Melsanthi of Keezhkavu Temple and the Sub-Temples of Chottanikkara Bhagawati Temple v. Cochin Devaswom Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 27TH DAY OF JUNE 2017/6TH ASHADHA, 1939** **WP(C).No. 16366 of 2017 (U) ----------------------------** **PETITIONER(S): -------------** **T.P.NARAYANAN NAMBOODIRI, S/O. T.R.PARAMESHWARAN NAMBOODIRI TANNIYIL MATHIYATHU MANA, PUTHANCHIRA,IRINJALAKUDA** **BY ADVS.SRI.M.P.SREEKRISHNAN SRI.A.MUHAMMED MUSTHAFA** **RESPONDENT(S):** **--------------** **1. THE COCHIN DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY OFFICE OF THE COCHIN DEVASWOM BOARD THRISSUR- 680 020** **2. THE ASSISTANT COMMISSIONER, CHOTTANIKKARA DEVASWOM, CHOTTANIKKARA- 682312** **3. P.PRASANNAKUMAR, MEL SHANTHI KAVALLUR SREE RAMASWAMI TEMPLE KADAVALLUR- 680543** **R1-R2 BY ADVS. SRI.DILJITH K.MANOHAR, SC** **SRI.K.P.SUDHEER, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SKG** ## **WP(C).No. 16366 of 2017 (U)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 TRUE COPY OF THE NOTIFICATION DATED 23.6.2016 EXHIBIT P2 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 1.4.2017 EXHIBIT P3 A TRUE COPY OF THE REPLY DATED 3.4.2017 EXHIBIT P4 A TRUE COPY OF THE ORDER AFORESAID, DATED 11.2.2017 (SIC.) EXHIBIT P4(a) A TRUE COPY OF THE ORDER DATED 11.02.2017** **RESPONDENT(S)' EXHIBITS -----------------------** |**R1(a)**|**THE TRUE COPY OF REPORT DATED 01.04.2017**| |---|---| ||**SUBMITTED VIGILANCE ASSISTANTS TO THE ASSISTANT**| ||**COMMISSIONER OF DEVASWOM BOARD AFTER THE**| ||**INSPECTION CONDUCTED AT THE PRASADA COUNTER**| |**R1(b)**|**THE TRUE COPY OF REPORT NO:A1-81/17 DATED 05/04/2017**| ||**SUBMITTED BY THE ASSISTANT COMMISSIONER TO THE SPECIAL**| ||**DEVASWOM COMMISSIONER**| |**R1(c)**|**TRUE COPY OF THE ORDER NO.M4.524/2017 DATED 11.05.2017**| ||**PASSED BY THE 1ST RESPONDENT**| |**R1(d)**|**TRUE COPY OF THE LEAVE APPLICATION DATED 14.05.2017**| ||**SUBMITTED BY THE PETITIONER BEFORE THE CHOTTANIKKARA**| ||**DEVASWOM MANAGER**| |**R1(e)**|**TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY THE SIR**| ||**DORABJI TATA TRUST AIDED HOSPITAL**| ||**/TRUE COPY/**| ||**P.S. TO JUDGE**| |**SKG**|| ## _**P.V.ASHA, J.**_ ----------------------------------------------------W.P(C) No.16366 of 2017-U --------------------------------------------------- _Dated this the 27[th] day of June, 2017_ ## _**JUDGMENT**_ Melsanthi of Keezhkavu temple and the Sub temples of Chottanikkara Bhagawati Temple, under the Cochin Devaswom is the petitioner. He challenges Ext.P4 order by which he is transferred and posted to Kadavallur temple, on allegations of misappropriation. Petitioner's contention is that the order of transfer casts stigma on his service career and it is punitive and therefore liable to be set aside. 2. Melsanthis to Melkavu as well as to the Keezhkavu and sub temples of Chottanikkara Bhagawati Temple are selected and appointed after undertaking a separate process of selection after calling for applications from among those with 15 years' service for Melkavu temple and 5 years' service for Keezhkavu temple. Applications of those who have faced disciplinary action within a period of ten years or who are facing disciplinary proceedings would not be considered. The applicants are subjected to a screening test and selection is made from among those coming out successful, taking lot. W.P(C) No.16366 of 2017-U 2 A reserve Melsanthi would also be selected in the lot in order to utilise his services in the absence of the regular hand. Petitioner was appointed pursuant to Ext.P1 notification, after being successful in the screening test and on being selected in the lot. The appointment was for the period from 1[st] Chingam 1192 ME to 31[st] Karkidakam 1192 ME. 3. The petitioner claims that he has got an unblemished service career and his appointment itself is sufficient proof for the same. On 03.04.2017, he received a show cause notice Ext.P2 dated 01.04.2017 from the Assistant Devaswom Commissioner, seeking his explanation against the allegation that he used to collect money from the devotees, by distributing `Charadu' and `thottil'. The petitioner submitted that Ext.P3 reply was submitted on 03.04.2017 itself. While so, on 13.05.2017, when he was on leave the petitioner came to know that he was transferred as per Ext.P4 order to Kadavallur temple. Simultaneously the 3[rd] respondent from Kadavallur temple was transferred and posted to his place. In Ext.P4 order issued on 11.05.2017 it was stated that the petitioner was being transferred based on the misappropriation committed under his leadership in W.P(C) No.16366 of 2017-U 3 the Chottanikkara Keezhkavu Bhagawati temple. In order to displace him the 3[rd] respondent Sri Prasannakumar, who was included in the reserve list and was selected after taking lot from Kadavallur temple, was being transferred and posted. The order of transfer refers to the report dated 4.5.2017 of the Assistant Commissioner, Chottanikkara and the resolution No.6 in the meeting of the Board dated 10.05.2017. Even before the order of transfer was served on the petitioner, he approached this Court challenging the transfer alleging that it casts a stigma on the character and reputation of the petitioner and it is punitive in nature. 