show the limited scope of interference in matters relating to domestic enquiry. 6. It is argued by learned counsel appearing for the 5[th] respondent that the petitioner is not the Chairman of the Trustee Board of the Devaswom as on date and therefore he cannot maintain the writ petition. The counsel also supported Ext.P7 W.P.C.No.1242/2007 4 order in so far as the direction is only for re-consideration of the enquiry report and in that view of the matter, writ jurisdiction need not be exercised for setting aside Ext.P7. 7. Learned counsel for the 5[th] respondent raises a preliminary objection stating that the writ petition is not maintainable because the person who had filed the writ petition in the capacity of Chairman is no more the Chairman of the Trust. It can be seen from the provisions of the Act that the Devasom Board is managed by the Trustee Board and Chairman is the Executive Officer. It is not in doubt that the person who had acted as Chairman at the time when the writ petition was filed is not in office now. Writ petition is not filed in his peronal capacity. It is filed by virtue of his office as the Chairman of the Trustee Board. Merely because there is change in the office bearers or the members of the Trust, it cannot be stated that the writ petition has become not maintainable or infructuous. In that view of the matter, I am of the view that the writ petition is maintainable. 8. From a perusal of Ext.P1, it is clear that a detailed enquiry had been conducted in the matter after sufficient notice W.P.C.No.1242/2007 5 to the 5[th] respondent. Apparently, despite notices, the 5[th] respondent did not choose to attend the enquiry. It is evident from the enquiry report that the Enquiry Officer had issued notice to the 5[th] respondent for appearance on 04/09/2004. The notice was received by the 5[th] respondent on 30/08/2004. On 02/09/2004, the 5[th] respondent sent a letter to the Enquiry Officer seeking three months time for producing documentary evidence. On 18/09/2004, the Enquiry Officer sent another notice to the 5[th] respondent stating that the charges would be framed on 30/09/2004. On 29/09/2004, the Enquiry Officer received another letter from the 5[th] respondent stating that the Devaswom Executive Officer was the only competent authority to take action against the employee of the temple. On 30/09/2004, the 5[th] respondent did not attend the domestic enquiry. Since it was thought that his request for time to produce documents was reasonable the enquiry was again posted to be conducted on 14/10/2004 and the employee was intimated to be present on that date necessary records as a final opportunity. Again on 12/10/2004, he sent a letter stating that he had filed an Original Petition before the High Court and requested for keeping the W.P.C.No.1242/2007 6 domestic enquiry in abeyance. The domestic enquiry was held on 14/10/2004. The employee was not present. He was called, absent and a decision was taken to record evidence on 04/11/2004. 9. Therefore, it could be seen that sufficient opportunity had been given to the 5[th] respondent to attend the enquiry proceedings; but it seems that he deliberately withheld from attending the enquiry for one reason or other. Therefore, there is no question of any violation of natural justice. Taking into consideration the gravity of the findings in the enquiry, he was dismissed from service. On a perusal of Ext.P3 appellate order, it could be seen that all the contentions urged by the 5[th] respondent was considered and a detailed order had been passed. There is a clear finding that out of 13 charges framed against the appellant, 12 charges had been proved which includes misappropriation and embezzlement of huge amount of vazhipadu receipts, and Exts.A15, A16 A17 and A18 series documents would prove that the 5[th] respondent had misappropriated huge amount from the temple and had manipulated the accounts. 7 W.P.C.No.1242/2007 10. But, on a perusal of Ext.P7, it seems that the 2[nd] respondent had not gone into any of the charges levelled or the misconducts proved against the appellant. It had not applied its mind at all. It merely held that the appellant could not attend for enquiry for his own reasons and on his absence, the proceedings went one sided and finally culminated in the dismissal of the appellant. Dismissal from service is the highest punishment and such a harsh step is to be taken only when the situation warrants. Hence according to 2[nd] respondent the dismissal from service requires re-consideration of the matter after giving the appellant one more chance to defend the charges levelled against him. 11. On a consideration of the facts and circumstances involved in the case, it is evident that the 2[nd] respondent had not applied its mind into the charges levelled against the 5[th] respondent. The 2[nd] respondent has virtually given the 5[th] respondent another opportunity to contest the matter without considering the fact that sufficient opportunities had already been given to the 5[th] respondent to contest the domestic enquiry proceedings. it is seen that the 5[th] respondent on his own W.P.C.No.1242/2007 8 volition, refused to attend the domestic enquiry and therefore the reasons stated in Ext.P7 for conducting a fresh enquiry is totally baseless and reasons stated by the second appellate authority/2[nd] respondent to direct a fresh enquiry is too flimsy. Once a proper enquiry is conducted and Management as well as appellate authority have already accepted it after due application of mind, without any cogent reasons to set aside such an appellate order or the enquiry report, it is not open for the 2[nd] appellate authority to direct re-consideration of the matter and reinstatement of the employee. Hence Ext.P7 is liable to be set aside and a fresh consideration is required by the 2[nd] respondent. The writ petition is therefore allowed as follows: (i) Ext.P7 is set aside. (ii) The 2[nd] respondent shall consider the matter afresh after hearing the parties and shall pass a reasoned order, within a period of three months from the date of receipt of a copy of this judgment. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.1242/2007 9 W.P.C.No.1242/2007 10 W.P.C.No.1242/2007 11 Ext.P7 order came to be passed against an appeal filed by the 5[th] respondent challenging the order of the 3[rd] respondent as Ext.P3. Enquiry was conducted and as against 13 charges framed against the 5[th] respondent, 12 of the charges were reported to be proved and on the basis of the said enquiry report, 5[th] respondent was dismissed from service.