Kerala High Court
Travancore Devaswom Board vs Ashok Kumar G on 29 March, 2019
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
[CASE REPORTABLE]
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
FRIDAY ,THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941
WA.No. 427 of 2014
AGAINST THE JUDGMENT IN WPC 26053/2013 DATED 03-02-2014
APPELLANTS:
1 TRAVANCORE DEVASWOM BOARD, OFFICE OF THE TRAVANCORE
DEVASWOM BOARD, DEVASWOM BUILDING, NATHANCODE,
THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY
2 DEVASWOM COMMISSIONER, OFFICE OF THE TRAVANCORE
DEVASWOM BOARD, DEVASWOM BUILDING, NANTHANCODE,
THIRUVANANTHAPURAM
3 THE ASSISTANT DEVASWOM COMMISSIONER, OFFICE OF THE
ASSISTANT DEVASWOM COMMISSIONER, THRIKKARIYOOR GROUP,
THRIKKARIYOOR, KOTHAMANGALAM 686 692
4 THE SUB GROUP OFFICER, THRIKKARIYOOR DEVASWOM,
THRIKKARIYOOR GROUP, THRIKKARIYOOR, KOTHAMANGALAM
686692
BY ADVS. SRI.A.N.RAJAN BABU
SRI.C.K.PAVITHRAN, SC, TDB
SRI.T.K.AJITH KUMAR, SC, TDB
RESPONDENTS:
1 ASHOK KUMAR G., S/O GOPALAKRISHNAN NAIR,
PUTHENPURACKAL HOUSE, PAYYANALLOR, NOORANADU P.O.,
LAPUZHA DISTRICT 690504 [KAZHAKAM - under suspension
- PADINJATTUKAVU DEVASWOM]
2 ANAND RAJAN P.G., S/O P.M. GOPALAKRISHNAN, PALATHINAL
HOUSE,
THRIKKARIYOOR, KOTHAMANGALAM 686692 [KARANMA
POOJAKOOTU THRIKKARIYOOR DEVASWOM]
BY ADV. SRI.S.SUBHASH CHAND
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14.01.2019, ALONG
WITH WP(C).8545/2014, THE COURT ON 29.03.2019 PASSED THE
FOLLOWING:
W.A. No. 427 of 2014 and
W.P.(C) No. 8545 of 2014
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
FRIDAY ,THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941
WP(C).No. 8545 of 2014
PETITIONERS:
ANANDARAJAN P.G., S/O.P.M.GOPALAKRISHNAN,
PALATHINAL HOUSE, THRIKKARIYOOR P.O.,
THRIKKARIYOOR, KOTHAMANGALAM-6586 692, (KARANMA
POOJAKOTTU, THRIKKARIYOOR DEVASWOM).
BY ADV. SRI.S.SUBHASH CHAND
RESPONDENTS:
1 TRAVANCORE DEVASWOM BOARD, OFFICE OF THE TRAVANCORE
DEVASWOM BOARD, DEVASWOM BUILDINGS, NANDHANCODE,
THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY.
2 DEVASWOM COMMISSIONER, OFFICE OF THE TRAVANCORE
DEVASWOM BOARD,DEVASWOM BUILDINGS, NANDHANCODE,
THIRUVANANTHAPURAM.
3 THE ASSISTANT DEVASWOM COMMISSIONER, OFFICE OF THE
ASSISTANT DEVASWOM COMMISSIONER, THRIKKARIYOOR
GROUP, THRIKKARIYOOR, KOTHAMANGALAM-686 692.
4 THE SUB GROUP OFFICER, THRIKKARIYOOR DEVASWOM,
THRIKKARIYOOR, KOTHAMANGALAM-686 692.
BY ADVS. SRI.T.K.AJITH KUMAR, SC, TDB
SRI.C.K.PAVITHRAN, SC, TDB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
14.01.2019, ALONG WITH WA.427/2014, THE COURT ON 29.03.2019
DELIVERED THE FOLLOWING:
W.A. No. 427 of 2014 and
W.P.(C) No. 8545 of 2014
3
JUDGMENT
[ WA 427/2014 and WP(C).8545/2014 ] Ramachandra Menon , J.
Does the Rule 55 of Part I Kerala Service Rules [herein after referred to as the 'KSR'] providing payment of subsistence allowance to an employee under suspension is applicable to a 'Karanma' employee of a temple [nominated by the senior most member of the family having hereditary right], is the point raised in W.A. No. 427 of 2014. Is the termination of service of the 'Karanma' employee [on coming across some delinquency on his part or on being not satisfied with the service rendered by him], giving notice to the senior most member of the family requiring to nominate another member of the family in terms of Section 28 (2) of the Travancore Cochin Hindu Religious Institutions Act 1950 ['TCHRI' for short] and Rules 12 and 13 of the Rules framed under Section 28 of the said Act regarding the 'Karanma' Service [herein after referred to as the W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 4 'Rules'] is alien to the Scheme of the Statute or does it violate the principles of natural justice, is the point raised by the 'Karanma' employee in W.P.(C) No. 8545 of 2014. Does the Kerala CCS [CCA] Rules govern the field of disciplinary action, in the case of a 'Karanma' employee and if a full-fledged enquiry is warranted in such case, is the incidental question to be answered.
2. For convenience of reference, the pleadings and proceedings are referred to as given in W.P.(C) No. 8545 of 2014, except where it is separately dealt with.
3. The sequence of events reveals that the petitioner 'Karanma' employee was serving the Thirkkariyoor Devaswom, as nominated by the Head of the family, by virtue of the hereditary right conferred in this regard. While so, on 20.01.2013, a private news channel [India Vision] telecast some news as to the malpractices pursued by the employees in counting the contents of the 'Hundi' installed at Thrikkariyoor Sree Mahadeva Temple on 05.01.2013, involving the petitioner W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 5 Karanma employee as well, revealing misappropriation of money deposited by the devotees in the 'Hundi'. The petitioner 'Karanma' employee and a 'Kazhakom' employee by name Asok Kumar were placed under suspension as per Ext. P1 order passed by the second respondent/Devaswom Commissioner in charge; besides suspending two officers of the Devaswom Board [Assistant Devaswom Commissioner, Thrikkariyoor group and Sub Group Officer of the Thrikkariyoor Devaswom].
4. The Assistant Commissioner and the Sub Group Officer who were under suspension were stated as paid the subsistence allowance; whereas it was denied to other two; which was questioned by them by filing W.P. (C) No. 26053 of 2013. It was pointed out that the eligibility to get subsistence allowance was considered and recommended by the second respondent Commissioner as per Ext. P4 order dated 05.09.2013, which however was still to be given effect to. This made them to file Ext. P5 representation before the first respondent Board and the laxity in considering the same made them to W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 6 approach this Court by filing W.P.(C) No. 26053 of 2013, seeking for a direction to implement Ext. P4 and to disburse the subsistence allowance, by virtue of the statutory mandate under Rule 55 of Part I KSR; the Devaswom having adopted the KSR to govern the service of its employees.
5. The prayer was resisted from the part of the Devaswom disputing the eligibility of the petitioner to get subsistence allowance. It was however conceded in the statement dated 12.11.2013 filed by the Devaswom that there occurred a mistake in passing Ext.P4 order, in so far as the first petitioner was a 'departmental employee' working as 'Kazhakam'; whereas the second petitioner [petitioner herein] was only a 'Karanma' employee [engaged as "poojakottu"], who was not eligible to get subsistence allowance. Reliance was sought to be placed on Section 28 of the TCHRI Act and in particular, Section 28 (13), as to the right to dispense with the service of such person. This was followed by an additional statement dated 15.11.2013, producing a W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 7 copy of the order dated 06.11.2013 as Annexure R1(a), modifying Ext. P4, whereby the 'Kazhakam' employee by name Asok Kumar [first petitioner in W.P.(C) No. 26053 of 2013] alone was declared as eligible for getting the subsistence allowance. Thereafter, Anenxure R1(b) was issued to the Secretary to the Travancore Devaswom Board, instructing him to issue a notice to the Head of the family having 'Karanma' right, to nominate another person to be engaged as 'pooja kottu' in the temple. A reply affidavit was filed by the petitioner on 19.11.2013, producing a copy of the Service Rules governing the 'Karanma' service framed under Section 28 of the TCHRI Act, as Ext. P6.
