Executive Officer, Sree Makreri Devaswom, Kannur District v. K. Krishnan and Others

## **`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 26[TH] DAY OF AUGUST 2022 / 4TH BHADRA, 1944 ``` ## **`W.P.(C)NO.10085 OF 2013`** ## **`PETITIONER:`** ``` THE EXECUTIVE OFFICER, ``` ``` SREE MAKRERI DEVASWOM, P.O. MAKRERI, KANNUR DISTRICT, PIN – 670 622. ``` ``` BY ADVS. SRI.K.P.SUDHEER SRI.J.RAMKUMAR ``` ## **`RESPONDENTS:`** |**`1`**|**`K.KRISHNAN,`**| |---|---| ||**`S/O.KUNHIRAMAN NAMBIAR, KANNOTH HOUSE,`**| ||**`P.O.MAKRERI,`**| ||**`KANNUR DISTRICT, PIN-670 622.`**| |**`2`**|**`THE COMMISSIONER,`**| ||**`MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX,`**| ||**`P.O.ERANHIPALAM, KOZHIKODE, PIN-673 006.`**| |**`3`**|**`THE DEPUTY COMMISSIONER,`**| ||**`HINDU RELIGIOUS AND CHARITABLE ENDOWMENT`**| ||**`(ADMINISTRATION) DEPARTMENT, CIVIL STATION,`**| ||**`KOZHIKODE, PIN-673 020.`**| |**`4`**|**`JAYACHANDRAN NAMBUTHIRI,`**| |---|---| ||**`S/O.NARAYANAN NAMBUTHIRI, AGED 61 YEARS,`**| ||**`THE FIT PERSON, SRI.MAKERI`**| ||**`DEVASWOM,`**| ||**`KURINGOTTILLAM,`**| ||**`PURAERI P.O., VADAKARA.`**| ``` IS IMPLEADED AS PER ORDER DATED 26.06.2013 IN ``` W.P.(C)NO.10085 OF 2013 2 ``` I.A.NO.8013 OF 2013 ``` ``` 5 PARAMESWARA PODUVAL, S/O DAMODAR PODUVAL, AGED 68 YEARS, RESIDING AT THODAYIL ILLAM, HEREDITARY TURSTEE, MAKRERI DEVASWOM, MAKRERI POST, KANNUR DISTRICT, PIN- 670 622 ``` ``` IS IMPLEADED AS PER ORDER DATED 12.07.2013 IN I.A.NO.9413 OF 2013 ``` ``` BY ADVS. SRI.M.R.HARIRAJ SMT.M.A.JINSA MOL SRI.P.A.KUMARAN SRI.NIDHI BALACHANDRAN SRI.NIRMAL V NAIR SRI.M.PROMODH KUMAR SRI.K.RAJAGOPAL SRI.P.R.SREEJITH SRI.V.KRISHNA MENON, SC, MALABAR DEVASWOM BOARD SRI.K.R.SUNIL, SC, MALABAR DEVASWOM BOARD SRI. R. LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD SMT.VINEETHA B. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C)NO.10085 OF 2013 3 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the Executive Officer of Sree Makreri Devaswom in Kannur District, which is a controlled institution under the Malabar Devaswom Board. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 order dated 05.08.2011 of the 3[rd] respondent Deputy Commissioner in A.P.No.1 of 2003 and Exts.P6 order dated 21.01.2013 of the 2[nd] respondent Commissioner, Malabar Devaswom Board, and to uphold Ext.P2 memo of charges dated 10.10.2001 issued against the 1[st] respondent, who was a Vazhipadu Clerk of the temple in question. 2. On 10.04.2013, when this writ petition came up for admission, this Court admitted the matter on file and issued notice to the 1[st] respondent. The learned Standing Counsel took notice for respondents 2 and 3. This Court granted an interim order staying the operation and implementation of Exts.P5 and P6 orders, for a period of two months. The said interim order, which was extended from time to time, was extended until further W.P.(C)NO.10085 OF 2013 4 orders on 12.07.2013. 3. The 1[st] respondent has filed a detailed counter affidavit dated 10.02.2015, opposing the reliefs sought for in this writ petition, raising various legal and factual contentions, producing therewith Ext.R1(a) to R1(h) documents. The 1[st] respondent has also filed I.A.No.2219 of 2015, seeking an order directing the writ petitioner to draw and disburse the entire subsistence allowance payable to him or alternatively, the entire salary for the period from 04.05.2001 to 02.12.2002 and from 05.08.2011, till the date of that application with interest at the rate of 12% per annum. In the said interlocutory application, this Court passed a detailed order dated 23.02.2015, which reads thus; “Heard Sri.K.V.Sohan, learned counsel appearing for the writ petitioner, Sri.K.R.Sunil, learned Standing Counsel appearing for the Malabar Devaswom Board and Sri.M.R.Hariraj, learned counsel appearing for the 1[st] respondent (the petitioner in I.A.No.2219 of 2015) on the interim relief prayed for in the writ petition as also in I.A.No.2219 of 2015. 2. The relief sought in the writ petition filed by the Executive Officer of Sree Makreri Devaswom is to set aside Ext.P5 order passed by the Deputy Commissioner, Malabar Devaswom Board, Kozhikode on 05.08.2011, whereby he set aside Ext.P2 order passed by the Executive Officer W.P.(C)NO.10085 OF 2013 5 dismissing the 1[st] respondent from service and directed the disciplinary authority to hold a fresh enquiry and to finalise it within four months from the date of receipt of a copy of the order in accordance with law after sanctioning subsistence allowance to secure the presence of the 1[st] respondent, upon the 1[st] respondent furnishing nonemployment certificates. The relief sought by the 1[st] respondent to reinstate him in service was declined on the ground that the criminal case registered against him is pending. 3. The 1[st] respondent herein challenged Ext.P5 order by filing W.P.(C)No.13931 of 2012 in this Court. In that writ petition, after notice to the respondents therein a learned single Judge of this Court passed Ext.R1(G) interim order dated 02.08.2012 whereby, the petitioner in the instant writ petition was directed to ensure that the subsistence allowance due to the 1[st] respondent herein is paid as directed in Ext.P5 order (Ext.P7 in W.P.(C)No.13931 of 2012) on a non-employment certificate being furnished. W.P.(C)No.13931 of 2012 was later disposed of by Ext.R1(H) judgment delivered on 18.09.2012 reserving liberty with the 1[st] respondent herein to challenge Ext.P5 in appeal before the competent appellate authority. The learned Single Judge also held that as the order dismissing the 1[st] respondent from service is no longer in force, it is obligatory to pay him subsistence allowance by treating him as under suspension till Ext.P5 order is set aside and Ext.P2 is restored or modified. The 1[st] respondent thereafter filed an appeal before the Commissioner, W.P.(C)NO.10085 OF 2013 6 Malabar Devaswom Board who after hearing the Executive Officer as well, issued Ext.P6 order dated 21.01.2013 whereby, he directed the 1[st] respondent's reinstatement in service and further directed the disciplinary authority to conclude the disciplinary enquiry within three months from the date of receipt of a copy of the order. 4. As stated earlier, the Executive Officer has aggrieved thereby filed this writ petition challenging Exts.P5 and P6 orders. He has also prayed for an interim order staying the operation and implementation of Exts.P5 and P6. The interim relief prayed for was granted when the writ petition was admitted on 10.04.2013 and the said order is even today in force. The 1[st] respondent has filed I.A.No.2219 of 2015, seeking an interim order directing the Executive Officer of the temple to disburse subsistence allowance to him for the period from 04.05.2001 to 02.12.2002 and from 05.08.2011 onwards together with interest at 12% per annum. He has averred that he was placed under suspension on 04.05.2001 and the order of suspension was in force till he was dismissed from service, that in the interregnum subsistence allowance was not paid, that later by Ext.P5 order he was ordered to be kept under suspension and therefore, at least with effect from 05.08.2011 he is entitled to subsistence allowance. Though the learned counsel appearing for the writ petitioner sought time to file a counter affidavit to I.A.No.2219 of 2015, having regard to the directions issued by this Court in Ext.R1(G) interim order dated 02.08.2012 in W.P.