The State Of Kerala vs E. Sasidharan Embrandiri on 11 January, 2024

[Cites 10, Cited by 0]

Kerala High Court

The State Of Kerala vs E. Sasidharan Embrandiri on 11 January, 2024

1. The question raised in the writ petitions is with regard to the payment of salary to employees of temples under the Malabar Devaswom Board without reference to the income limits as provided in the relevant Government Orders. The learned single Judge held that the Government is bound to provide fund for payment of salaries found due to employees of temples under the Malabar Devaswom Board even if they have income exceeding the limits as provided in the Government Orders. The State is in appeal against the said judgment.

WA No.1583/22 and con. cases 16

2. The essential argument raised by the learned Advocate General in this batch of appeals is that the reliance placed by the learned Single Judge on the judgment of the Division Bench In Re:

Temples in the erstwhile Malabar area [AIR 1995 Ker. 172] is completely misconceived inasmuch as the observations therein were specifically with regard to the situation existing in the temples of the erstwhile Malabar area at the relevant time. It is contended that the directions contained in the said judgment of the Division Bench stand fully complied with and extensive amendments had been brought about in the Madras Hindu Religious and Charitable Endowments Act,1951 (hereinafter referred to as the HR&CE Act). It is further submitted that a fund has also been set up to assist the payment of salaries to the temple employees and that the State had taken all necessary steps to grant relief to the employees of all temples affected by the lock-down during the Covid pandemic. It is submitted that at present, all temples, which have an income of less than Rs.20,00,000/- and are unable to pay salaries to their employees are given assistance from the Malabar Devaswom fund for the payment of salaries to their employees and it is only in the case of individual temples having an income over Rs.20,00,000/- that WA No.1583/22 and con. cases 17 the fund is not utilised for payment of salaries. It is contended that in view of the fact that the temples are separate administrative units governed by separate hereditary trustees or Board of Trustees, as the case may be, the primary responsibility to pay the salary is on the trustees themselves and that the State cannot be mulcted with the additional responsibility of meeting the commitments of salary and emoluments, which are to be met by the individual temples. It is further contended that the direction to the Government to make the full payment of the salaries is completely unsupported, in view of the fact that the temples are admittedly individual self governing institutions and are subject only to the superintendence and control of the Malabar Devaswom Board to the specific extent as provided in the amended Act. It is submitted that there is no common fund available to the Government apart from the Malabar Devaswom fund, which is utilised specifically in terms of the enactment and the scheme and the direction issued by the learned single Judge is, therefore, unworkable. It is further contended that at present the Government is undergoing severe financial stringency and that the direction of the learned single Judge has resulted in undue hardship and irreparable injury to the Government since WA No.1583/22 and con. cases 18 public funds cannot be utilised for the purpose of meeting the liabilities and commitments of trustees of individual temples, specifically in the light of Article 27 of the Constitution of India.

3. A decision of the Apex Court in Sri.Divi Kodandarama Saram and others v. State of Andra Pradesh and others [1997 KHC 1411] is also relied on in support of the said contention. The Apex Court had considered the issue of payment of Government scales of pay to employees of the Thirumala Thirupathi Devasthanams and held as follows:-

" Article 27 of the Constitution prohibits spending of any expenses for promotion or maintenance of any particular religious or religious denomination from out of the funds flowing from the public exchequer. Resultantly, constitutional prohibition stands in the way of extending to the Archakas and other office holders such benefits as are granted to the Government servants."

4. The learned Advocate General, therefore, contends that the effect of the judgment of the learned single Judge would be that the salary of employees of individual temples under the Malabar Devaswom Board, who are specifically employed by the trustees or the Board of Trustees, as the case may be, of the said temples WA No.1583/22 and con. cases 19 would have to be met from the Public Exchequer, which was never the intention of the enactments or even the findings of the Division Bench in the decisions referred to. It is contended that a fund has been created for the purpose of meeting the salary and other expenses and that all the assistance possible is being granted to such temples as well.

5. The learned counsel appearing for the respondents in these writ petitions, that is, the petitioners before the learned single Judge contends that the judgment in the suo motu writ petition is a declaratory judgment in rem and that the SLP filed against the same was dismissed on 24.07.1995. Relying on the observations in paragraph Nos.22, 29, 30, 31, 36, 40, 46, 49, 51, 53, 54, 71 and 72 of the 1995 judgment, it is contended that the State Government has the bounden duty to harness the resources for the payment of the amounts due to employees of individual temples, since the annuities due under the provisions of the Land Reforms Act have not been paid by the Government. It is submitted that in view of the fact that extensive agricultural properties and forest lands belonging to WA No.1583/22 and con. cases 20 the temples were vested in the Government, the Government cannot shirk its responsibility to make the payments to the employees of such temples who were deprived of the properties.

6. Reliance is also placed on a Division Bench judgment of this Court in Kerala State Beverages (Manufacturing and Marketing Corporation Limited v. Jayan John [2023 (2) KHC 471] to contend that a judgment in rem would be binding and the State cannot act contrary to the declaratory relief granted by this Court in the said judgment.

