RadhaKrishnan C. Krishna Vihar, Ambalappuzha & N. Aravindakshan, Meena Pazhaveedu, Alappuzha v Travancore Devaswom Board & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 WP(C).No. 22384 of 2006(M) -------------------------- PETITIONER: ------------ 1. RADHAKRISHNAN.C. KRISHNA VIHAR, AMBALAPPUZHA. 2. N.ARAVINDAKSHAN, MEENA PAZHAVEEDU, ALAPPUZHA. BY ADV. SRI.D.SOMASUNDARAM RESPONDENTS: - ------------- 1. THE TRAVANCORE DEVASWOM BOARD, NANDANCODE, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 3. G.RAMAN NAIR, PRESIDENT, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM. 4. PUNALOOR MADHU, MEMBER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM. 5. M.B.SREEKUMAR, MEMBER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM. 6. THE DIRECTOR OF VIGILANCE, VIGILANCE DEPARTMENT, THIRUVANANTHAPURAM. 7. C.G.SACHITHANANDAN, DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM. - ADDL. R8. GOVINDAN BHAGAVATH SINGH, S/O. GOVINDAN, RETIRED ADMINISTRATIVE OFFICER, TRAVANCORE DEVASWOM BOARD, RESIDING AT SUKUMARA VILASAM, MUNDAKKAL (W), KOLLAM DISTRICT. 9. DEMOCRATIC YOUTH FEDERATION OF INDIA, KERALA STATE COMMITTEE, REPRESENTED BY ITS SECRETARY. - R10. JAYAPRAKASH NARAYANAN, SON OF NARAYANAN NAIR, AGED 57 YEARS, RESIDING AT THENGUMPALLIL, PAKALOMATTO P.O., KURAVILANGAD, MOTTAYAM - 686 642. 11. B. UNNIKRISHNAN, S/O.P. BALAKRISHNAN NAIR, AGED 49, RESIDING AT AMBADY, T.C. 10/1155(2), VATTIYOORKAVU P.O., (TRIVANDRUM) 12. K. RAVIKUMAR, CHIEF ENGINEER (GENERAL)- UNDER SUSPENSION, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, TVM. 13. RAVEENDRA SARMA SHAJI, S/O. RAVEENDRA SARMA, KAIPUZHA VEEDU, MALI BHAGOM, CHAVARA P.O., KOLLAM. WORKING AS JUNIOR SUPERINTENDENT (UNDER SUSPENSION), MANUAL DIVISION, T.D.B., TRIVANDRUM. 14. KANTARARU MAHESHWARARU, SENIOR THANTHRI, SABARIMALA RESIDING AT THAZHAMOM MADOM, MUNDANKAVU, CHENGANNUR P.O. 15. KANTARARU MOHANARARU, THANTHRI (CHIEF PRIEST) SABARIMALA RESIDING AT THAZHAMOM MADOM, MUNDANKAVU, CHENGANNUR P.O. (ADDL.R8 IMPLEADED AS PER ORDER IN IA NO.13510/06 DT.10.10.06 (ADDL.R9 IMPLEADED AS PER ORDER IN IA NO.16411/06 DT.6/3/07 (ADDL.R10 IMPLEADED AS PER ORDER IN IA 1203/07 DT.6.3.07 (ADDL.R11 IMPLEADED AS PER ORDER IN IA 437/08 DT.6.3.07 (ADDL.R12 IMPLEADED AS PER ORDER IN IA 1940/08 DT.25.8.08 (ADDL.R13 IMPLEADED AS PER ORDER IN IA 2714/08 DT.25.8.08 (ADDL.R14 & R15 IMPLEADED AS PER ORDER IN IA 3771/08 DT.25.8.08) BY ADV. SRI.P.PARAMESWARAN NAIR, SC, TDB SRI.K.RAMACHANDRAN FOR ADDL.R8 SMT.R.MEERA FOR ADDL.R8 SRI.P.V.SURENDRANATH FOR ADDL.R9 SRI.M.P.VIJAYAN FOR ADDL.R9 SRI.N.N.SUGUNAPALAN (SR.) FOR R1 SRI.K.RAMAKUMAR (SR.) FOR ADDL.R10 SRI.ANCHAL C.VIJAYAN FOR R3,4 SRI.A.K.JAYASANKAR NAMBIAR FOR H.P.COMMISSION SRI.D.SREEKUMAR, SC, TDB FOR R.1 SRI.C.S.MANILAL FOR ADDL.R11, R13. SRI.B.GOPAKUMAR FOR ADDL.R12 SMT.CHINCY GOPAKUMAR FOR ADDL.R12 SRI.ASWIN GOPAKUMAR FOR ADDL.R12 SRI.ANWIN GOPAKUMAR FOR ADDL.R12 SRI.MOHAN C.MENON FOR R7 SRI S. KRISHNAMOORTHY, ADDL.R14 & R15 SRI LAKSHMINARAYANAN, GOVERNMENT PLEADER FOR R2 & R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/7/2008, THE COURT ON 25/8/2008 DELIVERED THE FOLLOWING: IA NOS.13440/06,1428/07, 5213/07 & 8979/06 ## DISMISSED I.A.NOS.13439/06, 16247/06, 16404/06 & 1108/07 CLOSED. 25/8/08 SD/- P.R. RAMAN, JUDGE. SD/-T.R. RAMACHANDRAN NAIR, JUDGE. ## APPENDIX EXT.P1-TRUE COPY OF JUDGMENT IN OP NO.3821/90 DATED 10.4.92 AND RELEVANT PORTION OF HIGH POWER COMMISSION REPORT. EXT.P2-TRUE COPIES OF NEWS PAPER REPORTS PUBLISHED IN MANGALAM DIALY DATED 18.7.05 AND 21.10.05 EXT.P3-TRUE COPY OF PETITION SUBMITTED BY BHAGAVATH SINGH RETIRED ASST. COMMISSIONER IN DEVASWOM BOARD BEFORE THE JUDGES HIGH COURT OF KERALA DATED 15.3.06 EXT.P4 SERIES, TRUE COPIES OF THE REPORTS APPEARED IN MANGALAM DAILY DATED 21.8.96 EXT.P4(A)-TRUE COPIES OF THE ENGLISH TRANSLATION OF EXT.P4 ## RESPONDENTS' EXTS: EXT.R1(A)-TRUE COPY OF LETTER SENT BY THE ALLEGED AUTHOR OF EXT.P3 TO THE BOARD EXT.R1(B)-TRUE COPY OF JUDGMENT IN DBA 54.05 EXT.R1(C)- TRUE COPY OF ORDER IN DBA NO.64/03 AND CMP 32720/01 IN OP 3821/90 EXT.R1(D)-TRUE COPY OF ORDER IN CMP 2377/94 EXT.R1(E)-TRUE COPY OF ORDER IN DBA 85/05 EXT.R1(F)-TRUE COPY OF ORDER IN DBA 95/95 EXT.R1(G)-TRUE COPY OF REPORT OF THE ASST. MANAGER, DEVASWOM BOARD PRESS DATED 22.9.05 EXT.R1(H)-TRUE COPY OF CERTIFICATE ISSUED BY THE STATE HEALTH DEPARTMENT, GOVT. OF KERALA EXT.R1(I)-TRUE COPY OF JUDGMENT IN OP 22428/02 OF THIS COURT. EXTS.AS PER IA 16411/06 ANNEXURE A1-TRUE COPY OF NEWS ITEMPUBLISHED IN MANGALAM DAILY DATED 21.8.06 A1(A)-TRUE ENGLISH TRANSLATION OF ANNEXURE A1 A2-TRUE COPY OF APPLICATION FOR DD A2(A)- DO. DO. A2(B) DO. DO. A2(C) – DO DO. EXTS. MARKED IN THE COUNTER AFFIDAVIT DATED 9.12.06 EXT.R8(A)-TRUE COPY OF NEWS ITEM PUBLISHED IN MANGALAM DAILY DATED 21.8.06 EXT.R8(B)-TRUE ENGLISH TRANSLATION OF ANNEXURE A1 NEWS ITEMS. EXT.R8(C)-TRUE COPY OF APPLICATION FOR DD FOR RS.49,000/- IN THE NAME OF ANILKUMAR DATED 15.10.05 EXT.R8(D) DO. IN THE NAME OF H ANAND EXT.R8(E)- DO. IN THE NAME OF M.S. MURALI EXT.R8(F) DO. IN THE NAME OF SWAROOP EXTS. MARKED IN THE COUNTER AFFIDAVIT FILED BY THE PETITIONERS TO THE IA 1207/07 ANNEXURE I-TRUE COPY OF ORDER DATED 12.10.06 OF THE SECRETARY, T.D.B. ANNEXURE II-TRUE COPY OF THE REPORT SUBMITTED BY VIGILANCE AND SECURITY OFFICE OF THE BOARD ANNEXURE III-TRUE COPY OF AUDIT REPORT. EXT.R4(A)-TRUE COPY OF ORDER PASSED BY THE SUPREME COURT OF INDIA IN SLP(C) NO.1820/07 AND 2312/07 EXT.R4(B)-TRUE COPY OF NOTICE DATED 24.3.07 EXTS.AS PER IA 1940/08 EXT.R11(A)-TRUE COPY OF THE PROCEEDINGS DATED 25.9.07 ISSUED BY T.D.B. EXT.R11(B)-TRUE COPY OF RELEVANT EXTRACT OF THE ORDER DATED 11.2.03 EXT.R11(C)-TRUE COPY OF FIR DATED 3.5.07 EXT.R11(D)-TRUE COPY OF LETTER DATED 24.8.07 EXT. AS PER OBJECTION TO THE REPORT OF THE HIGH POWER COMMISSION FILED BY ADDL.R11 RESPONDENT SOUGHT TO BE HEARD ANNEXURE 1-TRUE COPY OF DETAILED PREPARATION OF ADDL.R11 ANNEUXRE TO THE RESPONSE SUBMITTED BY T.D.B. ON HIGH POWER COMMISSION REPORT: ANNEXURE R1(A)-TRUE COPY OF THE MINUTES OF THE CONFERENCE EXT.R3(A)-TRUE COPY OF THE TDB (GRANT OF TRAVELLING AND HALTING ALLOWANCES TO THE PRESIDENT AND MEMBERS OF THE BOARD) RULES, 1993. EXT.R3(B)-TRUE COPY OF THE ORDER DATED 28.10.2004 IN DBA NO.111/2004 EXT.R3(C)-TRUE COPY OF ORDER IN RP NO.849/2004 IN DBA 111/2004 EXT.R3(D)-TRUE COPY OF ROC DATED 13.12.2004 ISSUED BY TDB EXT.R3(E)-TRUE COPY OF PAYMENT OF SALARIES AND ALLOWANCES (AMENDMENT) ACT 2003. EXT.R3(F)-TRUE COPY OF ADDITIONAL PROOF AFFIDAVIT FILED BY THE FINANCE AND ACCOUNTS OFFICER, TDB EXT.R3(G)-TRUE COPY OF THE JUDGMENT IN CMP NO.2377/97 EXT.R3(H)-TRUE COPY OF DETAILS REGARDING EXCESS PERCENTAGES GIVEN FOR CONTRACT WORKS BY THE OFFICE OF THE EXECUTIVE ENGINEER PW BUILDINGS DIVISION, TRIVANDRUM. // TRUE COPY // P.S. TO JUDGE ## **P.R.Raman & T.R. Ramachandran Nair, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - -** **W.P.(C) No.22384 of 2006 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of August, 2008.** ## **JUDGMENT** ## Raman, J. This is a writ petition filed by two petitioners who are believers in God and Temple worship. The matter concerns the affairs of the first respondent, Travancore Devaswom Board. The petitioners have approached this court against alleged “gross arbitrary, per-se illegal and malafide action of respondents 3 to 5 and 7 in committing fraud, misrepresentation, cheating, breach of trust which has resulted in widespread corruption, misappropriation, defalcation of public fund in the administration of the first respondent, the Travancore Devaswom Board.” Respondents 3 to 5, at the time of filing of the writ petition, were respectively the President and members of the Travancore Devaswom Board and the 7[th] respondent was the Devaswom Commissioner. The prayers in the writ petition are the following: “(i) to issue a writ of mandamus or any other appropriate writ order or direction commanding the 2[nd] respondent State Government to order, and initiate Criminal prosecution against respondent Nos.3, 4, 5 & 7; WPC 22384/2006 -2- (ii) to disqualify the respondents 3, 4 & 5 from holding the position of President and members respectively of the 1[st] respondent Board; (iii) to appoint a high power commission under the direct supervision of a retired judge of the Honourable Supreme Court to probe into the impugned deeds committed by the respondents; (iv) to issue a writ of mandamus directing the respondents 3, 4, 5 and 7 to make good the loss sustained to the 1[st] respondent Board and to recover the pecuniary advantage obtained by them with penal interest; (v) to issue a writ of mandamus to suggest remedial and preventive measures not to repeat corruptive methods in the utilisation of Devaswom Fund in future; (vi) to award entire costs of this proceedings from the respondents 3, 4, 5 and 7 to the petitioners; AND (vii)to pass such other orders deems fit in the facts and circumstances of the case.” 2. When the writ petition came up for admission, learned Standing Counsel appearing for the Board and the learned Govt. Pleader sought time to get instructions and later a counter affidavit was filed on behalf of the first respondent Board. By an interim order dated 10.10.2006 in I.A. No.13440/2006, the Division Bench directed the 6[th] respondent, the Director of Vigilance to produce the report of enquiry conducted by the Vigilance Department, before this court. On 27.10.2006 a copy of the report was handed over by the learned Government Pleader in a sealed cover. The report of the Vigilance and Anti-corruption Bureau, Trivandrum is dated WPC 22384/2006 -3- 