C.V.VIJAYAN v. GURUVAYUR DEVASWOM MANAGING COMMITTEE & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **WEDNESDAY, THE 4TH DAY OF APRIL 2012/15TH CHAITHRA 1934** ## **WP(C).No. 498 of 2012 (J) -------------------------** ## **PETITIONER(S):** **-------------** **C.V.VIJAYAN, AGED 51 YEARS, S/O.LATE VELAYUDHAN, SUPERINTENDENT (UNDER SUSPENSION), GURUVAYUR DEVASWOM, GURUVAYUR – 680 101. RESIDING AT CHENNEGHAT HOUSE, PERAMANGALAM P.O., THRISSUR – 680 545.** **BY ADVS.SRI.ARUN KUMAR.P SRI.SAJEEV KUMAR K.GOPAL SMT.AMBIKA RADHAKRISHNAN** **RESPONDENT(S): --------------** **1. THE GURUVAYUR DEVASWOM MANAGING COMMITTEE, GURUVAYUR DEVASWOM, GURUVAYUR – 680 101 REPRESENTED BY ITS ADMINISTRATOR. 2. THE ADMINISTRATOR, GURUVAYUR DEVASWOM, GURUVAYUR – 680 101. 3. K.SIVASANKARAN, MEMBER, GURUVAYUR DEVASWOM MANAGING COMMITTEE, GURUVAYUR DEVASWOM, GURUVAYUR – 680 101. R1 & R2 BY ADV.SRI.V.KRISHNA MENON,SC,GURUVAYUR DEVASWOM BY SRI.K.JAJU BABU,SC,GURUVAYUR DEVASWOM** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 498 of 2012 (J) -------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **P1: COPY OF THE ORDER BY WHICH THE PETITIONER WAS GIVEN THE ADDITIONAL CHARGE OF LIVESTOCK SUPERVISOR DTD.13.7.2011.** - **P2: COPY OF THE REPORT SUBMITTED BY THE PETITIONER AS LIVESTOCK SUPERVISOR DTD.15.9.2011.** - **P3: COPY OF THE PHOTOGRAPHS OF THE INJURED ELEPHANT.** - **P4: COPY OF THE REPORT APPEARED IN MATHRUBHUMI DAILY DTD.17.7.1990.** - **P5: COPY OF THE REPORT SUBMITTED BY THE PETITIONER TO THE CHAIRMAN AND ADMINISTRATOR OF GURUVAYUR DEVASWOM ON 18.9.2011.** - **P6: COPY OF THE SHOW CAUSE NOTICE ISSUED TO THE PETITIONER DTD.27.9.2011.** - **P7: COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DTD.13.10.2011.** - **P8: COPY OF THE ORDER NO.B4.6492/11 ISSUED BY THE 2ND RESPONDENT DTD.17.10.2011.** - **P9: COPY OF THE REPORT OF THE VETERINARY DOCTOR DTD.20.9.2011.** - **P10: COPY OF THE REPORT OF THE LIVESTOCK INSPECTOR SRI.K.N. SURESHKUMAR DTD.20.9.2011.** - **P11: COPY OF THE REPORT FROM THE MANAGING COMMITTEE MEMBER SRI.SIVASANKARAN DTD.26.9.2011.** - **P12: COPY OF THE REPORT APPEARED IN DESHABHIMANI DAILY DTD.19.10.2011.** - **P13: COPY OF THE REPORT APPEARED IN MADHYAMAM DAILY DTD.19.10.2011.** - **P14: COPY OF THE REPORT APPEARED IN VARTHA NEWSPAPER DTD.19.10.2011.** - **P15: COPY OF THE NEWS ITEM APPEARED IN MADHYAMAM DAILY DTD.20.10.2011.** - **P16: COPY OF THE CHARGE SHEET NO.B4/6492 BY THE 2ND RESPONDENT TO THE PETITIONER DATED NIL.** - **P17: COPY OF THE LAWYER NOTICE ISSUED TO THE CHAIRMAN OF THE DEVASWOM, THE ADMINISTRATOR AND TO THE PETITIONER DATED 17.9.2011.** **(Contd.......)** **WP(C).No. 498 of 2012 (J) -------------------------** ## **-: 2 :-** - **P18: COPY OF THE REPORT SUBMITTED BY THE PETITIONER TO THE ADMINISTRATOR DTD.18.7.2011.** - **P19: COPY OF THE RESOLUTION OF THE GURUVAYUR DEVASWOM MANAGING COMMITTEE AT ITS MEETING HELD ON 13.6.2005.** - **P20: COPY OF THE COMMUNICATION TO THE COMMISSIONER OF GURUVAYUR DEVASWOM BY THE 2ND RESPONDENT ON 25.6.2005.** - **P21: COPY OF THE COMMUNICATION FROM THE COMMISSIONER, GURUVAYUR DEVASWOM TO THE ADMINISTRATOR.** - **P22: COPY OF THE RESOLUTION OF THE GURUVAYUR DEVASWOM MANAGING COMMITTEE AT ITS MEETING HELD ON 26.7.2005 IN RESOLUTION NO.48.** ## **RESPONDENTS' EXHIBITS:-** **R2(a): COPY OF THE RESOLUTION NO.137 OF THE MANAGING COMMITTEE DATED 28.10.2011.** **R2(b): COPY OF RESOLUTION NO.3 DTD.27.10.2003 PASSED BY THE MANAGING COMMITTEE.** **R2(c): COPIUES OF THE NEWS REPORT APPEARED IN JANAYUGAM DAILY CAUSED BY THE PETITIONER.** ## **( TRUE COPY )** _**Kvs/-**_ **PA TO JUDGE.** ## **K.SURENDRA MOHAN, J.** = = = = = = = = = = = = WP(C).No.498 of 2012. = = = = = = = = = = = = Dated this the 4[th] April, 2012. ## **J U D G M E N T** The petitioner has filed this writ petition challenging Ext.P8 order by which he has been placed under suspension by the second respondent. The petitioner while working as a Superintendent under the first respondent was alleged to have submitted a false report to the Managing Committee. 2. The petitioner was posted as Livestock Supervisor in the Anakkotta (Elephant Fort) where elephants are kept. According to the petitioner, there are 63 elephants there. All the elephants are offerings made by the devotees to Lord Guruvayurappa. 