7. The learned counsel appearing for the Malabar Devaswom Board submits that the 1995 judgment is, admittedly, a judgment in rem. However, the observations in the judgment are restricted to the factual and legal context of the matters which were under consideration by this Court at the relevant time and the binding nature of the judgment would be with regard to the directions issued therein and not the observations contained in the judgment. It is stated that WA No.1583/22 and con. cases 21 the directions contained in the judgment have been complied with in full and reasonable wages are being paid to the temple employees with effect from 01.01.1995. It is submitted that a management fund has also been formed to pay salaries to employees of temples which are unable to make the payment from their own funds. However, the payment from the fund is governed by the criteria and guidelines fixed by the Government from time to time through Government Orders. It is submitted that the role of the Malabar Devaswom Board is only to supervise the functioning of the temples and the powers of trustees to appoint employees stands settled by a judgment of this Court in Zamorin Raja Vs. State of Kerala [2016 (4) KLT 841] and several other judgments. It is contended that the learned single Judge ought to have considered the provisions of Section 48 of the HR & CE Act and the fact that there was no material with regard to the non payment of annuity under the KLR Act on record to come to the conclusion that amounts are to be paid by the Government. It is further contended that the reliance placed on Sections 76(1), 80, 81 and 81(c)(i) of the Act by the learned single Judge WA No.1583/22 and con. cases 22 is misconceived. It is contended that the Trustees or the Board of Trustees who are very well aware of the financial condition of the temples under their trusteeship are duty bound to make appointments taking note of the financial condition of the temple and the ability to pay salaries as well and that the primary responsibility of the trustees of temples having considerable income to pay salaries to the employees appointed by them cannot be fastened on the Board or the State.

8. Having considered the contentions advanced on either side, we notice that the judgment of the Division Bench relied on by the learned counsel for the petitioners was one rendered in the specific factual situation available at the relevant time. The discussions with regard to the pendency of annuity payments were made in the specific circumstances as pointed out in the judgment itself and the observations in the judgment have to be understood in the light of the directions ultimately issued therein. It was for the purpose of the issuance of the said directions that the observations were made in the judgment. WA No.1583/22 and con. cases 23 Resultantly, we are of the opinion that the directions as contained in the judgment have been largely complied with by the amendments made to the HR&CE Act as also the constitution of the Malabar Devaswom Fund for providing assistance for payment of salary. The consequence of judgment of the learned single Judge is that the amounts from the Public Exchequer would have to be utilised for meeting the salary requirements of individual temples which is primarily the responsibility of the individual trustees or Board of Trustees.

9. Further, the contention that the income derived from the forest lands which have been vested with the Government has to be taken into account for the purpose of payment of salary to the employees of the temples from whom the lands have been taken over cannot be countenanced in the light of the fact that there can be no question of prior ownership of the lands once a vesting is effected by the operation of the Statute. WA No.1583/22 and con. cases 24

10.We notice that the prayer in the writ petitions was for clearing of the salary dues of the petitioners as also to quash the limits provided in the Government Orders including the Government Order dated 3.9.2019 fixing a financial bar as the same is issued in violation of the pay revision orders.

11.Having considered the contentions advanced on either side and perused the pleadings, we are of the opinion that no grounds have been made out to justify the challenge raised to the fixing of the financial limit by Government Orders including Exhibit P2 in W.P.(C).No.18537 of 2020. The commitment of the Government to meet the financial requirements for paying the salary of employees of temples in the Malabar area stands substantially met by the provisions made for establishing a welfare fund and for making payments therefrom. At least in the cases of temples which have income exceeding the prescribed limits, it would be the primary responsibility of the individual trustees to meet the payments of the salary.

WA No.1583/22 and con. cases 25

12.However, in view of the fact that the Malabar Devaswom Board has a bounden duty under the statute to supervise the temples and to see that the income generated from the temples are applied properly, we consider that the interim order issued by this Court to meet 1/3 rd of the salary of the petitioners is justified. We, therefore, direct the Government to comply with the interim order. However, the financial limits set in the Government orders for payment of salary from the welfare fund are upheld. The judgment of the learned single Judge is modified accordingly.

Sd/-

Anu Sivaraman, Judge sd/-

                                        C. Jayachandran, Judge
sj21/12
 WA No.1583/22 and con. cases

                                26


                      APPENDIX OF WA 354/2023

PETITIONER ANNEXURES

Annexure A1            A TRUE COPY OF THE G O(RT)
                       NO.2521/2021/RD DATED 06.08.2021.

Annexure A2            A TRUE COPY OF THE G.O. (RT)
                       NO.3747/2020/RD DATED 27.11.2020.

Annexure A3            A TRUE COPY OF THE THE G.O.(RT)
                       NO.193/21/RD DATED 20.01.2021.

Annexure A4            A TRUE COPY OF THE ORDER

NO.J1/1382/2020/MDB(1) DATED 13.08.2021 ISSUED BY THE COMMISSIONER, MALABAR DEVASWOM BOARD.

 WA No.1583/22 and con. cases

                                27


                      APPENDIX OF WA 392/2023

PETITIONER ANNEXURES

Annexure A1            A TRUE COPY OF THE G O(RT)
                       NO.2521/2021/RD DATED 06.08.2021.

Annexure A2            A TRUE COPY OF THE G.O. (RT)
                       NO.3747/2020/RD DATED 27.11.2020.

Annexure A3            A TRUE COPY OF THE THE G.O.(RT)
                       NO.193/21/RD DATED 20.01.2021.

Annexure A4            A TRUE COPY OF THE ORDER

NO.J1/1382/2020/MDB(1) DATED 13.08.2021 ISSUED BY THE COMMISSIONER, MALABAR DEVASWOM BOARD.

 WA No.1583/22 and con. cases

                                28


                      APPENDIX OF WA 407/2023

PETITIONER ANNEXURES

AnnexureA1             A TRUE COPY OF THE GO(RT)NO.2521/2021/RD
                       DATED 06.08.2021

AnnexureA2             A TRUE COPY OF THE G.O. (RT)
                       NO.3747/2020/RD DATED 27.11.2020

AnnexureA3             A TRUE COPY OF THE G.O.(RT) NO.193/21/RD
                       DATED 20.01.2021

AnnexureA4             A TRUE COPY OF THE ORDER

NO.J1/1382/2020/MDB(1) DATED 13.08.2021 ISSUED BY THE COMMISSIONER, MALABAR DEVASWOM BOARD.

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