Cochin Devaswom Employees Congress (CDEC) v. Cochin Devaswom Board

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR THURSDAY, THE 28TH DAY OF FEBRUARY, 2019/9TH PHALGUNA, 1940** **WP(C.No.5451 of 2019** ## **PETITIONER:** **COCHIN DEVASWOM EMPLOYEES CONGRESS(CDEC) REPRESENTED BY ITS SECRETARY, DEVASOM HEADQUARTERS, NEAR VADAKKENCHIRA, THRISSUR.** **BY ADVS. SRI.M.P.ASHOK KUMAR SHRI.ASIF N SMT.BINDU SREEDHAR SMT.R.S.MANJULA SRI.P.C.GOPINATH** ## **RESPONDENT:** **COCHIN DEVASWOM BOARD DEVASOM BOARD BUILDINGS THRISSUR-1, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **28.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO.5451 OF 2019 :-2-: ## **WP(C) NO.5451 OF 2019** ## **J U D G M E N T** ## **P.R.RAMACHANDRA MENON,J:** The petitioner-Cochin Devaswom Employees Congress is deeply aggrieved by the sudden turn of events whereby Exts.P4 and P5 orders have been issued by the respondent-Cochin Devaswom Board requiring the petitioner to surrender the room allotted to the petitioner, who was selected to hold the office after the referendum conducted by the Board in the year 2013. 2. The sequence of events narrated in the writ petition shows that the petitioner is the only recognised and approved association of employees representing the various sections/segments of the employees in the Cochin Devaswom Board. Approval was given to the petitionerassociation by the Board as per Ext.P1, on 11.11.2013. As a matter of fact, pursuant to the referendum held, the Union took charge of the office on 9.11.2013. The tenure is 'five' years and though the same has come to an end on 9.11.2018, no steps have been taken by the Devaswom to ascertain the will of the employees by conducting a fresh referendum. It is also brought to the notice of this Court that, even while holding the last referendum, the petitioner-Association and a rival Union by name the Cochin Devaswom Employees Organisation were given rooms ## WP(C) NO.5451 OF 2019 :-3-: for their functioning in the respondent- Devaswom Board, from 6.6.2013. This was a stop-gap arrangement, till the referendum was conducted and after the referendum, the petitioner- Association came to be vested with the right to continue in the room already allotted to them. But the rival union did not surrender the premises. Later, when they approached this Court seeking for permission to continue the occupation by filing W.P(C) No.1090/2014, the Bench observed that it was a matter for consideration by the Board. It was accordingly, that the said writ petition was dismissed, without prejudice to move the Devaswom Board with regard to the grievance projected therein. 3. While so,the petitioner-association came across various deeds and misdeeds on the part of the employees and officers of the Board, indulging in serious instances of misappropriation and such other grievous offences as well. This was immediately brought to the notice of the learned Ombudsman for the Travancore and Cochin Devaswom Boards, seeking for immediate interference. On receipt of the said complaint, notice was issued by the learned Ombudsman to the Devaswom and the accounts were caused to be placed for consideration for further steps. Copies of the relevant proceedings have been produced as part of the exhibits along with the writ petition. It is further ## WP(C) NO.5451 OF 2019 :-4-: stated that the respondent/Devaswom Board did not pay any heed to the orders or directions given by the learned Ombudsman and they even did not choose to appear before the Ombudsman, which led to Ext.P3 proceedings/CDB Report No.11 of 2019 in Complaint No.232 of 2018 dated 5.2.2019, (whereby the position was made known to this court by the learned Ombudsman as to the negative approach and attitude on the part of the Devaswom). According to the petitioner, the respondent-Devaswom Board, as a retaliative measure, issued Ext.P4 asking the petitioner Union to vacate the premises. This was followed by Ext.P5 issued by the Cochin Devaswom Board and this made the petitioner to approach this Court for immediate interference. 