3. On 15.9.2011, the petitioner submitted a report to the Guruvayur Devaswom pointing out the pathetic condition of certain elephants, due to lack of proper care and attention. It was alleged that the elephants were not **WP(C).No.498/2012.** 2 given proper care and attention as a result of the constant shifting of mahouts from one elephant to another. The petitioner's complaint particularly related to an elephant by name Navaneeth Krishnan. Placing reliance on Ext.P3 photographs it is contended by the petitioner that the chains used for securing the elephant had bitten into the flesh, wounding it and want of attention had caused the wound to fester. The elephant was under considerable physical pain and agony. Therefore, the petitioner submitted Ext.P2 report to the Managing Committee pointing out the need to take proper care of the elephants. According to him, he had submitted the complaint in view of previous instances where elephants had died due to infection from such wounds. Based on Ext.P2 report, one Dr.K.N.Muraleedharan examined the elephant on 17.9.2011 and recommended a surgery to remove the chain from the wound. The said surgery was fixed on 20.9.2011, in the presence of some of the Managing Committee members 3 ## **WP(C).No.498/2012.** also. 4. According to the petitioner, on 18.9.2011 another Livestock Inspector by name Sri.K.N.Suresh and the previous mahouts of the elephant namely, Sri.Vasudevan and Sri.Suneesh adopted a barbaric procedure and removed the chain by extracting the same from the wound, using a chopper. The procedure adopted, according to the petitioner, had caused further injury to the elephant. The elephant was crying out in agony. The said act was done also without permission from the superior officers including the petitioner. It is further alleged that the said act was done in the full view of the visitors and other bystanders who were available on the scene, in broad daylight. Therefore, the petitioner submitted Ext.P5 report to the Chairman and Administrator of Guruvayur Devaswom. However, instead of taking action against the persons who were responsible for the objectionable act complained of, the petitioner was issued a show cause notice, Ext.P6. It **WP(C).No.498/2012.** 4 has been stated in Ext.P6 that no such incident as alleged by the petitioner had been taken place and that the complaint of the petitioner was made only to defame the Managing Committee. It is also alleged that the petitioner had disobeyed the orders of the Managing Committee members. The petitioner has submitted a detailed reply to the show cause notice. However, in spite of the reply submitted by the petitioner, he has been placed under suspension as per Ext.P8 order. 5. It is the contention of the petitioner that Ext.P8 has been issued by the second respondent who is not the appointing authority of the petitioner. Therefore, Ext.P8 order is unsustainable for the reason that the same has not been issued by the competent authority. It is the further contention of the petitioner that the incidents alleged do not justify placing the petitioner under suspension. Therefore, it is contended that Ext.P8 is liable to be set aside. 6. Advocate V.Krishna Menon, who appears for the **WP(C).No.498/2012.** 5 respondents, opposes the contentions of the petitioner and submits that action has been taken against the petitioner for the reason that no incident as alleged had taken place. The petitioner had therefore made a complaint containing false allegations against the Managing Committee members. His conduct, of not obeying the instructions of his superiors also was taken into account while taking a decision to suspend him. According to the counsel, though the second respondent is not the appointing authority of the petitioner, the order of suspension passed by the said authority was ratified by the Managing Committee later. Such ratification is permissible under Rule 10(2) of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960 ('Rules' for short). Therefore, it is contended that the suspension order Ext.P8 is perfectly valid. The counsel for the respondents also places reliance on a Single Bench decision of this Court in Hareendranath v. The State of Kerala (1998(1) KLT 68) = (ILR 1998(2) (Kerala) 173) to **WP(C).No.498/2012.** 6 support his contention that such ratification is permissible under Rule 10(2) of the Rules. Reference is also made to the decision of a Full Bench of this Court in State of Kerala v. Saseendran (2009(2) KLT 482) to contend that the decision of the learned Single Judge was not found to be bad in the said judgment. For the above reasons, it is contended that the suspension of the petitioner is not liable to be interfered with by this Court. 7. I have heard the learned counsel for the petitioner Sri.Sajeev Kumar K.Gopal and Sri.Krishna Menon who appears for the respondents at length. I have considered the rival contentions anxiously. 8. The only question that arises for consideration in this case is that whether the order of suspension Ext.P8 has been issued by the competent authority. Rule 10(1) & (2) of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960 (hereinafter referred to as 'the Rules' for short) reads as follows: **WP(C).No.498/2012.** 7 “10. Suspension:- (1) The appointing authority or any authority to which it is subordinate or any other authority empowered by the Government in that behalf may at any time place a Government servant under suspension, (a) where a disciplinary proceeding against him is contemplated or is pending; or (b) where a case against him in respect of any criminal offence is under investigation or trial; or (c) where final orders are pending in the disciplinary proceeding, if the appropriate authority considers that in the then prevailing circumstances it is necessary, in public interest, that the Government servant should be suspended from service: Provided that the authority competent to place a member of the Kerala Civil Judicial Service or the Kerala Criminal Judicial Service under suspension shall be the High Court of Judicature. (2) Where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the Appointing Authority, the circumstances in which the order was made.” As per the above Rule, only three authorities are **WP(C).No.498/2012.** 8 empowered to place an employee under suspension. They are, (1) the appointing authority, (2) any authority to which the appointing authority is the subordinate, and (3) any other authority empowered by the Government. In the present case, it is not disputed that the Managing Committee is the appointing authority of the petitioner. In fact, a reading of Section 19 of the Guruvayur Devaswom Act, 1978 leaves no doubt that the appointing authority of the petitioner is the Managing Committee. The rule further stipulates that, such an order of suspension can be passed where a disciplinary proceeding is contemplated or pending against him. The scope of the above provision had come up for consideration before a Single Bench of this Court in the decision reported in (ILR 1998(2) Kerala 173) (cited supra). In the said case also, the order of suspension was passed by an authority that did not have the power to pass suspension order. On a consideration of the above provision, C.S.Rajan J, has observed as follows: **WP(C).No.498/2012.** 9 “The learned Government Pleader invited my attention to rule 10(2) wherein it was specifically provided that where the order of suspension is made by an authority lower than the appointing authority such authority shall forthwith report to the Appointing Authority, the circumstances in which the order was made. The fourth respondent acted in accordance with the above provisions and the first respondent as per Ext.P4 order ratified the action of the fourth respondent. Therefore, the other question to be considered is what is the effect of the order of ratification. The settled position with regard to the ratification is that ratification is in law equivalent to previous authority (please see T.R.Bhavani Shankar Joshi v. Gordhandas Jamandas).” 