T.S. Manoj Kumar Embranthiri v. Cochin Devaswom Board and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON ``` ``` WEDNESDAY, THE 22[ND] DAY OF MAY 2024 / 1ST JYAISHTA, 1946 ``` ``` WP(C) NO. 17721 OF 2012 ``` ``` PETITIONER: ``` ``` T.S.MANOJ KUMAR EMBRANTHIRI, AGED 36 YEARS, S/O.S.SANKARANARAYANA EMBRANTHIRI, THRIKKATHRA SREELAKSHMI MADOM, MARKET ROAD PALLIPARAMBUKAVU, TRIPUNITHURA, ERNAKULAM DISTRICT. ``` ``` BY ADV VPK.PANICKER ``` ``` RESPONDENTS: ``` - **`1 THE COCHIN DEVASWOM BOARD REPRESENTED BY SECRETARY, THRISSUR-680001.`** - **`2 THE SPECIAL DEVASWOM COMMISSIONER, COCHIN DEVASWOM BOARD, THRISSUR-680001.`** - **`3 THE DEVASWOM OFFICER THAMMANAM ANANTHAPURAM SREE KRISHNA SWAMI TEMPLE, THAMMANAM, VYTTILA, ERNAKULAM -682019.`** - **`4 THE EXECUTIVE OFFICER DEVASWOM OFFICE VYTTILA-682019.`** - **`5 THE SECRETARY THAMMANAM KSHETHRA SEVA SAMIYTHI, THAMMANAM P.O., KOCHI-682032.`** - **`6 R.RAJMOHAN @ VENU 43/3403,M & B LANE, THAMMANAM, VYTTILA, ERNAKULAM -682032.`** ``` BY ADVS. SRI.KRISHNA MENON, SC, COCHIN DEVASWOM BOARD SRI.M.P.RAMNATH M.P.RAMNATH P.K.RADHIKA SRI.AJITH KRISHNAN, SC, COCHIN DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 W.P.(C)No.17721 of 2012 ## **“CR”** ## **HARISANKAR V. MENON, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No.17721 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of May, 2024** ## **JUDGMENT** The petitioner is working as a ‘Santhikkaran’ under the 1[st] respondent Devaswom Board. The dispute in this writ petition is with respect to the period during which he was working at Thammanam Ananthapuram Sree Krishna Swami Temple as a Santhikkaran. The petitioner has taken charge as a Santhikkaran of the said temple on 29.08.2008, from the then Santhikkaran Sri. Venkittan Embranthiri. Later, on the basis of a complaint lodged by the sixth respondent with respect to a missing gold waistband, proceedings were taken against the petitioner. Enquiry was carried out against the petitioner and ultimately by virtue of Ext.P15 dated 17.04.2012 issued by the second respondent, the petitioner is directed to make payment of the value of the gold waistband amounting to Rs.63,600/-. It is seen that though an appeal at Ext.P16 is filed, the same is also rejected by the first respondent Board pursuant to Ext.P17 order dated 3 W.P.(C)No.17721 of 2012 ## 09.07.2012. This is followed with a charge memo of Ext.P18 dated ## 06.07.2012. ## 2. The petitioner has, in such circumstances, preferred this writ petition raising the following prayers:- - _“i) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing Exhibit P15 order No.A9.10565/09 dated 17/04/2012 issued by the 2[nd] respondent._ - _ii) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing Exhibit P17 order dated 09/07/2012 issued on behalf of the 1[st] respondent dismissing exhibit P16 appeal._ - _iii) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing Exhibit P18 memo of charges issued by the 1[st] respondent to the petitioner._ - _iv) Issue such other reliefs this honourable court deems fit and proper including the cost of this proceedings.”_ 3. The first respondent Board has filed a counter affidavit in the matter dated 18.01.2023. In this counter affidavit, after referring to the proceedings initiated and the order in the appeal referred to above, the Board has placed reliance upon Ext.R1(A) report of the Vigilance Officer dated 02.07.2010 and an enquiry report dated 03.09.2015 submitted by the Assistant Commissioner (Finance) 4 W.P.(C)No.17721 of 2012 produced as Ext.R1(B). Thereafter, the Board has also relied upon Ext.R1(C) order dated 17.05.2016 to contend that further enquiry is required in this regard. 4. I have heard the learned counsel appearing for the petitioner, the learned Standing Counsel for respondents 1 to 4 and also the learned counsel appearing for the 6[th] respondent. 