(C) No.13931 of 2012 and Ext.R1(H) judgment delivered on W.P.(C)NO.10085 OF 2013 7 18.09.2012 in the said writ petition, we are of the considered opinion that at least with effect from 05.08.2011, the writ petitioner is liable to pay subsistence allowance to the 1[st] respondent on the 1[st] respondent furnishing a non-employment certificate. Even if this writ petition were to be allowed and the impugned orders are set aside, it cannot lead to a situation where the delinquent employee is denied subsistence allowance. The Executive Officer cannot in the light of Ext.R1(G) interim order and Ext.R1(H) judgment of this Court contend that the employee cannot be paid subsistence allowance. We accordingly modify the interim order passed by this Court in the writ petition and direct the writ petitioner to pay the subsistence allowance to the 1[st] respondent in the writ petition. Arrears of subsistence allowance at the applicable rates for the period from 05.08.2011 till 31.01.2015 shall be disbursed within two weeks from the date on which the 1[st] respondent in the writ petition produces a nonemployment certificate before the writ petitioner. The subsistence allowance for the period commencing from 01.02.2015 shall be disbursed periodically on production of the non-employment certificate. Such payment shall be made until further orders. Handover to both sides on usual terms.” 4. By the order dated 26.06.2013 in I.A.No.8013 of 2013, the additional 4[th] respondent was impleaded. Thereafter, by the order dated 12.07.2013 in I.A. No.9413 of 2013, the additional 5[th] respondent was also impleaded. W.P.(C)NO.10085 OF 2013 8 5. Heard the learned counsel for the petitioner, the learned counsel for the 1[st] respondent, the learned Standing Counsel for Malabar Devaswom Board for respondents 2 and 3 and also the learned counsel for additional respondents 4 and 5. 6. The issue that arises for consideration in this writ petition is as to whether any interference is warranted on Exts.P5 and P6 orders. 7. Disciplinary proceedings were initiated against the petitioner, who was working as Vazhipadu Clerk of Makreri Devaswom, alleging various misconducts. That proceedings culminated in Ext.P4 order passed by the disciplinary authority, whereby the 1[st] respondent was imposed with the punishment of dismissal from service with effect from 04.05.2001. The 1[st] respondent challenged that order by filing A.P.No.1 of 2003 before the 3[rd] respondent Deputy Commissioner. That appeal was allowed by Ext.P5 order dated 05.08.2011. The operative portion of that order reads thus; “The only ground, as per the argument of the learned counsel for the 1[st] respondent that the appellant was convicted as per the judgement dated 03.07.2004 in C.C.No.287 of 2001 of the Chief Judicial Magistrate Court, Thalassery, is having credence. It is true that the appellant W.P.(C)NO.10085 OF 2013 9 was convicted in the said criminal case. But the Appellate Court as per the judgement dated 30.06.2010 in Criminal Appeal No.426 of 2004 had remanded the case to the trial court setting aside the conviction, which is still pending. If the conviction was upheld there will have no bar for the appointing authority in holding disciplinary proceedings on the same set of facts. The pendency of that criminal case cannot be taken as a ground to legitimise the impropriety and invalidity of the enquiry proceedings. So, I am inclined to set aside the impugned order and do so. The 1[st] respondent is directed to hold enquiry further and finalise the disciplinary proceedings within four months from the date of receipt of this order in accordance with law, after sanctioning subsistence allowance to secure the presence of the delinquent, for which he shall furnish non-employment certificate for the period. The prayer for reinstatement is declined due to the pendency of the criminal case. The appeal is allowed to that extent.” 