DBP No.59 of 2020 (TDB Report No.48/2020 in Complaint No.286/2019)

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` TUESDAY, THE 19[TH] DAY OF DECEMBER 2023 / 28TH AGRAHAYANA, ``` ``` 1945 ``` ``` DBP NO.59OF 2020 ``` ``` TDB REPORT NO. 48/2020 IN COMPLAINT NO. 286/2019 - MATTER REGARDING THE ENQUIRY REPORT ON GROSS OFFICIAL MISCONDUCT, ``` ``` SRI.V.P.HARIKRISHNAN ``` ## **`PETITIONER:`** ``` SRI.T.SATHEESH VICE PRESIDENT, THIRUVITHAMKOOR DEVASWOM BOARD CONTRACTOR'S UNION, 'SARANYA', KARICHAL, HARIPPADU ``` ## **`RESPONDENTS:`** ``` 1THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM ``` ``` 2THE SUPERINTENDENT OF POLICE VIGILANCE AND SECURITY, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM ``` ## **`*ADDL.R3 STATE OF KERALA`** ``` ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN -695 001 ``` ``` *ADDL.R4SECRETARY TO GOVERNMENT REVENUE (DEVASWOM) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001 ``` ``` *ADDL.R5DIRECTOR ``` ``` 2 ``` DBP No.59 of 2020 ``` VIGILANCE AND ANTI-CORRUPTION BUREAU, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN-695 033 ``` - **`*ADDL.R6 TRAVANCORE DEVASWOM BOARD`** ``` NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN-695 003 ``` ``` *[ARE SUO MOTU IMPLEADED AS ADDITIONAL RESPONDENTS 3 TO 6 VIDE ORDER DATED 21/07/2023 IN DBP.NO.59/2020] ``` ``` SRI S.RAJMOHAN- SR GOVERNMENT PLEADER ; SRI G.BIJU- STANDING COUNSEL- TRAVANCORE DEVASWOM BOARD ; SRI P.RAMACHANDRAN - AMICUS CURIAE FOR OMBUDSMAN ``` ``` THIS DEVASWOM BOARD PETITION HAVING COME UP FOR ADMISSION ON 19.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` DBP No.59 of 2020 ## **ORDER** ## **Anil K. Narendran, J.** This DBP is registered, based on TDB Report No.48 of 2020 of the learned Ombudsman in Complaint No.286 of 2019. The said report of the learned Ombudsman reads thus; “A Complaint received by the Registry of the Honourable High Court was forwarded to this office for appropriate action, pursuant to which, notice was issued. The Vigilance after conducting a detailed enquiry into the allegations has filed a report suggesting that there is a prima facie case for taking action by the State Vigilance and has recommended to place the matter before the State Vigilance for detailed investigation. Copies of the Complaint and the Vigilance Report (without annexures) are marked as Annexures 01 and 02 respectively. Copies of the Statements of the witnesses and other materials being voluminous are kept in the file which can be made available to the Honourable High Court through the Amicus Curiae. The Honourable High Court after considering the Vigilance recommendations may give directions to the Board as may be deemed fit and proper.” 2. On 27.01.2021, when this DBP came up for consideration, the learned Standing Counsel for Travancore Devaswom Board was directed to get instructions. 3. On 24.02.2021, after considering the report of the learned Ombudsman and the materials placed on record, this Court passed the following order; “We are peeved by the inertia on the part of the Travancore ``` 4 ``` DBP No.59 of 2020 Devaswom Board to initiate appropriate action despite the receipt of copy of a report from the Vigilance and Security, Travancore Devaswom Board, dated 03.12.2020, pursuant to an order dated 13.10.2020 of the learned Ombudsman for Travancore and Cochin Devaswom Boards in Complaint No.286/2019. It pertains to extreme irregularities committed/ occurred in respect of several maramath works. 2. The report prima facie reveals gross official misconduct, falsification of records and financial misconduct on the part of certain personnel under Travancore Devaswom Board. True that the report was submitted before the learned Ombudsman for Travancore and Cochin Devaswom Board and obviously, it reached the heads of Travancore Devaswom Board. There is no interdictory order restraining the Travancore Devaswom Board to initiate appropriate steps based on the report. True that the Ombudsman suggested for consideration of recommendations by the Vigilance and also for giving appropriate directions, and it is for that precise purpose Travancore Devaswom Board Report No.48/2020 was filed by the learned Ombudsman based on which the captioned DBP was registered. We are of the view that, it is only appropriate to require the Travancore Devaswom Board to file an affidavit with respect to the action initiated/ proposed to be initiated against the officers said to have erred/committed the alleged misconduct. 