M.K. Ramakrishnan and N. Sasikumar v. Malabar Devaswom Board and Zamorin Raja Chalappuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **TUESDAY, THE 10TH DAY OF OCTOBER 2017/18TH ASWINA, 1939** ## **WP(C).No. 16827 of 2017 (C)** ## **----------------------------** ## **PETITIONER(S):** **-------------** **1. M.K.RAMAKRISHNAN** **UPPER DIVISION CLERK, ALTHIYOOR PERUM THRIKKOVIL DEVASWOM, MALAPPURAM DISTRICT.** **2. N.SASIKUMAR, UPPER DIVISION CLERK, THALI DEVASWOM, KOZHIKODE DISTRICT.** ## **BY ADV. SRI.MOHAN C.MENON** **RESPONDENT(S):** - **--------------** **1. THE MALABAR DEVASWOM BOARD REPRESENTED BY THE COMMISSIONER, KOZHIKODE-673001.** **2. THE ZAMORIN RAJA CHALAPPURAM, KOZHIKODE-673002.** ## **R1 BY SRI.MAHESH V.RAMAKRISHNAN, SC, MALABAR DEVASWOM R2 BY ADVS. SRI.M.P.SREEKRISHNAN SRI.A.MUHAMMED MUSTHAFA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** ## **WP(C).No. 16827 of 2017 (C)** **----------------------------** ## **APPENDIX** ## **---------------** ## **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT P1: TRUE COPY OF THE ORDER DATED 5.9.2002 OF ZAMORIN APPOINTING THE IST PETITIONER.** - **EXHIBIT P1A: TRUE COPY OF THE ORDER DATED 16.6.1997 OF ZAMORIN APPOINTING THE 2ND PETITIONER.** - **EXHIBIT P2: TRUE COPY OF THE JUDGMENT DATED 1.8.2003 IN OP NO.2316/2002 OF THIS HON'BLE COURT.** - **EXHIBIT P3: TRUE COPY OF THE ORDER DATED 20.9.2003 OF THE COMMISSIONER, H.R. & C.E. (ADMN) DEPARTMENT.** - **EXHIBIT P4: TRUE COPY OF THE ORDER OF THE COMMISSIONER, MALABAR DEVASWOM BOARD DATED 5.8.2010.** - **EXHIBIT P5: TRUE COPY OF THE JUDGMENT DATED 21.8.2015 IN WPC NO.24492/2015 OF THIS HON'BLE COURT.** - **EXHIBIT P6: TRUE COPY OF THE COUNTER AFFIDAVIT IN THE R.P.NO.147/2017 DATED 16.5.2017.** - **EXHIBIT P7: TRUE COPY OF THE ORDER DATED 17.5.2017 WHICH WAS SERVED ON THE 2ND PETITIONER ON 19.5.2017 AT 5 P.M.** - **EXHIBIT P8 TRUE COPY OF REPORT DATED 4.11.2014 OF EXECUTIVE OFFICER, SRI. ALATHIYOOR PERUMTHRIKOVIL DEVESWAM (HANUMAN KAVE TEMPLE)** - **EXHIBIT P9 TRUE COPY OF COMMUNICATION BY THE EXECUTIVE OFFICER, VALAYANAD DEVASWOM TO TE 2ND RESPONDENT DATED 30.3.2016** - **EXHIBIT P10 TRUE COPY OF REPORT BY SPECIAL AUDIT TEAM SUBMITTED TO THE 1ST RESPONDENT ON 4.10.2016** - **EXHIBIT P11 TRUE COPY OF COMPLAINT GIVEN BY SUGATHAN AND OTHERS BEFORE THE SAMOOTHIRI RAJA, KOZHIKODE** - **EXHIBIT P12 TRUE COPY OF ENQUIRY REPORT OF 2ND PETITIONER DATED 2.5.2017** - **EXHIBIT P13 TRUE COPY OF REPORT GIVEN BY EXECUTIVE OFFICER, THALI TO THE 2ND RESPONDENT ON 3.5.2017** **RESPONDENT(S)' EXHIBITS -----------------------------------** **EXT.R2(A) A TRUE COPY OF THE ORDER, DATED 13.11.2013.** ## **WP(C).No. 16827 of 2017 (C)** **---------------------------EXT.R2(A1) TRUE COPY OF THE ORDER OF THE APPROVAL OF THE TRANSFERS, DATED 11.03.2016** **EXT.R2(A2) TRUE COPY OF THE ORDER OF THE APPROVAL OF THE TRANSFERS, DATED 19.04.2016** **EXT.R2(A3) TRUE COPY OF THE ORDER OF THE APPROVAL OF THE TRANSFERS, DATED 09.05.2016** **EXT.R2(A4) A TRUE COPY OF THE ORDER OF TRANSFER, DATED 28.01.2017** **EXT.R2(B) A TRUE COPY OF THE ORDER DATED 19.08.2015 IN RP NO. 07/2015** **EXT.R2(C) A TRUE COPY OF THE COMPLAINT RECEIVED FROM SUGATHAN, DATED NIL** **EXT.R2(D) A TRUE COPY OF THE COMPLAINT RECEIVED FROM THE SECURITY PERSONAL OF THE TEMPLE , DATED 02.05.2017** **EXT.R2(E) THE REPORT AFORESAID DATED 01.03.2017 EXT.R2(F) A COMMUNICATION, DATED 03.05.3017** **EXT.R3(G) A TRUE COPY OF TH STATEMENT OBTAINED BY THE INSPECTOR, CENTRAL DEVASWOM, DATED 29.04.2017** **EXT.R2(H) A TRUE COPY OF THE COMPLAINT DATED 28.04.2017** **EXT.R2(I) A TRUE COPY OF THE COMPLAINT DATED 24.03.2017** **EXT.R2(J) A TRUE COPY OF THE ORDER RECALLING THE EXHIBIT P7 AND PLACING THE PETITIONERS UNDER SUSPENSION DATED 24.05.2017** **EXT.R2(K) A TRUE COPY OF THE ORDER DATED 24.05.2017** **EXT. R2(L) NIL EXT.R2(M) NIL** **EXT.R2(N) TRUE COPY OF THE MEMORANDUM OF WRIT PETITION IN W.P.(C) 32595/2016** **EXT.R2(O) TRUE COPY OF THE INTERIM ORDER DATED 07.10.2016 IN WPC NO. 32595/2016** **EXT.R2(P) TRUE COPY OF THE MEMORANDUM OF REVIEW PETITION N RP 147/2017 EXT.R2(Q) A TRUE COPY OF THE JUDGMENT IN WPC 2749/2015** **/TRUE COPY/** **PA TO JUDGE** **sdr/-** ## **P.V.ASHA, J.** ## **W.P.