IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 WP(C).No. 6023 of 2007(P) ------------------------- PETITIONER(S): --------------- K.KUNHIKANNAN, S/O KANARAN, KAKKALAT HOUSE, P.O.KILUR, PAYYOLI,KOYILANDY. BY ADV. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN RESPONDENT(S): --------------- 1. STATE OF KERALA- REPRESENTED BY SECRETARY TO GOVERNMENT(REVENUE), DEVASWOM DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER(HR & CE), CIVIL STATION, KOZHIKODE. 3. THE DEPUTY COMMISSIONER(HR & CE), CIVIL STATION, KOZHIKODE. 4. THE BOARD OF TRUSTEES, KIZHUR SIVA TEMPLE,MELADY, KOYILANDY TALUK - REPRESENTED BY ITS CHAIRMAN. ADV. SRI.N.L.KRISHNAMOORTHY FOR R4 SRI.K.LAKSHMINARAYANAN FOR R4 SMT.R.RANJINI FOR R2 GOVT. PLEADER SHRI.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 6023/2007 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER OF R4 DTD.8.2.92. P2. COPY OF THE ORDER OF R3 DTD.17.2.93. P3. COPY OF THE ORDER BY R2 DTD.3.2.94. P4. COPY OF THE GOVT. ORDER DTD.5.11.98. P5. COPY OF THE JUDGMENT IN O.P.No. 23240/98 DTD.24.10.95 OF THIS COURT. P6. COPY OF THE ORDER OF R3 DTD.20.2.06. P7. COPY OF THE APPEAL BEFORE R2. P8. COPY OF THE ORDER BY R1 DTD.25.1.07. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 6023 of 2007 ================== Dated this the 14th day of June, 2011 J U D G M E N T The petitioner contends as follows:- The petitioner was appointed as a Supervisor in the Kizhur Siva Tample in the year 1971. His service was terminated by the 4th respondent-Board of Trustees, without any notice, by Ext.P1 order dated 8.2.1992, on the ground that the post of Supervisor, which the petitioner was holding, was abolished. The petitioner challenged Ext.P1 in appeal under Section 49 (2) of the Hindu Religious & Charitable Endowments (HR&CE) Act, before the 3rd respondent. By Ext.P2 order, the appeal was allowed holding that the denial of employment to the petitioner amounts to punishment. The 4th respondent challenged the said order in appeal before the 2nd respondent and, by Ext.P3 order, the appeal was allowed remanding the matter to the 3rd respondent for passing fresh orders after going through the documents available before the 3rd respondent. When there was inordinate delay in complying with Ext.P3 order of remand, the petitioner approached the Government by filing a petition and, by Ext.P4 order, the Government directed reinstatement of the petitioner. Against the same, the Board of Trustees approached this Court by filing O.P.No.23240/1998, in which, this Court directed the 3rd respondent to take up the issue as per Ext.P3 order of remand. w.p.c.6023/07 2 Pursuant thereto, the 3rd respondent passed Ext.P6 order, wherein the contention of the Board of Trustees that the post had been abolished was accepted. Accordingly, the appeal filed by the petitioner was dismissed. The petitioner challenged the same by filing Ext.P7 appeal before the 2nd respondent. The petitioner filed an application before the Government for transferring the case from the 2nd respondent. In that petition, the Government passed Ext.P8 order confirming the order of termination of service. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) To issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exts.P1, P6 and P8 and quash the same ii) To issue a writ of mandamus or any other appropriate writ, order or direction directing the 4th respondent to reinstate the petitioner as Supervisor in the Kizhur Siva Temple with effect from 1.10.91 with back wages and to grant all arrears of pay and allowances with interest within a time frame to be fixed by this Hon'ble Court. iii) To issue a writ of mandamus or any other appropriate writ, order or direction directing the 4th respondent to give compensation for the illegal termination and for the expenses incurred to the petitioner for the litigation which had a chequered career and for his mental and physical agony caused to the petitioner, as this Hon'ble Court may deem fit and proper.” 2. A counter affidavit has been filed by the 4th respondent inter alia taking the contention that the petitioner was not an employee of the temple at all. It is also stated that in the meeting of the Trustees, which was attended to by the petitioner also, on 15.3.1991, it was decided to streamline the entire administrative work w.p.c.6023/07 3 of the temple and for taking over the functions of the Supervisor by the Chairman of the Board of Trustees and two members. It is also stated that the Assistant Commissioner of HR & CE has, by order dated 3.12.1991 approved the said reorganization and rearrangement. The learned standing counsel for the Commissioner for HR&CE, Kozhikode, also submits that the abolition of post of Supervisor was approved by the Commissioner. 3. I have considered the rival contentions in detail. 4. The learned counsel for the petitioner submits that the case that the post of Supervisor was abolished cannot be believed because of the counter affidavit filed by the 4th respondent, wherein the stand taken is that the petitioner was employed elsewhere and was not an employee of the temple. According to him, after having issued Ext.P1 order holding that the post is abolished and directing the petitioner to hand over the balance records of the temple and the key to the Board of Trustees, the 4th respondent cannot now take the stand that the petitioner was not an employee of the temple at all. 5. The learned counsel for the 4th respondent would point out that in Ext.P9 letter from the petitioner, which the petitioner himself has produced, he has admitted that for some time, he was working in the Meladi Village Oil Workers' Industrial Co-operative Society. 6. After having issued Ext.P1 to the petitioner, which the 4th w.p.c.6023/07 4 respondent does not disown, I am of opinion that it is too late in the day for the 4th respondent to contend that the petitioner was not an employee of the temple. Ext.P1 categorically states that the post of Supervisor, in which, the petitioner had been continuing, has been abolished with effect from 1.10.1991 and, therefore, the balance records of the temple and the key should be returned by the petitioner to the Board. That would, without any shadow of doubt, show that the petitioner was actually employed as a Supervisor in the temple managed by the 4th respondent and that he was in fact in possession of the records of the temple and the key. If the petitioner was not employed and was only helping the Board of Trustees, as contended by the 4th respondent, there would not be any question of entrusting the records/stock and keys of the temple as stated in Ext.P1. Therefore, I have no hesitation to hold that the petitioner was a Supervisor working in the temple and he was retrenched from service by Ext.P1. 7. Ext.P1 would show that it was in a meeting of the Board of Trustees attended to by the petitioner also, that it was decided to reorganize and rearrange the administration of the temple, in the course of which, it has been decided to abolish the post of Supervisor. Therefore, it is too late in the day for the petitioner also to contend that the post of Supervisor was not abolished. In fact the petitioner w.p.c.6023/07 5 has no case that somebodyelse is working in the post of Supervisor in the temple. That being so, this is a clear case of retrenchment on abolition of post. Therefore, I do not think that the petitioner can succeed in his claim for reinstatement in service. Therefore, I hold that the petitioner was actually retrenched from service on abolition of the post with effect from 1.10.1991. 8. That does not necessarily mean that the petitioner is not entitled to any relief whatsoever. The petitioner is certainly entitled to service benefits available to him on retrenchment, which are one month's notice pay, retrenchment compensation and gratuity. The 4th respondent has no case that such benefits have been paid to the petitioner. The learned counsel for the 4th respondent would argue that the claim of the petitioner that he was in service from 1971 onwards is false. On this question, I find that in Ext.P8 order of the Government, there is a specific finding that an amount of ` 30/- is seen to have been given to the petitioner in 1973, that in 1979 that amount was raised to `60/- per month and that from January 1990 it was enhanced to ` 100/-. The 4th respondent has not challenged Ext.P8 order. Therefore, the findings therein have become final. Therefore, it has to be concluded that the petitioner was in service from 1973. Consequently, the petitioner is entitled to compensation and gratuity taking into account his service from 1973 to 1.10.1991. Notice pay, w.p.c.6023/07 6 retrenchment compensation and gratuity for the said service calculated on the basis of his last drawn salary shall be paid to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. Retrenchment compensation shall be at the rate of 15 days' wages for every competed year of service and gratuity shall be calculated as per the Payment of Gratuity Act. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge