DBP No.77 of 2022 in the matter of Travancore Devaswom Board – Report No.34/2022 in Complaint No.79/2021 – Petition for Transfer of Complainant – Suo Motu Proceedings Initiated – Reg.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` FRIDAY, THE 20[TH] DAY OF JANUARY 2023 / 30TH POUSHA, 1944 ``` ## **`DBP NO.77 OF 2022`** ``` IN THE MATTER OF TRAVANCORE DEVASWOM BOARD – REPORT NO.34/2022 ``` ``` IN COMPLAINT NO.79/2021 – PETITION FOR TRANSFER OF COMPLAINANT – SUO MOTU PROCEEDINGS INITIATED – REG. ``` ``` ------------ ``` ## **`PETITIONER:`** ``` SRI.C.K. MADHUSOODANAN NAMBOODIRI, (MELSANTHI, CHITTADEESWARAN DEVASWOM, RAMESWARAM SUB GROUP), CHANDRAMANA ILLOM, KAIKULANGARA NORTH, ANANDAVALLEESWARAM NAGAR – 66, KOLLAM – 12, PIN – 689546 ``` ## **`RESPONDENTS:`** ``` 1 THE SECRETARY, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM, PIN - 695003 2 THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM, KERALA, PIN - 695003 BY ADV P.U.VINOD KUMAR, SC, TRAVANCORE DEVASWOM BOARD ``` ## **`OTHER PRESENT:`** ## **`SRI P.RAMACHANDRAN - AMICUS CURIAE`** ``` THIS DEVASWOM BOARD PETITION HAVING COME UP FOR ADMISSION ON 20.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` DBP No.77 of 2022 2 ## **O R D E R** Anil K. Narendran, J. This DBP is registered based on Report No.34 of 2022 of the learned Ombudsman for Travancore and Cochin Devaswom Boards in Complaint No.79 of 2022. The complainant, who is the Melsanthi of Chittadeeswaran Devaswom in Rameswaram Sub Group under the Travancore Devaswom Board, filed Annexure O1 complaint dated 20.06.2022 before the learned Ombudsman, wherein it is stated that he has 32 years of service in the Board and he is due to retire in 2023. He opted for the post of Melshanti Thrikkadavoor Devaswom and Ashramam Devaswom in the general transfer of 2022. Since he has got only less than one year service before retirement, he is entitled to be transferred to the place of choice near his residence. However, he was retained in Chittadeewaram Temple as Melshanti. In the complaint he refers Clause (14) of the transfer norms. In the complaint, it is alleged that the person who has been transferred to Thrikkadavoor Devaswom has a long period of service remaining, whereas the complainant has got only less than one year of service. The request of the complainant in Annexure O1 complaint is that he may be accommodated as Melshanti, either at Thrikkadavoor Devaswom or Ashramam Devaswom. DBP No.77 of 2022 3 2. Before the learned Ombudsman the 2[nd] respondent Devaswom Commissioner submitted a report dated 22.09.2022, wherein it is stated that the Assistant Devaswom Commissioner, Kollam was directed vide order No.ROC.02/2022/S dated 05.09.2022 to consider the applications made by the complainant dated 20.06.2022 and also that made by Sri.K.L.Hari, Melshanti Marthadapuram Devaswom and Sri.V.Manikuttan Potti, Shanti of Puthiyakavu Devaswom, taking note of the norms regarding general transfer. A copy of the said order was enclosed along with the report dated 22.09.2022 of the 2[nd] respondent Devaswom Commissioner. 3. In the proceedings dated 29.09.2022 the learned Ombudsman noticed that the grievance of the complainant is nonconsideration of Clause (14) of the transfer norms, on the premises that he has only less than one year of service before superannuation, and as such he is entitled to be transferred to any one of the two stations requested for. Since the claim of the complainant with reference to Clause (14) of the transfer norms was not answered in the report dated 22.09.2022 of the Devaswom Commissioner, the learned Ombudsman adjourned the matter awaiting further report. On 06.10.2022 the Deputy Commissioner (Administration) has filed a report dated DBP No.77 of 2022 4 03.10.2022 on behalf of the Devaswom Commissioner, wherein it is stated that in both stations opted by the complainant there are applicants senior to him and as such, he cannot be granted posting in those stations. The Devaswom where the complainant is presently working is near to his residence, when compared with the stations opted by him. After quoting Clauses (14) and (24) of the transfer norms, the learned Ombudsman has submitted report No.34 of 2022, since the issue involved is interpretation of the transfer norms, which has a wider application. 4. On 08.12.2022, when this DBP came up for consideration, we noticed that in Annexure O1 complaint dated 20.06.2022 submitted before the learned Ombudsman, the complainant, who has only less than one year service before superannuation, is seeking transfer to a temple near to his residence. The question as to whether such a complaint can be filed before the learned Ombudsman requires consideration, with notice to the complainant. By the order dated 08.12.2022, this Court issued notice to the complainant and the learned Standing Counsel for Travancore Devaswom Board took notice for respondents 1 and 2. 