IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 RSA.No. 958 of 2011() --------------------- AS.75/2008 of SUB COURT,KOCHI OS.293/2006 of PRINCIPAL MUNSIFF COURT., KOCHI .................... APPELLANT(1ST RESPONDENT IN THE LOWER APPELLATE COURT & PLAINTIFF IN THE TRIAL COURT: ---------------------------------------------------------------------- N.THRIVIKRAMA VADHYAR, AGED 78 YEARS, S/O. NARAYANA BHAT, UDYANESWARAM SIVAN COIL SANTHI, CC 8/1127, T.D.SOUTH GATE, KOCHI-682 002. BY ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE SRI.S.SACHITHANANDA PAI RESPONDENT(S): (R1 IS THE APPELLANT AND R2 IS THE 2ND RESPONDENT IN THE LOWER APPELLATE COURT & DEFENDANTS IN THE TRIAL COURT: ----------------------------------------------------------------- 1. COCHIN THIRUMALA DEVASWOM COMMITTEE, GOSREEPURAM, KOCHI-682 002, REPRESENTED BY ITS PRESIDENT OF MANAGING COMMITTEE. 2. A.RAMANATHAN, AGED 51 YEARS, ADVOCATE, IX/912, ANAND NIVAS, PANDIKUDY, KOCHI-2. SRI.S.B.PREMACHANDRA PRABHU FOR CAVEATOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. .............................................. R.S.A.NO.958 OF 2011 ............................................. Dated this the 17th day of October, 2011. JUDGMENT Plaintiff in O.S.No.293/2006 on the file of the Munsiff Court, Kochi is the appellant. Defendants are the respondents. The suit was filed for declaration and injunction. The declaration sought for was that the domestic enquiry initiated against the appellant by the second respondent is not in accordance with the procedure provided under Ext.A1 scheme and therefore the disciplinary proceedings are illegal and to restrain the respondents from proceeding with the enquiry . Appellant was admittedly the Santhi in Udyanesaram Siva Temple, Kochi. Appellant would contend that earlier his grandfather was performing the Santhi and on his death, his father, his brother and then the appellant has been performing the Santhi. In 2005, wife of the appellant died. Being a widower, he is not entitled to perform Poojas. His son Sudhakara Bhat, who is married, is performing the Santhi. There are three other kovils also in addition to the four kovils in the main temple. The three shrines are situated outside the main temple. The Santhi in the main temple and in each R.S.A.NO.958 OF 2011 : 2 : of the seven shrines is vested in more than one family. So for change of hands, the keys of the main temple and 7 shrines is necessary. It is contended that Siva temple do not require change of hands, as the Santhi rite is vested in the family of the appellant which is known to the respondents also. On 20.8.1997 the then Bharanadhikari issued a memo on the premise that plaintiff has also to place the keys before the diety of the main temple. Appellant sent a reply disclosing that he has been adhering to all the customs and practices in the main temple and the temple administration and will continue to do so. In view of the reply, the Bharanadhikari had a discussion with the plaintiff which is seen from letter dated 17.9.1997. After discussion no further action was taken, as members of the then managing committee were also convinced of the fact that there is no need to introduce a new practice in the Siva Temple. It is contended that he has been keeping the keys with him without any objection. Thereafter on 2.6.2006 the President of the Managing Committee issued a memo directing the appellant to place the keys before the main diety with effect from first Edavam 1181. Appellant sent R.S.A.NO.958 OF 2011 : 3 : a reply submitting that it is not the practice and the memo is issued at the instance of persons who are in inimical terms with the appellant. He submitted the reply on 17.6.2006. The charges levelled are not sustainable. By letter dated 29.6.2006 appellant was informed that his reply is not satisfactory and second respondent is appointed as the Enquiry officer to hold a domestic enquiry. The appellant would contend that under the scheme President of the Managing Committee has no authorization to initiate disciplinary proceedings and therefore the disciplinary proceedings initiated is void ab initio. A decree for declaration and injunction was sought for. 2. First respondent resisted the suit contending that court has no jurisdiction to stay the proceedings in the domestic enquiry and appellant was appointed Santhi after taking security and he has no hereditary right. Appellant entrusted the Santhi work to his son, without the consent or permission of the respondents. The said action is against the custom, precedents and public policy. The Santhi rites in the Siva Temple is not vested in the family of the appellant. It is not for the appellant to decide where to keep the keys of the R.S.A.NO.958 OF 2011 : 4 : Siva Temple. He is only an employee under the first respondent and is subject to the disciplinary proceedings. The Santhi of the main temple of Lord Venkideswara deposits the keys in their possession on the first day of each Malayalam calendar in spite of the fact that they have to perform the Santhi rites continuously for two months. Respondents did not attempt to introduce any new customs by depositing the keys and rights of the appellants are not affected. Earlier Bharanadhikakri put up the mater for consideration before the Devaswom after issuing a memo and receipt of the reply, for taking appropriate action. All the Santhis of the temple managed by the first respondent deposit the keys before the sanctum sanctorum and it is handed over to the Santhi whose turn comes next. This is the practice and custom followed by the first respondent. Domestic enquiry was initiated after finding the reply given by the appellant not satisfactory. Respondents are entitled to initiate disciplinary proceedings and therefore the suit is to be dismissed. 3. Learned Munsiff on the evidence found that under Ext.A1 scheme the President of the Managing Committee is R.S.A.NO.958 OF 2011 : 5 : not competent to initiate disciplinary proceedings and it could only be by the committee and as the proceedings were not initiated by the committee, appellant is entitled to the decree. Suit was decreed declaring that the charges levelled against the appellant and the enquiry initiated by the second respondent are illegal and restrained the respondents from proceeding with the domestic enquiry. The first respondent challenged the decree before Sub Court, Kochi in A.S.No.75/2008. The learned Additional District Judge on re- appreciation of the evidence set aside the findings of the learned Munsiff and held that initiation of the enquiry and framing of charges are without jurisdiction and therefore allowed the appeal and set aside the decree passed by the trial court and dismissed the suit. It is challenged in the appeal. 4. Learned senior counsel appearing for the appellant and learned counsel appearing for the respondents, who appeared by lodging a caveat, were heard. 5. The suit was instituted when, on receipt of the reply to the memo issued to the appellant, it was found unsatisfactory and disciplinary proceedings were initiated against the R.S.A.NO.958 OF 2011 : 6 : appellant by the President of the Managing Committee of the first respondent, appointing second respondent as the Enquiry officer. The appellant contended that the disciplinary proceedings cannot be initiated by the President and as provided under Clause 22 of Ext.A1 it could only be initiated by the managing committee and as the proceedings were initiated by the President alone, the proceeding is illegal and therefore the proceeding is to be quashed. The appellant had also raised a contention that he has got hereditary right as Santhi of the temple. But no decree for declaration of that hereditary right was sought for. Declaration sought for was only regarding the illegality of the disciplinary proceedings. Though the trial court found that the disciplinary proceedings initiated by the President is in violation of the provisions of Ext.A1 scheme, first appellate court found otherwise. When the appeal was heard, after finding the attempt to settle the dispute between the parties futile, the learned counsel appearing for the first respondent submitted that they are not intending to proceed further pursuant to the enquiry initiated by appointing the second respondent as the Enquiry officer R.S.A.NO.958 OF 2011 : 7 : and in such circumstance, there is no necessity to grant a decree as sought for. The learned counsel appearing for the appellant submitted that though no decree for declaration was sought for, there is a finding against the appellant with regard to the hereditary nature of the Santhi and in that event the said finding is also to be removed. As the suit was instituted challenging the legality of the disciplinary proceedings and first respondent admitted that respondents will not proceed with the domestic enquiry already initiated by appointing the second respondent as the Enquriy officer, I do not find it necessary to consider the question whether appellant is entitled to the declaration or injunction sought for as first respondent submitted that they are not proceeding with the disciplinary proceedings initiated against the appellant by appointing the second respondent as the Enquiry officer. In the light of the said submission, recording the submission, it is made clear that finding on hereditary right claimed by the appellant in the judgments of the courts below, will not be binding, if the dispute arises later. Hence, the appeal is dismissed. It is made clear that R.S.A.NO.958 OF 2011 : 8 : respondents are entitled to proceed against the appellant only in accordance with the provisions of Ext.A1 scheme. The appellant is entitled to raise all the contentions, if any proceeding is taken. M. SASIDHARAN NAMBIAR, JUDGE. cl