8. The petitioner challenged Ext.P4 order by filing A.P.No.4 of 2012 before the 2[nd] respondent Commissioner. The 1[st] respondent has also filed A.P.No.14 of 2012 before the 2[nd] respondent challenging the aforesaid order. Those appeals were disposed of by Ext.P6 order dated 21.01.2013. The relevant paragraphs of that order reads thus; “On going through the details of the initiation of disciplinary proceedings suspending the employee and denying of subsistence allowance without any authority or reason it is W.P.(C)NO.10085 OF 2013 10 found that the disciplinary proceedings and the enquiry followed are without observing any of the legal requirement and while setting aside the termination order, there is no reason why the Deputy Commissioner has not ordered immediate reinstatement of the employee, considering the various factors grossly vitiating the disciplinary proceedings itself. The Deputy Commissioner has considered the legal position settled in the decisions reported in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. AIR 1999 SS 1416 and Jagdamba Parasad Shukla v. State of U.P. and others AIR 2000 SSC 2806 in detail and has correctly turned down the arguments on behalf of the Executive Officer, but fell short of holding that the said decisions squarely applies to this case and granting consequential relief of immediate reinstatement in service. In the aforesaid circumstances, I am inclined to order reinstatement of the employee forthwith, and direct to complete the disciplinary proceedings as ordered in the impugned order expeditiously within 3 months from the date of receipt of this order and do so.” 9. The learned counsel for the petitioner would submit that, in respect of the very same incident, a crime has been registered against the 1[st] respondent vide FIR No.124 of 2001 of Chakarakkal Police Station, alleging offences punishable under Sections 420, 468, 471 and 408 of Indian Penal Code. In C.C.No.287 of 2001, the Judicial First Class Magistrate Court, Thalassery convicted the 1[st] respondent. That conviction was W.P.(C)NO.10085 OF 2013 11 under challenge in Criminal Appeal No.426 of 2004 before the Additional Sessions Court, Thalassery. That appeal was allowed and the matter was remanded, on the ground that no charge was framed by the court below before proceeding with the case. That order was under challenge in Criminal Appeal (Victim) No.1424 of 2012 filed by the petitioner. That appeal ended in dismissal by the judgment dated 28.10.2019. The learned counsel for the petitioner would submit that C.C.No.287 of 2001 is now pending before the Chief Judicial Magistrate Court, Thalassery, as L.P.No.1 of 2022. 10. The learned counsel for the 1[st] respondent would submit that, even after Ext.R1(g) order of this Court dated 02.08.2012 in W.P.(C)No.13931 of 2012 and also the order of this Court dated 23.02.2015 in I.A.No.2219 of 2015 in W.P.(C)No.10085 of 2013, the 1[st] respondent was not paid with the entire arrears of subsistence allowance, though he is getting the subsistence allowance continuously, after the order of this Court dated 09.10.2017 in Contempt Case No.707 of 2015. The learned counsel for the petitioner, placing reliance on the order dated 09.10.2017 in Contempt Case No.707 of 2015 would point out that, there is no arrears of subsistence allowance as on the W.P.