5. On 13.01.2023, when this DBP came up for further consideration, the learned Standing Counsel for Travancore DBP No.77 of 2022 5 Devaswom Board pointed out the decision of this Court in **Kamalam v. Cochin Devaswom Board [2014 (4) KLT 545]** The learned _Amicus Curiae_ pointed out an unreported decision in **Examiner, Local Fund Accounts, Trivandrum v. Secretary, Travancore Devaswom Board, Trivandrdum** [Order dated 19.10.2015 in O.P.No.3821 of 1990 and DBP Nos.1 of 2015 and 107 of 2015]. 6. Heard the learned Standing Counsel for Travancore Devaswom Board for respondents 1 and 2 and also the learned _Amicus Curiae_ for the learned Ombudsman. Despite service of notice, none appears for the complainant. 7. The powers of the learned Ombudsman, as per the order of this Court dated 27.11.2007 in O.P No.3821 of 1990, W.P.(C)No.19571 of 2007 and DBP No.1 of 2006 are as follows; “Ombudsman will broadly discharge the following functions: 1. Ombudsman will oversee the audits undertaken by the auditors appointed by the High Court and also would examine the accounts of the Board as and when found necessary. Ombudsman will see that all the pending audits in respect of the Boards be completed at the earliest and if necessary by engaging qualified and reputed Chartered Accountants after obtaining permission from his court and will submit report to this court periodically. 2. Ombudsman will submit periodical reports to the High Court with regard to all cases of irregular, illegal and DBP No.77 of 2022 6 improper expenditure or the acts of failure to recover moneys and other properties due to the Boards or to the Institutions under their management or of loss or waste of money or other property thereof caused by neglect or misconduct. 3. Ombudsman is authorised to investigate all complaints received from the devotees, temple employees, members of the Board or on a reference by the High Court or from the Government or that come to his notice with regard to misappropriation, maladministration, corruption etc. in the functioning of the Board or the temples or the Institutions under the management and administration of the Boards and submit report to this court periodically. 4. Ombudsman would also take effective steps to recover properties, movable and immovable, of various temples which have been encroached upon illegally by third parties and to take steps to see that the opening, counting and remitting of collection be made in a transparent manner and curb all loopholes of misutilisation and diversion of temple funds. 5. Ombudsman also would take effective steps to expedite cases pending before various courts taking into account the best interest of the temples and its properties and see that the cases are properly and effectively conducted so as to safeguard the interest of the temples and submit periodical reports to this court. 6. Ombudsman would take effective steps to see that master plan for Sabarimala is properly implemented and would take steps to book all cases of misappropriation, maladministration and corruption pertaining to group of temples of Sabarimala and submit periodical reports before DBP No.77 of 2022 7 this Court. 7. Ombudsman will take every endeavour to see that all ancient customs, practices and usage be preserved taking into consideration of the social change. Rare paintings, carvings, etc. be preserved and protected in consultation with Archaeological Survey of India. 8. Ombudsman will take effective steps to improve the working conditions of the various educational institutions under the respective Boards and improve the quality and standard of education of those institutions. 9. Ombudsman would take effective steps to see that temples under the management of the Boards be computerised early and introduce modern counting processes of Kanikka Vanchi's wherever necessary so that corruption and misappropriation of money could be nipped in the bud.” 8. In **Kamalam v. Cochin Devaswom Board [2014 (4)** **KLT 545]** after quoting the functions of the learned Ombudsman as per Clause (3) of the order dated 27.11.2007 in O.P.No.3821 of 1990, W.P.