P. v. Subramanian VS Guruvayur Devaswom Board — 1996 DIGILAW 469 (KER)

JUDGMENT S. Sankarasubban, J. 1. Petitioner is an Upper Division Clerk in the Guruvayur Devaswom. He joined service as a Lower Division Clerk on 13-1-1975 and was promoted as Upper Division Clerk in July 1982. According to him, he had 4 good service entries and one advance increment. In this original petition, petitioner challenges Exts.P12 and P13 orders passed by the Administrator, Guruvayur Devaswom. Ext. P12 order is passed at the culmination the disciplinary proceedings. In the year 1987, the Devaswam wanted 25 thottis and 25 koles for disciplining the elephants belonging to it and which are housed in Pennathur Kotta. The contract was awarded to one Sasi. He undertook to supply the aforesaid articles and to deliver the same in time. By December 1987, he had supplied only 7 thottis and 7 koles. It was also stated that he had expressed his inability to supply the balance articles before the conclusion of Trichur Pooram as he was busily engaged in the preparation and repair of the umbrellas for the Pooram festival. 2. Since the Devaswom was in dire need of the above articles to discipline the elephants, the petitioner who was then working as Live Stock Inspector, was asked to meet the contractor to impress on him the urgency of the above articles as there was procession of caparisoned elephants round the temple and it was not safe for the mahouts or devotees who come for darshan at the temple. According to the petitioner, as directed by the Devaswam, he met the contractor along with another Devaswom employee by name Sankaranarayanan; but the contractor expressed his inability and directed the petitioner to approach other persons to get the aforesaid articles and said that he will sign the vouchers for payment as the contract was still subsisting. 3. The petitioner thereafter drew an amount of Rs.5,000/- to meet the above expenses and he purchased 7 thottis and repaired 9 damaged ones. The contractor had supplied 7 koles. According to the petitioner, he obtained voucher for payment of 7 thottis and 7 koles from the contractor and paid the price of thottis to the seller in the account of the contractor and paid the price of koles to the contractor. The price of thottis is Rs.210/- per one and the price of the kole is Rs.200/- per one. According to the petitioner, he obtained voucher for payment of 7 thottis and 7 koles from the contractor and paid the price of thottis to the seller in the account of the contractor and paid the price of koles to the contractor. The price of thottis is Rs.210/- per one and the price of the kole is Rs.200/- per one. According to the petitioner, he refunded an amount of Rs.2,130/- after expending the amount to purchase the articles. 4. The Administrator issued Ext. P1 order suspending the petitioner from service. According to Ext. P1, it is found that as a matter of fact, only 7 thottis had been supplied. But, according to the stock register, there is entry for the supply of 24 thottis. The order further states that the petitioner had fabricated documents to show that he had supplied 7 thottis and misappropriated an amount of Rs.1470/- Ext. P1 order is dated 27-6-1988. Thereafter, the Administrator issued Ext. P3 memo of charges. The memo of charges states that while the petitioner was working as Livestock Supervisor, he committed falsification of records by accounting certain numbers of thottis which were not actually purchased, but received payments on false vouchers which amounts to misappropriation of Devaswam money. The petitioner was required to show cause why disciplinary action as contemplated under the Kerala Civil Services (Classification, Control and Appeals) Rules, 1960, hereinafter referred to as the Rules, should not be taken against him. The memo of charges was accompanied by a statement of allegations. From the statement of allegations, the following facts are revealed. An amount of Rs. 5,000/- was received by the petitioner as advance for purchase of articles. He had produced vouchers for Rs. 1470/- and Rs. 2870/- The balance amount of Rs. 2130/- was refunded. According to the statement of allegations, 7 thottis were neither purchased nor supplied. It further states that the vouchers for Rs. 1,470/- and Rs. 2870/- appear to be fabricated. To Ext. P3, the petitioner gave a reply as Ext. P4. In Ext. P4, the petitioner contended that it is not correct to say that 7 thottis were not purchased. He gives an account that the thottis were entrusted with the respective mahouts and also gives explanation as to why he was not able to get the endorsement of the mahouts in the register. He denies that the vouchers were fabricated by him. P4, the petitioner contended that it is not correct to say that 7 thottis were not purchased. He gives an account that the thottis were entrusted with the respective mahouts and also gives explanation as to why he was not able to get the endorsement of the mahouts in the register. He denies that the vouchers were fabricated by him. According to him, it is as per the arrangement by the contractor, he paid the amounts in the name of the contractor. He further prayed for dropping the disciplinary proceedings. By Ext. P5 order dated 18/871988, the suspension order passed against the petitioner is cancelled and he was reinstated in service. Ext. P5 further states that the enquiry is completed. Thereafter, the petitioner received Ext. P6 order issued by the Administrator. That order states that the petitioner's suspension is not dropped by the evidence of the mahouts. It further states that on the basis of the evidence, the contractor had not received the amounts as stated in the vouchers. It comes to the conclusion that the petitioner has cheated the Devaswom and misappropriated an amount of Rs.4340/-. Petitioner gave Ext. P7 reply to Ext. P6 stating that if at all any evidence is given by the mahouts, that is out of animosity towards him. On 15-4-1989, the administrator issued Ext. P8 order, by which he imposed a punishment of reduction by four places in the seniority list of the petitioner and also for recovery of an amount of Rs.4340/-. By Ext. P9, the petitioner filed objections to Ext. P8. Ext. P10 also shows that the committee has decided to impose the punishment of reduction of four places in the seniority list of the petitioner and also for recovery of an amount of Rs.4340/- Finally, Ext. P12 order was issued imposing the punishments mentioned above. Ext. P13 is the proceedings of the administrator by which the punishment of reduction of rank is given effect to. 5. Petitioner contended that the entire disciplinary proceedings taken against him is without jurisdiction and is null and void. According to him, the Administrator had no power either to suspend him, or to initiate disciplinary proceedings or to impose the punishment. Further, it is contended that the punishment imposed is a major penalty under R.11(5) of the Rules. The procedure prescribed by R.15 of the Rules was not followed. There was no enquiry conducted. According to him, the Administrator had no power either to suspend him, or to initiate disciplinary proceedings or to impose the punishment. Further, it is contended that the punishment imposed is a major penalty under R.11(5) of the Rules. The procedure prescribed by R.15 of the Rules was not followed. There was no enquiry conducted. The Administrator had no authority to impose punishment. The committee of the Guruvayur Devaswom is the appointing authority. 6. On behalf of the Administrator, a counter affidavit has been filed. The counter affidavit justifies the action taken against the petitioner. But it is not made clear as to how the Administrator derived the power to initiate disciplinary proceedings against the petitioner to impose the punishment. It also does not say whether any enquiry was conducted as contemplated under R.15 of the Rules. The counter affidavit proceeds on the assumption that the petitioner had misappropriated the amount and hence the punishment imposed is lawful. 7. The question for consideration is whether Ext. P12 order imposing the punishment can be justified. Under Sec.3 of the Guruvayur Devaswom Act, 1978, the administration, control and management of the Devaswom be vested in a committee constituted in the manner provided in the section. S.14 enables the committee to appoint an Administrator. S.17 enumerates the powers of the Administrator. Sec.17 enumerates the powers of the administrator as follows: "(1) The Administrator shall be the secretary to the committee and its chief executive officer and shall, subject to the control of the Committee, have powers to carry out its decisions in accordance with the provisions of this Act. (2) The Administrator shall arrange for the proper collection of offerings made in the Temple. (3) The Administrator shall have power to incur expenditure not exceeding five thousand rupees to meet unforeseen contingencies during the interval between two meetings of the Committee." Section 19 deals with the appointment of officers and employees. As per S.19(1), appointment of all officers and other employees of Devaswom shall be made by the Committee. S.39 enables the committee subject to the approval of the Government to make regulations not inconsistent with the provisions of the Act and the Rules made thereunder, to provide for the manner in which the duties imposed on it under the Act and its functions thereunder shall be discharges. S.39 enables the committee subject to the approval of the Government to make regulations not inconsistent with the provisions of the Act and the Rules made thereunder, to provide for the manner in which the duties imposed on it under the Act and its functions thereunder shall be discharges. By virtue of the powers conferred under S.39 of the Guruvayur Devaswom Act, Guruvayur Devaswom Employees Regulations, 1983 were made. Regulation.4 says that the appointing authority for all the posts in the Guruvayur Devaswom