(C)NO.10085 OF 2013 12 date of that order. In the said order, this Court noticed that, the submission made by the learned counsel for the 1[st] respondent therein (Executive Officer of the Devaswom) that payment of subsistence allowance up to September, 2017 has already been paid was not contested by the petitioner therein (1[st] respondent herein). 11. The misconduct alleged against the 1[st] respondent, who was a Vazhipadu Clerk in Sree Makreri Devaswom, a controlled institution under the Malabar Devaswom Board is a grave misconduct. The criminal case registered against him is now pending consideration before the Chief Judicial Magistrate Court. Therefore, at this juncture, the 1[st] respondent cannot be directed to be reinstated in service. The direction to that effect in Ext.P6 order cannot be sustained. Ext.P6 order of the 2[nd] respondent Devaswom Commissioner to the above extent is set aside. In the result, this writ petition is disposed of by setting aside Ext.P6 order dated 21.01.2013 of the 2[nd] respondent Commissioner to the extent of ordering reinstatement of the 1[st] respondent in service, pending disciplinary proceedings. The disciplinary authority shall complete disciplinary proceedings W.P.(C)NO.10085 OF 2013 13 initiated against the 1[st] respondent and finalise the same, as expeditiously as possible, at any rate, within a period of three months. **Sd/-** **ANIL K. NARENDRAN, JUDGE Sd/-** **P.G. AJITHKUMAR, JUDGE** MIN W.P.(C)NO.10085 OF 2013 14 ## **`APPENDIX OF W.P.(C)No.10085 OF 2013`** ## **`PETITIONER’S EXHIBITS:`** - **`EXHIBIT P1:`** ``` TRUE COPY OF THE CRIMINAL APPEAL MEMORANDUM, DT.6.10.2012 PENDING BEFORE THIS HON'BLE COURT ALONG WITH THE JUDGMENT OF THE MAGISTRATE COURT IN C.C.287/2001 AND THE JUDGMENT OF THE SESSIONS COURT IN CRL.APPEAL NO.426/2004 ``` ``` EXHIBIT P2:TRUE COPY OF THE CHARGES IN DOMESTIC ENQUIRY PROCEEDINGS AGAINST RESPONDENT NO.1, DT.10.10.2001 ``` - **`EXHIBIT P3:`** - **`TRUE COPY OF THE REPORT SUBMITTED BY THE DOMESTIC ENQUIRY OFFICER BEFORE RESPONDENT NO.1, DT.30.10.2002`** - **`EXHIBIT P4:`** - **`TRUE COPY OF THE ORDER DT.2.12.2002 DISMISSING RESPONDENT NO.1 FROM THE POST OF CLERK AT SREE MAKRERI DEVASWOM`** - **`EXHIBIT P5:`** - **`TRUE COPY OF THE ORDER IN A.P.1/2003 PASSED BY THE SENIOR SUPERINTENDENT WHO WAS IN CHARGE OF RESPONDENT NO.3, DT.5.8.2011`** - **`EXHIBIT P6: TRUE COPY OF THE ORDER OF THE COMMISSIONER OF MALABAR DEVASWOM BOARD, DT.21.1.2013`** ## **`RESPONDENT’S`** - **`EXHIBITS:`** - **`EXHIBIT R4(A)`** - **`TRUE COPY OF THE POWER OF ATTORNEY ISSUED FOR CARRYING OUT THE SPECIFIED ACTIVITES FOR AND ON BEHALF OF THE HEREDITARY TRUSTY`** - E **`XHIBIT R4(B) TRUE COPY OF THE ORDER DATED 24.03.2003 ISSUED BY THE 3[RD] RESPONDENT`** W.P.(C)NO.10085 OF 2013 15 - E **`XHIBIT R1(A)`** - E **`A TRUE COPY OF THE ORDER NO. M.D.2/2001 DATED 4.5.2001 ISSUED BY THE 4[TH] RESPONDENT`** - E **`XHIBIT R1(B)`** E **`A TRUE COPY OF THE MODIFIED SCHEME DATED 23.12.1952`** - E **`XHIBIT R1(C)`** - E **`A TRUE COPY OF THE MEMORANDUM OF APPEAL OF A.P. 1 OF 2003 SUBMITTED BEFORE THE 4[TH] RESPONDENT`** - E **`XHIBIT R1(D)`** - E **`A TRUE COPY OF THE LETTER DATED 9.12.2002 ISSUED BY THE HEREDITARY TRUSTEE`** - E **`XHIBIT R1(E)`** - E **`A TRUE COPY OF THE STATEMENT FILED BY THE HEREDITARY TRUSTEE IN A.P. 1 OF 2003`** - E **`XHIBIT R1(F)`** - E **`A TRUE COPY OF THE NON-EMPLOYMENT CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MAKRERI`** - E **`XHIBIT R1(G)`** - E **`A TRUE COPY OF THE INTERIM ORDER DATED 2.8.2012 IN WPC.NO.13931 OF 2012 ON THE FILES OF THIS HONOURABLE COURT`** - E **`XHIBIT R1(H)`** - E **`A TRUE COPY OF THE JUDGMENT DATED 18.09.2012 IN WPC NO.13931 OF 2012 ON THE FILES OF THIS HONOURABLE COURT.`**