(C) No.16827 of 2017** ## **Dated this the 10[th] day of October, 2017** ## **JUDGMENT** The petitioners are Senior Upper Division Clerks in Alathiyur Perum Thrikkovil Devawom in Malappuram District and Thali Devaswom in Kozhikkode District respectively, both of which are under the trusteeship of the Zamorin Raja Kozhikkode - the 2[nd] respondent. They filed this writ petition, challenging Ext.P7 order issued on 17.5.2017, transferring them mutually from Alathiyur to Thali and Thali to Alathiyur, with effect from 22.5.2017, on work arrangement. The main ground alleged in the writ petition, which was filed on 22.5.2017, was that there is no transferability of employees between different Devaswoms under the 2[nd] respondent and each Devaswom is considered as separate unit for the purpose of transfer and other service benefits, as held by this Court in several cases. 2. When the writ petition came up for consideration, the 2[nd] respondent sought time for filing counter affidavit, with the contention that the transfer was ordered, on account of complaints received against the petitioners and that disciplinary action was being initiated W.P.(C) No.16827 of 2017 **==> picture [14 x 10] intentionally omitted <==** against them. Thereafter when the counter affidavit was filed, respondents produced Ext.R2(j) order dated 24.05.2017, by which the petitioners were placed under suspension and stated that Ext.P7 order is no longer in force. Along with I.A.No.8166 of 2017, the 2[nd] respondent filed an additional affidavit producing Ext.R2(k) order dated 24.05.2017, by which the order Ext P7 was withdrawn. 3. The petitioners thereafter amended the writ petition and challenged Ext.R2(j) order. Petitioners had alleged that the orders of transfer were vitiated by malafides and it was ordered at the instance of the son-in-law of the 2[nd] respondent who is acting as the defacto trustee on behalf of the present Zamorin, who is aged. It is stated that towards the end of 2016 certain financial irregularities, action of breach of trust etc. were detected which were found traceable to the son-in-law of 2[nd] respondent who acts as the de-facto trustee. Petitioners claim that they were blacklisted by the son-in-law of the 2[nd] respondent, who is under the impression that the petitioners were behind the detection and leaking of the affairs in the Central Devaswom. Petitioners submit that they had approached this court for the benefit of revision of pay, with the blessings of the Zamorin and W.P.(C) No.24492 of 2015 was allowed by Ext.P5 judgment on 21.08.2015. After the judgment was complied with, the 2[nd] respondent W.P.(C) No.16827 of 2017 **==> picture [14 x 10] intentionally omitted <==** filed R.P.No.147 of 2017, after 500 days of delay claiming that the Central Devaswom is not Special Grade Devaswom. The filing of RP after 500 days, deviating from the stand adopted hitherto by the Zamorins and the present transfer and impugned action, are all stated to be the measures at his instance. Petitioners have produced the counter affidavit dated 16.05.2017, in which they have explained the changes reflected since the year 2016. The order of transfer was served on the petitioners on 19.05.2017. They challenged the transfer alleging victimisation and non-transferability. It was also pointed out that the 1[st] petitioner had submitted application for appointment as Executive Officer at Alathiyur Devaswom, when the vacancy was notified for direct recruitment. As the 2[nd] respondent filled up that vacancy by transfer, appointing the present Executive Officer of Alathiyoor Devaswom, the first petitioner has filed W.P.(C) No.22516 of 2016, challenging the same, which is pending. The first report against the 1[st] petitioner is submitted by the Executive Officer. Another W.P.(C) No.21777 of 2016, claiming promotion as Superintendent filed by one of the senior UD Clerks is also pending. It was alleged that even though Ext.P7 transfer was stated to be on work arrangement and in the interest of Devaswom, there is no such provision for mutual transfer and any transfer would amount to W.P.(C) No.16827 of 2017 **==> picture [14 x 10] intentionally omitted <==** violation of this court's judgments. 4. In the amended writ petition, while challenging Ext.R2(j) order issued on 24.5.2017 by which the petitioners were placed under suspension with effect from 25.5.2017 it was alleged that petitioners received the order of suspension only on receipt of the copy of the counter affidavit served on the counsel. It was alleged that Ext.R2(j) is illegal, unjust, vitiated by extraneous reasons, colourable exercise of power,and issued as a counterblast in the backdrop of WP(C) No.22521 of 2016, WP(C) No.21777 of 2016, W.A.No.208 of 2017 & R.P.No.147 of 2017. 