4. When the matter came up for consideration before this Court on 22.2.2019, the learned Standing Counsel for the Devaswom Board submitted that, under similar circumstances, interference was ordered to be declined by this Court, as per the judgment dated 13.1.2014 in W.P(C) No.1090/2014. Reference was also made to the order dated 12.2.2019 passed by this Court in DBP No.2/2019, with regard to the circumstances at which the lapse occurred on the part of the Devaswom in appearing before the Ombudsman and as to the steps proposed to be pursued to ensure that no lapse is resulted any more in this regard. WP(C) NO.5451 OF 2019 :-5-: 5. Today, when the matter is taken up for consideration, the learned Standing Counsel refers to the counter affidavit filed on behalf of the respondentDevaswom, also producing copies of the relevant testimonials as Exts.R1(a),R1(b) and R1(c). Ext.R1(a) is the copy of the proceedings whereby rooms were allotted to the petitioner-Association on 6.6.2013. Ext.R1(b) is a copy of the verdict passed by this Court in WP(C) No.1090/2014 (filed by the rival Union i.e.,Cochin Devaswom Employees Organization) and Ext.R1(c) is the verdict passed by this Court on 12.2.2019 in DBP No.2/2019. 6. We heard both the sides and perused the relevant materials on record. 7. The first objection raised by the respondentDevaswom Board, as contained in paragraph 3 of the counter affidavit, is that the petitioner association is having as many as 719 members, but they have paid only a sum of `100/- as court fee, which is not correct in the light of the law declared by the Division Bench of this Court in **Maradu Market Traders' Association** v. **State of Kerala** [2018(3) KLT 212] requiring payment of court fees by all the members of the association/union in terms of Schedule II Article 11(l)(iii) of the Kerala Court-Fees and Suits Valuation Act. In fact, the law declared by the Division ## WP(C) NO.5451 OF 2019 :-6-: Bench in the aforesaid case was with reference to the issue projected as to the mandatory benefits payable to the members of the Union/association and this Court held that since individual reliefs were involved and since the writ petition is on behalf of all such members, separate court fee had to be satisfied; particularly, in view of Rule 147A of the Kerala High Court rules. Coming to the instant case, the relief sought for in this writ petition is not with regard to any individual right or relief to be claimed by the members of the petitioner-association, but as to the right of the association, (who represent the employees) for permission to continue to occupy the place allotted by the Devaswom Board. This being the position, the court fee of `100/- satisfied the petitioner association, is quite adequate and enough to sustain the proceedings. The contention raised to the contrary by the Devaswom Board stands repelled. 8. The next point raised by the respondent -Devaswom Board is that the tenure of the Union has expired and in view of the specific condition in Ext.R1(a) order, the petitioner has to surrender the space allotted to them immediately. It is in this context that reliance is sought to be placed on Ext.R1(b) verdict passed in W.P(C) No.1090/2014 while relegating the said petitioner to have the matter to be considered by the Devaswom Board. The WP(C) NO.5451 OF 2019 :-7-: learned counsel for the petitioner submits that, it is only as an instance of mala fide exercise to oust the petitioner Union from the room because of the steps initiated by the petitioner before the Ombudsman by filing a complaint, causing an enquiry into the affairs of the Devaswom employees, that Exts.P4 and P5 have been issued. This is sought to be rebutted by the learned counsel for the respondent -Devaswom Board, stating that it is only because of the specific condition incorporated in Ext.R1(a) at the time of allotment and more so, since the tenure of the petitioner is admittedly over. At the same time, it is relevant to be noted that there is no averment in the affidavit that the eviction of the petitioner association who was in office till 9.11.2018 is for making use of the space for any urgent need of the Devaswom Board or as to the further course of action proposed by the Devaswom Board with reference to such space. It is stated by the learned counsel, that room will of course be allotted to the association who succeeds in the referendum. But nothing is stated with regard to the further steps to be pursued for holding a referendum. If the petitioner association succeeds in the referendum to be conducted, it goes without saying that the petitioner will be entitled to continue to occupy the premises and as such, whether it is extremely essential to have the WP(C) NO.5451 OF 2019 :-8-: petitioner ousted from the premises at this point of time, is the only point that has to be looked into. 9. With regard to the course pursued by the Bench of this Court in WP(C) No.1090/2014, it is to be noted that the said writ petition was filed by the rival Union, who lost the battle. Admittedly they were also allotted space in the building of the Devaswom on 6.6.2013 and the referendum