24.8.2006. The Division Bench allowed the learned counsel appearing for the parties to go through the report and make their submissions. On behalf of the second respondent State, a statement was filed by the Under Secretary to Government, Vigilance Department dated 17.11.2007. It is stated therein that a vigilance enquiry has been ordered vide Government letter NO.11550/E2/2005/Vig. Dated 6.12.2005 into the allegations raised against the appointment to various posts and other corruptions in the Board, alleged in different petitions received by the Government. After the enquiry, a report along with covering letter dated 24.8.2006 was submitted by the Additional Director of Vigilance and Anti-corruption Bureau. In the Vigilance Enquiry Report, there was recommendation to register a case under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act against respondents 3, 4 and 5 in the writ petition. The Government examined the Vigilance Enquiry report and by communication dated 10.11.2006 ( No.8082/E2/06/Vig) sanction was accorded to register a Vigilance Case as per the recommendation of the Superintendent of Police, Vigilance and Anti-corruption Bureau, Special Investigation Unit, Poojappura, Trivandrum, against respondents 3 to 5. It was also pointed out that no vigilance enquiry has been ordered against the 7[th] respondent. 3. The writ petition came up for hearing on subsequent occasions and WPC 22384/2006 -4- by an order dated 21.11.2006 in I.A. No.16247/2006 the Division Bench allowed the Devaswom Board to go ahead with the interview slated to be held on 22.11.2006 and 23.11.2006 for the post of L.D.C. - cum -Sub Group Officer Grade II, with a further rider that pursuant to the said interview, appointments shall not be made until further orders. On 2.1.2007 the writ petition was heard along with the connected writ petitions, viz. W.P.(C) Nos.26692/05 and 27575/95 and a detailed order was passed appointing a High Power Commission to enquire into the veracity of the allegations raised in the various writ petitions to find out whether misappropriation and mal-administration, etc. have occurred. In the process of passing the order, the Division Bench noted the seriousness of the allegations in regard to the functioning of the Board and referred to the order in C.M.P.No.2377/1994 dated 7.9.1994 passed by the Division Bench containing various directions to the Board for maintaining financial discipline as well as the wholesome directions contained in the judgment in O.P.No.3821/1990, which was passed based on the report of a High Power Commission appointed by this Court. After considering the various aspects including the statement by the Under Secretary to Government, Vigilance Department, it was held that as the Vigilance and Anti-corruption Bureau has found prima facie proof of some of the allegations, there is every reason to further enquire into the WPC 22384/2006 -5- matter and discover the truth. It was concluded that a thorough re-vamping is necessary as every day's delay may be crucial. The Division Bench felt that only after meticulous enquiries carried out with the assistance of persons with such expertise and presided over by persons who are recognised as having supreme integrity, it may be possible to remove corruption and inefficiency in the organisational set up. A high power commission with adequate power conferred on it, therefore might be essential so as to deliver the goods. After ascertaining consent, the Division Bench appointed a High Power Commission consisting of the Hon'ble Mr. Justice K.S. Paripoornan, former Judge of the Supreme Court of India as Chairman and Hon'ble Mr. Justice B.M. Thulasidas, former Judge of this Court and Mr. D.R. Karthikeyan, former Director of C.B.I. as Members. In regard to the functioning of the Commission, it was directed that in respect of the allegations that are raised in W.P.(C) Nos.22384 and 32966 of 2006, the High Power Commission will examine the nature of the acts and omissions in a manner decided by them and at their discretion. It will be open to the High power Commission to examine any other issues which are brought to their attention pertaining to corrupt practices, malpractices, mal-administration and the like. Six months time was fixed as time within which a report had to be filed by the Commission. It was made WPC 22384/2006 -6- clear that the High Power Commission will be entitled to insist for the presence of persons including office bearers of the Board. They will be entitled to call for materials in the course of investigation as they deem fit. The operational discretion also will be within their competence. Finally, it was directed that as regards the appointment to the post of L.D.C./Sub Group Officers, they are to be made only after further orders to be passed by this court. Further directions have been issued by an order dated 12.1.2007 in regard to the powers and procedures of the Commission and their terms of appointment, etc. It was directed that the Commission will have all necessary powers to regulate its own procedure and to conduct sitting as decided by themselves. Interim orders could be passed keeping in mind that the constitution of the Commission is intended so as to make available to the Division Bench materials for passing appropriate follow up orders. 