5. Petitioners claim that they had been performing their duties without giving room for any complaint right from the date of their appointment in the respective Devaswoms. In Ext.P7 order, the 1[st] petitioner was transferred to Thali Temple which was 65 kms away from his residence. The transfer of 2[nd] petitioner was to the Alathiyoor Temple, which is 74 kms away from his residence. The order of suspension is challenged alleging that there was no enquiry pending against the petitioners as stated in the order of suspension. It was ordered in view of the non-transferability, on the basis of cooked up stories in collusion with the contesting respondents in the cases filed by petitioners. W.P.(C) No.16827 of 2017 **==> picture [14 x 9] intentionally omitted <==** 6. In the order of suspension, it was alleged that several complaints were received against the 1[st] petitioner and preliminary enquiry was held on receipt of complaints received from one Sri.Suguthan and others based on which the Central Devaswom Inspector had submitted a report on 1.3.2017. Similarly a preliminary enquiry was held on receipt of a complaint from one Sri.V.Dineshan on 2.5.2017 and the orders of transfer of 1[st] petitioner was issued in that background. Regarding the 2[nd] petitioner, it is stated that a complaint was received from Sri.Balakrishnan Eradi, who is a regular devotee of the Temple, on 28.4.2017 about inferior quality of nivedyams. It is alleged that 2[nd] petitioner who is the Kalavara in charge purchased substandard ingredients for the offerings in the Temple, for his gain, causing loss to Devaswom and damage to its reputation, adversely affecting the interest of the Devaswom. It is further stated that complaints were received from the devotees that he misbehaved towards the devotees. It was stated that continuance of the petitioners in the respective Devaswoms will adversely affect the enquiry, pending against them and hence it was necessary to place them under suspension. The petitioners claim that the complaints were cooked up for the purpose of harassing them. 7. The 2[nd] respondent has filed a detailed counter affidavit W.P.(C) No.16827 of 2017 **==> picture [14 x 10] intentionally omitted <==** producing all the documents referred to in the enquiry held against the petitioners. Counter affidavit was filed in answer to the amended writ petition also. Objections were raised pointing out that documents were not marked properly. The learned counsel for the petitioner pointed out that the document produced along with the counter affidavit to the original writ petition and the documents produced along with the counter affidavit to the amended writ petition were not in order. There was change in the serial number as well as description. The learned counsel for the respondents raised serious objections against challenging a document produced along with the counter affidavit of the respondents, without producing it in the writ petition. It was also pointed out that provisions contained in Kerala High Court Rules were not followed while producing documents one after another. Contentions were raised by both sides regarding the admissibility of the counter affidavit as well as the admissibility of a petition for amendment in which the order impugned was one which was produced by the respondents. 8. However, the counter affidavit states that there are 43 Temples and sub Temples under hereditary trusteeship of the Zamorin Raja and these Temples are within the jurisdiction of the Madras Hindu Religious and Charitable Endowments Act, 1951 and the Zamorin Raja- W.P.(C) No.16827 of 2017 **==> picture [14 x 9] intentionally omitted <==** 2[nd] respondent is managing the affairs of the Devaswom. All the Temples under the hereditary trusteeship of 2[nd] respondent is administered by the Central Devaswom which is functioning in Thali in Calicut District. The constitution of the Central Devaswom is administered by the erstwhile HR&CE Department and the Malabar Devaswom. The power to appoint the servants of the religious institution are vested with the hereditary trustee. Regarding the transferability of the employees from one Temple to another Temple it is stated that for the purpose of proper administration employees are transferred from one temple to other temple in exigencies of service. Orders Ext.R2(a) series are produced to show that executive officers were being transferred and approval was granted to those orders of transfers by the Malabar Devaswom Board, all issued in the year 2016. Apart from that Ext.R2(a4) order of transfer issued on 28.1.2017 and Ext.R2(b) order in which the Commissioner refused to interfere are also produced. It is their contention that the transfers as well as initiation of disciplinary proceedings are within the powers of the 2[nd] respondent. It is also stated that under section 49 of the HR and CE Act all the officers and servants of a religious institution are under the control of a trustee and there is amble power vested in the trustee to initiate disciplinary action and the power of the trustee was upheld in W.P.