6. On completion of the pleadings, the matter was heard elaborately. The learned single Judge observed that the grievance remained only in respect of the second petitioner, as subsistence allowance was already ordered to be paid to the 'Kazhakam' employee by name Asok Kumar. After hearing both the sides, it was held that the denial of subsistence allowance to the W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 8 'Karanma' employee amounted to discrimination. Referring to Rule 12 of the Rules framed, the Bench observed that the 'Karanma' employees are under the disciplinary control of the Devaswom Board, treating them on par with the departmental employees and this being so, the Devaswom Board cannot remove 'Karanma' employee for bad conduct, without recourse to disciplinary proceedings invoking Rule 13 of the Rules. The learned Judge also observed that no rule was brought to the notice of the Court prohibiting payment of subsistence allowance to 'Karanma' employee and hence that in the matter of payment of subsistence allowance, a departmental employee and Karanma employee cannot be discriminated, which otherwise would violate Article 14 of the Constitution of India.
7. The contention raised from the part of the Devaswom, that if the 'Karanma' employee was paid subsistence allowance, there will be an instance of double payment [as, over and above the subsistence allowance, salary will have to be paid to the other W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 9 person nominated by the Head of the family having 'Karanma' right] was negated by the learned Judge and the Writ Petition was disposed of, directing to pay subsistence allowance to the second petitioner [petitioner herein] for the entire period he was kept under suspension, as provided under Rule 55 of Part I of the KSR. The said judgment is under challenge in W.A. No. 427 of 2014 preferred by the Devaswom.
8. When the matter came up for consideration on 13.03.2014, the following interim order was passed in W.A. No. 427 of 2014:
"Admitted. Adv. S. Subhash Chand takes notice for the respondents.
We record the submission that the first respondent has been paid the amounts due to him. As regards the second respondent, the amounts due to him shall be released on his executing a simple bond undertaking to repay the amounts in the event of his losing this writ appeal. Such bond shall be executed in favour of the Secretary, Travancore Devaswom Board. The amount shall be released within one week of production of such bond.
Hand over."
It is contended by the petitioner 'Karanma' employee W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 10 that the said order was not complied with, despite furnishing a bond as directed, whereas the Board proceeded with further steps and dismissed the petitioner as per Ext.12 order dated 19.03.2014. Alleging that the dismissal from the 'Karanma' service was without conducting an enquiry and was a malafide action, besides contending that it would cast a stigma throughout the life, it was sought to be challenged by filing W.P.(C) No. 8545 of 2014. It was also contended that the failure on the part of the Devaswom in not giving effect to the order dated 13.03.2014 in W.A. No. 427 of 2014 was to be proceeded against. The Devaswom Board filed a review petition as R.P. No. 387 of 2014. On 20.10.2014, it was brought to the notice of the Court that the interim order was already complied with and in the said circumstances, the review petition was not pressed, which accordingly was dismissed on that day.
9. Heard Sri. S. Subhash Chand, the learned counsel appearing for the petitioner in W.P.(C) No.8545 of 2014 and the second respondent in W.A. No. 427 of 2014, as W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 11 well as Sri. C. K. Pavithran, the learned standing counsel for the Travancore Devaswom Board.
10. The thrust in the submissions made by the learned counsel for the 'Karanma' employee is that, by virtue of Rule 12 of the Rules framed by the Devaswom Board in exercise of the powers under Section 28 (2) of the Act, the 'Karanma' employee would be subject to the disciplinary control of the Devaswom Board, as any other employee of the Devaswom Board. As such, he cannot be simply suspended or dismissed from the service invoking Rule 13, without conducting any enquiry and contrary to the principles of natural justice. The contention of the Devaswom Board, as projected by the learned standing counsel is that, Rule 12 of the Rules is having only limited application and that it will not equate the status of the 'Karanma' employee with that of a regular employee of the Board. This is more so, since the course to be pursued in the case of 'Karanma' employee is separately and specifically mentioned under Section 28 (2) of the Act.
