IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 WP(C).No. 30846 OF 2008(V) PETITIONERS: 1. KODAKKATTU CHERIYA KRISHNAN NAMBOOTHIRI AGED 32 YEARS, S/O.KODAKKATTU KRISHNAN NAMBOOTHIRI KEEZH SANTHI, GURUVAYOOR SREE KRISHNA TEMPLE, GURUVAYOOR. 2. MOLAMANGALAM RADHAKRISHNAN NAMBOOTHIRI, AGED 58 YEARS, S/O.MOLAMANGALAM KRISHNAN NAMBOOTHIRI, KEEZH SANTHI, GURUVAYOOR SREE KRISHNA TEMPLE, GURUVAYOOR. 3. NAKERI KESAVAN NAMBOOTHIRI, AGED 29 YRS, S/O.NAKERI VASUDEVAN NAMBOOTHIRI, KEEZH SANTHI, GURUVAYOOR SREE KRISHNA TEMPLE, GURUVAYOOR. 4. MECHERI GOVINDAN NAMBOOTHIRI,AGED 44 YRS S/O.MEECHERI KRISHNAN NAMBOOTHIRI, KEEZH SANTHI, GURUVAYOOR SREE KRISHNA TEMPLE, GURUVAYOOR. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENTS : 1. THE GURUVAYOOR DEVASWOM, REPRESENTED BY ITS ADMINISTRATOR, GURUVAYOOR. 2. THE MANAGING COMMITTEE, GURUVAYOOR DEVASWOM, REPRESENTED BY ITS CHAIRMAN SRI THOTTATHIL RAVEENDRAN, GURUVAYOOR. ADV. SRI.U.K.RAMAKRISHNAN (SR.) SRI.V.KRISHNA MENON THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 4.11.2008,, THE COURT ON 25/11/2008, DELIVERED THE FOLLOWING: WP(C) 30846/2008 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER NO. 9626/2008 DATED 17.10.2008 ISSUED BY R1. EXT.P2 TRUE COPY OF THE EXPLANATION DATED 18.10.2008 SUBMITTED BY THE PETITIONERS. EXT.P3 TRUE COPY OF THE INCOME CERTIFICATE ISSUED TO ONE OF THE KEEZH SANTHIS OF THE GURUVAYOOR TEMPLE BY THE DEVASWOM MANAGING COMMITTEE DATED 5.10.2006. EXT.P4 TRUE COPY OF THE COMMUNICATION DATED 18.8.2004 OF THE ADMINISTRATOR, GURUVAYOOR DEVASWOM ADDRESSED TO ONE OF THE KEEZH SANTHIS. RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF THE JUDGMENT DATED 24.10.1991 IN O.P. 529/1988 OF THIS COURT. // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = W.P.(C) NO. 30846 OF 2008 = = = = = = = = = = = = = = = = DATED THIS, THE 25TH DAY OF NOVEMBER, 2008. J U D G M E N T Raman, J. Petitioners are Keezhsanthis (Assistant Santhis) in the Sreekrishna Temple, at Guruvayur. They were suspended from service pending enquiry as per Ext.P1 order passed by the Administrator of the Guruvayur Devaswom. They challenge Ext.P1 and seek to quash the same by issuance of a writ of certiorari or other appropriate writ or direction and for a declaration that the traditional and hereditary rights enjoyed by them cannot be deprived or denied either by the Guruvayur Devaswom Managing Committee or by the Administrator in terms of the provisions of the Guruvayur Devaswom Act. They also seek for a declaration that the order of suspension is patently violative of Articles 14, 21 and 25 of the Constitution of India. 2. The order of suspension happened to be issued when one of the devotees complained to the Administrator of the Guruvayur Devaswom that a cigarette butt was found in the 'Appam' which is a Nivedyam offered to the deity and distributed as prasadam. Petitioners being in charge of WP(C) 30846/2008 :2: preparing the 'Appam' offered to the deity on the day of the incident, they were kept under suspension pending further enquiry. 3. According to the petitioners, the right of Keezhsanthis is a hereditary right conferred on thirteen Namboothiri Illoms and the work relating to such Keezhsanthis in Guruvayur Temple is being attended to by an internal arrangement among the families. Petitioners, while working as Keezhsanthis, were served with an order of suspension Ext.P1, which according to them, is beyond the jurisdiction of the administrative authorities. According to them, they were in charge of preparation of 'Appam' to be offered to the deity as Nivedyam which is religious in character and not secular. Their being Keezhsanthis in the temple is not by way of any appointment by the managing committee; but by virtue of hereditary right and as such there is no employer-employee relationship between them and the management and that they are not paid any salary but only certain customary considerations are given to them. Their duties as Keezhsanthis include preparation of Nivedyam, attending to cleaning of Sreekoil, helping Thanthri Othikkans and Melsanthi as Parikarmees, performance of the Seeveli Ezhunnellippu, conduct of Tripula, Chandrana aravu, Kalabham Koottal, performance of daily poojas in the temples of Upadevas namely, Ganapathi, Sastha and Bhagavathi and distribution of WP(C) 30846/2008 :3: Prasadom. The thirteen Iloms who have been granted such hereditary right were together entitled for a sum of Rs. 770.50 per month. The other remunerations they are entitled to are 'Koonu" for Nivedyam preparations, wages for chandana aravu and Kalabham Koottal and daily pay of Rs. 1.50 for poojas in the subsidiary temples. Besides, they get Nivedyam rice as well as Mura Enna and the women members of their Illoms get Koppu for Udayastahamana pooja etc. Any male member of the above said thirteen Illams completing samavarthanam attains competency to attend to the work in the temple and members are given 1/4 Naraya Nivedyam rice both in the forenoon as well as in the night. In addition to that the Keezhsanthis are given 'Koorii pattika' which represents a percentage of Nivedyam. It is their contention that under Section 34 of the Guruvayur Devaswom Act, such honour of becoming a Keezhsanthi or receiving remuneration or perquisites by them cannot be interfered with by the Devaswom and the regulations framed under Section 39 of the Guruvayur Devaswom Act will not apply to Keezhsanthis who are performing hereditary rights, honour etc. after receiving perquisites since they are not employees covered by the above said Regulations. If at all there is any fault or flaw in their performance as Keezhsanthis, the only remedy is to make them to do "Prayachitham" (Atonement) as ordered by the Thanthri and there is no provision to stop WP(C) 30846/2008 :4: their rights or the perquisites enjoyed by them. Thus, according to the petitioners, the Devaswom have no jurisdiction to interfere with such hereditary right and the order of suspension issued, as though they are employees, is lacking jurisdiction. The duties performed by them as Keezhsanthis are religious in nature and the flaw, if any, for preparation of prasadam can only be remedied by "Prayachitham" as ordered by the Thanthri and not otherwise. It is also contended by them that before issuing Ext.P1 order, they were not heard in the matter and any disciplinary action taken cannot be sustained since such order of suspension could be issued only in appropriate cases where there is possibility of them being meddled with any evidence that may be gathered or collected. 4. In the counter affidavit filed for and on behalf of the first respondent, it is averred as follows: The petitioners are Keezhsanthis of Guruvayur Temple who are the hereditary employees of Guruvayur Devaswom. Regulation 23(a) and 23(b) of the Guruvayur Devaswom Employees Regulations, 1983, suggest powers and rights of the Guruvayur Devaswom Managing Committee upon all types of employees including the hereditary employees of the Devaswom. Besides, Section 10(b), 10(d) and 10(g) of the Guruvayur Devaswom Act also empowers the managing committee to take disciplinary action against the employees. As per WP(C) 30846/2008 :5: Regulation 23(a), the Kerala State Civil Service (Classification, Control & Appeal) Rules, 1960 have been made applicable to all the employees including temporary employees and the Administrator is also empowered under Regulation 23(b) to impose punishment on hereditary employee of the Temple except penalties of with-holding of increments or promotion and reduction to a lower rank or to a lower grade or lower stage in the same scale of pay. Similarly situated hereditary employees had filed a writ petition as O.P. 529/1988 wherein also a similar contention that they are hereditary employees and so the Devaswom is not empowered to take any disciplinary action was raised; but by Ext.R1(a) judgment, this Court held that merely because the second petitioner therein was not a full fledged employee of the Devaswom, it could not be said that no disciplinary proceedings could be initiated against him and in the absence of any statutory principles the general law would follow and there is nothing illegal in invoking the Guruvayur Devaswom Employees Regulations, 1983 in his case. Keezhsanthis like the petitioners enjoy all the benefits of their services like monthly remuneration, Kooru (share), festival allowances, bonus, medical insurance benefits, admission to their children in Guruvayur Devaswom Educational Institutions through the management quota etc. Besides, they are issued salary certificates, employment certificates and WP(C) 30846/2008 :6: income certificates from the Devaswom and they are receiving ex-gratia and pension benefits also. Thus, Keezhsanthis are also employees enjoying various facilities as mentioned above. The Guruvayur Devaswom Managing Committee has only acted in good faith and has only taken measures strictly following the provisions contained in the Act. As per Category 80 of the Regulations, the "Santhiyettavar" from among the 13 Keezhsanthi families are selected and their qualification is determined by the Guruvayur Devaswom Managing Committee in which the Thantri is an ex-officio member. The real income of the Keezhsanthies are the share (kooru) of all the offerings which come up to an average of Rs. 2,50,000/- per month, the remuneration of preparing sandal paste (chandana aravu) comes to an average of Rs. 2,00,000/- per month and a salary of Rs. 6,500/- for the thirteen illoms (13 x 500) and not as stated by the petitioners. (The details of the share of each Illom and the other average income they would get in a month are also stated in para 6 of the counter affidavit in detail.) Besides, the overaged Keezhsanthies who are unable to perform duties are