(C) No.16827 of 2017 **==> picture [14 x 10] intentionally omitted <==** the decision reported in _**Zamorin Raja vs. Government of Kerala : 2016 (4) KLT 841**_ . While stating that the order of transfer was not unique, it is stated that the 1[st] petitioner had been continuing in the same temple for the last 16 years since the year 2002. Complaints were received by the Manager of the Temple regarding the misbehaviour of the 1[st] petitioner while he was in the vazhipadu counter that is within the temple premises. It is stated that based on the Complaints Exts.R2(c) and (d) the executive officer submitted Ext.R2(e) report. After receipt of that report, the 2[nd] respondent directed the Inspector, Central Devaswom to investigate and report on the complaints; the Inspector took statements from the complainant and others, who stated that subsequent to the filing of the complaint, Sri.Sugathan, received telephone call from a particular telephone number threatening him of dire consequences; therefore they are ready to retaliate against the first petitioner in the temple premises on this; however they are refraining from it considering the interest of the Devaswom. The statement of the first petitioner is produced as Ext.R2 (g). Even though the communication of 2[nd] respondent directing the Inspector to investigate, is marked as Ext.R2(f), (what is produced as Ext.R2(f) in the counter affidavit to the pre-amended writ petition is the report of the Inspector), it is stated that there is a likelihood of W.P.(C) No.16827 of 2017 **==> picture [14 x 10] intentionally omitted <==** violence in the temple premises, creating law and order situation, as there are allegation of threat at the instance of 1[st] petitioner and retaliation from the complainant. It is stated that Ext.R2(h) and (i) complaints were received against the 2[nd] petitioner, who had been working in Thali Temple since 16.6.1997. It is stated that on receipt of Ext.R2(h) complaint on 28.04.2017, from a devotee regarding the quality of nivedyam, 2[nd] respondent enquired into it and found that 2[nd] petitioner who was in charge of the kalavara was making unjust enrichment by procuring substandard articles for the preparation of nivedyams. It is stated that the main offerings in the Temple are appam, payasam and ada for which rice, jaggery, milk, ghee etc. are procured by the kalavara Department and it is the responsibility of the 2[nd] petitioner to arrange the same. But there were widespread complaints from devotees that the articles used for nivedyams are substandard. It is further stated that the 2[nd] petitioner did not report before the 2[nd] respondent despite direction. In Ext.R2(i), a devotee complained that he humiliated him by refusing to book Udayasthamana pooja, which the devotee and his family had been doing every year. It is stated that the circumstances of the case required detailed enquiry and since the petitioners have been working in these temples for the last several years, their presence in the very same temple would affect W.P.(C) No.16827 of 2017 **==> picture [20 x 10] intentionally omitted <==** the enquiry/tampering of files and they were likely to win over the witnesses proposed to be examined. In those circumstances, it was found that transfer from one Temple to another would not serve any purpose because the petitioners have been acting hand in hand. Therefore the order of transfer was cancelled and they were placed under suspension as per Exts.R2(j) and (k) orders. 9. Reply affidavits are filed in answer to the counter affidavits filed to pre-amended and amended writ petitions. The petitioners state that the orders Ext.R2 (a) series of transfers or their approval in the case of Executive Officers and the transfers which remained without any challenge will not empower the respondents to transfer the employees like petitioners. They have stated that complaints which are produced as Exts.R2(c) and (d) as well as the reports are procured for the purpose of the case. Petitioners pointed out that till the year 2016, there were no complaints against the petitioners and all the problems arose on account of producing Exts.P9 and P10 letter and audit report, which indicates the detection of irregularity by the audit team in pledging the FD from the Devaswom fund for personal purposes of 2[nd] respondent and the obstructions caused to the audit and nonproduction of accounts before them, it is stated that petitioners are saddled with the responsibility of leakage of the information, based on W.P.