P. THRIVIKRAMAN v. THE EXECUTIVE OFFICER, SREE KANDATHARKAVU - PANARKAVU

BY ADV JAYARAM P, FOR OLAPPAMANNA MANA DEVASWOM SRI. R. LAKSHMI NARAYAN, SC FOR MALABAR DEVASWOM BOARD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.01.2024, THE COURT ON 08.01.2024 DELIVERED THE FOLLOWING: WPC. 19407/2023 2 JUDGMENT (Dated: 8th January, 2024) The petitioner was appointed as ‘Shanthi’ in Sree Kandatharkavu- Panarkavu Bhagavathi Kshethram, administered by the Olappamanna Mana Devaswom on 06.03.2003. While the petitioner was working as ‘Shanthi’ in the temple, the temple was taken over by the 6th respondent/Devaswom. It was treated as a ‘B’ Grade Temple as per the Madras Hindu and Charitable Endowment Act (the ‘Act’ for short). While so, the petitioner was served with notice of suspension and issued a memo of charges dated 07.02.2022. Challenging the order of suspension, the petitioner filed W.P.(C)No.1994 of 2022, and this court directed the petitioner to move revision before the Commissioner as per Section 18 of the HR and CE Act. Accordingly, against the order of suspension and memo of charges, the petitioner filed revision petitions before the Commissioner, and by a common order dated 25.05.2022 in R.P.Nos.4 of 2022 and 8 of 2022, the suspension, as well as the consequential proceedings, were set aside. The revision petitioner was directed to be reinstated in service as if he would have been continuing in service if he had not been suspended. WPC. 19407/2023 3 Liberty was also given to the 1st respondent to initiate disciplinary proceedings in accordance with law.

2. Against the order of the Commissioner, the trustee approached the Government by filing an appeal; the Government, by Ext.P6, confirmed the order of the Commissioner. The trustee was also directed to take steps to reinstate the petitioner in service. Since no steps were taken to reinstate, the petitioner approached this Court by filing W.P.(C)No.12664 of 2023 seeking a direction to reinstate the petitioner in the temple. The trustee filed W.P.(C)No.14380 of 2023 against the order of the Government (Ext.P6), confirming findings entered by Commissioner. By Ext.P7 common judgment, the writ petitions were disposed of, directing the completion of disciplinary proceedings pending against the petitioner within four weeks until Ext.P6 order was to be deferred.

3. Thereafter, the 8th respondent/domestic inquiry officer issued notice to the petitioner asking him to appear on 10.06.2023 for domestic inquiry. Since Ext.P8 notice was issued without issuing a fresh charge of the memo, as the earlier one was already set aside by the Commissioner WPC. 19407/2023 4 and confirmed by the Government, Ext.P8 notice was objected to by the petitioner by filing a representation dated 10.06.2023 before the 8th respondent. The 8th respondent immediately handed over Ext.P10 charge memo, and the petitioner wrote his answers in the very same charge memo and gave it back to the 8th respondent. The petitioner has filed this writ petition challenging Ext.P10 and for a declaration that the 8th respondent has no power to issue a charge memo.

4. By Ext.P5, the Commissioner has set aside the order of suspension and all consequential proceedings due to the non-compliance of provisions under Section 49(1) of the Act, as it vitiates the enquiry. Ext. P6 confirms Ext.P5. One of the reasons stated in Ext.P5 for setting aside the proceedings is that the order of suspension dated 28.12.2021 is that the charges were not definite and unambiguous. There was no statement of allegations on which each charge was based. Juxtaposing Ext.P3 and Ext.P10 charge memo would show that Ext.P10 is a verbatim reproduction of Ext.P3. Therefore, Section 49(1) of the Act is not complied with. Therefore, Ext.P10 cannot stand in the eye of the law. In view of the matter, the petitioner is entitled to the reliefs prayed for, and resultantly, Ext.P10 is quashed. WPC. 19407/2023 5

5. The next question to be considered is whether the authority of the 1st and 2nd respondents is to initiate the disciplinary proceedings in strict compliance with Section 49(1) of the Act by issuing a fresh memo of charges. The writ petition was initially disposed of by judgment dated

09.10.2023, against which R.P.No.1127 of 2023 was filed. In the R.P., Annexures-A1 to A5 were produced. R.P. was heard on 13.12.2023, and the judgment was recalled. Annexure-A1 is the proceedings of the 4th respondent dated 01.07.2022, wherein it is stated explicitly in Clause-5 that the Executive Officer appointed is the officer competent to initiate disciplinary proceedings respect of the employees of temple. Annexure-A2 is the order dated 09.01.2023 in A.P.No.12 of 2015 by the 4th respondent modifying the original scheme. As per the present scheme, there shall be a board of trustees in each temple consisting of the hereditary trustee and four non-hereditary trustees. Clause-6 of the scheme states that the trustee board shall have the power to appoint all other servants of the temple and fine, suspend, remove, or dismiss any such temple servant for good and sufficient costs. The above facts are seen from Annexure-A1, produced along with the Review Petition No.1127 of

