IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 WP(C).No. 23540 of 2008(B) --------------------------------------- PETITIONER: ----------------- K.VENUGOPAL, EXECUTIVE OFFICER, CHANDANAKAVU DEVASWOM, P.O. KARUMBATHOOR, VIA, THIRUNAVAYA, MALAPPURAM DISTRICT. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENTS: ---------------------- 1. THE COMMISSIONER FOR HINDU RELIGIOUS & CHARITABLE ENDOWMENTS, KOZHIKODE. 2. THE SECRETARY TO GOVERNMENT, HINDU RELIGIOUS & CHARITABLE ENDOWMENTS DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. SR. GOVERNMENT PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/08/2008, THE COURT ON 20/08/2008 DELIVERED THE FOLLOWING: Rs/ P.N.Ravindran, J. ===================== W.P(C).No.23540 of 2008 ===================== Dated this the 20th day of August, 2008. JUDGMENT The petitioner, the Executive Officer of the Sree Chandanakkav Devaswom, has filed this Writ Petition challenging Ext.P3 proceedings dated 23.7.2008 issued by the Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, placing him under suspension pending enquiry. 2. The petitioner contends that the Commissioner has no jurisdiction to place an employee of a private Devaswom under suspension and that the Hindu Religious and Charitable Endowments Act, 1951, hereinafter referred to as the "Act", for short, or the Rules framed thereunder do not empower the Commissioner to place the petitioner or other employees of private Devaswoms under suspension. It is contended that the petitioner is not a government servant and that Section 20 of the Act or the Rules framed under Section 100(2)(p) and (x) (ii) of the Act do not empower the Commissioner to place the petitioner under suspension. The petitioner also contends that the grounds stated in Ext.P3 for placing him under suspension are not tenable and that the Commissioner has no jurisdiction to enter a finding as to whether he has entered into a bigamous marriage. The petitioner also contends that he WP(C)23540/08 -: 2 :- cannot be proceeded against on the allegation that he was formerly holding a licence to run a driving school as the licence has since been cancelled and later transferred to his brother. As regards the alleged irregularities in the 8 Devaswoms wherein the petitioner had formerly worked, the petitioner relies on Ext.P4 to contend that in view of the fact that he has been exonerated in the vigilance enquiry, the Commissioner could not have relied on the very same set of allegations to place him under suspension. 3. I have heard Sri.K.Ramakumar, the learned senior counsel appearing for the petitioner. The first contention raised by the petitioner is that the Commissioner is not competent to place him under suspension and that the provisions of the Act or the Rules framed thereunder do not empower the Commissioner to place him under suspension. Section 67 of the Act reads as follows: "67. Term of office and duties of Executive Officer:- (1) The executive officer shall hold office for such period as may be fixed by the Commissioner and he shall exercise such powers and perform such duties as may be assigned to him by the Commissioner. Provided that only such powers and duties as appertain to the administration of the endowments of the religious institution shall be assigned to the executive officer. (2) The Commissioner shall define the powers and duties which may be exercised and performed respectively by the executive officer and the trustee, if any, of the WP(C)23540/08 -: 3 :- religious institution. (3) The executive officer shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (Central Act XLV of 1860). (4) The Commissioner may, for good and sufficient cause suspend, remove or dismiss the Executive Officer." Sub-section (4) of Section 67 of the Act specifically states that the Commissioner may for good and sufficient cause, suspend, remove or dismiss the Executive Officer. The petitioner was appointed as Executive Officer on 25.3.1998. At the time when Ext.P3 was passed, he was the Executive Officer of the Sree Chandanakkav Devaswom. Rule 15 of Part I of the Rules framed under Section 100(2)(p) and (x)(ii) of the Act empowers the appointing authority to impose the penalties mentioned therein on the Executive Officer. In view of Section 67(4) of the Act, I find no merit in the contention raised by the petitioner that the Commissioner is not competent to place him under suspension pending enquiry. In my opinion, the failure of the Commissioner to refer to Section 67 of the Act in Ext.P3 does not in any way render it invalid or infirm for the reason that the Commissioner had the power under the said provision to place the petitioner under suspension. I therefore overrule the first contention raised by the petitioner that Ext.P3 is an order passed without jurisdiction. 4. The second contention raised by the petitioner is that the Commissioner was not justified in referring to or relying on the alleged WP(C)23540/08 -: 4 :- irregularities committed by the petitioner while he was serving in Sree Vemanna Devaswom, Sree Thozhuvanoor Devaswom, Sree Pookkattiyoor Devaswom, Sree Thripurandaka Temple, Sree Rudhiramahakali Temple, Sree Thirurkkad Devaswom, Sree Vayillyamkunnu Devaswom and Sree Vairankode Devaswom. The learned counsel for the petitioner contended that as in Ext.P4 order passed on 20.8.2007, the Commissioner has found that he was exonerated of the allegations in the vigilance enquiry, the Commissioner was not justified in placing the petitioner under suspension. Ext.P3 discloses that disciplinary proceedings had been initiated against the petitioner on an earlier occasion and that the charges have not yet been enquired into. Ext.P4 discloses that there were complaints about the petitioner while he was the Executive Officer of the Sree Vairankode Devaswom. Ext.P4 also refers to the fact that there was an allegation that the petitioner was not regular in attending to his duties in the Sree Vairankode Devaswom as he was busy running the driving school. Ext.P4 also discloses that the disciplinary action initiated against the petitioner for the alleged irregularities committed by him while he was the Executive Officer of the Sree Vairankode Devaswom was closed for the reason that the Vigilance Department was enquiring into the matter. Ext.P4 is not an order passed in the disciplinary proceedings initiated against the petitioner, but on a complaint questioning his appointment as the Executive Officer of the Sree Vairankode Devaswom. The petitioner was appointed as the Executive WP(C)23540/08 -: 5 :- Officer of the Sree Vairankode Devaswom on 15.5.2007. That was objected to by the Chairman of the said Devaswom and Ext.P4 order was passed overruling the objections raised by the Chairman of the said Devaswom. The only question considered in Ext.P4 was whether in view of the allegations against the petitioner, it was proper to appoint him as the Executive Officer of the Sree Vairankode Devaswom. The finding in Ext.P4 is that the fact that there were allegations against the petitioner, is not a reason to cancel his transfer and appointment as Executive Officer of the Sree Vairankode Devaswom. The findings in Ext.P4, in my opinion, relate only to the irregularities alleged to have been committed by the petitioner while he was the Executive Officer of the Sree Vairankode Devaswom on an earlier occasion. On the other hand, the Commissioner has in Ext.P3 referred to the alleged irregularities committed by the petitioner while he was serving in 7 other Devaswoms. Therefore, the second contention raised by the petitioner that in view of Ext.P4, the Commissioner could not have placed him under suspension by issuing Ext.P3 is also not tenable. 6. The third contention raised by the petitioner is that the Commissioner was not competent to enter a finding as regards the bigamous marriage alleged to have been entered into by him with Smt. Jisha. The petitioner submits that the said allegation is rested on a complaint filed by his estranged wife before the Commissioner and that the Commissioner is not competent to enter a finding as to whether he WP(C)23540/08 -: 6 :- had entered into a bigamous marriage or not. The learned counsel contended that the Commissioner cannot, before the competent criminal court finds the petitioner guilty of having committed the offence of bigamy, initiate action against him for the alleged violation of Rule 93 of the Government Servants' Conduct Rules, 1960. Ext.P1 as well as Ext.P3 disclose that the petitioner's estranged wife has filed a complaint against him in the Court of the Judicial Magistrate of the First Class, Tirur alleging commission of the offences punishable under Sections 494 and 498 I.P.C. The petitioner's estranged wife has alleged that he married Mrs. Jisha in the year 2001 and that two children have been born to him in the said wedlock. The explanation offered by the petitioner in the Writ Petition is that Mrs. Jisha is married to another person by name Sri. K.Venugopal and that except the similarity in the names, he has no relationship with Mrs.Jisha. It is also contended that in the absence of a finding by the competent court, the Commissioner cannot initiate action against the petitioner for the alleged violation of Rule 93 of the Government Servants' Conduct Rules, 1960. In my opinion, Ext.P3 order is not rested on the allegation that the petitioner has contracted a bigamous marriage and thereby violated Rule 93 of the Government Servants' Conduct Rules, 1960. The Commissioner has also not entered a finding in Ext.P3 that the petitioner has contracted a bigamous marriage. Ext.P3 only states that the petitioner's estranged wife has complained that the petitioner has contracted a bigamous marriage. The WP(C)23540/08 -: 7 :- mere fact that Ext.P3 refers to the alleged bigamous marriage contracted by the petitioner does not by itself vitiate Ext.P3. A reading of Ext.P3 makes it clear that the main allegations against the petitioner are those relating to the alleged irregularities committed by him while he was the Executive Officer of the 8 Devaswoms referred to therein. The said allegations no doubt merit an enquiry and the Commissioner cannot be found fault with for having decided to conduct an enquiry into the said allegations and to place the petitioner under suspension pending such enquiry. I therefore overrule the contention of the petitioner that the Commissioner was not competent to place him under suspension for the alleged violation of Rule 93 of the Government Servants' Conduct Rules, 1960. 7. The last contention raised by the petitioner is that as the licence to run the driving school was transferred to his brother long before the order of suspension was passed, that is not a ground to place him under suspension. From Ext.P3 it is seen that the petitioner entered service as Executive Officer by promotion on 25.3.1998. A licence to run the driving school was issued to him on 30.12.1989. It was being periodically renewed till 29.12.2004. The licence, which was surrendered on 15.1.2004, was later cancelled and a fresh licence was issued to his brother Sri.K.Unnikrishnan on 13.2.2004 to run the driving school. As in the case of the alleged violation of Rule 93, the Commissioner has referred to the said aspect also. As held by me earlier, Ext.P3 has been WP(C)23540/08 -: 8 :- issued mainly taking note of the serious irregularities alleged to have been committed by the petitioner while he was functioning as the Executive Officer of the 8 Devaswoms referred to therein. The allegation regarding bigamous marriage and the running of a driving school are only two other allegations levelled against the petitioner in Ext.P3. Even if the said allegations do not find a place in Ext.P4, on the materials referred to in Ext.P3, it cannot be said that no grounds exist to place the petitioner under suspension. 8. Whether an employee should be suspended or not pending enquiry into the misconduct alleged to have been committed by him is a matter exclusively for the competent authority to decide. This Court cannot sit in appeal over the decision taken by the Commissioner to place the petitioner under suspension in exercise of the jurisdiction of this Court under Article 226 of the Constitution of India. This Court will be justified in interfering with an order of suspension only when the order is passed by an incompetent authority or is malafide. It has not been alleged or proved that extraneous considerations weighed with the Commissioner in passing the order of suspension. In fact, the main ground raised in the Writ Petition is about the competence of the Commissioner to place the petitioner under suspension. In my considered opinion, no grounds have been made out warranting interference with Ext.P3. The allegations against the petitioner while he was the Executive Officer of the 8 Devaswoms referred to in Ext.P3, WP(C)23540/08 -: 9 :- cannot be said to be trivial. The Commissioner has decided to enquire into the said allegations and the Commissioner thought it fit that pending enquiry into the said allegations, the petitioner should be placed under suspension. It cannot be said that the Commissioner has acted on extraneous or irrelevant considerations and that it was without application of mind that he passed Ext.P3 order. The challenge to Ext.P3 is in my opinion without any merit. The Writ Petition accordingly fails and it is dismissed in-limine. P.N.Ravindran, Judge. ess 15/8