IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 WP(C).No. 13874 of 2010(H) -------------------------- PETITIONER(S): --------------- M.T.RADHAKRISHNAN, AGED 50 YEARS, S/O.THANKAPPAN PILLAI, MELAKOMATTU HOUSE, THAZHAM P.O., MALAYALAPUZHA, PATHANAMTHITTA. BY ADV. SRI.T.M.RAMAN KARTHA SMT.MANJU R KARTHA RESPONDENT(S): --------------- 1. TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANTHANCODE, THIRUVANANTHAPURAM. 2. THE COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM. ADV. SRI.P.GOPAL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.13874/2010 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF ORDER OF SUSPENSION DATED 10/06/94. P2 : COPY OF MEMO OF CHARGES DATED 17/05/1995. P3 : COPY OF REPLY SUBMITTED BY THE PETITIONER DATED 12/06/1995. P4 : COPY OF PROCEEDIGNS DATED 23/08/1997. P5 : COPY OF JUDGMENT IN OP NO.560/98 DATED 21/03/2003. P6 : COPY OF PROCEEDINGS DATED 08/01/2003. P7 : COPY OF PROCEEDIGNS DATED 12/05/2005. P8 : COPY OF APPLICATION DATED 05/02/2006. P9 : COPY OF JUDGEMNT IN WPC NO.26457/04 DATED 22/01/2007. P10 : COPY OF PETITION DATED 17/06/2008. P10(a) : COPY OF PETITION DATED 17/06/2008. P11 : COPY OF NOTICE DATED 20/03/2010. P12 : COPY OF ORDER NO.3291/94/VIG(N) DATED 14/02/2007. RESPONDENT'S EXHIBITS R1(a) : COPY OF CONSENT LETTER OF THE PETITIONER DATED 12/05/2005. R1(b) : COPY OF ORDER OF THE DEVASWOM COMMISSIONER, ROC NO.80/05/EST. DATED 12/05/2005. R1(c) : COPY OF PROCEEDINGS OF THE BOARD, ROC NO.3291/94/VIG.(N) DATED 14/02/2007. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.13874 of 2010 (H) --------------------------------- Dated, this the 19th day of August, 2010 J U D G M E N T While the petitioner was working as Resident Manager of Ettumanoor Devaswom, Ext.P1 order dated 10/06/1994 was issued placing him under suspension for the misconducts mentioned therein. The disciplinary proceedings were finalized by Ext.P4 order dated 23/08/1997 dismissing the petitioner from service. Ext.P4 order was challenged before this Court in O.P.No.560/1998. That Original Petition was disposed of by ExtP5 judgment relegating the petitioner to seek review of Ext.P4 order. Accordingly, the petitioner filed an application for review. During the pendency of that application, he also filed a writ petition before this Court as WP(C) No.26457/2004. While that writ petition was pending, by Ext.P7 order dated 12/05/2005, the petitioner was reinstated in service in the following manner :- “Taking into account all the above aspects, considering the merits and on humanitarian grounds, the Board has ordered to re- instate Sri.M.T.Radhakrishnan in service forthwith, as the WP(C) No.13874/2010 -2- juniormost in the cadre of UD Clerk/Sub Group Officer Gr.I as on date. The period of absence from duty including the period of suspension is treated as eligible leave (viz. from the date of suspension to the present re-instatement). The reinstatement of Sri.M.T.Radhakrishnan is subject to the condition that he will not putfurth any further claim for the period of absence. A declaration from Sri.M.T.Radhakrishnan to that effect should be obtained before issuing posting orders.” 2. In compliance with the conditions of Ext.P7, the petitioner submitted Ext.R1(a) declaration and accordingly he was reinstated in service by Ext.R1(b) order. Despite the conditions in Exts.P7 and R1(a) declaration, after rejoining service, the petitioner submitted Ext.P8 representation dated 05/02/2006 claiming promotion and other benefits based on his previous service. When WP(C) No.26457/2004 came up for final hearing, taking note of Ext.P7 order reinstating him in service, that writ petition was disposed of by Ext.P9 judgment dated 22/01/2007 as infructuous, but however directing that orders shall be passed on Ext.P8 representation. 3. Accordingly Ext.P8 representation was considered and Ext.P12 final order was passed on 14/02/2007. While rejecting the claim of the petitioner, in Ext.P12 the Board held as follows :- “The reinstatement of Sri.M.T.Radhakrishnan ordered on WP(C) No.13874/2010 -3- humanitarian grounds was specifically subject to the condition that he will not put forth any further claim for the period of absence. In fact, Sri.M.T.Radhakrishnan had given a written declaration to the above effect too. There is no sufficient grounds to review the earlier orders of the Board and to grant all service benefits to Sri.M.T.Radhakrishnan. Further, though Sri.M.T.Radhakrishnan was reinstated in service, he was not exonerated from any of the charges proved against him. In the above circumstances, the representation dated 05/02/2006 (Exhibit P31) of Sri.M.T.Radhakrishnan, 1st Grade Sub Group Officer, Udayamperur Devaswom, Vaikom Group stands rejected.” 4. The petitioner submits that even after Ext.P12, he submitted Exst.P10 & P10(a) representations to the Travancore Devaswom Board on which report of the Secretary was called for vide endorsement dated 27/03/2009. It is stated that instead of submitting a report as ordered on Ext.P10(a), the Secretary appointed an Enquiry Officer to conduct a fresh enquiry against the petitioner. The Enquiry Officer issued Ext.P11 notice dated 20/03/2010 requiring the petitioner to appear for enquiry. It is at that stage, this writ petition has been filed by the petitioner seeking to quash Ext.P11 and the conditions in Exts.P7 and to declare that he is entitled to all service benefits including the period when he was kept out of service. WP(C) No.13874/2010 -4- 5. As far as the validity of Ext.P11 is concerned, I am inclined to agree with the learned counsel for the petitioner that the said notice and the order passed by the Secretary of the Board appointing an Enquiry Officer are invalid. As already seen, when Exts.P10 & P10(a) representations were made by the petitioner to the Board, the same was endorsed to the Secretary calling for a report. Nothing was placed on record to show that the Secretary was authoritised to nullify the proceedings culminating either in Ext.P4 order of dismissal or Ext.P7 order of reinstatement or Ext.P12 order rejecting the representation made by the petitioner. On the other hand all that the Secretary was called upon to do was to enquire into the request made by the petitioner in Exts.P10 & P10(a) and submit his report to the Board. Therefore, the proceedings of the Secretary appointing an Enquiry Officer is illegal and is quashed. Further I also quash Ext.P11 notice issued by the Enquiry Officer appointed by the Secretary. 6. In so far as the prayer of the petitioner to quash the conditions in Ext.P7 are concerned, as already seen, the petitioner was dismissed from service by Ext.P4. In the review, although the finding of guilt against the petitioner was not disturbed, on WP(C) No.13874/2010 -5- humanitarian consideration, he was ordered to be reinstated by Ext.P7. This order required the petitioner to furnish an undertaking and on that basis he was ordered to be reinstated as the junior most U.D. Clerk. In terms of the conditions in Ext.P7, the petitioner submitted Ext.R1(a) declaration and it was in pursuance to that declaration that Ext.R1(b) order was issued reinstating the petitioner. Therefore, Ext.P7 is an offer made to the petitioner, which was accepted by him and after having complied with the conditions therein, and enjoying the benefit thereof, it is not open to the petitioner to turn around and challenge the conditions in Ext.P7. Further on reinstatement made pursuant to Ext.P7, the petitioner commenced service as the junior most U.D.Clerk. If that be so, he cannot claim any benefit for the past service, except to the extent it is conceded in Ext.P7 itself. So viewed, the claim of the petitioner that he is entitled to service benefits for the period from 10/06/1994, when he was placed under suspension, till 12/05/2005, when Ext.P7 order was issued, is plainly untenable. 7. The petitioner has a case that Ext.P12 order was not passed by the Devaswom Board, as according to him, the Board was not in Office at that point of time, when this order was passed. It is WP(C) No.13874/2010 -6- seen from the additional counter affidavit filed by the Devaswom Board, this contention of the petitioner has been answered in paragraph 5 thereof in the following manner :- “As directed by this Hon’ble Court in Exhibit P9 Judgemnt, Exhibit P8 representation of the petitioner and the representation submitted by Sri.Krishna Kumara Warrier and others dated 04/12/2006 against granting the request of the petitioner made in Exhibit P8 representation was considered by the Board after calling upon report from the Devaswom Commissioner. On receipt of the report from the Devaswom Commissioner, the concerned section put up note and placed before the Board for orders on 30/01/2007. The then President of the Board (Sri.G.Raman Nair) and one of the member (Sri.Punalur Madhu) considered the matter and ordered to reject the request of the petitioner holding that the charges framed against the petitioner still exists, that he was re- instated on the basis of the consent letter, Exhibit R1(a) and on humanitarian grounds and ordered to issue proceedings. Exhibit R1(c) proceedings was issued on the basis of the decision taken by the then President of the Board and one of the member of the Board on 30/01/2007. The other member (Sri.M.B.Sreekumar) was not present when the above decision was taken on 30/01/2007. The decision taken by the then President and one of the member of the Board on 30/01/2007 is valid and sustainable. There is no irregularity or illegality in taking the said decision on 30/01/2007 or issuance of Exhibit R1(c) proceedings in pursuance to the decision taken on 30/01/2007.” 8. In the light of the factual assertion made by the Devaswom Board, I have nothing to doubt the genuineness of what WP(C) No.13874/2010 -7- is stated in the affidavit filed. Be that as it may, from Exts.P10 & P10(a) representations filed by the petitioner, it is seen that the recipients of the representations have endorsed the same to the Secretary calling for a report in the manner mentioned therein. Having regard to the directions issued on the representations, it is necessary that the Secretary should make his report to the Board. Therefore, it is directed that the Secretary shall make his report as directed vide endorsement in Exts.P10 & P10(a) representations, and on the basis of which, the Board shall consider the claim of the petitioner made in the representations and take a decision thereon, which shall be done untrammeled by the observations made in this judgment. The report shall be filed by the Secretary, at any rate, within six weeks of receipt of a copy of this judgment, and the Board shall decide in the matter as expeditiously as possible, at any rate, within eight weeks of receipt of the report. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg