IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 WP(C).No. 11136 of 2009(J) -------------------------- PETITIONER: --------------- SREE VAIRAMKODE DEVASWOM, THIRUNAVAYA, REPRESENTED BY CHAIRMAN, BOARD OF TRUSTEE, V.SATHEESH KUMAR, ERANDATH HOUSE, THIRUNAVAYA, MALAPPURAM. BY ADV. SRI.V.RAJENDRAN RESPONDENTS: --------------- 1. MALABAR DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, CIVIL STATION, KOZHIKODE. 2. THE DEPUTY COMMISSIONER. MALABAR DEVASWOM BOARD, CIVIL STATION, KOZHIKODE. 3. THE EXECUTIVE OFFICER, SREE VAIRAMKODE DEVASWOM. 4. SRI.K.BALAKRISHNAN NAIR, CLERK (UNDER SUSPENSION) KUNNATHUMADATHIL HOUSE, POST VAIRAMKODE, THIRUNAVAYA. ADV. SRI.P.CHANDRASEKHAR FOR R4 SRI.MOHAN C.MENON FOR R3 SMT.R.RANJINI FOR R1 & R2 SRI. V.RAJENDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.11136/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SHOW CAUSE NOTICE DT. 7.4.2008 EXT.P2: COPY OF THE OBJECTION FILED BY THE 4TH RESPONDENT ON 12.4.08 EXT.P3: COPY OF THE NOTICE DT. 30.5.08 SENT BY THE EXECUTIVE OFFICER TO THE 4TH RESPONDENT EXT.P4 : COPY OF THE REPLY SUBMITTED BY THE 4TH RESPONDENT DT. 13.5.08 EXT.P5 : COPY OF THE NOTICE DT. 11.12.08 EXT.P6: COPY OF THE EXPLANATION DT.13.12.09 SUBMITTED BY THE 4TH RESPONDENT EXT.P6(a): COPY OF THE MINUTES BY THE PETITIONER EXT.P7: COPY OF THE ORDER DT.15.12.08 BY THE 3RD RESPONDENT EXT.P8: COPY OF THE PROCEEDINGS DT. 19.3.09 BY THE 3RD RESPONDENT EXT.P9: COPY OF THE ORDER OF THE 2ND RESPONDENT DT.27.3.2009 IN A.P. 14/08 EXT.P10: COPY OF THE SCHEME OF ADMINISTRATION OF THE TEMPLE EXT.P11: COPY OF THE ORDER DT.2.9.08 IN W.P.(C) No. 24906/08 DT.2.9.08. EXT.P12: COPY OF THE PROCEEDINGS DT. 2.4.09 OF THE EXECUTIVE OFFICER EXT.P13: COPY OF THE COMPLAINT SENT FILED BY THE 3RD RESPONDENT BEFORE THE SUB INSPECTOR OF POLICE, TIRUR EXT.P14: COPY OF THE ATTENDANCE REGISTER OF THE DEVASWOM RESPONDENTS EXHIBITS: EXT.R4(a): COPY OF THE PETITION DT. 12.12.2008 SUBMITTED BY THE PETITIONER TO 2ND RESPONDENT EXT.R4(b): COPY OF THE PETITION DT. 12.4.2008 SUBMITTED BY THE PETITIONER TO 2ND RESPONDENT EXT.R4(c): COPY OF ORDER DT. 2.4.2009 OF THE 2ND RESPONDENT : EXT.R3A: COPY OF THE NOTICE DT. 18.4.2009 SERVED ON THE 3RD RESPONDENT ON 20.4.2009 EXT.R3B: COPY OF THE LETTER SENT BY 3RD RESPONDENT TO GOVT. DT. 21.4.09. PA TO JUDGE TRUE COPY P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 11136 OF 2009 -------------------------- Dated this the 25th day of February, 2010 J U D G M E N T The petitioner is the Sree Vairamkode Devaswom represented by its Chairman. The fourth respondent is an employee of the said Devaswom. Based on complaints received from devotees of the temple, the trustees of the petitioner-Devaswom decided to place the fourth respondent under suspension. In implementation of the said decision, the Executive Officer passed Ext.P7 order placing the fourth respondent under suspension pending enquiry. The fourth respondent challenged Ext.P7 order in appeal before the Deputy Commissioner, Malabar Devaswom Board. By Ext.P9 order passed on 27.3.2009, the Deputy Commissioner allowed the appeal, set aside Ext.P7 and directed reinstatement of the fourth respondent in service. He also directed that the period of suspension of the fourth respondent shall be treated as duty. Ext.P9 is under challenge in this writ petition. 2. The petitioner contends that as Ext.P7 order is an order placing the fourth respondent under suspension pending enquiry and not an order imposing punishment, no appeal lies to the Deputy W.P.