receiving a monthly consolidated pension of Rs. 1,000/- only because they are employees of the Devaswom. The Zamorin of Calicut who owned the temple had appointed the Keezhsanthies who belong to 13 Illoms at Karassery in Calicut and on coming into force of the Act considering the WP(C) 30846/2008 :7: past services, the Keezhsanthies, Pathukars, Othikans, Kazhakakkar and such others were retained as hereditary employees. The hereditary employees and other employees are working to provide facilities for the performance of the worship by the devotees and thus they all are employees of the Guruvayur Devaswom. The statement of the petitioners that Prayaschitham (Atonement) is done as a remedy for the flaw, if any, on their part is misconceived and without merit since atonement is only to remove the impurity of the deity and the 'asudhi' inside the temple caused by the impure offering; however, for the carelessness and failure on the part of the Keezhsanthies, the Devaswom is entitled to take disciplinary action. A devotee got a cigarette butt from inside the 'Appam' which shows that the said butt was there in the jaggery liquid at the time of preparation. Like the petitioners, hereditary employees called "Pathukaran" who supplied the jaggery are also placed under suspension. On receipt of a complaint from the devotee, an enquiry was conducted by the Chief Finance & Accounts Officer and the Deputy Administrator (Store & Purchase) and on the basis of the report submitted by them, the Guruvayur Devaswom Committee which includes the Thantri (who is the ex-officio member of the Devaswom) met on 17.10.2008 and decided to place the petitioners under suspension pending enquiry. There is no illegality or infirmity in the order WP(C) 30846/2008 :8: of suspension and it was done only as an interim measure to safe-guard the belief of the devotees and the interest of the temple and to maintain order and discipline amongst the employees. On 20.10.2008, a memo of charges has been served on the petitioners. Further, even though the petitioners are placed under suspension, other male members of their family are performing the duties and enjoying the perquisites and hence the families of the petitioners are not deprived of the benefits enjoyed by them as hereditary employees of the Devaswom. The incident of finding a cigarette butt from the 'Appam' and repetition of three days poojas were reported by the media and the same had created great harm to the reputation of the Devaswom. 5. Though there are various other averments made in the counter affidavit, they may not be quite relevant to the issue arising for consideration in the case. 6. Petitioners in their reply affidavit has reiterated their submission that Keezhsanthies are not employees of the Guruvayur Devaswom. According to them, before the Guruvayur Devaswom came into being, their families were enjoying the hereditary right and even after coming into force of the Act, any power on the Devaswom committee has been specifically excluded under Section 34 and 35 of the Act, that they are totally excluded from the Guruvayur Devaswom Employees Regulations, 1983, that even if WP(C) 30846/2008 :9: there is any mistake or misconduct in performing the religious function, the only authority to take action is the Thanthri and he has already imposed a punishment on them by directing to perform 'prayachitha pooja' for three days, that in the absence of specific mention of Keezhsanthis under the Regulation, such Keezhsanthis cannot be treated as employees of the Devaswom, that the Administrator is not vested with any power to initiate disciplinary proceedings against the employees, that in Ext.P4 produced in the case, the Devaswom has taken the stand that petitioners who are hereditary employees are not employees of the Devaswom and by virtue of the order of suspension, they are debarred from doing the hereditary duties thereby infringing Articles 24 and 25 of the Constitution of India. 7. We have heard the learned Senior Counsel Sri. K. Ramakumar appearing on behalf of the petitioners, Senior Counsel Sri. U.K. Ramakrishnan, appearing on behalf of the respondents. We have perused the averments made in the writ petition, counter affidavit and reply affidavit as also the exhibits produced in the case. 8. Learned counsel appearing on behalf of the petitioner mainly stressed on the following points: (i) That the petitioners who are Keezhsanties are not employees of Guruvayur Devaswom and there is no master and servant relationship between the petitioners and the Devaswom WP(C) 30846/2008 :10: Administration. According to him, the thirteen Nampoothiri Illoms were given the right of Keezhsanthies and it is by virtue of an internal arrangement between the families that the petitioners became Keezhsanthies of Guruvayur Temple. Such hereditary rights are not liable to be suspended under the guise of any disciplinary action by the administration, (ii) that the Guruvayur Devaswom administration in the aforesaid circumstances, has no jurisdiction to place the petitioners under suspension and (iii) that the order of suspension was issued without even hearing the petitioners and hence not valid in law and even before conducting an enquiry, in the factual situation, the Administration ought not have proceeded to suspend the petitioners and such action is highly excessive. 