IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 WP(C).No. 314 of 2009(K) ----------------------------------- PETITIONER(S): --------------------- V.V. RATHEESAN, DEPUTY COMMISSIONER (ADMINISTRATION), MALABAR DEVASWOM BOARD AND SPECIAL OFFICER, SREE PARASSINIKADAVU MUTHAPPAN TEMPLE, KANNUR DISTRICT (UNDER SUSPENSION). BY ADV. MR.P.K. SURESH KUMAR, SMT.N.N. PRASEEDA RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT REVENUE (DEVASWOM DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER, MALABAR DEVASWOM BOARD, CIVIL STATION, KOZHIKODE-20. 3. THE MALABAR DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, CIVIL STATION, KOZHIKODE. R1 BY GOVERNMENT PLEADER MR.K. SANIL KUMAR. R2 & R3 BY ADV. SMT.R.RANJINI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 314 of 2009(K) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT IN WP(C) NO. 26237/2005 DATED 04/09/2008 OF THIS HONOURABLE COURT. EXT.P2: COPY OF THE ORDER NO.HRJ3 1806/2001 DATED 29/09/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P3: COPY OF THE NOTICE NO.HRJ3/1806/2001 DATED 10/10/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE LETTER DTED 16/10/2008 SENT BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P5: COPY OF THE LETTER DATED 16/10/2008 SENT BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P6: COPY OF THE PROCEEDINGS NO.HRJ3/1806/01 DATED 18/10/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P7: COPY OF THE PROCEEDSING NO.HRJ3/1806/01 DATED 18/10/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P8: COPY OF THE ORDER NO.HRJ MDB DATED 20/10/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P9: COPY OF THE PROCEEDINGS NO.HRJ3/1806/2001 DATED 06/11/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P10: COPY OF THE INTERIM ORDER DATED 10/11/2008 IN WP(C) NO. 30999 OF 2008 OF THIS HONOURABLE COURT. EXT.P10(a): COPY OF THE REPORT SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT ON 21/11/2008. EXT.P11: COPY OF THE ORDER DATED 24/11/2008 IN WP(C) NO. 30999 OF 2008 OF THIS HONOURABLE COURT. EXT.P12: COPY OF THE ORDER DATED 27/11/2008 IN I.A. NO.15136/2008 IN WP(C) NO. 30999 OF 2008 OF THIS HONOURABLE COURT. EXT.P13: COPY OF THE ORDER DATED 18/12/2008 IN WP(C) NO. 30999 OF 2008 OF THIS HONOURABLE COURT. EXT.P14: COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN WP(C) NO. 30999 OF 2008 DATED 12/12/2008. EXT.P15: COPY OF THE LETTER SENT BY THE PETITIONER TO THE 2ND RESPONDENT ON 11/12/2008. WP(C).No. 314 of 2009(K) EXT.P16: COPY OF THE GO NO.4195/2008/RD DATED 26/12/2008 ISSUED BY THE 1ST RESPONDENT. EXT.P17: COPY OF THE GO(RT)NO.3370/08/RD DATED 25/10/2008. EXT.P18: COPY OF THE ORDER NO.HRJ1/1866 OF 2008 (1) DATED 14/11/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P19: COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 16/01/2009. EXT.P20: COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PETITIONER ON 18/02/2009 BEFORE THE 1ST RESPONDENT. EXT.P21: COPY OF THE GO(RT)NO.1035/09/RD DATED 20/03/2009. EXT.P22: COPY OF THE FILES OBTAINED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. ANTONY DOMINIC,J. --------------------- W.P.(C).No.314 OF 2009(k) ------------------------ Dated this the 23rd day of September, 2009. JUDGMENT The prayer sought in this writ petition is mainly to quash Exts.P16 and P21 and to declare that the disciplinary proceedings initiated against the petitioner as per Ext.P16 is vitiated by violation of principles of natural justice and tainted with malafides. 2. Although the aforesaid prayer covers the very validity of the disciplinary action itself, arguments were confined only to the validity of the order placing the petitioner under suspension and Ext.P21 rejecting Ext.P19 review filed by the petitioner before the Government. Therefore, the validity of the disciplinary proceedings, as such, is not examined. 3. Petitioner is a Deputy Commissioner working under the Malabar Devaswom Board. Ext.P1 is the judgment rendered by a Division Bench of this Court in WP(C) No.26237/05, which was filed by the Chief Priest and Hereditary Trustee and General WP(c).No.314/09 2 Manager of Parassinikkadavu Sree Madappura Muthappan Sathanam Temple. The challenge was against the order issued by the Devaswom appointing a Special Officer for the temple and the writ petition was dismissed by Ext.P1 judgment. But however, having regard to the fact that by the time the judgment was rendered, the person who was appointed had already retired, this Court directed the Commissioner to appoint another representative so that the income and expenditure of the temple are accounted and arrangements are made for proper and fair management of the temple. It was further directed that if the Commissioner deems fit, he may also constitute a Committee consisting of Madayan, representatives of the three families of the Hereditary trustees, representatives from devotees, departmental officers and other responsible persons of the locality for overseeing the affairs of the temple and for counting the Hundi collections. 4. In pursuance to the directions in Ext.P1 judgment, Ext.P2 order was issued by the 2nd respondent on 29/9/2008 appointing the petitioner, who was then a Deputy Commissioner (Administration) under the Devaswom to be in full additional charge of the Special Officer with immediate effect. The petitioner submits WP(c).No.314/09 3 that in pursuance to Ext.P2, he issued notice to the trustees intimating them that he will be assuming charge on 20/10/2008. However, by Ext.P3 notice issued by the 2nd respondent on 10/10/2008, the new Commissioner who was appointed in the meanwhile, called upon the petitioner to take charge immediately for discharging the duties that are cast upon him as per Ext.P2. 5. Petitioner submits that although he made attempts to assume charge on 14/10/2008, in view of the resistance offered by the Hereditary trustees and their henchman and also for the reason that the office of the temple was lying closed, he could not take charge. He thereupon submitted Ext.P4 report to the 2nd respondent on 16/10/2008 reporting of all the developments and the hostile atmosphere that was prevailing in the temple and also sought orders of police protection enabling him to assume charge and discharge his duties. It is stated that thereupon the 2nd respondent issued Ext.P6 order finding fault with the petitioner for having delayed assumption of charge and also rejecting his request for police protection as it will upset the serene atmosphere of the temple and invite the wrath of the trustees and also will hurt the religious feelings of the devotees. WP(c).No.314/09 4 6. Petitioner states that thereafter on 20th of October, 2008, despite the objections and resistances, he assumed charge as Special Officer. Later, necessary staff was deputed for his assistance as per Exts.P7 and P8 order of the 2nd respondent and by Ext.P9, he was also relieved of his duties as Deputy Commissioner to be in full charge as Special Officer. 7. Petitioner states that in pursuance to the directions in Exts.P1 and P2, he sealed the Bhandarams and also opened a separate bank account in the name of the Special officer for depositing the amounts offered. In the meanwhile, as per Exts.P10, P11, P12 and P13, interim orders were passed by this Court, in various interlocutory applications filed in WP(C) No.30999/08. By Ext.P10, for the reasons stated therein, the Temple Committee was allowed to open the Bhandaram and count the amount in the presence of the petitioner. The amount available was also permitted to be deposited in the account mentioned therein. The submission that the Special Officer's order to open and operate an account in his name was withdrawn was also recorded in the said order. In Ext.P11, the fact that the petitioner had to flee from the temple premises on account of threat that was prevailing against him was WP(c).No.314/09 5 taken note of. The petitioner was further directed to seal the Bhandarams and also to obtain permission from this Court as and when the Bhandarams are to be opened. By Ext.P12, in view of the fact that there was a dispute between the parties in the matter of administration and managing the funds of the temple, this Court appointed an Advocate Commissioner to supervise and regulate all works pertaining to the removal of seals for opening the Bhandarams and collecting and counting the cash and other offerings and for depositing the amount in the Co-operative Bank as directed in the earlier orders. The said order was confirmed as per Ext.P13 order that was subsequently passed. Petitioner submits that in the meanwhile, all the developments that were happening in relation to his discharge of duties as Special Officer was reported to the 2nd respondent by various reports submitted by him and reference is made to Ext.P15 report submitted by him to the 2nd respondent regarding the case pending before this Court and the developments therein. 8. At that stage, Ext.P16 order dated 26/12/2008 was issued by the 1st respondent placing the petitioner under suspension. Ext.P16 order discloses the allegations against the WP(c).No.314/09 6 petitioner, on the basis of which he was placed under suspension. The main allegation is that on assuming charge as the Executive Officer, petitioner opened an account in the Parassinikadavu Branch of Pappinissery Co-operative Rural Bank with account No.4937 in the name of the Special Officer and directed the Cashier and Accountant of the Temple to remit the amounts in the said account. It is also stated that the petitioner instructed the Bank Manager to freeze the account in the name of the Trust and also directed the trustees to hand over to the Special Officer all money orders, cheques and drafts received. It is further alleged that it was on account of the dereliction of duty and the indifference of the petitioner that it was not possible to count the Hundi collection which necessitated to the appointment of an Advocate Commissioner, causing financial burden to the Temple. There are certain other allegation as well. 9. On receipt of Ext.P16 seeking to get the suspension order quashed this writ petition was filed by the petitioner. During the pendency of the writ petition, petitioner filed Ext.P19 application for review, before the first respondent, on which an enquiry was conducted and Ext.P22 is the note file of the Secretary to the first WP(c).No.314/09 7 respondent. A reading of Ext.P22 shows that after discussing the entire issue, the Secretary concluded that there are no materials to sustain the allegations against the petitioner and therefore it is