4. Respondents 3 to 5 challenged the order passed by the Division Bench appointing the High Power Commission before the Apex Court in S.L.P.(Civil) Nos.1820 & 2312 of 2007 wherein Special Leave was granted as per order dated 15.2.2007. An interim order was passed in Civil Appeal Nos.821-822/2007 on 15.2.2007 which is re-produced below: “Leave granted. WPC 22384/2006 -7- Pending disposal of the appeals, the High Power Commission constituted by the High Court shall make inquiry and investigations only in relation to the allegations made in Writ Petition © Nos.22384/2006 and 32966/2006. Hearing expedited. Let the original record be requisitioned.” 5. The High Power Commission assumed charge on 19.1.2007. The initial period of six months granted was extended by order dated 9.7.2007 by granting a further period of six months to submit the report. Finally the report was submitted on 19.12.2007. The Commission held sittings for 104 days. A reading of the report of the Commission shows the following: “Part I of the Report is regarding the allegations in W.P.(C) No.22384/06 & 32966/04 (pages 1 to 246). Part II contains suggestions/recommendations for revamping the administration of the Board (pages 246 to 280).” The summary of the findings on various allegations which have been recorded from page 234 of the report shows that many of the serious allegations have been found to be proved. As regards the allegations in W.P.(C) No.32966/2006 it has been recorded that the allegation of receiving bribes stated in the writ petition is not proved. 6. On behalf of the petitioners, P.Ws.1 to 24 were were examined. On behalf of the respondents R.Ws.1 to 3 were examined and the WPC 22384/2006 -8- Commission on its own, examined C.Ws.1 to 48. Apart from the exhibits produced in the writ petitions and counter affidavits, documents Exts.C1 to C27 and B1 to B13 were marked before the Commission. This court by order dated 19.12.2007 took on record the report of the High Power Commission. 7. Meanwhile, respondents 3 to 5 ceased to be the President and members of the Board, in view of the promulgation of Ordinance dated 5.2.2007, viz. Ordinance 5 of 2007 which subsequently has been adopted by the Legislature as Act No.5 of 2007. By the said Ordinance and the Act, the term of office of the members of the Board, viz. respondents 2 to 5 were reduced and thus they ceased to be members. In accordance with the new Act, the erstwhile Board was replaced by a new Board also which is now functioning. The 7[th] respondent's term as Commissioner of Devaswoms also expired in the meanwhile and he has ceased to be in office. 8. When the matter came up on 8.1.2008, this court adjourned the matter by one month, with a direction that objections, if any, shall be filed in the meantime. Aggrieved by certain observations and findings contained in the High Power Commission Report, respondents 3 and 4 have filed a detailed objection dated 26.6.2008. Some other parties have also been impleaded as additional respondents in the writ petition and they have also WPC 22384/2006 -9- chosen to file objections and affidavits seeking expulsion of alleged adverse remarks made against them in the report. 9. On behalf of the Government, a statement dated 18.3.2008 was filed pursuant to the direction dated 8.1.2008 issued by this court to file the remark/statement of the Government on the High Power Commission Report. It is averred in para 2 that “the Government have no objection in taking further action against those persons who are found responsible and liable in the findings of the Commission, as per law and if this Hon'ble Court directs so.” With regard to certain suggestions made by the Commission, the views of the Government have been incorporated in the statement. Finally, it is stated in para 9 that “in general, the Government agree with all recommendations of the Commission except the above suggestions.” On behalf of the Board, a response dated 18.6.2008 has been submitted. Therein, it has been stated that the Board “wholeheartedly welcome the suggestions and recommendations of the High Power Commission. The Board considered the report with high esteem and regards. The Board has given active consideration to each