3. Taking note of the serious allegations specifically referred to in the report against the erring officers, such an affidavit shall contain action already initiated or proposed to be initiated against the erring officers. It shall also contain statements as to whether pursuant to the receipt of the same any earnest effort was made to identify the involvement of ``` 5 ``` DBP No.59 of 2020 any other officer/officers besides the officers whose name are referred to in the report. Such an affidavit shall be filed by the Secretary of the Travancore Devaswom Board within a period of three weeks. List the matter for further consideration on 26.03.2021.” 4. The Secretary of the 6[th] respondent Travancore Devaswom Board has filed an affidavit dated 24.03.2021. Paragraphs 3 to 6 of the said affidavit read thus; “3. It is respectfully submitted that the Hon'ble Ombudsman accepted the complaint on file and issued notice to the Devaswom Commissioner and the Superintendent of Police (Vigilance and Security), Travancore Devaswom Board. The S.P. Vigilance conducted a detailed enquiry in the matter and reported directly to the Hon'ble Ombudsman on 07.12.2020. On 9.12.2020 the Hon'ble Ombudsman submitted his report along with the Vigilance Report to this Hon'ble Court. 4. The above information is brought to the notice of the Board by the Vigilance S.P. through his letter dated 29.01.2021. Since the matter is pending consideration of the Hon'ble High Court, the Board did not take further action as it would be inappropriate to intervene when the matter is being considered by this Hon'ble Court. 5. It is submitted that the Board received the order of the Hon'ble High Court on 02.3.2021 from the office of the Standing Counsel. The matter was considered in the first Board meeting itself upon receipt of the order passed by this Hon'ble Court. The Board assessed the allegations in the report as being of a very serious nature. It has been decided to issue show cause notice to Sri. Harikrishnan, the Assistant Engineer and Sri. Kesavadas, Chief Engineer, Travancore ``` 6 ``` DBP No.59 of 2020 Devaswom Board, who was Executive Engineer at that time. In the report of the Chief Vigilance Officer, the S.P. said that a detailed inquiry is needed into the allegation against the erred officials. The Board has decided to authorize the S.P. to conduct a detailed enquiry by constituting a team with technical experts of his choice. A copy of the Board Order dated 15.3.2021 is produced herewith and marked as Annexure- R1(a). 6. As per the order of the Board, show cause notices were issued to Sri. Harikrishnan and Sri. Kesava Das on 15.03.2021. Copy of the show cause notice dated 15.03.2021 issued to Sri. - Harikrishnan is produced herewith and marked as Annexure R1(b) and true copy of the show cause notice dated 15.03.2021 issued to Sri. Kesavadas is produced herewith and - marked as Annexure R1(c).” 5. On 21.07.2023, when this DBP came up for consideration, the learned Standing Counsel for Travancore Devaswom Board has made available for the perusal of this Court Communication ROC No.1540/21/Vig. dated 15.12.2021 of the Secretary of Travancore Devaswom Board addressed to the Director of Vigilance, Anti-Corruption Bureau. The learned Senior Government Pleader sought time to get instructions, as to the action taken by the Vigilance and Anti-Corruption Bureau based on the aforesaid communication dated 15.12.2021. The learned Standing Counsel for Travancore Devaswom Board was directed to file an affidavit on behalf of the additional 6[th] respondent, ``` 7 ``` DBP No.59 of 2020 explaining the disciplinary proceedings already initiated against the delinquent officers. 6. The said affidavit was followed by an additional affidavit dated 28.10.2023. Paragraphs 3 to 5 of that affidavit read thus; “3. It is submitted that while considering this case this Hon'ble Court asked the Travancore Devaswom Board to verify whether any other officers are involved in these irregularities. The Superintendent of Police (Vigilance and Security) requested the Board to provide the help of an expert to conduct further enquiry to find out the wilful technical errors committed by the officers and a panel of expert engineers was submitted before the Board. The Board appointed Sri.K.G.Rajagopal, Executive Engineer (Civil), Central University Campus, Kasargod, to assist the Superintendent of Police. Thereafter, a detailed enquiry was conducted by the Superintendent of Police with the assistance of the expert engineer and submitted a report before the Board on 23.11.2021. In this report the Superintendent of Police reported the involvement of more officers, Sri. Vinayakumar, Chief Engineer, Sri. B. Kesavadas, Sri. Uppiliappan, Sri. Renjith K. Shekhar, Sri. G.S. Baiju, Executive Engineers, and the Divisional Accountants in the said irregularities and recommended detailed enquiry by the State Vigilance. The Board considered the report of the Superintendent of Police and decided to refer the matter to the Vigilance and Anti Corruption Bureau for detailed enquiry in the matter. Accordingly, the Board requested the Vigilance and Anti Corruption Bureau vide letter, ROC 1540/21/Vig ``` 8 ``` DBP No.59 of 2020 dated 15.12.2021 to conduct an enquiry in the matter. 4. It is submitted that, in the meanwhile the Executive Engineer Sri. B.Kesavadas (who was promoted later as Chief Engineer) and Assistant Engineer Sri. V. P. Harikrishnan were placed under suspension pending enquiry by the Board vide ROC No. 1540/21/Vig. dated 07.03.2022. The Govt. vide letter, Vig-E5/17/2022-Vig dated 31.05.2022. referred the matter to the Superintendent of Police, Vigilance and Anti Corruption Bureau for enquiry. The Superintendent of Police Vigilance and Anti Corruption Bureau, Special Investigation Unit-1, Poojappura, Thiruvananthapuram registered a case No. V.E-01/2022/STU-1 and the investigation is in progress. 5. It is submitted that on the basis of the report of the Superintendent of Police (Vigilance and Security), Travancore Devaswom Board, the Board issued show cause notices to the Executive Engineers Sri.B.Kesavadas, Sri.Uppiliappan, Sri.Renjith K.Sekhar, Sri.G.S.Baiju, Sri.V.P.Harikrishnan, Assistant Engineer, Sri.Vinayakumar, Chief Engineer (Retd) and Divisional Accountants Smt.S.Sheela, Smt. Lathakumari, Smt. Rajalaksmi Amma, and Smt.S.Sini. Memo of charges were issued to all the above officers along with the statement of allegations. All of them received the memo of charges. Sri.B.Kesavadas, Sri.G.S.Baiju, Sri.Renjith K.Shekhar and Sri.Uppiliyappan submitted their written statement to the charges. Other officers did not file any written statement. The Board considered the Memo of charges and the written statement submitted by Sri.B.Kesavadas, Sri.G.S.Baiju, Sri.Renjith K.Shekhar and Smt.S.Sini and found that the explanations are not satisfactory and hence decided to appoint an enquiry officer to conduct domestic enquiry in respect of the charges of all the delinquent officers. ``` 9 ``` DBP No.59 of 2020 Accordingly, as per Board order, ROC No.1540/21/Vig/Est-1 dated 23.11.2022 Adv.Koliyakode Ashok Kumar was appointed as Enquiry Officer to conduct domestic enquiry in respect of the charges against the delinquent officers. True copy of order vide ROC No. 1540/21/Vig/Est-1 dated 23.11.2022 issued by the Secretary, Travancore Devaswom - Board is enclosed herewith and marked as Annexure R6(a). The enquiry is in progress.” 7. Heard the learned Standing Counsel for Travancore Devaswom Board, the learned Senior Government Pleader and also the learned Amicus Curiae for the learned Ombudsman. Notice issued to the complainant, returned with an endorsement ‘not known’. 8. Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. Section 15A of the Act, inserted by Act 5 of 2007, with effect from 12.04.2007, deals with duties of the Board. As per Section 15A, it shall be the duty of the Board to perform the following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly; (ii) to monitor whether the administrative officials and ``` 10 ``` DBP No.59 of 2020 ## employees and also the employees connected with religious rites are functioning properly; (iii) to ensure proper maintenance and upliftment of the Hindu religious institutions; (iv) to establish and maintain proper facilities in the temples for the devotees. As per Section 16 of the Act, the Board shall, subject to the provisions of Part I of the Act, exercise supervision and control over the acts and proceedings of all officers and servants of the Board and of the Devaswom Department. As per Section 31 of the Act, subject to the provisions of Part I and the rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms, both incorporated, and unincorporated as heretofore, and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage. ## 9. In **Ram Mohan Das v. Travancore Devaswom** **Board [1975 KLT 55]** a learned Single Judge of this Court held that, under Section 31 of the Travancore-Cochin Hindu Religious Institutions Act, the Travancore Devaswom Board shall manage the properties and affairs of the Devaswoms, both incorporated and unincorporated and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage. The position of the Board in regard to the ``` 11 ``` DBP No.59 of 2020 Devaswoms - incorporated and unincorporated - is analogous to that of trustees. Any improper act of the Trustees could be questioned by a worshipper. ## 10. In **M.V. Ramasubbiar v. Manicka Narasimachara** **[(1979) 2 SCC 65]** , in the context of Sections 49, 51 and 52 of the Trusts Act, 1882, the Apex Court explained the nature of the fiduciary position of the trustee and his duties and obligations. It is the duty of the trustees of the property to be faithful to the Trust and execute any document with reasonable diligence in the manner of an ordinary prudent man of business would conduct his own affairs. A trustee could not, therefore, occasion any loss to the Trust and it is his duty to sell the property if at all that was necessary, to the best advantage. Paragraph 4 of that decision reads thus; “4. There is some controversy on the question whether defendant 1 made an outright purchase of the suit property for and on behalf of the trust for Rs. 21,500 on April 19, 1959, or whether he intended to purchase it for himself and then decided to pass it on to the trust, for defendants have led their evidence to show that the property was allowed to be sold for Rs.21,500, which was less than its market value, as it was meant for use by the trust and that Defendant 1 was not acting honestly when he palmed off the property to his son soon after by the aforesaid sale deed Ext.B13 dated July 14, 1960. The fact, ``` 12 ``` DBP No.59 of 2020 however, remains that Defendant 1 was the trustee of the property, and it was his duty to be faithful to the trust and to execute it with reasonable diligence in the manner an ordinary prudent man of business would conduct his own affairs. He could not therefore occasion any loss to the trust and it was his duty to sell the property, if at all that was necessary, to best advantage. It has in fact been well recognised as an inflexible rule that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family. It can also not be gainsaid that he is not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, and so the control of the trustee's discretionary power prescribed by Section 49 of the Act and the prohibition contained in Section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust, and the equally important prohibition in Section 52 that the trustee may not, directly or indirectly, buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as the trustee. It does not require much argument to proceed to the inevitable further conclusion that the Rule prescribed by the aforesaid sections of the Act cannot be evaded by making a sale in the name of the trustee's partner or son, for that would, in fact and substance, indirectly benefit the trustee. Where therefore a trustee makes the sale of a property belonging to the trust, without any compelling reason, in favour of his son, without obtaining the permission of the court concerned, it is the duty of the court, in which the sale is ``` 13 ``` DBP No.59 of 2020 challenged, to examine whether the trustee has acted reasonably and in good faith or whether he has committed a breach of the trust by benefitting himself from the transaction in an indirect manner. The sale in question has therefore to be viewed with suspicion and the High Court committed an error of law in ignoring this important aspect of the law although it had a direct bearing on the controversy before it.” (underline supplied) 11. In **A.A. Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482]** a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of ‘fence eating the crops’ should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of ``` 14 ``` DBP No.59 of 2020 religious and charitable institutions from wrongful claims or misappropriation. 12. In **Travancore Devaswom Board v. Mohanan Nair [(2013) 3 KLT 132]** a Division Bench of this Court noticed that in **A.A. Gopalakrishnan [(2007) 7 SCC 482]** a ThreeJudge Bench of the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The Division Bench further noticed that the relevant principles under the Hindu law will show that the deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The High Court is the guardian of the deity and apart from the revisional jurisdiction under Section 103 of the Kerala Land Reforms Act, 1963, the High Court is having inherent jurisdiction and the doctrine of _parens patriae_ will also apply in exercising the jurisdiction. 13. In **Suo motu v. State of Kerala and others [2022** **(2) KHC 411]** this Court held that in view of the provisions under the Travancore-Cochin Hindu Religious Institutions Act and the law laid down in the decisions referred to supra, the 3[rd] respondent Travancore Devaswom Board is duty bound to ensure proper administration, supervision and control of ``` 15 ``` DBP No.59 of 2020 Sabarimala Devaswom, which is an incorporated Devaswom mentioned in Schedule I of the said Act, under the Chengannur Group. The Board has a statutory duty to monitor whether its administrative officials and employees and also the employees connected with religious rites are functioning properly. The Board is duty bound to exercise proper supervision and control over the acts and proceedings of all officers and servants and to manage the properties and affairs of Sabarimala Devaswom and conduct daily worships and ceremonies and also festivals in the temple according to its usage. The position of the Board in this regard is analogous to that of trustees, as held by this Court in **Ram Mohan Das [1975 KLT 55]** . Any improper act of the trustees could be questioned by a worshiper. 14. In **Suo motu [2022 (2) KHC 411]** this Court held that the Travancore Devaswom Board and those entrusted with the duty of managing the properties and affairs of Sabarimala Devaswom are duty bound to protect the properties of the deity from any wrongful claims, theft or misappropriation. The position of the Board in this regard is analogous to that of trustees. Any such wrongful claims, theft or misappropriation with the passive or active collusion of the authorities concerned, which are acts of ‘fence eating the crops’ should be dealt with sternly. The deity ``` 16 ``` DBP No.59 of 2020 being a perpetual minor, this Court is having inherent jurisdiction to protect and safeguard the interest and properties of the deity and the doctrine of _parens patriae_ will also apply in the exercise of such jurisdiction. 15. As stated in the additional affidavit dated 28.10.2023 filed on behalf of the additional 6[th] respondent Travancore Devaswom Board, the Superintendent of Police, Vigilance and Anti-Corruption Bureau, Special Investigation Unit – 1, Poojapura has registered Case No.V.E-01/2022/STU-1 and the investigation is in progress. It was based on a reference made by the Government vide letter No.Vig-E5/17/2022 dated 31.05.2022, whereby the matter was referred for enquiry. In addition to this, disciplinary proceedings have already been initiated against the officers and an enquiry officer has already been appointed to conduct a domestic enquiry vide Annexure R6(a) Board order dated 23.11.2022. In such circumstances, this DBP is disposed of taking note of the pending investigation by the Vigilance and Anti-Corruption Bureau, Special Investigation Unit – 1, Poojapura, in Case No.V.E-01/2022/STU-1 and, the domestic enquiry vide Annexure R6(a) Board order dated 23.11.2022, against the officers of the Board. The 1[st] respondent Devaswom Commissioner shall an ``` 17 ``` DBP No.59 of 2020 action taken report before the learned Ombudsman, within a period of four months from the date of receipt of a certified copy of this order. **Sd/-** **Sd/G. GIRISH, JUDGE** vgd ``` 18 ``` DBP No.59 of 2020 ## **`APPENDIX OF DBP 59/2020`** ## **`RESPONDENTS’ ANNEXURES`** ``` ANNEXURE-R6(A)TRUE COPY OF ORDER VIDE ROC NO. 1540/21/VIG/EST-1 DATED 23/11/2022 ISSUED BY THE SECRETARY, TRAVANCORE DEVASWOM BOARD ```