(C)No.19571 of 2007 and DBP No.1 of 2006 a Division Bench of this Court held that the mechanism of the learned Ombudsman was intended to protect public interest and not for resolving the personal grievances of the employees of the Boards and Temples. Necessarily, the complaints directed to be investigated by the learned Ombudsman are complaints filed with regard to misappropriation, maladministration, corruption etc. in the functioning of the Board or the temples or the institutions DBP No.77 of 2022 8 under the management and administration of the Boards. In other words, only complaints involving an element of public interest were required to be gone into by the learned Ombudsman and to that effect the order of this Court dated 27.11.2007 in O.P.No 3821 of 1990 and connected cases is clarified. Paragraph 3 of that decision reads thus; “3. A committee appointed earlier by this Court to review the working of the Devaswom Boards constituted under the Travancore Cochin Hindu Religious Institutions Act, 1950 had reported to this Court the various instances of mismanagement, misappropriation of funds, corruption etc, in the Devaswom Boards and also in the Temples under the Boards. While considering the recommendations of the said committee, this Court noticed that the Travancore Cochin Hindu Religious Institutions Act, 1950 has not invested any powers on the State Government over the affairs of the Devaswom Boards constituted for management of the temples and that the legislature in its wisdom has only conferred powers on this Court to supervise the functioning of the Boards and its officers and also to supervise the audit of the accounts of the Boards. It was also noticed that as per the provisions of the said Act, the auditors of the Boards have to specify in the reports all cases of irregularities, illegal or improper expenditure or failure to recover money or other properties due to the Board or to the institutions under the management or loss or waste of money or other properties caused by neglect or mistakes and it is for this court to initiate remedial actions thereof. It was further noticed that the High Court as parens patriae has a duty to protect the DBP No.77 of 2022 9 temple properties and curb corruption, mismanagement and maladministration in the affairs of the temples and institutions under the control of the Devaswom Boards. It is in the said circumstances, this Court felt that an Ombudsman with a full-fledged system would be of considerable help to the High Court in the discharge of its duties and accordingly, appointed the Ombudsman. In other words, the purpose of appointment of the Ombudsman was to enable this court to discharge its duties under the Travancore Cochin Hindu Religious Institutions Act, 1950 and as parens patriae over the affairs of the Temples and its properties. The broad functions of the Ombudsman as prescribed in the order would reinforce the said conclusion of ours. The function of the Ombudsman as regards the complaints received from the devotees, temple employees, members of the Board etc. as prescribed in the order reads thus: “Ombudsman is authorised to investigate all complaints received from the devotees, temple employees, members of the Board or on a reference by the High Court or from the Government or that come to his notice with regard to misappropriation, maladministration, corruption, etc. in the functioning of the Board or the temples or the institutions under the management and administration of the Boards and submit a report to this court periodically” (underline supplied) It is thus evident that the mechanism of the Ombudsman was intended to protect public interest and not for resolving the personal grievances of the employees of the Boards and Temples. Necessarily, the complaints directed to be investigated by the Ombudsman are complaints filed with regard to misappropriation, maladministration, corruption etc. in the functioning of the Board or the temples or the institutions under the management and administration of the DBP No.77 of 2022 10 Boards. In other words, only complaints involving an element of public interest were required to be gone into by the Ombudsman and to that extent the order of this court dated 27.11.2007 in O.P No.3821 of 1990 and connected cases is clarified.” 9. By the order dated 19.10.2015 in O.P No.3821 of 1990, DBP No.1 of 2015 and DBP No.107 of 2015 **[Examiner, Local Fund Accounts, Trivandrum v. Secretary, Travancore Devaswom Board, Trivandrdum]** Clause 9A has been added to the order dated 27.11.2017. Paragraphs 3 to 5 of that decision read thus; “3. We notice that through order dated 20.10.2014 in DBP No.33 of 2014 and connections, this Court had interpreted clause 3 among the duties and functions enumerated in the order dated 27.11.2007 in O.P.No.3821 of 1990 and connections to point out that the personal grievances of employees of TDB and CDB and the temples do not come within the enumerated duties of the learned Ombudsman and the complaints ought to be those involving any element of public interest. The order dated 27.11.2007 in O.P.No.3821 of 1990 and connections was also thus clarified by this Court. We agree with the view in that order that there is no provision among the functions enumerated in the order dated 27.11.2007 as of now, touching all such matters. 