4. The case of the petitioner is that he is having an unblemished service records as a Melshanthi since the year 1997. After he submitted his explanation to the show cause notice on 03.04.2017, on the allegation of sale of `charadu' and `thottil', nothing was heard. No memo of charges was issued to him. A transfer, based on any allegation against him, should have been after initiating disciplinary proceedings in accordance with law and after affording an opportunity of hearing to him. Moreover, it is stated that the report referred to in W.P(C) No.16366 of 2017-U 4 the transfer order was not furnished to him. The petitioner further submits that his appointment was made in accordance with Daivahitham and it was for the period from 1[st] Chingam to 31[st] Karkidakam and that post is not transferable and the tenure cannot be curtailed. It is also pointed out that his appointment itself was made after being found suitable in the interview and the screening test and thereafter taking lot. His application itself was considered, on being satisfied that no disciplinary proceedings were initiated against him within a period of ten years and he was not facing any pending disciplinary action. These facts are evident from Ext.P1 notification. 5. In Ext.P2 show cause notice issued on 1.4.2017 the Assistant Commissioner stated that M/s.P.V.Viswambharan and P.R.Mohanan - Vigilance Assistants, conducted an inspection at Keezhkavu temple, in presence of the petitioner on 1.04.2017 and they seized yellow, black and red `charadu' weighing 500 grams and 9 small wooden cradles from the prasadam counter. It was stated that the statement of seizure was signed by the petitioner as well as Sri Chandran who was on duty in the counter. W.P(C) No.16366 of 2017-U 5 It was alleged that the sale of such articles of offerings to the devotees directly, affects the income of the temple considerably and is contrary to rules. It was further stated that such sale without issuing receipt was detected earlier also when the petitioner was warned. The petitioner was therefore asked to show cause within a period of 24 hours against the proposal to proceed against him for such misappropriation. 6. In Ext.P3 reply the petitioner submitted that the wooden cradles, the devotees kept hanging on the banyan tree in the keezhkavu temples as offerings, were taken from it and placed in the counter on instructions from the Thantri by his assistants and the cradles were not being supplied from the prasadam counter. All those cradles were those offered after remitting the requisite charges on receipts issued from the counter. Regarding the 'Charadu' the petitioner submitted that it is supplied from the counter only on payment as per receipts and Santhis are no way involved or connected with sale of `charadu'. However, it was stated that he had instructed his assistants to purchase some 'charadu', on the basis of request of a Shanti from W.P(C) No.16366 of 2017-U 6 Chalakkudi, to hand over it to him, for supply of the same to the devotees of his temple and that he came to know that the charadu were already purchased by his assistants and kept there, only after the seizure. The petitioner submitted that during the 20 years' service rendered by him under the Devaswom Board, there was no occasion for any action against him and the allegations raised against him were baseless and incorrect. He requested to absolve him from the charges. It was after more than one month thereafter, the order of transfer was issued. Petitioner submits that the respondents have adopted dubious methods in order to tarnish his image and to send him out of Chottanikkara temple with a stigma for ever. 7. The 1[st] respondent has filed a counter affidavit stating that there were several occasions when the petitioner was orally warned by the respondent Board for commission of irregularities, thereby denying the statement that the petitioner has unblemished service