5. The short issue for consideration in this writ petition is as regards the legality or otherwise of Exts. P15, P17 and P18 proceedings of the first respondent Board. The case against the petitioner, as seen from Ext.P15 order is pursuant to a missing waistband while he was working at Thammanam Ananthapuri Sree Krishna Swami Temple. The learned counsel for the petitioner has pointed out that the petitioner was working in the said temple from 29.08.2008 till 10.07.2009 on which date, pursuant to Ext.P2, the petitioner was transferred. The allegation was that at the time of handing over the charge, the petitioner had not handed over the waistband to the succeeding Santhikkaran. However, a perusal of Ext.P15 proceedings of the second respondent would reveal that apart from the oral evidence relied on, there is no documentary evidence as regards even the existence of the waistband. This is 5 ## W.P.(C)No.17721 of 2012 made more clear by virtue of Ext.R1(A) report submitted by the Vigilance Officer. In the said report, the Vigilance Officer appears to have taken evidence from as many as five persons including the complainant (sixth respondent) as well as Sri.Venkittan Embranthiri, from whom the petitioner has taken charge. It is seen that the former Santhikkaran has stated that no such waistband has been entrusted while he was working as the Santhikkaran at the said temple. The said evidence has been rendered with specific reference to the stand of the complainant that such a waistband has been presented by him as a ‘vazhipadu’. Similarly, the Devaswom Officer has also stated that the disputed ornament is not finding a place in the inventory maintained by the Devaswom. Again one Sri. Abhilash, an Assistant who was working at the same temple during the disputed period, has also stated that no such ornament was seen adorned on the diety at the time when he was working at the said temple. Ultimately, the Vigilance Officer has stated that there is no receipt as regards the ornament being handed over to the Devaswom and the same is also not finding a place in the inventory. It is in such circumstances that the first respondent Board has issued Ext.R1(c) dated 17.05.2016 referring to the reports submitted by the Vigilance 6 ## W.P.(C)No.17721 of 2012 Officer. In the said proceedings, it is repeated that the ornament is not reflected in the inventory. Even thereafter it is stated that the conclusion as regards the allegation against the petitioner may be finalised subsequently. 6. In this connection, it should be noted that the dispute is essentially with respect to a missing ‘udyanam’ from the temple during 2007-2008. Complaint was placed on record by the sixth respondent on 21.08.2009, as evidenced by Exts.P3 and P4. Enquiry proceedings have been started on the basis of the above documents. This is concluded originally by Ext.P15 wherein there is no positive evidence against the petitioner. In Exts.R1(A) and (B) also, the existence of the disputed ornament itself is doubted with specific reference to the evidence taken from various persons including the Devaswom Officer and the complainant. In such circumstances, the stand of the Devaswom in Ext.R1(C) that the decision pursuant to the missing ornament can be taken later cannot be countenanced. Ext.R1(C) is dated 17.05.2016. Even after the lapse of more than eight years, respondents 1 to 4 have not been able to gather any further evidence in the matter. In the judgment in **State of Madhya Pradesh v. Bani Singh [AIR 1990 SC 1308** ], the apex court has held 7 W.P.(C)No.17721 of 2012 ## as follows: “4. The appeal against the order dt. 16-12-1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned Counsel. The irregularities which were the subjectmatter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal.” The apex court in the above judgment has held that in the absence of any satisfactory explanation for the inordinate delay, in issuing the charge memo, it will be unfair to permit the departmental enquiry to be proceeded with. Here, it is true that Ext.P18 charge memo is issued on 09.07.2012. However, the respondent Board has not 8 ## W.P.(C)No.17721 of 2012 offered any explanation for not concluding the proceedings thereafter. At this distance of time, one cannot expect to get any further evidence in the matter, especially when the complainant himself has admitted that he has not obtained any receipt for having offered the waistband at the temple. 