IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 WP(C).No. 27850 of 2006(M) ----------------------------------------- PETITIONER(S): ------------------------ AJAYAKUMAR, S/O.APPUKUTTAN NAIR, AGED 32, RESIDING AT SANTHYA NIVAS KATTELA, SREEKARIAM P.O., THIRUVANANTHAPURAM DIST. (PANCHAVADIYAM, MAJOR THONNAL DEVASOM TEMPLE, THIRUVANANTHAPURAM (DISMISSED FROM THE SERVICE). BY ADV. MR.J.S.AJITHKUMAR RESPONDENT(S): --------------------------- 1. SUB GROUP OFFICER, ARANGAL SRI MAHADEVA TEMPLE, VENPAKAL P.O., THIRUVANANTHAPURAM DIST. 2. DEPUTY DEVASWOM COMMISSIONER, ENQUIRY OFFICER, T.D.B., THIRUVANANTHAPURAM. 3. ASSISTANT DEVASWOM COMMISSIONER, NANDANCODE, TRIVANDRUM. 4. THE COMMISSIONER, TRAVANCORE DEVASWOM BOARD, TRIVANDRUM. 5. TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANDANCODE, TRIVANDRUM. 6. SREEKUMAR, WATCHER, MAJOR THONNAL SRI DEVI TEMPLE, ULLOOR SUB GROUP, TRIVANDRUM, AT PRESENT WORKING AT ENQUIRY COMMISSIONER OFFICE. 7. ENQUIRY COMMISSIONER, DEVASWOM BOARD, TRIVANDRUM. R1 TO R5 & R7 BY MR.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE MR.P.GOPAL, SC, TDB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.27850/2006 M APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER OF SUSPENSION DTD.22/07/2000 SERVED TO THE PETITIONER ON 23/07/2000. P2: COPY OF THE CHARGE SHEET DTD. 22/05/2001 ISSUED BY DEVASWOM COMMISSIONER TO THE PETITIONER. P3: COPY OF THE OBJECTION OF THE PETITIONER DTD. 21/08/2001. P4: COPY OF THE NOTICE DTD. 5/10/2002 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P5: COPY OF THE SHOW CAUSE NOTICE DTD. 26/12/2002 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P6: COPY OF THE STATEMENT OF OBJECTION OF THE PETITIONER SUBMITTED BEFORE THE 3RD RESPONDENT. P7: COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 4TH RESPONDENT DTD. 15/05/2003. P8: COPY OF STATEMENT SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT DTD. 14/06/2003. P9: COPY OF THE ORDER OF THE 4TH RESPONDENT DTD. 16/10/2003. P10: COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DTD. 10/12/2003. P11: COPY OF THE CHARGE SHEET DTD. 27/10/2004 SERVED TO THE PETITIONER ON 27/09/2005. P12: COPY OF STATEMENT OF OBJECTION SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT DTD. 4/10/2005. P13: COPY OF THE ORDER OF THE 5TH RESPONDENT DTD. 15/05/2006 SERVED TO THE PETITIONER ON 6/07/2006. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE LEAVE APPLICATION SUBMITTED BY R6 WHEREIN THE COMPLAINT AGAINST THE PETITIONER MENTIONED. Kss ..2/- ....2..... WPC.NO.27850/2006 M R1(B): COPY OF THE REPORT OF THE 3RD RESPONDENT SUSPENDING PETITIONER. R1(C): COPY OF THE REPORT OF THE 4TH RESPONDENT DTD. 25/08/2000 SUBMITTED TO 5TH RESPONDENT BOARD. R1(D): COPY OF THE ENQUIRY REPORT DTD. 6/11/2002 SUBMITTED BY DEPUTY DEVASWOM COMMISSIONER- ENQUIRY OFFICER. R1(E): COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY COMMISSIONER. /TRUE COPY/ P.A.TO JUDGE Kss P.N.RAVINDRAN, J. ------------------------------------- W.P.(C)No.27850 of 2006 -------------------------------------- Dated 3rd July, 2009 JUDGMENT Heard Sri.J.S.Ajithkumar, the learned counsel appearing for the petitioner and Sri.P.Gopal, learned standing counsel appearing for the Travancore Devaswom Board. 2. The petitioner, a Panchavadyam Artist was placed under suspension by Ext.P1 order dated 22.7.2000 pending enquiry. A memo of charges evidenced by Ext.P2 was thereafter served on him. The petitioner submitted his written statement. A detailed enquiry was held and thereafter the punishment of compulsory retirement from service was imposed on the petitioner as per Ext.P9 order dated 16.10.2003. Aggrieved thereby, the petitioner filed Ext.P10 appeal before the Travancore Devaswom Board. On that appeal, the Board directed the Devaswom Commissioner, the seventh respondent in this writ petition to conduct a fresh enquiry. The seventh respondent accordingly conducted a fresh enquiry and submitted a report to the Travancore Devaswom Board. The Board thereupon issued Ext.P11 memo of charges to which the petitioner submitted Ext.P12 reply. The Board thereafter authorized the Devaswom Commissioner, the fourth respondent herein to pass orders. The Devaswom Commissioner WP(C).No.27850/2006 2 accordingly passed Ext.P13 order dated 15.5.2006, confirming the order passed earlier by him compulsorily retiring the petitioner from service. Exts.P9 and P13 are under challenge in this writ petition wherein the petitioner prays for a writ in the nature of mandamus commanding the respondents to reinstate him in service with consequential benefits. 3. From the pleadings it appears that when the petitioner filed Ext.P10 appeal challenging Ext.P9 order passed by the Devaswom Commissioner imposing the punishment of compulsory retirement from service, the Board directed the seventh respondent to conduct an enquiry and based on the report furnished by him issued a fresh memo of charges and delegated the power to pass orders to the fourth respondent who passed Ext.P13 order. In my opinion, it was not open to the Board, the appellate authority to wipe out the enquiry held by the disciplinary authority on an appeal filed from the order imposing penalty and direct another officer to issue revised orders in the matter. It is settled law that while disciplinary authority has the freedom to differ from the findings of the enquiry authority with notice to the employee and come to its own conclusion, it cannot wipe the slate clean and start fresh proceedings. In the instant case, the appellate authority, instead of deciding the appeal directed the seventh respondent to conduct a fresh enquiry into the memo of charges and WP(C).No.27850/2006 3 after receipt of the enquiry report, issued a fresh memo of charges and directed the disciplinary authority to pass a fresh order. In my opinion, the procedure adopted by the appellate authority is patently illegal. The appellate authority ought to have in my opinion considered the appeal filed by the petitioner and passed orders thereon after affording him a reasonable opportunity of being heard. In the result, this writ petition is allowed, Exts.P9 and P13 are quashed and the appellate authority (the Travancore Devaswom Board or the Chief Commissioner, as the case may be) is directed to pass orders on Ext.10 appeal, ignoring Ext.R1(e) report, after notice to and affording the petitioner a reasonable opportunity of being heard. The appellate authority shall pass an order giving reasons in support of its conclusions and shall communicate a copy thereof to the petitioner as soon as orders are passed. Final orders on Ext.P10 appeal shall be passed within four months from the date of receipt of a certified copy of this judgment. The contentions of the petitioner on the merits are kept open. P.N.RAVINDRAN Judge TKS