(C) No. 11136/09 2 Commissioner under Section 49(2) of the Hindu Religious and Charitable Endowments Act, 1951. Per contra, the fourth respondent, relying on the decision of the Apex Court in R.P.Kapur v. Union of India (AIR 1964 SC 787) contends that where the order of suspension is passed as an order imposing punishment, an appeal would lie under Section 49(2) of the Act. 3. Ext.P7 order of suspension discloses that the order of suspension was passed pending enquiry and therefore it cannot be said that the fourth respondent has been placed under suspension as a punishment. However, in view of the long passage of time, I do not deem it necessary to go into the question whether an appeal would lie from Ext.P7 before the Deputy Commissioner. It is evident from the writ petition that by Ext.P8 order dated 19.3.2009, the Executive Officer of the petitioner-Devaswom has appointed Sri. Neelakandan, Advocate as Enquiry Officer. It is also brought to my notice that pursuant to Ext.P9 order passed by the Deputy Commissioner, the fourth respondent has already rejoined duty though it is stated to be in violation of the interim orders passed by this Court on 3.4.2009 and 23.4.2009. W.P.(C) No. 11136/09 3 4. The Deputy Commissioner has in Ext.P9 order gone into the merits of the charges. He has also virtually exonerated the fourth respondent. Ext.P7 order placing the fourth respondent under suspension discloses that he was placed under suspension pending enquiry into the allegations levelled against him by devotees. The allegations have not been enquired into. Therefore, the Deputy Commissioner should not have in my opinion gone into the merits of the charges and exonerated the employee. The right of the employer to hold an enquiry into the allegations cannot be denied while setting aside the order of suspension. I am therefore of the opinion that the petitioner should be conceded the freedom to enquire into the allegations levelled against the fourth respondent. The learned counsel appearing for the fourth respondent submits that the fourth respondent rejoined duty on 2.4.2009, before this Court directed maintenance of status quo and not on 23.4.2009, as contended by the petitioner. Whether the fourth respondent rejoined duty in violation of the order passed by this Court on 3.4.2009 or before the said order was passed, it is an admitted fact that the fourth respondent is presently in service and is drawing salary. W.P.(C) No. 11136/09 4 In such circumstances, without prejudice to the contentions of both sides in Cont. Case No.878 of 2009, I dispose of this writ petition with a direction that the disciplinary proceedings initiated against the fourth respondent shall be finalised within three months from today. Needless to say, the direction issued by the Deputy Commissioner in Ext.P9 that the period of suspension shall be treated as duty, will depend on the outcome of the disciplinary enquiry. If in the disciplinary enquiry, the fourth respondent is found guilty and punishment is imposed on him or he is exonerated, it will be open to the disciplinary authority to pass consequential orders regarding the manner in which the period of suspension should be regularised untrammeled by the observations in Ext.P9. The observations in Ext.P9 on the merits of the charges shall stand vacated. It will be open to the disciplinary authority to come to an independent decision based on the materials on record. P.N.RAVINDRAN, (JUDGE) vps W.P.(C) No. 11136/09 5