T.S.Manoj Kumar Embranthiri vs The Cochin Devaswom Board Represented ...
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Kerala High Court

T.S.Manoj Kumar Embranthiri vs The Cochin Devaswom Board Represented ... on 22 May, 2024

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
 WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
                   WP(C) NO. 17721 OF 2012
PETITIONER:

           T.S.MANOJ KUMAR EMBRANTHIRI,
           AGED 36 YEARS, S/O.S.SANKARANARAYANA
           EMBRANTHIRI, THRIKKATHRA SREELAKSHMI MADOM,
           MARKET ROAD PALLIPARAMBUKAVU, TRIPUNITHURA,
           ERNAKULAM DISTRICT.

           BY ADV VPK.PANICKER

RESPONDENTS:

    1      THE COCHIN DEVASWOM BOARD REPRESENTED BY
           SECRETARY, THRISSUR-680001.
    2      THE SPECIAL DEVASWOM COMMISSIONER,
           COCHIN DEVASWOM BOARD, THRISSUR-680001.
    3      THE DEVASWOM OFFICER
           THAMMANAM ANANTHAPURAM SREE KRISHNA SWAMI
           TEMPLE, THAMMANAM, VYTTILA, ERNAKULAM -682019.
    4      THE EXECUTIVE OFFICER
           DEVASWOM OFFICE VYTTILA-682019.
    5      THE SECRETARY
           THAMMANAM KSHETHRA SEVA SAMIYTHI,
           THAMMANAM P.O., KOCHI-682032.
    6      R.RAJMOHAN @ VENU
           43/3403,M & B LANE, THAMMANAM, VYTTILA,
           ERNAKULAM -682032.

           BY ADVS.
           SRI.KRISHNA MENON, SC, COCHIN DEVASWOM BOARD
           SRI.M.P.RAMNATH
           M.P.RAMNATH
           P.K.RADHIKA
           SRI.AJITH KRISHNAN, SC, COCHIN DEVASWOM BOARD

     THIS WRIT PETITION (CIVIL) HAVING COME UP             FOR
ADMISSION ON 22.05.2024, THE COURT ON THE SAME             DAY
DELIVERED THE FOLLOWING:
                                      2

W.P.(C)No.17721 of 2012


                                                             "CR"
                  HARISANKAR V. MENON, J.
             -------------------------------
                          W.P.(C) No.17721 of 2012
             -------------------------------
               Dated this the 22nd day of May, 2024


                               JUDGMENT

The petitioner is working as a 'Santhikkaran' under the 1st

respondent Devaswom Board. The dispute in this writ petition is with

respect to the period during which he was working at Thammanam

Ananthapuram Sree Krishna Swami Temple as a Santhikkaran. The

petitioner has taken charge as a Santhikkaran of the said temple on

29.08.2008, from the then Santhikkaran Sri. Venkittan Embranthiri.

Later, on the basis of a complaint lodged by the sixth respondent

with respect to a missing gold waistband, proceedings were taken

against the petitioner. Enquiry was carried out against the petitioner

and ultimately by virtue of Ext.P15 dated 17.04.2012 issued by the

second respondent, the petitioner is directed to make payment of

the value of the gold waistband amounting to Rs.63,600/-. It is seen

that though an appeal at Ext.P16 is filed, the same is also rejected

by the first respondent Board pursuant to Ext.P17 order dated

09.07.2012. This is followed with a charge memo of Ext.P18 dated

06.07.2012.

2. The petitioner has, in such circumstances, preferred this

writ petition raising the following prayers:-

"i) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing Exhibit P15 order No.A9.10565/09 dated 17/04/2012 issued by the 2nd respondent.

ii) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing Exhibit P17 order dated 09/07/2012 issued on behalf of the 1st respondent dismissing exhibit P16 appeal.

iii) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing Exhibit P18 memo of charges issued by the 1st respondent to the petitioner.

iv) Issue such other reliefs this honourable court deems fit and proper including the cost of this proceedings."

3. The first respondent Board has filed a counter affidavit in

the matter dated 18.01.2023. In this counter affidavit, after referring

to the proceedings initiated and the order in the appeal referred to

above, the Board has placed reliance upon Ext.R1(A) report of the

Vigilance Officer dated 02.07.2010 and an enquiry report dated

03.09.2015 submitted by the Assistant Commissioner (Finance)

produced as Ext.R1(B). Thereafter, the Board has also relied upon

Ext.R1(C) order dated 17.05.2016 to contend that further enquiry is

required in this regard.

