P.M. Prakash v Malabar Devaswom Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944** ## **WP(C) NO. 14435 OF 2021** ## **PETITIONER/S:** |1|P.M.PRAKASH| |---|---| ||AGED 46 YEARS| ||S/O.KESHAVAN NAMBOOTHIRI| ||PUTHOORMANA,VALIYAKUNNU,| ||VALANCHERRY,PO THOZHUVANNOOR,MALAAPPURAM-| ||676552,WORKING AS SANTHI,SREE THOZHUVANNOOR| ||BHAGAVATHI DEVASWOM IN MALAPPURAM DISTRICT.| |2|A.K.SASIDHARAN,| ||AGED 57 YEARS,PARTHODI HOUSE,| ||VALANCHERRY,PO THOZHUVANNOOR,MALAAPPURAM-| ||676552,WORKING AS SANTHI,SREE THOZHUVANNOOR| ||BHAGAVATHI DEVASWOM IN MALAPPURAM DISTRICT.| |3|HARIDAS.K.P,| ||KARINGADI PARAMBATH HOUSE,AGED 52| ||YEARS,PARAMBRA.P.O, KALLODE,KOZHIKODE DISTRICT,| ||WORKING AS OFFICE CLERK,SREE THOZHUVANNOOR| ||BHAGAVATHI DEVASWOM IN MALAPPURAM DISTRICT.| |4|K.RADHA,| ||AGED 61 YEARS,KIZHAKKEKARA HOUSE,PO| ||THOZHUVANNOOR,MALAPPURAM-676552,| ||WORKING AS ADICHU THALI,SREE THOZHUVANNOOR| ||BHAGAVATHI DEVASWOM IN MALAPPURAM DISTRICT.| ||BY ADVS.| ||K.MOHANAKANNAN| ||H.PRAVEEN (KOTTARAKARA)| ## **RESPONDENT/S:** |1|MALABAR DEVASWOM BOARD| |---|---| ||X| |2|THE COMMISSIONER| ||MALABAR DEVASWOM BOARD,HOUSE FED| ||COMPLEX,ERANHIPALAM,KOZHIKODE-673006.| |3|THE ASSISTANT COMMISSIONER,| ||MALABAR DEVASWOM BOARD,MALAPPURAM| ||DIVISION,OFFICE AT CIVIL STATION,TIRUR-676101.| |4|EXECUTIVE OFFICER,| ||THOZHUVANNOOR BHAGAVATHI DEVASWOM,PO| ||THOZHUVANNOOR,| W.P.(C) No.14435 of 2021 -2- MALAPPURAM-676552. BY ADVS. R.LAKSHMI NARAYAN G.BIJU V.A.VINOD **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.03.2022, THE COURT ON 25.07.2022 DELIVERED THE FOLLOWING:** W.P.(C) No.14435 of 2021 -3- ## **JUDGMENT** Dated this the 25[th] day of July, 2022 The pitiable service conditions and meagre wages of the employees attached to the temples in Malabar, when compared to their counterparts in Travancore and Cochin, had compelled a Division Bench of this Court to register a _suo motu_ case. The issues faced by the hapless employees was considered elaborately in _**In Re: Temples in the erstwhile Malabar area [AIR 1995 Ker. 172].**_ The concluding portion of that judgment contains the following directions; ' _1. The Government of Kerala and the Hindu Religious and Endowment Department shall prepare a scheme within a period of six months in respect of the temples in Malabar region including Kasaragod district under the administration and governance of the Department as well as other public temples which do not come under the purview of the Act;_ _2. First respondent shall fix the reasonable remuneration to be paid to the_ W.P.(C) No.14435 of 2021 -4- _various employees in the temples in Malabar;_ _3. In fixing such reasonable remuneration the Government may take guidance from the scale of pay and other allowances paid to similar employees under the Travancore and Cochin Devaswom Boards;_ _4. The scheme shall also take into account all public temples in Malabar irrespective of the fact whether they are big or small and whether they are under the administration of the Department or not;_ _5. Respondents 1 and 2 shall find out the ways and means to raise the income of the temples for the purpose of such payment;_ _6. The first respondent shall prepare the final annuity statements in respect of the temples within a period of one year and the annuity on that basis shall be paid without further delay;_ _7. The first respondent shall consider the requirement or revision of annuity periodically in accordance with the rise in price of the commodities and the annuity should be revised on that basis;_ _8. First respondent shall ensure utilisation of the income which they are getting from the forest lands owned by the Devaswom in Malabar which got vested in_ W.P.(C) No.14435 of 2021 -5- _the Government under Section 3(1) of the Private Forests (Vesting and Assignment) Act;_ _9. The first respondent shall, though not liable to pay such income to the owners to whom the lands belonged, pool the income in a common fund to be utilised for the temples in Malabar including the wages payable to the employees thereunder:_ _10. The scheme to be framed by the first respondent shall be implemented by the second respondent within a period of one year from this date:_ _11. The order for payment of reasonable wages to the temple employees shall come into operation from 1st January, 1995._ _12. In view of our finding that inequality is writ large on the face of the Madras Hindu Religious and Charitable Endowments Act in its application to the former Malabar District, the Act is likely to suffer a serious and successful challenge in case that inequality is not removed by appropriate legislation. We grant a period of one year for this purpose._ _13. We direct the Government to consider the formation of a Board for the temples in Malabar and a unified Board for all the regions viz. Travancore, Cochin and_ W.P.(C) No.14435 of 2021 -6- _Malabar on the lines of the recommendations made by Kuttikrishna Menon Committee and Sankaran Nair Commission.'_ 2. In purported compliance of the directions, the Government issued G.O.(MS) No.415/96/RD dated 6.8.1996, unifying the scales of pay of the employees with effect from 01.01.1995. The Government also constituted a separate fund called the 'Malabar Devaswom Management Fund', as per G.O.(MS) No.481/95/RD dated 10.10.1995. An initial amount of Rs.1 Crore was sanctioned for assisting the needy temples in paying salary to its employees. The amount was enhanced to Rs.3 Crores as per G.O.(MS) No.238/RD dated 15.7.2004. 3. By Act 31 of 2008, the Madras Hindu Religious and Charitable Endowments Act, 1951 ('the Act' for short) was amended by incorporating Section 7A providing for constitution of the Malabar Devaswom Board. Section 80 provides for grants from the ## W.P.(C) No.14435 of 2021 -7- Government and Section 81 empowers the Board to constitute a fund called 'the Malabar Deavaswom Fund'. Later, G.O.(MS) No.116/2009/RD dated 28.02.2009 was issued revising the salary of employees in temples under the Malabar Devaswom Board. Immediately thereafter, the Government issued G.O.(MS) No.433/2009/RD dated 2.11.2009, clarifying that the Malabar Devaswom Board should ensure that administrative expense of the Devaswoms do not exceed 50% of their annual income and if 50% is not sufficient to meet the administrative expense, the balance amount can be disbursed from the Management Fund. This was followed by G.O.(MS) No.258/2010/RD dated 01.07.2010, as per which only Devaswoms with less than Rs.5 lakhs annual income became entitled to receive the amount in excess of 50% of annual income for meeting their administrative expense. By subsequent Government orders, the upper limit for receiving grant from the management fund W.P.(C) No.14435 of 2021 -8- towards administrative expense was raised to Rs.10 lakhs, 15 lakhs and 20 lakhs. 4. The petitioners are employees of Sree Thozhuvannur Bhagavathi Devaswom in Malappuram District. The first petitioner is working as Santhi, the second petitioner as Vazhipad Assistant, the third petitioner as office clerk and the fourth petitioner as Adichu Thali. The petitioners are aggrieved by the non-payment of their salary, due to the cut off limit prescribed as eligibility for receiving management fund towards administrative expense incurred in excess of 50% of the annual income. The petitioners contend that, all throughout, the employees of the temples in Malabar area have been discriminated against on the premise that the erstwhile Malabar area was part of Madras State and temples in Malabar was governed by the Madras Hindu Religious Endowments Act, 1926. The petitioners allege that the directions of the W.P.(C) No.14435 of 2021 -9- ## Division Bench in _**In Re: Temples in the erstwhile**_ _**Malabar area**_ have not been complied in their letter and spirit. Moreover, whatever attempt is made to comply with the direction regarding payment of salary to the employees is stultified by imposing an unconscionable condition that no financial aid will be granted to temples with annual income of more than Rs.20 lakhs. 5. Learned Counsel for the petitioner contended that the pay fixation/revision orders of the employees in the temples in Malabar was issued only after judicial intervention. The benefit granted by the right hand is now being taken away by the left, by incorporating an income limit for the temples. Attention is drawn to the observations and findings in _**In Re:**_ ## _**Temples in the erstwhile Malabar area,**_ temples to point out that the Malabar Devaswom Board as well as the Government is duty bound to ensure payment of eligible salary to the employees. The W.P.(C) No.14435 of 2021 -10- Government cannot shirk away from this responsibility, by pleading financial stringency. The Division Bench observed that the income from the private forests belonging to the Devaswoms, which got vested with the Government on the introduction of the Private Forest (Vesting and Assignment) Act will be than sufficient to pay salary to the employees. Even otherwise, denial of salary to the employees in Malabar, while paying more salary to the employees in Travancore and Cochin for the same work, militates against the well settled principle of equal pay for equal work. 6. Adv.Lakshmi Narayan, learned Standing Counsel for the Devaswom Board, submitted that the petitioners are not entitled for any relief, insofar as they have not challenged the first order by which a limit was prescribed for grant of aid to Devaswoms from the Management Fund. The further contention is that there is clear ## W.P.