was conducted only subsequently. After the referendum, both the rival Union and also the petitioner association continued to occupy the premises; though the occupation by the petitioner alone was to be justified in the light of the relevant facts and figures. It was, in the said circumstances, that the matter was considered by the learned Bench and held that in paragraph 3 in explicit terms that the learned Standing Counsel for the Board submitted that only the successful Union alone can be allotted the space in the office. It was accordingly, that the Bench held that only the Board could take a decision in the matter; thus relegating the petitioner therein accordingly and dismissed the writ petition, subject to the observation as above. The said decision does not come to the rescue of the Devaswom Board to oust the petitioner, by pursuing a similar course of action as pursued in W.P(C) No.1090 of 2014. This is more so, since, admittedly, the petitioner was successful and got ## WP(C) NO.5451 OF 2019 :-9-: selected in the referendum and is still holding the office. 10. The next question is why the Devaswom Board is not taking necessary steps to conduct the referendum. This Court asked the learned Standing Counsel as to time within which the referendum could be conducted, so that there will be a finality to the issue, particularly,with regard to the occupation of the room in question. The learned Standing Counsel submits, on the basis of the instruction received from the Board, that the Devaswom is ready to have referendum conducted in the third week of May,2019. The said submission is recorded. Mr.Ashok Kumar, the learned counsel appearing for the petitioner/association submits that all co-operation will be rendered from the part of the petitioner and once the referendum is conducted and if the petitioner fails in the referendum, the petitioner is ready to surrender the premises immediately on receipt of a notice by the Devaswom Board issued in this regard (without any further challenge as to the right to continue the occupation). The said submission and undertaking stand recorded. 11. In the above circumstance, we hold that the petitioner-association is entitled to enjoy the possession as on date and continue to occupy the premises allotted as per Annexure R1(a), till the referendum is conducted by WP(C) NO.5451 OF 2019 :-10-: the respondent-Devaswom Board and the result is declared. The further continuation will be subject to the outcome of the referendum. If the petitioner succeeds, they can continue for the further period as specified; otherwise they shall effect vacant surrender, as undertaken by the petitioner. 12. During the course of hearing, we noted the submissions made by the learned counsel for respondent -Devaswom in paragraph 7 of the counter affidavit that the petitioner had approached this Court earlier, by filing WP(C) No.42267 of 2018, which was finalised by this Court as per judgment dated 22.2.2019, but nothing has been mentioned by the petitioner in the present writ petition. The learned counsel for the petitioner submits that the relief sought for by the petitioner in the above writ petition was entirely different from the prayers sought for in this writ petition. A copy of the earlier writ petition is made available before this Court for perusal. 13. The learned Standing Counsel for the Devaswom concedes that the prayers were different, but the allegations are the same. Even though the allegations are same, in so far as the prayer in the other writ petition was different, there cannot be any insinuation with regard to the non-mentioning of the said writ petition in the present writ petition. WP(C) NO.5451 OF 2019 **==> picture [69 x 10] intentionally omitted <==** The writ petition stands allowed to the extent as mentioned above. Sd/- **P.R.RAMACHANDRA MENON** , JUDGE sd/- **N.ANIL KUMAR** , JUDGE MBS/ WP(C) NO.5451 OF 2019 :-12-: ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF ORDER DATED 11/11/2013 BY COCHIN DEVASWOM BOARD.** **EXHIBIT P2 PHOTOCOPY OF LETTER RECEIVED FROM OMBUDSMAN EXHIBIT P3 PHOTOCOPY OF THE ORDER DATED 5/2/2019 OF OMBUDSMAN.** **EXHIBIT P4 THE PROCEEDINGS OF COCHIN DEVASOM BOARD ON 13/2/2019.** **EXHIBIT P5 PHOTOCOPY OF THE ORDER DATED 13/02/2019 BY THE COCHIIN DEVASOM BOARD.** ## **RESPONDENT'S EXHIBITS:** EXT.R1(a): TRUE COPY OF ORDER NO.R1-12480/12 A DATED 6.6.2013 ISSUED BY THE COCHIN DEVASWOM BOARD. EXT.R1(b): TRUE COPY OF JUDGMENT DTD.13.1.2014 IN WP(C) NO.1090/2014 PASSED BY THIS COURT. EXT.R1(c): TRUE COPY OF ORDER DATED 12.2.2019 IN DBP NO.2/2019 PASSED BY THIS COURT.