9. According to the respondents, a complaint was received by the Devaswom from a devotee alleging that on 11.10.2008 from the 'Appam' offered as Nivedyam to the deity (which was distributed as prasadam to the devotees) a cigarette butt was found out and based on the preliminary enquiry report and the explanation given by the "Santhiyettavar" (Supervisor of Keezhsanthies) a prima facie case was made out for further enquiry and accordingly, petitioners who were engaged in the preparation of "Appam" on the alleged day, were kept under suspension pending enquiry WP(C) 30846/2008 :11: as per the decision taken by Guruvayur Devaswom Committee on 17.10.2008. On receipt of Ext.P1 order of suspension, petitioners submitted a reply Ext.P2 denying the allegations contained in Ext.P1 and further contending that the suspension is without even seeking an explanation from them. They also requested to withdraw the action taken against them as per Ext.P1. Later, petitioners were issued a charge sheet and further action is pending. According to the petitioners, they are discharging their duties as Keezhsanthies in the Temple as per the hereditary right conferred on thirteen Namboothiri Illoms of which they are members and hence they are not employees of the Guruvayur Devaswom nor are they appointed by the management and hence there is no employee - employer relationship between the petitioners and the Devaswom and so, the respondents have no jurisdiction to place them under suspension pending any disciplinary action. It is their further case that preparation and offering of Nivedyam to the deity is religious and not secular in character and if at all, the only person authorised to take any action is the Thanthri of the Temple and they having performed atonement by re-doing the poojas for three days as ordered by the Thanthri, no further action could be taken. 10. The respondents, on the other hand, would submit that even though offering of Nivedyam to the deity is religious, preparation of the WP(C) 30846/2008 :12: same is only secular in character and at any rate, any negligence on the part of the person preparing Nivedyam is certainly a matter against which action can be taken by the Administration. It is also their case that Keezhsanthies are hereditary employees and merely because there is no appointment or selection to the post of Keezhsanthies, that is not relevant in deciding the jural relationship of the petitioners and the respondents. So long as the petitioners are receiving remuneration and various other benefits from the Devaswom as highlighted in the counter affidavit, it is idle to contend that they are not employees of Guruvayur Devaswom. Referring to Ext.P4 communication produced along with the reply affidavit, learned standing counsel submitted that as against Ext.P4, the Keezhsanthies themselves have filed an appeal and their specific stand is that they are employees of the temple and they cannot be treated differently from other employees. 11. It is settled law that this Court, under Article 226 of the Constitution of India, ordinarily will not interfere with an order of suspension pending enquiry unless there are exceptional circumstances warranting such interference, either when the order is issued totally without jurisdiction or actuated by mala fides and on similar grounds. It is also equally true that suspension pending enquiry itself is not a punishment; but WP(C) 30846/2008 :13: merely keeps away the employees from the place of work so as to conduct a proper enquiry. In this case, since the jurisdiction of the respondents in issuing Ext.P1 is challenged, we have to examine the same with reference to the contentions raised by the parties. 12. As per the Guruvayur Devaswom Act, 1978, the administration, control and management of the Guruvayur Sree Krishna Temple including its properties and endowments and subordinate temples attached to it are vested in a committee in the manner constituted as provided in the act. The composition of the Committee as per Section 4 of the Act would show that the Thanthri (of the Temple) himself is an ex-officio member. There are altogether nine members in the committee and one has to be elected as the chairman. It is that Committee, including the Thanthri, who decided to keep the petitioners under suspension. According to the petitioners, as per Section 34, which is a saving provision, nothing in the Act shall affect any honour, emolument