(C) No.14435 of 2021 -11- distinction between the management and functioning of temples in Malabar and the Travancore/Cochin. The temples in Malabar belongs to families/trusts and the primary responsibility of maintaining the temple and paying salary is with the trust. Even though supervisory powers are vested with the Malabar Devaswom Board under the Act, only Section 76 provides for contribution to the Management Fund, that too limited to temples with income above the prescribed limit. As such, the Management Fund is almost completely dependent on grant-inaid from the Government. In such circumstances, the Government is fully justified in incorporating a condition that temples having income above Rs.20 lakhs will not be entitled for financial aid from the Management Fund. 7. Learned Government Pleader contended that the temples in Malabar belong to private trusts, the superintendence of which alone is ## W.P.(C) No.14435 of 2021 -12- entrusted with the Malabar Devaswom Board. Insofar as the Government has constituted a Management Fund and is providing grant-in-aid, the Government cannot be mulcted with the liability of paying salary to the employees of the temples. 8. In my considered opinion, in view of the specific findings and directions in _**In Re: Temples in the erstwhile Malabar area**_ , it is no longer open for the Malabar Devaswom Board or the Government to contend that they are not responsible for paying salary to the temple employees. To answer that contention, one need only refer to the questions formulated by the Division Bench, which are as under; **==> picture [303 x 12] intentionally omitted <==** _Trustees of the various temples to revise the pay scales of the employees? Has the Government any responsibility in the matter of providing living wages to the employees? Can the Government disclaim liability to make the requisite provisions for the wages of the employees? These are some of the pertinent_ ## W.P.(C) No.14435 of 2021 -13- _questions which require answer in this original petition.”_ The Division Bench relied on the Apex Court decision in _**All India Imam Organsation v. Union of India [(1999) 3 SCC 584],**_ rendered in the context of the Wakf Act, and answered the questions as under; _''27. The Preamble to the Wakf Act, 1954 (Act 29/1954) states that it is an Act to provide for the better administration and supervision of the Wakfs. In the statement of objects and. reasons it is mentioned that the management of Wakfs, though it vests immediately in a Mutawalli, is a subject which requires the supervision of the State. The need for supervision has been felt and in addition to various enactments dealing with the subject of charitable: endowments, the Musalman Wakf Act of 1923 was enacted for the whole of India. Enactments were introduced in some of the States also. The working of these Acts has brought out the necessity of amendments. Some of the States had no Act at all for the purpose. The necessity of a uniform and consolidated legislation resulted in the passing of the Wakf Act, 1954. The Preamble to the Madras Hindu Religious and Charitable Endowments_ W.P.(C) No.14435 of 2021 -14- _Act, 1951 applicable to the Malabar Region of the State of Kerala states that it is an Act to provide for the better administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Madras of which Malabar region including the present Kasaragod District was a part then. The powers and duties of the Commissioner are embodied in Section 20 of the Act. Section 23 enjoins a duty on the Trustee Board to obey all lawful orders issued by the Government, the Commissioner, the Deputy Commissioner, the Area Committee of the Assistant Commissioner. The Trustees are bound to furnish to the Commissioner such accounts, returns, reports or other information relating to the administration of the institution. The trustee of a religious institution is authorised to incur expenditure as provided in Sub-section (1) of Section 30 of the Act. Sub-section (2) of that section stipulates that the trustee shall have due regard to such general or special instruction as may be given by the Commissioner or in the case of an institution over which an Area Committee has jurisdiction also by such Committee in incurring such expenditure. The Commissioner is also given powers under Section 31 of the Act to declare that after satisfying adequately the purposes of the religious_ W.P.(C) No.14435 of 2021 -15- _institution, the surplus, if any, may be appropriated to religious, educational or charitable purposes. Under Section 45 of the Act the Deputy Commissioner in the case of any religious institution over which an area committee has jurisdiction and the Commissioner in the case of any other religious institution is given the power to suspend, remove or dismiss any hereditary or non-hereditary trustee or trustees thereof on the grounds mentioned therein. Though the trustee has got power to suspend, remove or dismiss any of the servants or officebearers attached to a religious institution, the person so suspended, removed or dismissed is given a right under Sub-section (2) of Section 49 to appeal against that order to the Deputy Commissioner from whose decision an appeal lies to the Commissioner under Sub-section (3) of that section. The Deputy Commissioner is given power under Section 58 to settle a scheme for a religious institution when he has reason to believe that it is necessary in the interests of the proper administration of a religious institution._ _28. The provisions of the Act (1951) referred to in the foregoing paragraph indicate the wide powers conferred on the Department in the matter of management of temples and the Utilisation of the income_ W.P.