record. It is further stated that on instructions from the Assistant Commissioner, who found certain irregularities involving the petitioner, the Vigilance Assistants W.P(C) No.16366 of 2017-U 7 M/s.P.V.Viswambharan and P.R.Mohanan conducted an inspection at the Keezhkavu Bhagawati temple on 01.04.2017. They seized charadu and wooden cradles as stated in Ext.P1 show cause notice and submitted Ext.R1(a) report on 1.4.2017. The inspection and seizure were made in presence of the petitioner and he has put his signature in the seizure statement. It is further stated that the petitioner sold the articles of offerings like charadu and thottil to devotees directly, without issuing receipts, for making unlawful gain. Such practices were noticed earlier and he was warned for the same. On the basis of Ext.R1(a), Ext.P2 show cause notice was issued, to which the petitioner submitted Ext.P3 explanation and the Assistant Commissioner submitted a report No.A181/17 dated 5.4.2017 before the Special Devaswom Commissioner, regarding the misappropriation. As the explanation to show cause notice was not satisfactory, the 1[st] respondent issued Ext.P4 order transferring the petitioner on the basis of Ext.R1(b) report. It is further stated that the 1[st] respondent has passed another order on 11.5.2017 directing the Vigilance Officer to conduct a detailed enquiry into the issue and submit a report within 30 days. W.P(C) No.16366 of 2017-U 8 According to the respondents, the transfer of the petitioner is ordered in the background of the irregularities found in the inspection by the Vigilance section, pending detailed enquiry pursuant to Ext.R1(c) order. When the petitioner is involved in an incident against which a thorough investigation is being conducted by the Vigilance officer, he was transferred as per Ext.P4 order for the purpose of a smooth investigation, which will not be possible if the petitioner is continuing as Mel Shanthi. It is further stated that the petitioner would be given opportunity to defend in the inquiry and any action would be taken only after complying with the principles of natural justice. It is therefore stated that Ext.P4 is just a routine transfer pending enquiry and does not imply or conclude that the petitioner is guilty of the misappropriation. 8. The petitioner has filed a reply affidavit reiterating his contentions that he has an unblemished service record for the last 20 years without giving room for any complaint. It is stated that the order Ext.P4 is issued in violation of the disciplinary procedure contemplated and even before a memo of charge was issued to him. According to him, W.P(C) No.16366 of 2017-U 9 Ext.P4 indicates that misappropriation was committed under the leadership of the petitioner and the intention is that the petitioner has to be removed from the temple. It is also his contention that either the report of the Assistant Commissioner referred to in the order or the report dated 4.5.2017 was not furnished to him. Pointing out Ext.R1(c) the petitioner stated that on 11.01.2017 two daily waged employees of the temple who were working in the counter were seen committed certain irregularities and since the explanation furnished was not satisfactory it was found that penal action would be taken against them. Referring to Ext.R1(c) it is stated that there is no reason for inclusion of the petitioner in that order. It is his further case that even though a report after conducting a Vigilance Inspection was called for within a period of 30 days by the order dated 11.05.2017, no report was forthcoming. Therefore, the case of the petitioner is that attempt of the respondents is to harass the petitioner somehow or other. According to him, the very word `punitive action' would indicate that the respondents wanted to punish him instead of initiating disciplinary action. W.P(C) No.16366 of 2017-U 10 9. Heard the learned counsel for the petitioner as well as the learned Standing Counsel elaborately. 10. It is evident from the order of transfer as well as the counter affidavit that the order of transfer has been issued in the background of the inspection conducted in the Keezhkavu temple where the petitioner had been working and the order Ext.P4 is issued in continuation of the inspection, show cause notice and the reply as well as a report in connection with the allegations raised against the petitioner including misappropriation. 11. Transfers are permissible pending disciplinary action, in order to facilitate smooth investigation and when the presence of an employee is not feasible for the smooth running of the investigation or also if it is likely to affect the conduct of the enquiry. The fact that the petitioner's appointment was for a tenure, will not stand in the way of transfer, on valid grounds if public interest demands it. The contention of the petitioner is that the impugned transfer is a punishment even before an inquiry is conducted. The question whether an inquiry should be conducted before an order of transfer, in exigencies of service W.P(C) No.16366 of 2017-U 11 was considered by the Apex Court in **Union of India v. Janardhan Debanath** [(2004) 4 SCC 245] **,** in a case where the transfer of two postal employees from one division to division was challenged on the ground that it was a penalty. The employer's contention was that the same was in public interest to enforce discipline as serious acts of misbehaviour towards an officer and indiscipline was found. It was held as ## follows: The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. ## 12. In **High Court of Judicature of Madras v. R.** **Perachi** [(2011) 12 SCC 137] : the transfer of a Sheristadar pending enquiry was under Challenge where this Court held as follows: 31. As seen above, the transfer was purely on the 12 W.P(C) No.16366 of 2017-U administrative ground in view of the pending complaint and departmental enquiry against the first respondent. When a complaint against the integrity of an employee is being investigated, very often he is transferred outside the unit concerned. That is desirable from the point of view of the administration as well as that of the employee. The complaint with respect to the first respondent was that he was dominating the administration of the District Judiciary, and the District Judge had reported that his retention in the district was undesirable, and also that departmental enquiries were pending against him and other employees, with respect to their integrity. In the circumstances the decision of the then Chief Justice to transfer him outside that district could not be faulted. ## 13. In the judgment in **C.Ramachandran Nair V** **Director of Training** [1992(1) KLJ 301], a learned Single Judge of this Court did not interfere with the order of transfer challenged on the ground that it was punitive. In that case against the employee an inquiry was pending, on charges of misbehaviour towards a superior officer. The contention of the respondents that his continuance in the institute was desirable till completion of the inquiry was accepted _._ 14. In the judgment in **Dinamoni V Dy Supdt of Police** [1994(1) KLT 320], it was held that transfer cannot be said to be punitive when it is ordered for the smooth running of an organisation. All transfers pending complaints against employees cannot be said to be punitive. These principles were reiterated in W.P(C) No.16366 of 2017-U 13 the judgment in **M.Gopinathan & another V State of Kerala & others** [2014(4) KLT 285]. 15. It is settled law that scope of interference on transfer by courts under Article 226 of the Constitution of India is very limited and only when there is any violation of statutory rules, want of jurisdiction or if it is vitiated either by mala fides or by extraneous consideration without any factual background or foundation. When transfers are ordered on administrative grounds, the wheels of administration should be allowed to run smoothly. 16. In this case the respondents admit that the petitioner is transferred in the back ground of a Vigilance inspection, show cause notice, etc. and an inquiry is going to be conducted against the petitioner. A transfer pending an inquiry, cannot be said to be impermissible also, in a given case where the continuance of the delinquent is likely to affect the investigation or enquiry. But on a reading of Ext.P4 order of transfer, it would appear that the petitioner is already found guilty of the alleged misappropriation. The order begins saying: “On the basis of the misappropriation (thirimari) under the leadership of Sri. T.P.Narayanan Namboothiri in the W.P(C) No.16366 of 2017-U 14 Keezhkavu Bhagavathi temple in order to displace him ------ “. Therefore the order of transfer is casting a stigma on the service career of the petitioner. After issuing an order of transfer in this manner, the respondents cannot be heard to contend that it is a routine transfer. Therefore, a transfer which would have been permissible otherwise, has turned out illegal on account of the manner in which it is issued. In the above circumstances, Ext.P4 order is set The writ petition is allowed accordingly. aside. Sd/- _**(P.V.ASHA, JUDGE)**_ rtr/