4. In the conspectus of the earlier orders in O.P.No.3821 of 1990, we have bestowed our anxious consideration to the need for consideration of complaints from employees, which DBP No.77 of 2022 11 are in the form of personal grievances. They may relate to employees of TDB and CDB or temples under them. Grievances may be in relation to disciplinary action or such other matters which may be in the realm of statutory regulations and service rules. At the same time, there may be personal grievances of failure or delay to disburse the undisputed or indisputable outstandings to the employees, or purely administrative matters like transfer, and such other matters which are only to be treated as not amounting to interference with any statutory power of either the TDB or CDB in terms of the provisions of the Travancore Cochin Hindu Religious Institutions Act, 1950 and the Regulations and the Rules framed thereunder. Therefore, we are of the view that, in the fitness of things, it is appropriate to augment the duties, responsibilities and the functions of the Ombudsman by including among them the personal grievances of employees of TDB and CDB and the temples thereunder, which would not turn adversarial on the basis of the statutory provisions, including Acts, Rules, Regulations etc. This may include matters relating to non-disbursal of admitted or indisputable amounts towards salaries and other drawals and also dues to retired personnel. All such matters can be considered by the Ombudsman. It is also ordered, and it is directed that the decisions of the Ombudsman on such matters shall be complied with by the TDB and the CDB. In the event of any objection, that may be placed before the Ombudsman, who will then place a report to this Court. In all other matters, the action taken, and compliance need be shown only in the periodical reports of the Ombudsman. 5. In the light of what are stated above, we modify order DBP No.77 of 2022 12 dated 27.11.2007 in O.P.No.3821 of 1990 and add the following after clause 9 in that order: "9A: The Ombudsman will consider such individual grievance of employees of the TDB and the CDB and the temples thereunder which would not turn adversarial on the basis of the statutory provisions, including Acts, Rules, Regulations etc. This may include matters relating to non-disbursal of admitted or indisputable amounts, salaries and other drawals and such other matters, including dues to retired personnel. Such matters and the action taken, and compliance thereof need be shown only in the periodical reports of the Ombudsman. If any objection is raised by the TDB or the CDB to the recommendations of the Ombudsman on such matters, that may be placed before the Ombudsman who will then place a report to this Court with his views thereon. All such matters can be considered by the Ombudsman. Ombudsman will also entertain personal grievances in administrative matters not amounting to disciplinary proceedings so that the parties could be appropriately led to resolve such disputes before the Ombudsman." 10. In the instant case the grievance of the complainant is that his claim for the post of Melshanti, either at Thrikkadavoor Devaswom or at Asramam Devaswom, in terms of Clause (14) of transfer norms, since he got only less than one year service of retirement, is overlooked and the person who has been DBP No.77 of 2022 13 transferred to Thrikkadavoor Devaswom has a long period of service remaining. The norms for transfer of temple employees under Travancore Devaswom Board is placed before the learned Ombudsman along with the report dated 03.10.2022 of the Deputy Devaswom Commissioner (Administration). Challenging non-consideration of the claim of the complainant for a posting to Thrikkadavoor Devaswom or Asramam Devaswom, he filed appeal before the Devaswom Commissioner, which ended in dismissal by the order dated 09.06.2022, on the ground that in the above two places opted by the complainant senior hands were considered for posting. If the complainant is having any grievance regarding nonconsideration of his claim for transfer to Thrikkadavoor Devaswom or Asramam Devaswom, he has to challenge the order passed by the appellate authority before the appropriate forum, with the rival claimants in the party array. Such a grievance cannot be entertained by the learned Ombudsman under Clause 9A added to the order dated 27.11.2007 in O.P.No.3821 of 1990 and connected matters, vide order dated 19.10.2015 in O.P.No.3821 of 1990 and connected matters. The legality or otherwise of an order of transfer passed by the competent authority or that of the order passed by the appellate authority cannot be decided by the learned Ombudsman, based on a complaint made by a Devaswom DBP No.77 of 2022 14 employee. Therefore, it is for the complainant to challenge the order of the appellate authority before the appropriate forum. With the above direction, this DBP is disposed of. **Sd/-** **Sd/-** **P.G. AJITHKUMAR, JUDGE** jg