(C) No.14435 of 2021 -16- _therefrom. On a consideration of the various provisions contained in the Hindu Religious Endowment Act and the provisions in the Wakf Act, we see no difference in the matter of supervision and control of the religious institutions by the HR & CE Department (Department for short) and the Wakf Board in the case of Wakfs. On the other hand, the Preamble to the Hindu Religious Endowment Act suggests that the Act is intended not only for the better administration of the Hindu Religious and Charitable Institutions, but also their governance. By 'governance' is meant to rule with authority. The various provisions of the Act extracted in the foregoing paragraphs would indicate that the Department is the predominant force as far as the temples in Malabar are concerned. By looking at the purpose of the legislation and the various provisions contained therein we are of the firm view that the principles laid down by the Supreme Court in the Imam's case (AIR 1993 SC 2086) squarely apply to the present case also. The request of the counsel for respondents 3 to 16 for issue of directions similar to those issued by the Supreme Court in the Imam's case is therefore justified. We are of the view that similar directions are to be issued in this case also._ W.P.(C) No.14435 of 2021 -17- _29. One of the contentions advanced by the learned Government Pleader is that the grievances of the employees can be redressed only consistent with the financial position of the Government. Even in the statement filed by respondents 1 and 2 it is mentioned that the problem can be solved only without spending any more Government funds. Government Pleader would therefore submit that a revision of the wages of the employees is not possible by utilising Government funds. The Supreme Court in Imam's case (AIR 1993 SC 2086) has in very clear terms observed that it is the duty of the Wakf Boards to harness resources to pay the Imams who perform the most important duty, namely, of leading community prayer in a mosque. It is not therefore open either to the Government or to the Department to throw up their hands in despair and say that they are not possessed of sufficient funds to meet the demands of the temple employees. The Department which is authorised by the Act to administer and govern the endowments has thus a duty to harness the resources and to pay living wages as suggested by the Supreme Court in the Imam's case._ _30. Even otherwise, the Government cannot disclaim the liability to pay living wages to the employees in view of the vesting of temple lands in the Government as on 1-1-_ W.P.(C) No.14435 of 2021 -18- _1970 as well as the vesting of the private forests owned by the Devaswoms in the Malabar region. True, the Kerala Land Reforms Act provides for payment of annuity. It is in evidence that the final annuity statements had not so far been prepared. The vesting took place on 1-1-1970. Even two decades thereafter Government was not able to prepare the final annuity statement. The explanation of the Government appears to be that particulars of records were not obtained from the various Land Tribunals, the Land Board and other authorities. The lands having been vested in the Government on 1-1-1970 and the Devaswoms deprived of their right to collect the rent from the tenants, Government owes a duty to get the annuity statement prepared and pay the annuity periodically without any delay whatsoever. The purpose for incorporating a provision in the Act for payment of annuity to the Devaswoms is defeated by such delay. It is no doubt pointed out that interim annuity statements are prepared and periodical payments are made. But that is hot sufficient to meet the expenses of the temples. Even the annuity payable under the Act will not be sufficient to meet the demands. One can visualise the situation when even that much amount is not being paid in time. Government do not appear to be_ -19- ## W.P.(C) No.14435 of 2021 _serious on the aspect of preparing annuity statements or in the matter of providing annuity to the various temples which is not even the bare minimum that is required for the sustenance of the employees. We hope that 1st respondent would consider this matter with all seriousness and see that the final annuity statements with respect to the Devaswoms in Malabar area are prepared without any further delay.''_ 9. Pertinently, the Division Bench refused to accept the Government's contention regarding lack of funds and made the following observations; _“37. Yet another contention advanced on behalf of respondents 1 and 2 is that the temple funds are not made available to the Government and Government has thus no liability to make the payments. The learned Govt. Pleader has also attempted to highlight the difference between the Travancore and Cochin Devaswom Boards and the temples in Malabar. As observed by the Supreme Court in the Imam's case (AIR 1993 SC 2086), the 2nd respondent has to harness the resources for making payments to the various employees in the temples in Malabar. Here itself it has to be mentioned that the direction for payment is applicable not only to the 1269_ W.P.(C) No.14435 of 2021 -20- _temples under the administration and governance of the Department, but also the other public temples numbering about 2000 which do not come within the purview of the Act.”_ The court also observed that sufficient or more income for paying the salary is being generated by the forests owned by the temples/trusts, which had vested with the Government on the introduction of the Kerala Private Forests (Vesting and Assignment) Act. Based on the above findings, direction No.8 was issued to ensure utilisation of the income from the forests vested in the Government under Section 3(1) of the Kerala Private Forests (Vesting and Assignment) Act. As per direction No.9, the Government is bound to pool that income into a common fund and utilise it for meeting the expenditure of the temples in Malabar, including wages payable to the employees. 10. In the wake of the above categoric directions, the Government cannot shirk away from its responsibility of ensuring payment of W.P.(C) No.14435 of 2021 -21- reasonable wages to the employees of the temples in Malabar by putting forth an excuse regarding lack of funds. 11. As rightly contended by the petitioners, by bringing about a cap on disbursal of Management Fund, based on the annual income of Devaswoms, the Government is discriminating the employees based on a factor over which the employees have no control. Moreover, the impact of the order is to deny eligible salary to a group of employees. 12. It may also be contextually relevant to note that, as per Section 8B(2) of the Act, the Board has the power to fix and regulate the service conditions and pay structure of the officers and employees of the temples from time to time and to supervise its implementation. Under Section 38, the Commissioner has to publish a list of religious institution, whose annual income is not less than the amount calculated for ## W.P.(C) No.14435 of 2021 -22- the purpose of levy of contribution under Section 76. As per Section 76(1), religious institution listed under Section 38 are bound to pay to the Board annual contribution not exceeding 5 per centum of its income. Section 80 provides for grant from the Government to the Board, for being utilised for the purpose of the Act and Section 81 provides for constitution of a fund called the Malabar Devaswom Fund. Section 81(c)(1) casts a duty on the Board to prepare a budget showing the probable receipts and disbursements of the temples, institutions and endowments under the management of the Board during the financial year. The above provisions give adequate indication that under the scheme of the Act also, the Government and the Board are bound to provide funds for the maintenance of temples and payment of salary to the employees. The above discussion leads to the only conclusion that, in view of the decision of the -23- ## W.P.(C) No.14435 of 2021 Division Bench and the provisions of the Act referred above, salary due to the petitioners is liable to be paid, despite the financial bar fixed by the Government orders. Consequently, the respondents are directed to pay eligible salary to the petitioners as per the pay fixation orders. The necessary funds for this purpose shall be made available by the Government in tune with the direction Nos.8 and 9 in _**In Re: Temples**_ _**in the erstwhile Malabar area**_ . The arrears of salary due to the petitioners shall be paid within three months of receipt of a copy of this judgment. The writ petition is disposed of as above. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.14435 of 2021 -24- ## **APPENDIX OF WP(C) 14435/2021** ## PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SCHEDULE OF ESTABLISHMENT APROVED BY THE MALABAR DEVASWOM BOARD DATED 18.7.2010 Exhibit P2 TRUE COPY OF THE PROCEEDINGS NO.A24823/2010/MDB OF THE 3RD RESPONDENT DATED 26-8-2014 Exhibit P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS ALONG WITH ON E P.V.SUJITH KAZHAKAM BEFORE THE 4TH RESPONDENT DATED 17-3-2021 Exhibit P4 TRUE COPY OF THE APPLICATION SUBMITTED BY THE 4TH RESPONDENT BEFORE THE MALABAR DEVASWOM BOARD DATAED 23.3.2021 IN RESPECT OF THE PETITIONERS FOR THE YEAR 2013 Exhibit P5 TRUE COPY OF THE APPLICATION SUBMITTED BY THE 4TH RESPONDENT BEFORE TEH MALABAR DEVASWOM BOARD DATED 23-3-2021 IN RESPECT OF THE 2ND PETITIONERS FOR THE YEAR 2014