7. The apex court in **P. V. Mahadevan v. MD, T.N. Housing Board [(2005) 6 SCC 636]** has again reiterated the above principles, as follows: “11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary 9 ## W.P.(C)No.17721 of 2012 proceedings, the appellant should not be made to suffer.” The above principles also apply to the facts and circumstances of the case at hand. Even after the lapse of more than 14 years, the respondent board is not able to arrive at any conclusion as regards the allegation raised. There is no allegation that the delay is attributable to the petitioner herein. 8. In such circumstances, there is no justification for the stand of the learned counsel for the Devaswom that they may be permitted to continue with the enquiry and I deem it fit to quash Exts.P15 and P17. The Devaswom has also issued Exts.R1(B) and R1(C), pursuant to Ext.P18. Though there is no specific challenge to the said proceedings, in so far as they are issued pursuant to the enquiry continued pursuant to Ext. P15, Exts. R1(B) and R1(C) are also quashed. The writ petition is allowed as above. **Sd/-** ## **HARISANKAR V. MENON, JUDGE** Skk//23.05.2024 10 W.P.(C)No.17721 of 2012 ## **`APPENDIX OF W.P.(C)No.17721 OF 2012`** ## **`PETITIONER’S ANNEXURES:`** ``` EXHIBIT P1 : A TRUE COPY OF THE REPRESENTATION DATED 04/07/2009 NARRATING THE ABOVE FACTS AND REQUESTING FOR A TRANSFER EXHIBIT P2 : A TRUE COPY OF THE PROCEEDINGS OF THE COCHIN DEVASWOM BOARD BARAING NO.M4.5674/08 DATED 10/07/2009 ``` ``` EXHIBIT P3 : A TRUE COPY OF THE COMPLAINT SENT BY THE 5[TH] RESPONDENT DATED 21/08/2009 EXHIBIT P4 : A TRUE COPY OF THE COMPLAINT SENT BY THE 6[TH] RESPONDENT DATED 21/08/2009 EXHIBIT P5 : A TRUE COPY OF THE MEMO DATED 26/08/2009 BEARING NO.M4.510/2003 EXHIBIT P6 : A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE THAMMANAM KSHETHRA SEVA SAMITHI DATED 21/08/2009 COMPLAINING OF THE BHANDARAM ``` ``` EXHIBIT P7 : A TRUE COPY OF THE REPLY DATED 08/09/2009 SUBMITTED BY THE PETITIONER TO THE ASSISTANT COMMISSIONER, TRIPUNITHURA GROUP, TRIPUNITHURA EXHIBIT P8 : A TRUE COPY OF THE REPORT OF THE PANDAMPATHRAM SPECIAL OFFICER DATED 09/12/2009 EXHIBIT P9 : A TRUE COPY OF THE COMMUNICATION DATED 10/12/2009 ADDRESSED TO THE SUPERINTENDENT OF POLICE, ALUVA RURAL, ALUVA BY THE 1[ST] RESPONDENT. EXHIBIT P10 : TRUE COPY OF THE REPORT OF THE VIGILANCE OFFICER DATE 16/06/2010, RECEIVED BY THE PETITIONER FROM THE 1[ST] RESPONDENT EXHIBIT P11 : A TRUE COPY OF THE ORDER DATED 6/7/2010 BEARING NO.A9.10565/09 ISSUED BY THE 2[ND] RESPONDENT EXHIBIT P12 : A TRUE COPY OF THE CHARGE MEMO DATED 30/06/2011 BEARING NO.A9.10565/09 ISSUED BY THE 1[ST] RESPONDENT EXHIBIT P13 : A TRUE COPY OF THE REPLY DATED 11/07/2011 SUBMITTED BY THE PETITIONER TO THE 1[ST] RESPONDENT EXHIBIT P14 : A TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER TO THE 1[ST] RESPONDENT DATED 07/11/2011 TO THE EXHIBIT P4 CHARGE MEMO EXHIBIT P15 : A TRUE COPY OF THE ORDER NO.A9.10565/09 DATED 17/04/2012 ISSUED BY THE 2[ND] RESPONDENT EXHIBIT P16 : A TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 1[ST] RESPONDENT EXHIBIT P17 : A TRUE COPY OF THE ORDER DATED 09/07/2012 ISSUED ON BEHALF OF THE 1[ST] RESPONDENT DISMISSING EXHIBIT P16 APPEAL EXHIBIT P18 : A TRUE COPY OF THE MEMO DATED 06/07/2012 BEARING NO.M4.4760/2012 ISSUED BY THE 1[ST] RESPONDENT TO THE PETITIONER. ``` 11 W.P.(C)No.17721 of 2012 ``` EXHIBIT P19 : A TRUE COPY OF THE ADVERTISEMENT PUBLISHED IN THE MATHRUBHUMI DAILY NEWSPAPER OF 01/08/2013. EXHIBIT P20 : A TRUE COPY OF THE COMMUNICATION DATED 12/08/2013 ISSUED BY THE 2[ND] RESPONDENT BEARING NO.M4.9843/2013. ``` ## **`PETITIONER’S ANNEXURES:`** ``` EXHIBIT R1(A) : A TRUE COPY OF THE REPORT SUBMITTED BY THE VIGILANCE OFFICER ON 02/07/2010 ``` ``` EXHIBIT R1(B) : A TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ASSISTANT COMMISSIONER (FINANCE) DT.03/09/2015 EXHIBIT R1(C) : A TRUE COPY OF THE BOARD ORDER A9.10565/09 DT.17/05/2016 ```