4. I have heard the learned counsel appearing for the

petitioner, the learned Standing Counsel for respondents 1 to 4 and

also the learned counsel appearing for the 6th respondent.

5. The short issue for consideration in this writ petition is as

regards the legality or otherwise of Exts. P15, P17 and P18

proceedings of the first respondent Board. The case against the

petitioner, as seen from Ext.P15 order is pursuant to a missing

waistband while he was working at Thammanam Ananthapuri Sree

Krishna Swami Temple. The learned counsel for the petitioner has

pointed out that the petitioner was working in the said temple from

29.08.2008 till 10.07.2009 on which date, pursuant to Ext.P2, the

petitioner was transferred. The allegation was that at the time of

handing over the charge, the petitioner had not handed over the

waistband to the succeeding Santhikkaran. However, a perusal of

Ext.P15 proceedings of the second respondent would reveal that

apart from the oral evidence relied on, there is no documentary

evidence as regards even the existence of the waistband. This is

made more clear by virtue of Ext.R1(A) report submitted by the

Vigilance Officer. In the said report, the Vigilance Officer appears to

have taken evidence from as many as five persons including the

complainant (sixth respondent) as well as Sri.Venkittan Embranthiri,

from whom the petitioner has taken charge. It is seen that the former

Santhikkaran has stated that no such waistband has been entrusted

while he was working as the Santhikkaran at the said temple. The

said evidence has been rendered with specific reference to the

stand of the complainant that such a waistband has been presented

by him as a 'vazhipadu'. Similarly, the Devaswom Officer has also

stated that the disputed ornament is not finding a place in the

inventory maintained by the Devaswom. Again one Sri. Abhilash, an

Assistant who was working at the same temple during the disputed

period, has also stated that no such ornament was seen adorned on

the diety at the time when he was working at the said temple.

Ultimately, the Vigilance Officer has stated that there is no receipt as

regards the ornament being handed over to the Devaswom and the

same is also not finding a place in the inventory. It is in such

circumstances that the first respondent Board has issued Ext.R1(c)

dated 17.05.2016 referring to the reports submitted by the Vigilance

Officer. In the said proceedings, it is repeated that the ornament is

not reflected in the inventory. Even thereafter it is stated that the

conclusion as regards the allegation against the petitioner may be

finalised subsequently.

6. In this connection, it should be noted that the dispute is

essentially with respect to a missing 'udyanam' from the temple

during 2007-2008. Complaint was placed on record by the sixth

respondent on 21.08.2009, as evidenced by Exts.P3 and P4. Enquiry

proceedings have been started on the basis of the above documents.

This is concluded originally by Ext.P15 wherein there is no positive

evidence against the petitioner. In Exts.R1(A) and (B) also, the

existence of the disputed ornament itself is doubted with specific

reference to the evidence taken from various persons including the

Devaswom Officer and the complainant. In such circumstances, the

stand of the Devaswom in Ext.R1(C) that the decision pursuant to

the missing ornament can be taken later cannot be countenanced.

Ext.R1(C) is dated 17.05.2016. Even after the lapse of more than

eight years, respondents 1 to 4 have not been able to gather any

further evidence in the matter. In the judgment in State of Madhya

Pradesh v. Bani Singh [AIR 1990 SC 1308], the apex court has held

as follows:

"4. The appeal against the order dt. 16-12-1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned Counsel. The irregularities which were the subject- matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal."

The apex court in the above judgment has held that in the absence

of any satisfactory explanation for the inordinate delay, in issuing the

charge memo, it will be unfair to permit the departmental enquiry to

be proceeded with. Here, it is true that Ext.P18 charge memo is

issued on 09.07.2012. However, the respondent Board has not

offered any explanation for not concluding the proceedings

thereafter. At this distance of time, one cannot expect to get any

further evidence in the matter, especially when the complainant

himself has admitted that he has not obtained any receipt for having

offered the waistband at the temple.

7. The apex court in P. V. Mahadevan v. MD, T.N. Housing

Board [(2005) 6 SCC 636] has again reiterated the above principles,

as follows:

"11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary

proceedings, the appellant should not be made to suffer."

The above principles also apply to the facts and circumstances of

the case at hand. Even after the lapse of more than 14 years, the

respondent board is not able to arrive at any conclusion as regards

the allegation raised. There is no allegation that the delay is

attributable to the petitioner herein.