only appropriate that the petitioner is reinstated in service and the suspension period should be regularized. However, it is seen that the Minister for Devaswom made an endorsement on Ext.P22 file, stating that since the allegations are serious, if the petitioner is reinstated in service, that will enable him to tamper with the evidence and it will not be desirable, in public interest, to reinstate the petitioner and hence, the revision should be rejected. Thereafter Ext.P21 order was issued, rejecting Ext.P19. A reading of Ext.P21 shows that, it was mainly guided by the endorsement made by the Minister for Devaswom, Ext.P19 was rejected. On receipt of Ext.P21, petitioner sought amendment of the writ petition and accordingly the writ petition was amended incorporating a prayer to quash Ext.P21 also. 10. As already stated, in this writ petition all that this court is concerned is the validity of the order placing the petitioner under suspension and not the sustainability or otherwise of the charges that are leveled against the petitioner. WP(c).No.314/09 8 11. Counsel for the petitioner relied on the judgment in Vikraman Nair. K V. State of Kerala(Chief Secretary) & Ors.(ILR 2008 (4) Kerala 395), where a Division Bench of this court, following the Apex Court judgment in Surenderan V. Government of Kerala(1994 (4)SCC126), held as follows; “The appointing authority or the disciplinary authority while considering whether an employee should be placed under suspension pending disciplinary proceedings and departmental enquiry should certainly consider the seriousness of the misconduct sought to be enquired into or investigated and the nature of the materials palace before such authority. It must be on proper application of mind that the disciplinary authority should decide on the question of suspension. The order of suspension cannot be issued merely as an administrative routine or as automatic following the decision to initiate disciplinary proceedings. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. Public interest of the impact of the delinquent's continuance in office while facing departmental enquiry is also a matter which the authority concerned should bear in mind while deciding whether the delinquent employee must be placed under suspension.” 12. The legality of Exts.P16 and P21 should be appreciated in the light of the law laid down in the aforesaid judgment. On the issue regarding the necessity or desirability of keeping the petitioner under suspension, it is evident that the only authority who had applied the mind, is the Secretary to the first respondent, WP(c).No.314/09 9 whose application of mind is reflected in Ext.P22 file. After elaborately considering the issue, the Secretary came to the conclusion that the petitioner should not be continued under suspension. However, without discussing anything regarding the gravity of the charges, on the basis that, if the petitioner is reinstated in service, it will ultimately resulting in tampering of evidence, the Minister has overruled him. Of course suspension of an employee can be sustained if his reinstatement is against public interest or will result in tampering of evidence or influencing the witnesses. In this case a reading of the allegations against the petitioner as stated in Ext.P16 show that the allegations a are not of any financial misappropriation, are based only on the records. Since the records will speak for itself, there is no question of the petitioner influencing any witness to prejudicially affect the smooth conduct of the enquiry. Further, in the nature of the allegations, there can only be official witnesses, who cannot shift their stand, against fact and to help the delinquent. As far as the allegation about the opening of the account is concerned, the records are maintained at the Bank and the the petitioner can have no access to those records and the rest of the documents should be WP(c).No.314/09 10 available in the Temple itself and the authorities can avoid access to those records. Therefore tampering of documents or influencing the witnesses can be effectively ruled out. No other ground is seen made out for justifying the continued suspension of the petitioner. 13. Therefore, I see no justification for keeping the petitioner under suspension any more, particularly having regard to the fact that the petitioner had already attained the age of superannuation in May, 2009 and is continuing in view of the amendment to the Rules enabling his continuation till 31.3.2010. Accordingly, Ext.P16 to the extent it placed the petitioner under suspension and Ext.P21 rejecting his review will stand set aside. 14. Needless to say that this will not enable the petitioner to continue as Special Officer of the Temple and his reinstatement will be as Deputy Commissioner under the Devaswom and he will be posted in a suitable post, which has nothing to do with the Temple. Orders of reinstatement as above shall be passed as expeditiously as possible and at any rate within 2 weeks from the date of production of a copy of the judgment. 15. It is made clear that the observation made herein will have no effect what so ever on the charges that have been levelled WP(c).No.314/09 11 against the petitioner. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/