High Court of KeralaSingle JudgeWrit petition allowed in part; Exhibit P12 set ...

K.K. Sasikumar v. Guruvayur Devaswom Managing Committee and Others

Case / Petition Number:WP(C).16881/2020

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • V.G. Arun
Judgment Date
2022-03-04
Court Decision / Holding
The writ petition is allowed in part by setting aside Exhibit P12 order. Respondents 1 and 2 shall disburse the DCRG due to the petitioner within three months of receipt of a copy of this judgment. This judgment does not interdict the respondents from quantifying and recovering the liability, if any, from the petitioner in accordance with law.
Final Disposition
Writ petition allowed in part; Exhibit P12 set aside; DCRG to be disbursed within three months; liberty to quantify and recover liability later.

Parties to the Case

Appellants / Petitioners

  • K.K. Sasikumar aged 62 years s/o Kumara Panicker, residing at Kalarickal House, Karakkad, Behind Mangottu Apartments, Guruvayur, Thrissur District-680101

Respondents

  • Guruvayur Devaswom Managing Committee, Guruvayur Devaswom, Guruvayur-680101, represented by its Administrator
  • The Administrator, Guruvayur Devaswom, Guruvayur-680101
  • The Commissioner for Guruvayur Devaswom, Special Secretary to the Government, Information and Public Relation Department, Main Block, Government Secretariat, Thiruvananthapuram-695001
  • Vigilance and Anti-Corruption Bureau, represented by the Director, Vigilance and Anti-Corruption Bureau, Vikas Bhavan, Thiruvananthapuram-695023

Legal Representation & Advocates

Counsels for Petitioners

  • • Sajeev Kumar K. Gopal

Counsels for Respondents

  • • T.K. Vipindas
  • • V. Venugopal

Case Synopsis & Summary

The petitioner, K.K. Sasikumar, a retired employee of the Guruvayur Devaswom Board, held the post of Superintendent of the Guruvayur Temple where he was responsible for weighing and receiving saffron (Chandanam) and Kalabham and maintaining the stock register. A deficiency in saffron stock was flagged by the Local Fund Audit, prompting the Guruvayur Devaswom Managing Committee to direct a departmental enquiry to the CF & AO. Sasikumar was suspended in 2009, later revived for further enquiry. Several reports followed: the first enquiry by the CF & AO found no deliberate shortfall; a third enquiry likewise found only lapses in timely entries, and the Managing Committee sought the Commissioner’s opinion. In 2015, the matter was referred to the Vigilance and Anti-Corruption Bureau (VACB), which, after investigation, concluded a shortage of saffron and recommended recovery against Sasikumar and others; the VACB’s findings culminated in Exhibit P12 directing recovery from Sasikumar’s DCRG. Sasikumar challenged Exhibit P12 in a writ petition, contending that the VACB action exceeded statutory authority and that liability cannot be fixed or recovered from DCRG without a departmental enquiry; the Government argued the enquiry was properly ordered. The High Court accepted that while the Government could order inquiries, liability cannot be based solely on VACB findings without due process. It emphasized natural justice and fair play, citing Chandran and held that DCRG withholding is punitive and must be preceded by a departmental enquiry. The petition was allowed in part, directing disbursement of DCRG within three months, while preserving the right to recover liability legally.

Provisions of Law Cited

Guruvayur Devaswom Act, Sections 11, 12, 26

Legal Doctrines & Maxims

  • Natural justice
  • Fair play

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends innocence and asserts he merely continued established stock-keeping practice. He argues that the 3rd respondent’s reference to VACB for proceedings is illegal since the Guruvayur Devaswom Act, Sections 11, 12 and 26, do not authorize such action against individual employees, especially to withhold retirement benefits. He asserts that Section 26 empowers surcharges after notice; liability cannot be fixed or recovered without a departmental enquiry. Relying on Chandran v. Local Self Government Department (2020 (5) KLT 669), he submits that withdrawal of DCRG cannot be effected by vigilance findings alone. The petitioner seeks quashing Exhibit P12 and disbursement of DCRG, while reserving rights to challenge any further liability after due process. He further argues that pendency of vigilance case or VACB recommendations cannot justify withholding DCRG; the decision requires fair hearing and departmental inquiry; the employer’s disciplinary process, not the court, should determine liability; government prerogatives cannot bypass due process.