8. In such circumstances, there is no justification for the

stand of the learned counsel for the Devaswom that they may be

permitted to continue with the enquiry and I deem it fit to quash

Exts.P15 and P17. The Devaswom has also issued Exts.R1(B) and

R1(C), pursuant to Ext.P18. Though there is no specific challenge

to the said proceedings, in so far as they are issued pursuant to the

enquiry continued pursuant to Ext. P15, Exts. R1(B) and R1(C) are

also quashed.

The writ petition is allowed as above.

Sd/-

HARISANKAR V. MENON, JUDGE

Skk//23.05.2024

APPENDIX OF W.P.(C)No.17721 OF 2012

PETITIONER'S ANNEXURES:

EXHIBIT P1 : A TRUE COPY OF THE REPRESENTATION DATED 04/07/2009 NARRATING THE ABOVE FACTS AND REQUESTING FOR A TRANSFER EXHIBIT P2 : A TRUE COPY OF THE PROCEEDINGS OF THE COCHIN DEVASWOM BOARD BARAING NO.M4.5674/08 DATED 10/07/2009 EXHIBIT P3 : A TRUE COPY OF THE COMPLAINT SENT BY THE 5TH RESPONDENT DATED 21/08/2009 EXHIBIT P4 : A TRUE COPY OF THE COMPLAINT SENT BY THE 6TH RESPONDENT DATED 21/08/2009 EXHIBIT P5 : A TRUE COPY OF THE MEMO DATED 26/08/2009 BEARING NO.M4.510/2003 EXHIBIT P6 : A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE THAMMANAM KSHETHRA SEVA SAMITHI DATED 21/08/2009 COMPLAINING OF THE BHANDARAM EXHIBIT P7 : A TRUE COPY OF THE REPLY DATED 08/09/2009 SUBMITTED BY THE PETITIONER TO THE ASSISTANT COMMISSIONER, TRIPUNITHURA GROUP, TRIPUNITHURA EXHIBIT P8 : A TRUE COPY OF THE REPORT OF THE PANDAMPATHRAM SPECIAL OFFICER DATED 09/12/2009 EXHIBIT P9 : A TRUE COPY OF THE COMMUNICATION DATED 10/12/2009 ADDRESSED TO THE SUPERINTENDENT OF POLICE, ALUVA RURAL, ALUVA BY THE 1ST RESPONDENT. EXHIBIT P10 : TRUE COPY OF THE REPORT OF THE VIGILANCE OFFICER DATE 16/06/2010, RECEIVED BY THE PETITIONER FROM THE 1ST RESPONDENT EXHIBIT P11 : A TRUE COPY OF THE ORDER DATED 6/7/2010 BEARING NO.A9.10565/09 ISSUED BY THE 2ND RESPONDENT EXHIBIT P12 : A TRUE COPY OF THE CHARGE MEMO DATED 30/06/2011 BEARING NO.A9.10565/09 ISSUED BY THE 1ST RESPONDENT EXHIBIT P13 : A TRUE COPY OF THE REPLY DATED 11/07/2011 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT EXHIBIT P14 : A TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 07/11/2011 TO THE EXHIBIT P4 CHARGE MEMO EXHIBIT P15 : A TRUE COPY OF THE ORDER NO.A9.10565/09 DATED 17/04/2012 ISSUED BY THE 2ND RESPONDENT EXHIBIT P16 : A TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P17 : A TRUE COPY OF THE ORDER DATED 09/07/2012 ISSUED ON BEHALF OF THE 1ST RESPONDENT DISMISSING EXHIBIT P16 APPEAL EXHIBIT P18 : A TRUE COPY OF THE MEMO DATED 06/07/2012 BEARING NO.M4.4760/2012 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

EXHIBIT P19 : A TRUE COPY OF THE ADVERTISEMENT PUBLISHED IN THE MATHRUBHUMI DAILY NEWSPAPER OF 01/08/2013. EXHIBIT P20 : A TRUE COPY OF THE COMMUNICATION DATED 12/08/2013 ISSUED BY THE 2ND RESPONDENT BEARING NO.M4.9843/2013.

PETITIONER'S ANNEXURES:

EXHIBIT R1(A) : A TRUE COPY OF THE REPORT SUBMITTED BY THE VIGILANCE OFFICER ON 02/07/2010 EXHIBIT R1(B) : A TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ASSISTANT COMMISSIONER (FINANCE) DT.03/09/2015 EXHIBIT R1(C) : A TRUE COPY OF THE BOARD ORDER A9.10565/09 DT.17/05/2016