(C) No.16827 of 2017 **==> picture [19 x 10] intentionally omitted <==** which the 2[nd] respondent filed Review Petition against Ext.P5 judgment after 500 days of delay. It is also pointed out that Ext.R2(d) complaint is one procured by the Executive Officer from one Dinesan who is working as a Watchman on reversion in disciplinary action for embezzlement while he was working as Clerk and he is awaiting sympathetic consideration for promotion. It is stated that the Ext.R2 (e) report on Ext.R2(c) complaint of Sri.Sugathan, is submitted by the Executive Officer whose appointment is challenged by the 1[st] petitioner; Ext.R2(f) is submitted by Sri.Sankaravarma Raja, whose promotion as Inspector directly from the post of LD Clerk is pending consideration before this court in W.A.No.208 of 2017 at the instance of Senior Clerks. 10. In Ext.R2(c) complaint from Sri.Sugathan, who claimed to be a devotee, it was alleged that 1[st] petitioner does not report for duty in correct time, leaves office early, uses WiFi of Devaswom, engage in social media, talks politics while sitting in the counter. Ext.R2(e) is the report of Executive Officer Sri.Manoj. Sri.Sugathan again submits a complaint Ext.P11, along with others alleging that he received threatening phone call from certain phone number after statement was given in the inquiry, for which the complainants intimated their self restraint. Ext.R2(f) is the report on it, on which it was ordered to W.P.(C) No.16827 of 2017 :12: transfer the petitioners. 11. Petitioners have explained the track record of Sri.Sugathan, the complainant who filed Ext.R2(c) and thereafter Ext.P11 along with certain others against the 1[st] petitioner based on which Ext.R2(e) and (f) reports leading to the transfer and thereafter the suspension were ordered. They have produced Ext.P8 report of the former Executive Officer submitted to the 2[nd] respondent pointing out the illegal activities of Sri.Sugathan and two others who formed a fake kshetrasamrakshana samithi and collected funds without permission of the Devaswom. The complainant who was its treasurer had to stop it at the instance of the then Executive Officer and the 1[st] petitioner, after Ext.P8 report. Therefore, it is stated that the Executive, Officer who is in vengeance against the first petitioner, got the complaints from such persons, who are fraudsters and unreliable. 12. Regarding the allegation against the 2[nd] petitioner, who is described as Kalavara in charge, it is stated that there is no post of Kalavara in charge and 2[nd] petitioner is holding the post of UD Clerk. It is pointed out that the main offerings in the Devaswom are appam and payasam. The quality of each of the offerings would be tested on day to day basis, since there is share for the Temple employees as well as to the family of the Zamorin Raja, all of whom would be having the W.P.(C) No.16827 of 2017 **==> picture [20 x 10] intentionally omitted <==** opportunity to test the quality of the nivedyams then and there. It is also pointed out that Sri.Balakrishnan Eradi's complaint in Ext.R2(h) was against the quality of the nivedyams and against the Executive Officer in not taking action to enhance the quality of appam, payasam, etc. in the Devaswom. It is stated that the complainant Sri.Balakrishnan Eradi, who is a family friend of 2[nd] respondent, is the Treasurer and member of the governing body of Samoothiri Sree Gurvayoorappan College, Secretary of Ulsavakhosha committee of Thali Devaswom and Chairman of Revathi Pattathanam Akhosham. Sri.Venugopal who submitted Ext.R2(i) complaint is the son-in-law of the uncle of Sri.Balakrishnan Eradi. He had entrusted a cheque towards the charges for Udayasthamayapooja, to be conducted on a day immediately following a bank holiday. The 2[nd] petitioner who was very well aware of the difficulty in getting the cheque encashed, insisted for payment in cash, without which it was not possible to procure the articles for the offerings, within the minimum time available. On this the 2[nd] petitioner had submitted his explanation Ext.P12 before the 2[nd] respondent and the Executive Officer of the Thali Devaswom had already approved the action of the 2[nd] petitioner on it in Ext.P13 report. It is stated that Exts.P12 or P13 were not considered before taking action against him. It is stated that there was W.P.(C) No.16827 of 2017 **==> picture [20 x 10] intentionally omitted <==** not a single occasion when he misbehaved against the devotees and a Clerk cannot be responsible for the quality of the nivedyams. The nivedyams are prepared in the thidappilly by separate staff appointed for preparing it, who are competent to determine the quantum or quality of ingredients in each of the nivedyams. It is pointed out that the persons who are alleged to have submitted complaints against the petitioners are the henchmen of the son-in-law of the Zamorin. It was therefore alleged that the order of suspension, which was issued in order to meet the contentions against the order of transfer, is also vitiated by malafides. It is stated that the explanation submitted in Ext.R2(g) of first petitioner or the explanation of 2[nd] petitioner in Ext.P12 or the report Ext.P13 are not considered and that the malafides behind the transfer and suspension of the petitioners would be clear from those documents. It is stated that the order of transfer as well as suspensin are vitiated by malafides apart from abuse of powers which even go against the interest and welfare of the Devaswom. 13. Serious objection is raised against the petitioners in raising allegations against persons who are not impleaded as parties eonominee. While the petitioners submit that the order of transfer is as a measure of victimisation for not being in the good books of the son-in- W.P.(C) No.16827 of 2017 **==> picture [20 x 10] intentionally omitted <==** law of the 2[nd] respondent by abusing the powers with the support of the Executive Officer, Inspector and Superintendent, against all of whom writ petitions are filed and are pending at the instance of the petitioners and others. The contention of the 2[nd] respondent is that the order of transfer as well as suspension are issued in the interest of the Devaswom and the 2[nd] respondent who received the complaints, is duty bound to enquire into it. It is also pointed out that disciplinary proceedings initiated against the employees by the trustee who is vested with the powers of the trustee under section 49 (3) of HR&CE Act cannot be interfered with by this Court. 14. I heard Sri.Mohan C. Menon, learned Counsel for the petitioners, Sri. M.P.Sreekrishnan, learned counsel for the 2[nd] respondent and Sri.Mahesh V. Ramakrishnan, learned counsel for the 1[st] respondent. 15. The parties on both sides have placed on record the allegations and counter allegations. Memo of charge is already issued to the petitioners. Arguments were also advanced on the allegations and materials. The jurisdiction of this court under Article 226 of the Constitution in matters relating to suspension has been considered by the apex court in several judgments. In _**U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Raja : 1993 Supp (3) SCC 483**_ , it was W.P.(C) No.16827 of 2017 **==> picture [20 x 10] intentionally omitted <==** held that whether the employees should or should not continue in their office during the period of inquiry is a matter to be assessed by the authority concerned and ordinarily, the Court should not interfere with the orders of suspension unless they are passed malafide and without there being even a prima facie evidence on record connecting the employees with the misconduct in question. 16. In the judgment in _**State of Orissa v. Bimal Kumar Mohanty : (1994) 4 SCC 126** ,_ relied on by both sides the apex court held as follows: - _13.It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into_ _**grave charges of misconduct or defalcation of funds or serious acts of omission and commission** , the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action._ _**It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee.** The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay_ W.P.(C) No.16827 of 2017 :17: _fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation._ _**It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose.** The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent’s continuance in office while facing departmental inquiry or trial of a criminal charge.”_ ## _**(emphasis supplied)**_ 17. It is true as pointed out by the learned Counsel for the 2[nd] respondent that the 2[nd] respondent is competent to take action against the employees under him. Petitioners do not dispute the power of the 2[nd] respondent to take action under Section 49(3) of the HR&CE Act. Their complaint is that they are victimised. For victimising them they got complaints from those who acted against the Devaswom and who cannot be believed at all. 18. The power to suspend an employee should be exercised with caution and care. It cannot be as an administrative routine; it cannot be on extraneous considerations or on malafides. It cannot also be for charges which are trivial. Though it is not a punishment, the heart burn of an employee placed under suspension, the mental trauma he W.P.(C) No.16827 of 2017 **==> picture [20 x 10] intentionally omitted <==** has to face in the society, at home apart from the office is more drastic and demoralising. In the light of the contentions put forth, I deem it necessary for this court to examine whether any grave misconduct is charged against the petitioners and whether there has any abuse of power or arbitrary or malafide exercise of power. 19. I have gone through all the complaints as well the explanations produced on either side. I refrain from expressing any view on it. The complaints against the first petitioner in Exts. R2(c), (d) and Ext.P11 (produced as Ext.R2(g) along with the counter affidavit filed in answer to the amended writ petition) and the reports Exts.R2(e) and Ext.R2(f), report along with Exts.P8 and P11, the pendency of the writ petitions against the authors of the report, the uncontroverted track records of the complainants proceeded against by the Devaswom, both for financial irregularities, would show that the suspension is ordered on extraneous considerations. When the suspension of one Clerk is on a complaint from outsiders that he is not reporting for duty in correct time, engages in social media, talks politics, etc. coupled with another one regarding the threats from him, the other one is proceeded against for the alleged complaints against deterioration in the quality of Nivedyam. Explanations are already submitted supported by materials to defend even those. I find that W.P.(C) No.16827 of 2017 **==> picture [20 x 10] intentionally omitted <==** even assuming that the complaints are correct, without even going into other materials placed on record, it cannot be said that these are grave misconducts so as to place these Clerks under suspension. Suspension of a Clerk for the complaints against the quality of nivedyam will appear strange to any prudent man. There is every reason to conclude that the order of suspension is passed on extraneous considerations and is vitiated by malice and that the same was absolutely unwarranted. When the power to suspend is exercised arbitrarily and on alien considerations , the order of suspension is liable to be set aside. 20. The respondents who decided to transfer the petitioners initially, have altered the transfer as suspension, subsequent to the filing of the case. Even though they have stated the ingredients necessary for suspension, stating that their retention in the Temple will affect the inquiry, enable them to influence witnesses, tamper records etc. and the possibility of breaking out violence in the temple premises, the uncontroverted track record of both the complainants in Exts.R2(c) and (d) are sufficient to come to a conclusion that the suspension is ordered on extraneous considerations and that there is no bonafides in these contentions. Therefore it is not necessary to go into the allegations regarding the pendency of the writ petitions W.P.(C) No.16827 of 2017 **==> picture [20 x 10] intentionally omitted <==** against the authors of the reports at the instance of the first petitioner and others. Though more than four months have elapsed, since the impugned orders of transfer as well as the suspension were issued, it would appear that the enquiry has not reached any where. I find that order No.A5.699/2017 dated 24.05.2017 [produced as Ext.R2(j) in the first counter affidavit and as Ext.R2(k) in the counter affidavit filed on 23.06.2017] placing the petitioners under suspension is liable to be set aside and I do so. There shall be a direction to re-instate the petitioners without any further delay. The respondents are free to proceed with the enquiry. The contentions as to the validity of transfer is left open, as it is already withdrawn. **P.V.ASHA JUDGE** rkc