Contentions of Respondents

The respondents contend that the inquiry was not directed solely by the 3rd respondent; the Government ordered it based on communications from the Administrator and the Commissioner. VACB’s investigation was ordered with official approval and followed government directives. The Managing Committee acted on VACB’s recommendations, and withholding DCRG is a legitimate part of addressing liability for misappropriation of public funds. They emphasize that the inquiry process is consistent with due process and that Exhibit P12 was properly issued within the legal framework; while the court may review the process, it should not hamper the executive’s prerogative to recover losses and maintain financial discipline. They rely on government orders and prior proceedings to justify action taken against the petitioner.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Chandran v. Local Self Government Department2020 (5) KLT 669PositiveFull Bench decision that punishment involving withdrawal or recovery of quantified loss cannot be imposed on DCRG; used to support the proposition that DCRG cannot be withheld without a departmental enquiry.

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Extracted Judgment Text

Exact text extracted from official judgment records.

_**WP(C).16881/2020**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 4[TH] DAY OF MARCH 2022 / 13TH PHALGUNA, 1943** ## **WP(C) NO. 16881 OF 2020** ## **PETITIONER/S:** K.K. SASIKUMAR AGED 62 YEARS S/O.KUMARA PANICKER, RESIDING AT KALARICKAL HOUSE, KARAKKAD, BEHIND MANGOTTU APARTMENTS, GURUVAYUR, THRISSUR DISTRICT-680101. BY ADV SAJEEV KUMAR K.GOPAL ## **RESPONDENT/S:** 1 THE GURUVAYUR DEVASWOM MANAGING COMMITTEE GURUVAYUR DEVASWOM, GURUVAYUR-680101, REPRESENTED BY ITS ADMINISTRATOR. 2 THE ADMINISTRATOR, GURUVAYUR DEVASWOM, GURUVAYUR-680101. 3 THE COMMISSIONER FOR GURUVAYUR DEVASWOM, SPECIAL SECRETARY TO THE GOVERNMENT, INFORMATION AND PUBLIC RELATION DEPARTMENT, MAIN BLOCK, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 4 THE VIGILANCE AND ANTI-CORRUPTION BUREAU, REPRESENTED BY THE DIRECTOR, VIGILANCE AND ANTICORRUPTION BUREAU, VIKAS BHAVAN, THIRUVANANTHAPURAM695023. BY ADVS. T.K.VIPINDAS GOVERNMENT PLEADER SRI VENUGOPAL V. **OTHER PRESENT:** _**WP(C).16881/2020**_ 2 GP VENUGOPAL V. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.1.2022, THE COURT ON 4.3.2022 DELIVERED THE FOLLOWING: _**WP(C).16881/2020**_ 3 ## **V.G.ARUN, J. ----------------------------------------------W.P(C).No. 16881 of 2020 ----------------------------------------------Dated this the 4[th] day of March, 2022** ## **JUDGMENT** The petitioner retired from the Guruvayur Devaswom Board as Assistant Manager on 31.8.2014. The petitioner had been posted as Superintendent at the Guruvayur Temple _vide_ Exhibit P1 order dated 13.8.2007. As Superintendent, he was bestowed with the duty of weighing and receiving 'Chandanam' and 'Kalabham' required for poojas in the temple and to maintain stock register of those items. During the petitioner's tenure as Superintendent, the Local Fund Audit wing of the Devaswom submitted a report pointing out deficiency in the stock of saffron used for making Kalabham. Thereupon, the Managing Committee of the Guruvayur Devaswom Board directed the Chief Financial and Accounts Officer (CF & AO) to conduct an enquiry. The Committee also decided to initiate departmental action against the petitioner and Sri.M.Narayanan, the Assistant Manager, holding them to be responsible for the deficiency in stock. Accordingly, the petitioner was placed under suspension _vide_ Exhibit P2 order dated 13.8.2009. As directed by the Managing Committee, the CF & AO _**WP(C).16881/2020**_ 4 conducted inspection and submitted Exhibit P3 report dated 28.8.2009. After considering the report, the Managing Committee decided to revoke petitioner's suspension and to conduct enquiry into the period prior to 31.3.2007 also. The second enquiry was entrusted with Sri.V.P.Somasekharan, former CF & AO. After detailed enquiry, Exhibit P6 report was submitted by Sri.V.P.Somasekharan, finding the deficiency in the quantity of saffron not to be deliberate or intentional, and of there being no possibility of the saffron having been taken away from the temple. 