W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 12
11. So as to have an effective appreciation of the rival contentions, it is necessary to incorporate the above provisions of law:
Section 28 (2) of the TCHRI Act reads as follows :
S. 28. Board's control over Karanma services :- (1) ****** (2) Whenever it is reported that owing to incompetency, negligence or other cause, any Karanma service is not being regularly performed, or that an alienation of Karanma service or of the property, Thiruppurvaram or other emolument attached thereto, has been effected by the Karanma holder or by any member or members of the Karanma family, the Board shall give due notice of the charge to the head of the family and the next senior member, and also to such other members of the Karanma family as the said Board may deem necessary, and if after hearing their objections, if any, the Board is satisfied that there has been an alienation of the Karanma service of the property or of the Thriuppuvaram or of the other emoluments attached thereto or that there has been a failure to perform the service properly or regularly, the Board shall suspend, remove, determine, cancel or deal with in any other manner the Karanma right of the family to the service.
Rules 12 and 13 of the Rules framed under Section 28 of the Hindu Religious Institutions Act - XV of 1950 regarding the Karanma Service read as follows :
W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 13 R. 12. Karanma employee will be subject to the disciplinary control of the Devaswom Board and the officers of the Devaswom Department as any other employee. They may be fined in case of misconduct, by the officers under the Board duly empowered in that behalf but for suspending or dismissing them the orders of the Devaswom Board are necessary. The may, however, be placed under suspension pending enquiry by competent authority the circumstances of the case being immediately reported to the Board. Karanma employees should not be transferred to other institutions.
R. 13. If a member of a Karanma family, who is attending to the service, is found unfit for being retained in service on account of conditions of health, bad conduct, or other causes, such person may be removed from the service by the Devaswom Board and another proper person from the Karanma family appointed instead."
12. Section 28 (2) of the Act highlights the absolute power and control of the Devaswom over the holders of all 'Karanma' service and over all the properties, 'Thiruppuvaram' and other emoluments attached thereto; the delinquency, if any on the part of the 'Karanma' employee or any undesirable action in respect of the 'Karanma' service or property or 'Thiruppuvaram' or other emoluments attached thereto and is brought to the notice of the Board. It is open for W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 14 the Board to suspend, remove, cancel or deal with in any other manner the 'Karanma' right of the family, of course, after issuing notice to the Head of the family having 'Karanma' right and such others as mentioned therein. In other words, it deals with the right of the Board to put an end to the 'Karanma' right of the family, which will sever the relationship of the family with the temple for ever.
13. Coming to the mandate under Rule 12 framed under Section 28 of the Act, it is true that the disciplinary control of the Devaswom over the 'Karanma' employees is mentioned therein, treating them as other employees. It does not mean that the action against the 'Karanma' employee, if at all any, has to be pursued as if the 'Karanma' employee were a departmental employee. It only says that, the 'Karanma' employee, though not an employee of the Devaswom Board but a nominee of the Head/senior member of the family having 'Karanma' right, it is not necessary for the Devaswom Board to get the action taken through the Head/senior most member of the W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 15 family having 'Karanma right' or who nominated the 'Karanma' employee. Appropriate disciplinary action, to the extent, necessary, can be taken by the Devaswom Board itself, against the 'Karanma' employee as well; which aspect alone has been highlighted in the said Rule, more so when it is for the Board to take disciplinary action against the departmental employees.
14. Obviously, Rule 12 is very cautiously worded, bifurcating the powers of the "Officers under the Board" on one hand and powers of the Devaswom Board on the other hand. In the case of misconduct by the 'Karanma' employee, they can be 'fined' by the Officers under the Board duly empowered on that behalf. However, for suspending or dismissing them, orders of the Devaswom Board are necessary. In case of any emergency or immediate requirement, the Rule confers power upon the competent officers to place them under suspension, pending enquiry by the competent authority; subject to the condition that it shall be reported to the Board immediately. The different and distinct W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 16 status of the 'Karanma' employee is also evident from the said Rule itself, which says that the 'Karanma' employee should not be transferred to another institution. From the above, it clear that, it is only for the Board to place a 'Karanma' employee under suspension or to remove/dismiss from service and not for the Head of the 'Karanma' family, who nominated the Karanma employee.