of its suggestions and recommendations and the Board really and truly wish to improve and better the situation by adopting all possible measures to regain the true faith and solidarity of devotees and without forgetting the objects, purpose, WPC 22384/2006 -10- intention and wish and wisdom of the legislature reflected in TCHRI Act.” In para 2 it is submitted that upon receipt of the report the Board obtained the remarks of respective heads of various departments and a conference was arranged and the report was meticulously discussed. A true copy of the minutes of the said conference has been produced as Annexure R1(A). In paragraphs 3 to 24, various measures which have been taken/being taken by the Board have been explained. 10. The first respondent Board and the second respondent Government have accepted the report and the suggestions and recommendation contained in it subject of course to their views expressed in the response/statement submitted, as noted above. 11. We have heard learned counsel for the petitioners, learned Govt. Pleader appearing for the State, learned Standing Counsel appearing for the Travancore Devaswom Board, the learned counsel appearing for respondents 3 to 5 and the addl. Respondents, subsequently impleaded. Learned counsel for respondents 3 and 4, relying upon the detailed objection submitted, sought to challenge the findings rendered by the Commission in respect of the allegations pertaining to them, many of which have been found to be proved. Similarly, learned counsel appearing for the additional respondents who are either witnesses who deposed before the WPC 22384/2006 -11- Commission as well as officers against whom certain remarks have been made by the Commission in the course of the discussion of evidence and the 7[th] respondent, the former Devaswom Commissioner, wanted to expunge the remarks made against them in the report. We heard the submissions made by the learned counsel individually, in respect of each of these petitions/objections/statements. 12. Before dealing with the various aspects covered by the report of the High Power Commission, we will trace the history of the enactment as well as the developments in due course of time, which have been subject matter of adjudication by this court in earlier cases, which we consider necessary in view of the pivotal position held by the Travancore Devaswom Board in the matter of administration of the temples vested in it. The Board is constituted under the Travancore Cochin Religions Institutions Act, 1950. The Act concerns mainly with the constitution and functioning of Travancore Devaswom Board and Cochin Devaswom Board which have been vested with the administration of temples coming within the erstwhile princely States of Travancore and Cochin. In fact, the history shows that till 1811 the Hindu temples were owned and managed by private bodies/individuals/families and thereafter on the basis of a proclamation issued by Col. Munro who was the Adviser in the princely State of WPC 22384/2006 -12- Travancore and later appointed as Diwan of Cochin, all the temples and properties became the property of the Government. Various proclamations and enactments were adopted from time to time to govern the administration of the temple properties and the management of its funds. When the Country became independent, both these princely States were integrated as Travancore Cochin and the administration and control of the Devaswoms were vested in the two Devaswom Boards. 13. Under the Act Part I concerns the matters relating to the Travancore Devaswom Board and Part II concerns the Cochin Devaswom Board. Section 4 of the Act provides for constitution of the Travancore Devaswom Board. Section 9 deals with removal of a member and the power is vested in the High Court. Under Section 32, powers are vested with the High Court as regards audit and to pass an order of surcharge against the members of the Board who are found guilty of misappropriation or willful waste of the funds of the institutions or of gross neglect resulting in a loss to the institutions under the management of the Board. In 1990 in the course of dealing with the audit reports and after finding that there were many complaints against the administration of both the Devaswom Boards, this court initiated suo motu proceedings under Article 226 of the Constitution of India, in O.P.No.3821/1990. This court appointed a High WPC 22384/2006 -13- Power Commission consisting of Shri V. Ramachandran, former Chief Secretary to Government of Kerala, Shri C.M. Radhakrishnan Nair, retired Secretary to Govt. of India and former Special Director, C.B.I. and Shri A.S. Unni, Chartered Accountant. After conducting detailed enquiry, the said Commission filed a report which was accepted by this court as per Ext.P1 judgment (preliminary) produced in this writ petition. Various suggestions and recommendations were made by the said High Power Commission for revamping the administration of the Board and to prevent misappropriation and mis-utilisation of Devaswom funds. Various measures to improve the functioning of the Boards as well as the measures to be taken for proper conduct of the affairs of the Temples have been recommended by the said High Power Commission which is marked as Annexures A and B in Ext.P1. In the interim order dated 2.1.2007 appointing the High Power Commission in this case, the Division Bench has made mention of the appointment of the High Power Commission in O.P.No.3821/1990 which was upheld by the Apex Court. It was observed by the Division Bench in the order dated 2.1.2007, after referring to the said report, that “ the trend appears to be that notwithstanding the directions issued from time to time, administration is carried out disregarding ethics, discretion or law.” The failure on the part of the various authorities in not implementing the various recommendations in WPC 22384/2006 -14- the said report of the High Power Commission which was accepted in Ext.P1 judgment, is a fact noticed by the Division Bench. It was therefore concluded that “a thorough re-vamping is necessary as every day's delay may be crucial.” The High Power Commission appointed herein, have made various suggestions/recommendations for re-vamping the administration of Travancore Devaswom Board in the light of the above directions issued by the Division Bench. 14. As we have noticed earlier, even though the main grounds urged in the writ petition are against the continuance of respondents 3 to 5 as the President and members of the Travancore Devaswom Board and to take take action to disqualify them, in view of the fact that they have ceased to be in office as such, the said prayers have become infructuous. As regards the 7[th] respondent Commissioner of Devaswom, the High Power Commission has not found any merit in the allegations against him, even though he has raised certain objections before us against some of the observations made against him by the High Power Commission in the Report. Therefore, the other prayers which are to be considered, are for directing the Government to initiate criminal prosecution and for a direction to respondents 3 to 5 to make good the loss sustained by the Board and to recover the pecuniary advantage obtained by them, etc. WPC 22384/2006 -15- 15. As already noticed, the Government in the statement filed before this court, has submitted that the Government has constituted a vigilance enquiry against respondents 3 to 5 and sanction has been issued to prosecute them under the Prevention of Corruption Act. In the response/statement filed by the Travancore Devaswom Board and by the Government in respect of the High Power Commission report, they have taken the stand that they are generally in agreement with the suggestions made by the Commission. 16. That this court has powers under Article 226 of the Constitution of India to examine the allegations against the Board and its functionaries, cannot be disputed and no arguments have been raised by the respondents contending that this court lacks power in that matter. The said legal position is settled by this court in various decisions. Apart from that, going by Sections 9 and 32 of Act 15 of 1950, the High Court is having power to remove a member, power to conduct audit and to order surcharge against the members if there are reasons to do so. 17. As far as the legal effect of the report of the High Power Commission is concerned, we have no doubt in our mind that the report of the Commission would furnish prima facie evidence of the facts and data gathered by the Commission as held by the Apex Court in para 14 of the judgment in **Bandhua Mukti Morcha v. Union of India** (AIR 1984 SC WPC 22384/2006 -16- 802). The present report has been submitted after examining witnesses as well as respondents 3 to 5 before the Commission and allowing all parties to appear and give evidence. The High Power Commission has collected various data and has rendered various findings after a detailed analysis of the oral and documentary evidence available before it. In view of the stand taken by the Board and the State Government herein, we are of the view that it is up to them to take steps as regards the findings rendered by the High Power Commission on the allegations which have been found to be proved. 18. Even though learned counsel for respondents 3 and 4 wanted us to re-assess the evidence before the Commission for the purpose of considering the correctness of the findings rendered against them by the Commission, we are afraid we cannot go into such exercise in this proceedings. This Court, at this stage will not be sitting in appeal over the factual findings contained in the High Power Commission report, especially since such an exercise cannot be undertaken without adducing evidence before this Court. If, ultimately in any proceedings taken against them pursuant to the report wherein these materials are relied upon against them, they will be entitled to adduce evidence while defending the action against them. It will be open to them to rely upon such materials, if they think, will WPC 22384/2006 -17- justify the actions taken by them while holding the office in the Board. We are of the view that at this stage, we are not called upon to go into the merits of the findings rendered by the High Power Commission as it is for respondents 1 and 2 to take appropriate actions based on the findings in respect of the allegations made by the High Power Commission. 19. Learned counsel appearing for the additional respondents sought to be impleaded as per I.A.No.3771/2008, who are the Senior Thanthri of Sabarimala and his son who is also a Thanthri at Sabarimala, made submissions regarding the observations contained in the report concerning the second petitioner in the I.A. about his knowledge of Vedas and the like. The second petitioner in the above I.A. was examined as C.W.6 before the High Power Commission. Portions from his deposition are extracted by the High Power Commission in para 87 of the report. He was examined in connection with the allegations regarding the selection of Santhies in various temples under the Board and he was a member of the Selection Committee. In para 90, the Commission opined that in the selection of Santhies various defects and illegalities itemised as (i) to (iv) occurred and sub-para (iv) relates to the competency of the second petitioner in the above I.A. The Commission was of the view that he was not aware of 'Vedas', he has not studied Sanskrit and has no knowledge in Sanskrit and also that the WPC 22384/2006 -18- Commission has doubts whether he has proper knowledge in Pooja Vidhies. Learned counsel appearing for the Thanthries raised objections regarding the above findings rendered by the Commission and relied upon various certificates produced by them along with the statement. We are not impressed by the above arguments. In fact, the Commission was examining the irregularities and illegalities in the matter of selection of Santhies and he was examined as he was one of the members of the selection committee and obviously he was the subject expert. In the interview, one of the components for awarding marks was knowledge in Sanskrit. (20 marks out of 100 and 20 marks for knowledge in Pooja Vidhies.) Therefore, obviously the Commission was bound to render an opinion about the modalities of the selection and the second petitioner in the I.A. was examined in that connection being the subject expert. This is clear from para 91 of the Report which is extracted below: “So, we find that the selection of Santhies was not done properly, and legally and in accordance with the conditions stated in the notification. The so called subject expert was only a 'namesake' and we wonder, how such a person was made a subject expert for “assessing knowledge in Poojas” and “knowledge in Sanskrit”. The whole selection is beset with infirmities; and appears to be astounding and mysterious and the entire selection is nothing but a WPC 22384/2006 -19- “farce.” ” Further, it is pertinent to notice that in the writ petition no relief has been sought for against him by the petitioners. Therefore, obviously we are not called upon to sit in appeal over the comments made by the Commission in respect of the second petitioner in the I.A. as regards his knowledge in Sanskrit and Pooja Vidhies. They have been made while entering a finding on the defects and illegalities in the selection procedure. If at all he is aggrieved, that can be only when action, if any, is taken against him by the competent authorities and he will be free to establish his credentials in such appropriate proceedings. We cannot obviously grant a relief to him in this writ petition. 20. Similar is the case of the other additional respondents who have been examined as witnesses before the High Power Commission. Commission. Since their examination before the Commission was necessary to probe into the various allegations, we are of the view that the Commission was competent to offer comments on their functioning as officers under the Devaswom Board. The Division Bench, while appointing the Commission, has clearly indicated that the veracity of the selections have to be gone into and suggestions have to be made to revamp the administration and to prevent pilferage of funds, mal-administration, WPC 22384/2006 -20- misappropriation, etc. While summing up, the High Power Commission has made the following observations in paragraph 133 which is extracted below: “We will be failing in our duty if we do not highlight certain aspects, which seem to result in maladministration, mismanagement and indiscipline in the Board, various sub-offices and temples. There is no proper rapport among various officials or officers working in different cadre. We have to particularly comment upon certain witnesses, officers of the Board, who according to us, are not functioning in the manner they should do. The integrity, honesty etc., of such officers, occupying pivotal positions, are very much in doubt and their functioning in such a majestic institution, in the manner done by them as disclosed in the evidence, appears to be a disgrace. A perusal of the relevant evidence given by the various officers of the Board itself will prove this. Appropriate steps are called for, by the authorities to remedy the situation.” Names of some of the additional respondents have been mentioned therein. We are not impressed by the argument raised by the learned counsel for the said additional respondents that the Commission ought not have made comments while rendering opinion on the merits of the allegations. Of course, regarding their conduct as well as involvement in any irregularities or deficiencies in the discharge of the official functions by them under the WPC 22384/2006 -21- Board, or in respect of any allegations individually or collectively against them, is a matter for the Board itself to take action in accordance with law. They will be entitled to defend their actions in such appropriate proceedings and needless to say that in such proceedings, they will be entitled to rely upon any material to sustain their defence which will have to be considered on merits by the appropriate authority. The observations made by the High Power Commission are in the course of discussing the evidence and while entering findings on the merits of the allegations which have been inquired into, as ordered by this Court. Therefore, as in this writ petition no particular reliefs are asked for against these respondents, we are not called upon to examine threadbare such observations and comments against these additional respondents who have been examined as witnesses before the Commission. Therefore, the prayers made by the additional respondents to expunge the remarks/comments against them are rejected. As regards the petition submitted by the 7[th] respondent to expunge the remarks made against him in paragraph 134 of the Report, we find that the reasons stated above by us applies to him also. As far as he is concerned, he has already ceased to be the Devaswom Commissioner. In that scenario also, we find no reason to entertain the petition filed by the 7[th] respondent. 21. In that view of the matter, we find no reason to entertain the WPC 22384/2006 -22- objection filed by respondents 3 and 4 and the petition submitted by the 7[th] respondent and other additional respondents to expunge the alleged remarks in the report. As already noticed, it is upto the competent authorities, viz. respondents 1 and 2 to initiate such actions in respect of the findings contained in the report in accordance with law. Going by the statements filed by them, they have already discussed the report and are generally in agreement with the suggestions and recommendations. Therefore, it is up to them to pursue the proceedings against such of those parties against whom prima facie case is established as per the Report. 22. Part II of the report contains various suggestions/recommendations for revamping the administration of the Travancore Devaswom Board. In the statements submitted by respondents 1 and 2, comments have been offered in respect of various suggestions and recommendations. In this writ petition, we are not dealing separately with the same as we find that the same can be done independently by this court in appropriate proceedings, since they relate to various aspects concerning the administration of the Board and this court is already seized of the matter pursuant to the judgment in O.P.No.3821/1990. Therefore, we refrain from considering those aspects in this judgment. The office will separately number the report and place it as such for WPC 22384/2006 -23- considering Part II of the report. We make it clear that any finding of the Commission against any person will always be subject to the right of the affected persons to vindicate their grievance in appropriate forum in the subsequent proceedings. The writ petition is disposed of accordingly. No costs. **(P.R.Raman, Judge.)** **(T.R. Ramachandran Nair, Judge.)** ## **kav/**