2. After considering the report of enquiry, the Managing Committee directed the Administrator to seek explanation from the employees concerned. Accordingly, statements were sought from the petitioner and four other employees. The Managing Committee considered the explanations and decided to conduct another enquiry through the CF & AO. In the third enquiry also, nothing, other than lapses on the part of the employees concerned in making timely entries in the stock register, was found. The third report (Exhibit P7) was considered by the Managing Committee. This time the Committee decided to seek opinion of the Commissioner for Guruvaryur Devaswom. Based on the decision, the Administrator addressed the 3[rd] respondent _vide_ communication dated 22.8.2014. 3. While so, in view of the petitioner's impending retirement on _**WP(C).16881/2020**_ 5 31.8.2014, the Committee considered the issue of disbursal of retirement benefits. By Exhibit P9 it was decided that, if no reply is received from the Commissioner/3[rd] respondent prior to 30.8.2014, the petitioner's retirement benefits, except DCRG, could be paid. 4. To the dismay of the petitioner, instead of expressing his opinion as sought by the Committee, the 3[rd] respondent referred the matter to the Vigilance and Anti Corruption Bureau (VACB) as per letter dated 4.12.2015. Thereupon, the VACB conducted an enquiry and submitted Exhibit P10 report finding shortage of 12 kg 218 gm 350 mg of saffron. Holding the petitioner and Narayanan responsible for the shortage of 5 kg of saffron, the VACB recommended initiation of revenue recovery action for realising the monetary loss of Rs.3,34,500/-. The officials who had the charge of stock register from 1.4.2007 to 18.6.2008 were found responsible for the balance 7 kg 218 gms 350 mgs and revenue recovery action was recommended against those officials also. The recommendation was accepted by the Managing Committee and Exhibit P12 order issued, directing recovery of an amount of Rs.4,01,400/- from the petitioner's DCRG. The writ petition was filed challenging Exhibit P12 order and later amended by adding additional prayer for setting aside Exhibit P10 report. 5. Heard Advocates Sajeev Kumar K.Gopal for the petitioner, T.K.Vipindas for Guruvayur Devaswom and V.Venugopal for the State. _**WP(C).16881/2020**_ 6 6. Learned Counsel for the petitioner asserted that the petitioner is innocent and had only continued the practice that was hitherto being followed with respect to maintenance of the stock register. It is contended that the 3[rd] respondent committed an illegality by referring the matter for enquiry to the VACB, since the powers of the Commissioner delineated in Sections 11, 12 and 26 of the Guruvayur Devaswom Act does not provide for such action. Even though Section 26 empowers the Commissioner to surcharge an employee, that can be only after putting the employee to notice. The Managing Committee also committed gross illegality by fixing the liability for shortage of 5 kg of saffron on the petitioner, solely based on Exhibit P10 report. No such liability could be fixed or recovery effected, without conducting a departmental enquiry. The Full Bench decision in _**Chandran v. Local Self Government Department**_ [2020 (5) KLT 669] is relied on to contend that the punishment of withdrawing or reduction and recovery of quantified loss cannot be effected from the DCRG. 7. Learned Government Pleader countered the challenge against Exhibit P10 report of the VACB by pointing out that the enquiry was not conducted on the direction of the 3[rd] respondent alone. The vigilance enquiry was ordered by the Government based on letter No.B4-8189/09 dated 22.8.2014 of the Administrator and letter No.- _**WP(C).16881/2020**_ 7 106/2014/GDC dated 14.12.2015 of the Guruvayur Devaswom Commissioner. 8. Learned Standing Counsel for the Board submitted that the Managing Committee had acted in terms of the recommendations of the VACB and the prayer for release of DCRG cannot be allowed in the light of the finding in Exhibit P10 that the petitioner is responsible for the shortage of saffron. 