15. The picture becomes more clear, from Rule 13; which says that, if the 'Karanma' employee, who is attending to the service is found to be unfit for being retained in service on account of conditions of;
(i) health,
(ii)bad conduct,
(iii) or other causes, such persons may be removed from the service by the Devaswom Board and other appropriate person from 'Karanma' family be appointed, instead. Thus, if there is any appropriate cause, power is vested with the Board to remove the 'Karanma' employee from service and engage W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 17 another person from the 'Karanma family' in his place. In other words, the right to perform 'Karanma' service conferred upon the 'Karanma family' gets continued and protected, without any interruption. The only difference is that, the person originally nominated by the Head of the family having 'Karanma' right gets changed, if so decided/found by the Devaswom Board and informed to the Head of the family. This power is different and distinct from the wider power conferred upon the Devaswom Board under Section 28 (2) of the Act, to put an end to the hereditary 'Karanma' right of the family, for the reasons stated therein. In such cases, notice to the Head of the family having 'Karanma' right is necessary and an explanation has to be called for. In the former case i.e. termination under Rule 13, it is only a 'summary procedure' and the Head of the family can be required to nominate another person and no 'Karanma' right of the family is infringed in any manner.
16. It is relevant to note, the 'Karanma' employment W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 18 given is not in favour of the person who is appointed, but to the 'Karanma family' and no right of the family is intended to be taken away by virtue of removal of service of the nominee appointed earlier. Unlike this, in the case of regular employment in the Board, there is a contract of service between the Devaswom Board and the employee, whereas in the case of 'Karanma' employee, the relationship between the Devaswom Board and the 'Karanma family' is by giving engagement, yielding to the 'nomination' made by the 'Karanma' family; of course, with disciplinary control retained by the Devaswom even on such 'Karanma' employee, as in the case of a regular employee. This cannot be read or understood to mean that in the case of the 'Karanma' service, a full- fledged enquiry under the KCS [CCA] Rules or such other service Rules, as in the case of a Government employee or departmental employee is ever envisaged. In W.P.(C) No. 26053 of 2013 filed by the 'Karanma' employees [from which W.A. No. 427 of 2012 arises], the issue was mainly with regard to the non-payment of subsistence W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 19 allowance to the 'Karanma' employees who were suspended as per Ext.P1. The power to remove or dismiss such employee was never a subject matter of consideration. The observations were made by the learned Judge in the given context, so as to sustain the order/verdict granting subsistence allowance by treating a 'Karanma' employee as a departmental employee of the Board are without referring to the relevant Rules [cited supra]. Rule 15 of the Kerala Civil Service [Classification Control and Appeal] Rules 1960, which is stated as applicable to the departmental employee, cannot be pressed into service in the case of a 'Karanma' employee, unless specifically provided in this behalf.
17. It is brought to the notice of this Court by the petitioner 'Karanma' employee, that during the pendency of the proceedings, he was placed under suspension as per Ext. P1; that he was not paid any subsistence allowance [which however was ordered to be paid as per interim order dated 13.03.2014 passed by this Court in Writ Appeal No. 427 of 2014, subject to W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 20 execution of a bond]; that non-payment of the subsistence allowance led to Contempt of Court proceedings and it was only thereafter, that the arrears of payment was released. It is also brought to the notice of this Court that during the pendency of the proceedings, the 'Karanma' employee came to be dismissed from the service as per Ext. P12 dated 19.03.2014 and Ext.P12(a) dated 31.03.2014; which was stayed by this Court [the said interim order was subsequently extended until further orders]. This Court is given to understand that the petitioner 'Karanma' employee has been taken back into service after cancelling the suspension, without prejudice to the pendency of the proceedings.
18. With regard to the payment of subsistence allowance, it is to be noted that, it has to be effected to the extent as stipulated under the relevant provisions of law. In the instant case, Rule 55, Part I KSR, is sought to be applied by the petitioner 'Karanma employee' based on the stipulation in Rule 12 W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 21 of the Rules that the Board is having disciplinary control over the 'Karanma' employee as well, as in the case of a regular department employee. The scope of Rule 12 has already been analysed by this Court in the previous paragraphs, holding that it does not stipulate that the 'Karanma employee' should be treated as or can be proceeded against only as a regular employee.
19. Still, whether the payment of subsistence allowance in the instant case could be justified, is a wider question to be considered. This assumes relevance in the light of the power of the Board to remove 'Karanma' employee from service; with liberty to the Head of the family having 'Karanma' right to nominate another person, as envisaged under Rule 13 of the Rules, instead of putting an end to the 'Karanma right of the family' itself [which is more stringent] as envisaged under Section 28 (2) of the Act. There cannot be any dispute that an employee suspended from the service is entitled to get subsistence allowance, pending enquiry, in conformity with the relevant Rules. This being the W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 22 position, there cannot be any difference of opinion with regard to law laid down by the Division Bench of this Court in Gopakumar Vs. Kerala State Nirmithi Kendra [2005 (3) KLT 991] sought to be relied on by the petitioner Karanma employee. But the question here is, whether the service Rules of the Government, stated as adopted by the Travancore Devaswom Board in relation to the service of the regular/departmental employee of the Board, as such are applicable to a 'Karanma' employee.
20. The dissatisfaction of the Board with regard to the 'Karanma' service rendered, may be due to various reasons; such as misconduct, ill health, non-reporting for duty on time, quality of work, approach and attitude towards the devotees or showing non-diligence to the duties in a temple, failure or inadequacy in protecting the interest of the Deity, and so on. It may involve major lapse or minor lapse and depending upon the same, it is for the Board to decide whether it should simply remove the 'Karanma' employee, with liberty to the Head of the family having 'Karanma' right to nominate another W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 23 person or to put an end to the 'Karnma right of the family' itself. In the case of former, steps are to be pursued under Rule 13; whereas in the case of latter, it is to be under Rule 28 (2) of the Act.
21. In the instant case, it seen from the Ext. P12 proceedings that a notice was issued to the Head of the family on 10.03.2014, instructing to nominate another person, which however was not acted upon by the Head of the family having 'Karanma' right. Service of the 'Karanma' employee was put an end to, because of the involvement in a serious misconduct while counting the contents of 'Hundi' installed at Thrikkariyoor Sree Mahadeva Temple on 05.01.2013, as captured in the CCTV installed in the premises, which came to be telecast by a News channel after about two weeks. The version of the 'Karanma' employee that the said instance was not properly proved in a domestic enquiry; that he has been acquitted in the criminal case registered by the police and that he did not get sufficient opportunity to explain his case, as no charge sheet or show case notice W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 24 was issued to him, does not weigh much; in view of the specific nature of engagement and since only limited right is available to the 'Karanma' employee, to receive the wages, as stipulated by the Board, so long as his service is put to use. It does not mean that it is an instance of 'hire and fire'. The Board has to decide whether the 'Karanma' employee has to be removed and if so, Head of the 'Karanma family' is to be required to nominate another person. This can be done in a single transaction, where no full-fledged enquiry is necessary, but for a summary procedure.
22. The scope of engagement of a 'Karanma' employee [in recognition of the Karanma right of the family] is discernible from the Rules framed by the Devaswom Board under Section 28 of the TCHRI Act. Rule 1 of the said Rules stipulates that the Devaswom Board shall have absolute control over the holders of the 'Karanma' services and also over all the properties, 'Thiruppuvarams' and other emoluments attached thereto [Section 28 (1) of the Act]. Rule 3 says that the W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 25 responsibility for proper discharge of the work and the right to depute members from the 'Karanma' family to different services, rests with the senior most member of the family. Under Rule 4, it is stipulated that, when the senior member arranges the work to be done by a member of the family other than himself, he will give his written consent to such proxy to do the services and such written consent should be produced, before the pay and other emoluments attached to the post are disbursed to the person who actually does the work. The rule authorises payment thereafter, to be made to such person, until the senior member cancels the arrangement in writing.
23. Referring to the different contingencies which may occur, Rule 5 says that if the 'Karanma family' has no suitable member to perform the duties, the post may temporarily be filled up otherwise by the Board and if there is no chance of the 'Karanma family' producing competent members for the conduct of work, action should be taken under Section 28 (2) of the TCHRI Act to W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 26 terminate the Karanma right of the family. Under Rule 7, it is stated that the Rules imposing restriction on account of the age will not apply to 'Karanma' appointments. As per Rule 8, the Board will hold the family responsible for the irregularities of the members of the family, who actually performs the service. Rule 10 stipulates in the case of services which have been allowed to be attended to by proxies as stated in Rule 4, not only the proxy but the 'Karanma family' and its properties also will be held answerable for the faults of the proxy. As per Rule 10, an agreement should be obtained from the proxy clearly stating that the 'Karanma family' will be responsible for proper performance of the service and for making good any loss that may be occasioned to the Devaswoms by the proxy. The most senior male member of the 'Karanma family', or his duly constituted agent, should be a signatory to the agreement so that it may be binding on that family. It is clearly mentioned under 'Rule 11', that the 'Karanma' services should not be alienated or W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 27 even partitioned among the members of the same family. Rule 12 comes with the stipulation that the 'Karanma' employee will be subject to disciplinary control of the Devaswom Board and the Officers of the Devaswom, as in the case of any other employee. Reading the Rules together, it is very evident, that the scope of disciplinary control of the Board under Rule 12 is only to assert the right of the Devaswom Board to exercise such right, without leaving the same to the Head or senior member of the 'Karanma family', despite the fact that the 'Karanma' employee is only a proxy nominated by the Head/Senior member of the family and not appointed directly by the Board. This being the position, it cannot be contended that the Kerala Civil Service [Classification Control and Appeal] Rules 1960 are applicable to a Karanma employee.
24. The position becomes crystal-clear from the service Rules of the Devaswom employees, formulated by the Board in exercise of the power under Section 35 (2)
(e) of the Act. Section 35 2(e) reads as follows :
W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 28 S. 35. Rules : (1) The Board may make rules to carry out all or any of the purposes of this Act not inconsistent therewith.
(2) In particular without prejudice to the generality of the forgoing power, the Board shall have the power to make rules with reference to the following matters :-
(a)........
(b).......
(c) ..........
(d)........
(e) the method of recruitment and qualifications, the grant of salaries and allowances, the discipline and conduct of officers and servants of the Board and the Devaswom Department and generally the conditions of their services;
(f).........
(g)........
25. The Rules [Rules regarding Service Conditions of Devaswom Employees] so framed by the Devaswom Board are stated as having approved by the Government and issued ROC No. 828/79/Est. dated 14.07.1979, which was published in the Kerala Gazette No. 51 dated 25.12.1979 [Part IV]. When Rule 4 of the said Rules says that the disciplinary proceedings taken against the Devaswom employees envisaged under the said Rules shall be deemed W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 29 to have been governed w.e.f. 27.10.1971, by the Rules contained in the Kerala Civil Service [Classification Control and Appeal] Rules 1960 and shall continue to be governed by the aforesaid Rules in so far as they are not repugnant to the context of services under the Board; Rule 1 clearly says that the said Rules are not applicable to the 'Karanma' employees. Rules 1 and 4 are extracted below :
"Rule 1 : These rules shall apply to all the employees borne on the administrative establishments under the control of the Travancore Devaswom Board [here in after shortly stated as the "Board"] but shall not apply to.
(a) Contingency employees
(b) Karanma employees
(c) Employees of temporary or special offices created for specific purpoes.