service shall be the Managing Committee. Regulation.23 deals with disciplinary proceedings. It states that the Kerala Civil Service (Classification, Control and Appeal) Rules, 1960 an amended from time to time shall be applicable to all employees including those working in temporary posts. Clause (b) states that in respect of the hereditary employees of the temple, the Administrator may order all the penalises except penalties of withholding increments or promotion and reduction to lower rank in the seniority list or to a lower grade or to a lower stage in a time scale of pay. S.24 enables filing of appeals against the orders passed by the Administrator. Thus, it can be seen that so far as disciplinary proceedings are concerned, the procedure prescribed under the Kerala Civil Services Rules (CC &A) are to be followed. From the above rules, it can be seen that the punishment must be imposed either by the appointing authority or by the disciplinary authority or by any authority which has been entrusted with the duty by the appointing authority. It is not seen from either the Act or the rules or the Regulations that the Administrator is vested with the power to initiate disciplinary proceedings against the employees and the impose penalty. Admittedly, the Administrator is not the appointing authority. No evidence has been produced before me to show that the Administrator is empowered to pass Ext. P12 order. On that count itself, Ext. P12 and the disciplinary proceedings are liable to quashed. 8. But, even if it is taken for granted that the Administrator is empowered to initiate disciplinary proceedings and impose the punishment, Ext. P12 order cannot be sustained. It is now clear that no enquiry as contemplated under R.15 of the Rules was conducted. The charge against the petitioner as a serious one cheating and misappropriation. The punishment imposed is one of reduction of rank in the seniority list. P12 order cannot be sustained. It is now clear that no enquiry as contemplated under R.15 of the Rules was conducted. The charge against the petitioner as a serious one cheating and misappropriation. The punishment imposed is one of reduction of rank in the seniority list. This punishment is imposed under clause (5) of R.11 of the Rules. This is a major penalty and when the major penalty is imposed, the procedure prescribed under R.15 has to be followed. In this case, no such enquiry has been conducted. Hence the procedure is violative of the Rules as well as the Guruvayur Devaswom Employees Regulations. 9. In AIR 1961 SC 1623 (State of M.P. v. Chintaman), it has been stated that any enquiry conducted in violation of the principles of natural justice will vitiate the entire proceedings. The Supreme Court observed as follows:- "Stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence and that he should be given the opportunity of cross examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. The right to cross examine the witnesses who give evidence against him is a very valuable right, and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would mean that the enquiry had not been held in accordance with rules of natural justice." 10. Learned counsel for the Devaswom tried to justify the action on the ground that by virtue of Regulation.23(b) of the Guruvayur Devaswom Employees Regulations, it should be implied that the Administrator has got the power to impose the penalty. I do not think that such a construction can be made. Regulation.23(b) only deals with hereditary employees. Further that regulation deprives the Administrator from imposing the penalty of reduction to lower rank . He further contended that Regulation.24 deals with appeals to the managing committee. From this, learned counsel argues that it should be implied that the Administrator has got the power. Regulation.23(b) only deals with hereditary employees. Further that regulation deprives the Administrator from imposing the penalty of reduction to lower rank . He further contended that Regulation.24 deals with appeals to the managing committee. From this, learned counsel argues that it should be implied that the Administrator has got the power. I do not think the regulation gives scope for such an implied power. That regulation only says that when an order is passed by the Administrator, then an appeal lies to the Managing Committee. 11. In the above view of the matter, I hold that the entire disciplinary proceedings conducted against the petitioner, which culminated in Ext. P12, is null and void. Exts.P12 and P13 (in so far as they relate to the petitioner) are hereby quashed. There will be a direction to respondents 1 and 2 to reinstate the petitioner in service. The competent authority will decide as to how the period of suspension should regularised. Learned counsel for the Devaswom submitted that Devaswom should be given the freedom to conduct proper proceedings against the petitioner. That is a matter which the Committee should decide. Original Petition is allowed.