2023. WPC. 19407/2023 6

6. By Annexure-A3, it is obvious that on 08.05.2023, an Executive Officer named Sri. K.K.Raghunath was appointed and has taken charge. Annexure-A3 is signed by the Trustee of Olappamanna Devaswom. In the meanwhile, an interlocutory application as MO 2 of 2023 was filed in O.S.No.52 of 2023 before the Subordinate Judge, Ottappalam, filed under Order 39 Rule 1 of C.P.C, seeking a temporary injunction restraining the Devaswom, Commissioner as well as the Deputy Commissioner from forcefully or unlawfully interfering with or disturbing or interrupting the administration of the petition scheduled temples of Olappamanna Mana (Devaswom). The said application was filed by a member of the ‘Mana’ and learned Subordinate Judge, by order dated

23.05.2023, directed to maintain the status quo until further orders. It is to be noted that on 08.05.2023 itself, the Executive Officer took charge, and the status quo order was passed on 23.05.2023, which means the Executive Officer has to be in administration. On 09.06.2023, as per Annexure-A5, the trustee sent a letter to the 4th respondent directing the return of the temple to the trust as the Subordinate Judge had already passed a status quo order. WPC. 19407/2023 7

7. The question to be decided is who shall initiate disciplinary proceedings and continue in strict compliance with Section 49(1) of the Act, since Ext.P10 charge memo has already been quashed. The Trustee was initially in the administration of the temple, but by subsequent conduct through Annexures-A1 to A5, it is seen that the Executive Officer has been appointed, and he has taken charge as the Executive Officer on

08.05.2023. Therefore, the Executive Officer controls and administers the temple; Annexure-A1 order specifically empowers the Executive Officer to be the disciplinary officer since the trustee board has not been constituted to date.

8. Learned counsel for the respondent submits that the Executive Officer is appointed for the day-to-day functioning and affairs of the temple. Since the trustee board is not constituted, the trustee is the competent authority to initiate disciplinary proceedings by issuing fresh memos of charges. The orders of the 4th respondent empower the Executive Officer to do the day-to-day affairs only. Annexures - A1 to A4 clarify that the Executive Officer is the head of the temple, being a nominee of the Devaswom; he is the disciplinary authority till the board of trustees is formed. Since Ext.P10 is set aside, the WPC. 19407/2023 8 Executive Officer appointed in the temple shall initiate and continue the disciplinary proceedings strictly in compliance with provisions of Section 49(1) of the Act, by issuing a fresh memo of charges, and the proceedings shall be concluded after giving a fair and reasonable opportunity to the petitioner within a period of one month from the date of receipt of a copy of the judgment. It is also directed that subsistence allowance shall be paid to the petitioner during the suspension period till the culmination. The writ petition is allowed. JUDGE Sd/- BASANT BALAJI, WPC. 19407/2023 9 APPENDIX OF WP(C) 19407/2023 PETITIONER EXHIBITS: Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 Exhibit P10 RESPONDENT ANNEXURES Annexure R2 (a) PETITIONER EXHIBITS Exhibit P11 Exhibit R2 (b) Exhibit R2 (c) Exhibit R2 (d) A TRUE COPY OF THE APPOINTMENT ORDER DATED 06- 03-2003 ISSUED BY THE THEN EXECUTIVE OFFICER OF OLAPPAMANNA MANA DEVASWOM TRUE COPY OF THE ORDER OF SUSPENSION DATED 28- 12-21 SERVED ON THE PETITIONER TRUE COPY OF THE CHARGE MEMO DATED 7.2.2022 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER AGAINST THE CHARGE MEMO DATED 11.2.222 TRUE COPY OF THE COMMON ORDER DATED 25-05-22 IN RP 4/22 AND RP 8/22 TRUE NO.G.O.(RT)NO. COPY 1052/2023/RD DATED 04-03-2023 BY THE DEPUTY SECRETARY TO THE DEPARTMENT OF REVENUE DEVASWOM TRUE COPY OF THE COMMON JUDGMENT DATED 22-05-23 IN WP(C) NO.12664/23 AND IN WP(C) NO.14380/23 TRUE COPY OF THE NOTICE DATED 27-05-23 ISSUED BY THE 8TH RESPONDENT TO THE PETITIONER TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 8TH RESPONDENT DATED 10.6.21 TRUE COPY OF THE CHARGE MEMO DATED 10.6.23 WITH THE ANSWERS OF THE PETITIONER ORDER THE OF True Copy of Memorandum of Con.Case.(C). No. TRUE COPY OF THE MEMORANDUM OF WRIT PETITION DATED 18-04-23 IN WP(C) NO.14380/2023 ON THE FILE OF THIS HONOURABLE COURT TRUE COPY OF THE ORDER DATED 09/02/2023 APPOINTING THE EXECUTIVE OFFICER IN ACCORDANCE WITH ANNEXURE A2 FINAL SCHEME IN OLAPPAMANNA GROUP TEMPLES ISSUED BY THE COMMISSIONER, MALABAR DEVASWOM BOARD TRUE COPY OF THE ERRATUM ORDER DATED 27/02/2023 IN A.P.NO.12/15 CORRECTING THE OMISSIONS IN ANNEXURE A2 SCHEME TRUE COPY OF THE SCHEME DATED 22/02/1957 IN O.A.NO.57/56 ISSUED BY DEPUTY COMMISSIONER, HR & CE (ADM) DEPARTMENT, KOZHIKODE. WPC. 19407/2023 10