9. Despite the assertions regarding the innocence of the petitioner, I refrain from deciding that factual aspect in these proceedings, leaving to open for the employer Board to take such decision, if so warranted. As regards the challenge against Exhibit P10 on the ground that the report was obtained at the instance of the Commissioner, I prefer to accept the submission of the learned Government Pleader that the Government had ordered the enquiry based on the request made by the Administrator and Commissioner of Guruvayur Devaswom. The Government having thus exercised its prerogative, the challenge is not sustainable. At the same time, I find considerable force in the contention that, liability for the shortage of saffron cannot be imposed on the petitioner solely based on the recommendation of the VACB. Inasmuch as the fixing of liability and effecting recovery from an employee's DCRG are both stigmatic and punitive, such action should be preceded by a departmental enquiry, _**WP(C).16881/2020**_ 8 strictly adhering to the principles of natural justice and fair play. 10. I also find merit in the contention that mere pendency of vigilance case or a recommendation by the VACB case cannot result in withholding of DCRG. The position that DCRG cannot be withheld even if there is conviction in criminal case and quantification of liability in departmental proceedings, stands concluded by _**Chandran**_ (supra). 11. The legal position being as above, Exhibit P12 cannot be sustained. Consequently, the respondents are bound to disburse the DCRG amount due to the petitioner. Needless to say, the respondents will be at liberty to quantify and recover the liability, following the prescribed procedure. In the result, the writ petition is allowed in part by setting aside Exhibit P12 order. Respondents 1 and 2 shall disburse the DCRG due to the petitioner within three months of receipt of a copy of this judgment. This judgment does not interdict the respondents from quantifying and recovering the liability, if any, from the petitioner in accordance with law. **Sd/V.G.ARUN, JUDGE** _vgs_ _**WP(C).16881/2020**_ 9 ## **APPENDIX OF WP(C) 16881/2020** PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF THE ORDER OF THE 2ND| |---|---| ||RESPONDENT VIDE ORDER NO.B-4775/2007 DATED| ||13.08.2007.| |EXHIBIT P2|TRUE COPY OF THE ORDER NO.B4-8189/09 DATED| ||13.8.2009 OF THE 2ND RESPONDENT.| |EXHIBIT P3|TRUE COPY OF THE REPORT SUBMITTED BY THE CF| ||AND AO TO THE MANAGING COMMITTEE DATED| ||28.08.2009.| |EXHIBIT P4|TRUE COPY OF THE RESOLUTION OF THE| ||GURUVAYUR DEVASWOM MANAGING COMMITTEE AT| ||ITS MEETING HELD ON 28.08.2009 VIDE| ||RESOLUTION NO.83.| |EXHIBIT P5|TRUE COPY OF THE ORDER BY WHICH THE| ||SUSPENSION WAS REVOKED, ISSUED BY THE 2ND| ||RESPONDENT DATED 31.08.2009 VIDE NO.B4-| ||8189/09.| |EXHIBIT P6|TRUE COPY OF THE REPORT DATED 20.01.2010| ||SUBMITTED SRI.V.P.SOMASEKHARAN, CF AND AO| ||(RETIRED).| |EXHIBIT P7|TRUE COPY OF THE REPORT SUBMITTED BY THE CF| ||AND AO DATED 08.05.2014.| |EXHIBIT P8|TRUE COPY OF THE COMMUNICATION VIDE NO.B4| ||8189/09 DATED 22.08.2014.| |EXHIBIT P9|TRUE COPY OF THE RESOLUTION OF THE| ||GURUVAYUR DEVASWOM MANAGING COMMITTEE AT| ||ITS MEETING HELD ON 21.08.2014 VIDE| ||RESOLUTION NO.97.| |EXHIBIT P10|TRUE COPY OF THE VIGILANCE ENQUIRY REPORT| ||SUBMITTED BY THE VIGILANCE AND ANTI| ||CORRUPTION BUREAU, THRISSUR DATED| _**WP(C).16881/2020**_ 10 21.07.2016 VIDE NO.VE.1012016/TSR. EXHIBIT P11 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 31.05.2017. EXHIBIT P12 TRUE COPY OF THE ORDER NO.B4-8189/2009(1) DATED 22.07.2020. EXHIBIT P13 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE GURUVAYUR DEVASWOM EMPLOYEES ASSOCIATION DATED 27.08.2009. EXHIBIT P14 TRUE COPY OF THE G.O(P)NO.65/1992 DATED 21.05.1992. EXHIBIT P15 TRUE COPY OF THE COMMUNICATION VIDE NO A16689/2012 DATED 5.4.2021 EXHIBIT R1(a): COPY OF RESOLUTION NO.26 DATED 28.7.2014 OF THE GDMC. EXHIBIT R1(b): COPY OF LETTER BEARING NO.2190/DEV1/2017/REVENUE DATED 4.2.2017, ISSUED BY THE GOVERNMENT. EXHIBIT R1(c): COPY OF LETTER BEARING NO.B4-8189/2009 DATED 11.5.2017. EXHIBIT R1(d): COPY OF RESOLUTION NO.51 DATED 7.2.2017 OF THE GDMC. EXHIBIT R1(e): COPY OF NOTICE BEARING NO.B4-8189/2009 DATED 1.11.2019.