IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 WP(C).No. 19150 of 2010(P) -------------------------- PETITIONER(S): ------------------------ K.JAGADEESH PRASAD, AGED 44 YEARS, S/O.K.RAMACHANDRA,EXECUTIVE OFFICER, KANIPURA SRI GOPLAKRISHNA TEMPLE, P.O.KUMBLA, KASARAGOD DISTRICT-671321. BY ADV. SRI.M.RAMESH CHANDER SMT.K.A.SANJEETHA SRI.ANEESH JOSEPH RESPONDENT(S): --------------------------- 1. THE MALABAR DEVASWOM BOARD, KOZHIKODE, REPRESENTED BY ITS PRESIDENT. 2. THE COMMISSIONER, MALABAR DEVASWOM BOARD, KOZHIKODE. 3. THE ASSISTATN COMMISSIONER, MALABAR DEVASWOM BOARD,KASARAGOD ADV. SRI.K.MOHANAKANNAN,SC,MALABAR DEVASWOM FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 19150 OF 2010 (P) ===================== Dated this the 7th day of July, 2010 J U D G M E N T Petitioner is an Executive Officer Grade I under the 1st respondent. He joined Mannampurathu Kavu Bhagavathy Temple, Neeleswar on 21/7/05. During his tenure at Mannampurathu Kavu Devaswom, for the purpose of construction of a Nadapandal, tenders were invited both for construction and also for supply of materials like cement and steel. According to the petitioner, with the concurrence of the trustees, tenders were awarded to the lowest tenderer. It is also stated that during that period, two fixed deposits of the Devaswom had matured, and that the deposits were transferred to the Savings Bank Account in order to meet the cost of construction, which again according to the petitioner, was with the approval of the trustees. 2. While the work was going on, petitioner was transferred by order dated 17/8/09 to Kanipuram Sri Gopalakrishna Temple, Kumbla, where he joined on 19/8/09. It is also stated that one Sri.V.V.Prabhakaran took over charge as Executive Officer of the Mannampurathu Kavu Devaswom. Based WPC No. 19150/10 :2 : on Ext.P3, an enquiry report concerning the construction and the incidental works relating to the Nadapandal, Ext.P1 order was passed by the 2nd respondent directing that the petitioner be placed under suspension pending disciplinary action. Accordingly, Ext.P2 order was issued by the 3rd respondent implementing Ext.P1. It is challenging Exts.P1 and P2 and claiming reinstatement, the writ petition is filed. 3. Petitioner submits that in the background as stated above, particularly having regard to the fact that he has been transferred from Mannampurathu Kavu Devaswom, the suspension was unwarranted. It is also his contention that work of the Nadapandal was completed long after his transfer and under the supervision of his successor in office. It is also pointed out that even in Ext.P3 report where alleged lapses have been found, recommendation is that he need not be placed under suspension, and that, it was without taking into account any of these factors that by Exts.P1 and P2, he has been suspended from service. 4. A statement has been filed on behalf of the 1st respondent. According to the 1st respondent, the past history of WPC No. 19150/10 :3 : the petitioner is tainted with illegalities and unlawful acts. They refer to the suspension of the petitioner by order dated 6/4/93. It is also stated that the petitioner was charge sheeted in June 2003 and that the petitioner submitted his reply to the charge sheet in July 2003 and that the matter is pending before the 2nd respondent. It is stated that audit raised objection regarding the amount of Rs.7,46,069, which was expended in connection with the construction of the Nadapandal. It is stated that police have also registered a crime alleging offences of misappropriation of money as Crime No.147/10. It is stated that if the petitioner is reinstated in service, he will tamper with evidence and interfere with the enquiry proceedings. It is on this ground, the suspension is sought to be justified. 5. In so far as the suspension of the petitioner pointed out in the statement filed on behalf of the respondent is concerned, learned counsel for the petitioner points out that pursuant to the suspension, enquiry was conducted and based on the findings of the enquiry officer, he was reinstated in service without any further action against him. 6. In so far as charge sheet issued in June 2003 is WPC No. 19150/10 :4 : concerned, it is stated that respondents have, for malafide reasons, are delaying further action in the matter. Petitioner also denies the other allegations against him including the possibility of tampering with the evidence and interference with the enquiry proceedings. 7. As far as this writ petition is concerned, what is under challenge is the order of suspension and this Court is not concerned with the sustainability or otherwise of the allegations of misconduct levelled against the petitioner and these are matters for enquiry and appropriate action by the disciplinary authority. 8. True, as contemplated in Rule 16 famed under Section 100(2) (p) (x) (ii), an Executive Officer may be placed under suspension pending enquiry into grave charges, where such suspension is necessary in the public interest and interest of the religious institutions concerned. 9. As far as the religious institutions interest is to be taken care of as provided in Rule 16 is concerned, in the facts of this case, the institution can only be the Mannampurathu Kavu Bhagavathy Temple. As already seen, way back on 17/8/09 itself, WPC No. 19150/10 :5 : petitioner has been transferred from that temple, and therefore, the petitioner's retention in service cannot be against the interest of that temple by any stretch of imagination. Therefore, retention of the petitioner cannot affect the interest of the religious institution concerned, and therefore, that part of Rule 16 can have no application. 10. Then the only question is whether the petitioner's suspension can be justified on grounds of public interest. From the statement filed, the ground on which suspension is sought to be justified is that if the petitioner is retained in service, he will tamper with evidence and interfere with the enquiry proceedings. As already seen, proceedings have been initiated based on the audit objection. Necessarily, therefore, report has already been filed and the auditor would have gone through the entire records leading to the enquiry report and therefore, there cannot be any chance of the petitioner tampering with the evidence. Further, there is nothing to indicate that these documents are accessible to the petitioner. The possibility of the petitioner interfering with the enquiry proceedings is also not substantiated in any manner. 11. Therefore, although it is perfectly within the domain of WPC No. 19150/10 :6 : the disciplinary authority to continue the enquiry proceedings against the petitioner, on the materials available, there is absolutely no justification to keep the petitioner under suspension. Therefore, I see no reason to sustain the order placing the petitioner under suspension and that too contrary to the recommendation contained in Ext.P3 enquiry report. Exts.P1 and P2 are therefore quashed. Be that as it may, in order to ensure that the petitioner's reinstatement and continuance in service will not be of any prejudice to the enquiry that is pending against him, it is directed that while the respondents 1 and 2 shall reinstate the petitioner in service, they will be free to post the petitioner at any station they consider appropriate. With that liberty, the writ petition is disposed of, quashing Exts.P1 and P2. ANTONY DOMINIC, JUDGE Rp