or perquisite to which any person is entitled by custom or otherwise from or in the Devaswom or its established usage in regard to any other matter and therefore, the various benefits conferred on a hereditary employee cannot be stopped or taken away by the respondents. But the respondents pointed out that whatever benefits due to the 13 Namboothiri Illoms are continued to be paid even after Ext.P1 to the WP(C) 30846/2008 :14: respective Illoms and in the place of the petitioners, other representatives from the same Illoms have been engaged to do the work attached to Keezhsanthies. Therefore, the hereditary right as such to receive any remuneration or benefit is for the 13 Illoms (family) and no right is conferred on any particular individual. Even after the suspension of the petitioners, the substitutes engaged are from the same family and are paid all the attendant benefits as hitherto received by the petitioners. As such, the argument based on Section 34 of the Act is without any force. 13. As per Section 35 of the Act, the Thanthri is the final authority in religious matters and nothing in the Act shall be deemed to authorise the committee or Commissioner or Government to interfere with the religious or spiritual matters pertaining to Devaswom and the decision of the Thanthri of the Temple on all religious spiritual ritual or ceremonial matters pertaining to Devaswom shall be final unless such decision violates any provision contained in any law in force. The contention of the petitioners is that the preparation and offering of Appam and other items of Nivedyam to deity is a religious matter and hence it is only the Thanthri who is authorised to take any decision in the matter and the respondents are not authorised to interfere with such religious rites. Petitioners place reliance on the decision of the apex court in Secretary, Home ( Endowments), Government of Andhra WP(C) 30846/2008 :15: Pradesh v. Digyadarsan Rajendra Ram Dasjee Varu (AIR 1968 SC 105) to support their contention. That was a case where a dispute arose regarding the succession to the Office of the Mahant of the Math. The respondent therein claimed to have succeeded as Mahant in his own right whereas the Department of Hindu Religious and Charitable Endowments, Andhra Pradesh, received telegram stating that there was a dispute about the person who was to succeed as Mahant. The Government appointed the respondent therein as an interim Mahant and later, the Government issued a show cause notice to the respondent as to why the earlier order shall not be cancelled. The Government also proceeded on the basis that it had no jurisdiction to appoint an interim Mahant as was done earlier. By the same order of the State Government the respondent was placed under suspension. There were other proceedings in the civil court, reference to which may not be necessary for the limited purpose of understanding the principle held in the said decision. The High court held that the respondent has succeeded as Mahant and hence there was no vacancy in the office of the Trustee so as to enable the Department to take any action under the Hindu Religious Charitable Endowments Act. In para 12, the Apex Court considered the question as to whether the Assistant Commissioner, H.R. and C.E. had jurisdiction to assume management of the Math in question under Section WP(C) 30846/2008 :16: 53 of the Act, which depends upon the question as to whether the State Government had jurisdiction to place the respondent under suspension as they have purported to do, by their order dated 9.9.1995. Reference was made to Sections 52 and 53 of the Act and it was held that Section 53 (1) contemplates four contingencies under which the Assistant Commissioner may take steps for temporary custody and protection of the Math, of which the court was concerned only with the first one and before that provision can be invoked, two conditions are necessary (viz) (a) a vacancy must have occurred in the office of the trustee of a math; and (b) there must be a dispute, respecting the right of succession to such office. It was held that it is possible to say that there is a dispute in respect of the right of succession to the office of the Mahant. Regarding the other condition to be satisfied before action is taken, it was held that the assumption of office of the management can be made by the Department only when there exist a vacancy as a fact in the sense that nobody with any legal right has assumed office of the trustee of the Math. Since the High Court had found that the respondent has succeed to the Office of Mahant on March, 18, 1962, on the death of the previous Mahant which admission had been proved by the Akada Panchayat by a resolution passed in this regard, the apex court accepted the view of the High Court that there was no vacancy in the office WP(C) 30846/2008 :17: of the trustee of the Math so as