9. The next decision relied on, is State of Kerala v. Saseendran reported in (2009(2) KLT 482). The Full Bench has in the said decision considered the scope of Rules 10(1) and 10(2) in the following words: “A reading of R.10(1) of the Rules suggests that the suspension order can be passed: (a) by the appointing authority, (b) by any authority to which the appointing authority is subordinate, and (c) by any other authority empowered by the Government in that behalf. Sub-r.(2) of R.10 prescribes the procedure to be followed when the **WP(C).No.498/2012.** 10 suspension order emanates from any authority lower than the appointing authority, but specially empowered by the Government. All that sub-r.(2) says is that such authority shall forthwith report the circumstances in which the suspension order was made. We are unable to read sub-r.(2) of R.10 as granting the power to suspend to anyone. The power of suspension is conferred only on the authorities named in sub-r.(1) of R.10. Sub-r.(2) specifically deals with a situation of a person other than the appointing authority or an authority superior to the appointing authority; in other words, an authority lower than the appointing authority who is specifically empowered to pass the order of suspension.” 10. Referring to the decision in Hareendranath v. State of Kerala (supra) the Full Bench has observed at para.4 as follows: “The second judgment cited is judgment in Hareendranath v. State of Kerala (1998(1) KLT 68). We do not find in the judgment any discussion as to the source of the power of suspension. This judgment actually turns on the meaning to be given to sub-r.(2) of R.10, where the order of suspension is made by the authority lower than the appointing authority. The decision turns on the point whether sub-r.(1) deals with post fact empowerment or requires the empowerment **WP(C).No.498/2012.** **==> picture [13 x 9] intentionally omitted <==** under sub-r.(1) of R.10 as a condition precedent.“ 11. What is clear from the above is that though Rule 10(2) provides that where an authority lower to that of the appointing authority passes an order of suspension, the same should be reported to the appointing authority, there is no provision to confer validity on the said order. The Full Bench has also found that where the order of suspension is not passed by the authority under Rule 10(1), the fact that the order of suspension passed by an incompetent authority was ratified by the competent authority later, would not make the order valid. Counsel for the petitioner has placed reliance on a decision in Harish v. State of Kerala (2002(3) KLT (SN 79) Case No.108), where an order of suspension passed by an authority not competent to pass such an order has been set aside. Reliance has also been placed on the judgment of a Division Bench of this Court in WA.No.1267/2001, wherein the very same contention was **WP(C).No.498/2012.** 12 considered and rejected in the following words: “The contention of the appellant is that it is enough that the appointing authority subsequently ratify the same in view of Rule 10(2). The matter was referred to the Full Bench and Full Bench held that only the appointing authority or the specifically empowered authority can suspend a Government servant and if the original order is not in order it cannot be validated by Rule 10(2). The Full Bench upheld the decision of this Court in **Balakrishna Pillai** v. **State of Kerala** (1993(1) KLT 625). In view of the above, the Writ Appeal is liable to be dismissed.” 12. In view of the above legal position, there can be no doubt regarding the proposition that an order of suspension passed by an authority not competent to do so could not be validated by a subsequent ratification by the competent authority. In the present case the order of suspension Ext.P8 has been issued by the second respondent who is not the appointing authority of the petitioner. Therefore, it has to be held that Ext.P8 is unsustainable. For the above reasons, the petitioner is 13 ## **WP(C).No.498/2012.** entitled to succeed. 13. In the result, this writ petition is allowed. The order Ext.P8 is quashed. The respondents shall reinstate the petitioner in service forthwith. Needless to observe that the set asiding of Ext.P8 will not fetter the powers of the competent authority to suspend the petitioner if the situation warrants such an action. **K.SURENDRA MOHAN,** (Judge) **Kvs/-**