Rule 4 : The disciplinary proceedings taken against Devaswom employees envisaged, under these rules, shall be deemed to have been governed with effect from 27 th October, 1971, by the rules contained in the Kerala Civil Services [Classification, Control & Appeal] Rules 1960 and shall continue to be governed by the aforesaid rules in so far as they are not repugnant to the context of the services under the Board. W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 30 From the above, it is explicitly clear that the version of the petitioner 'Karanma' employee that a detailed enquiry under Rule 15 of the Kerala Civil Service [Classification Control and Appeal] Rules 1960 ought to have been conducted, by the Devaswom Board is quite wrong and misconceived, as the Kerala Civil Service [Classification Control and Appeal] Rules 1960 are mot applicable in the case of a 'Karanma' employee.
26. During the course of hearing, it is brought to the notice of this Court that the scope of service as 'Karanma employee', with reference to the principle of 'equal pay for equal work' and the claim seeking parity with regular employee of the Travancore Devaswom Board had come up consideration before this Court earlier. The point considered there was whether 'Karanma' employees of the Board continuing in service [after abolition of the 'Karanma' pursuant to the Kerala Service Inam Lands (Vesting and Enfranchisement) Act, 1981] were entitled to have pay and pensionary benefits as in the case of regular employees of the Board, in the W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 31 light of the law declared by this Court in Travancore Devaswom Board Vs. Chellappan Pillai [1988 (1) KLT 16]. After referring to the various provisions in the TCHRI Act, The Constitution of India and The Kerala Service Inam Lands [Vesting and Enfranchisement] Act, 1981, it was observed by the Single Bench Bench as per the decision reported in 2009 (2) KHC 928 [Manohara Warrier R. and Others Vs. State of Kerala and others - authored by one of us (PRRM [J])] that the verdict passed by the Division Bench in Chellappan Pillai's case [cited supra] stood on a different footing. It was observed that the Division Bench had declared that, after coming into force of the Kerala Service Inam Lands [Vesting and Enfranchisement] Act, 1981, any service or obligation attached to the service of Inam land stood abolished and the landholders were having no liability or obligation to render any service attached to such services, when the land came to be vested with the Government, free from all encumbrances. It was also observed by the Division Bench that, even after extinguishment of the W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 32 'Karanma' rights after 06.08.1981 [from which date the Act came into force], it was established by the conduct of the parties to the dispute that the employee concerned was regarded as appointed by the Board, to offer service as Accountant in a particular temple, though no specific order of appointment was brought to the notice of the Court. The benefit extended to the employee in the said circumstances, was held as not extendable to the petitioner in the case decided by the Single Bench [2009 (2) KHC 928 (cited supra)] treating the 'Karanma' employees who continued in service after 06.08.1981 was continuing so, not in the capacity as hereditary 'Karanma' employee, but as an employee of the Board. It was after making a reference to the verdict passed by the Division Bench in 1988 (1) KLT 16 (cited supra), that the single Bench held that the Devaswom Board was having the right to fix the terms and conditions of the service of its employees, invoking Rule 23 of the Rules formulated by the Board [by virtue of the power conferred under Section 35 of the TCHRI W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 33 Act]. It was accordingly held that the service rendered by the 'Karanma' employee could never be equated to the service rendered by a regular employee of the Board; in turn leading to dismissal of the writ petition. The said verdict stands affirmed by a Division Bench of this Court in W.A. No. 2446 of 2009.
27. The Devaswom Board contends that a charge memo was given to the petitioner 'Karanma' employee; receipt of which is however sought to be denied by the petitioner. The acceptance of charge sheet/show cause memo is not substantiated before this Court; by the Devaswom. Eventhough it is not necessary to conduct a full-fledged enquiry, principles of natural justice demand service of a notice in this regard, to put an employee on guard as to the further course of action proposed, enabling him to explain the position, if any. Viewed in the said perspective, the simple dismissal of the 'Karanma' employee who was placed under suspension pending enquiry was not proper, as the said employee was given to understand that enquiry would follow and he W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 34 will be getting a chance to explain.
28. As mentioned already, in view of the very nature of engagement of 'Karanma' employee, being only a nominee to be nominated by the Head/Senior member of the 'Karanma family', with liberty to have him substituted, if at all any requirement in this regard is pointed out, it is enough for the Devaswom Board, once any circumstance envisaged under Rule 13 is noted, to issue a notice to the head/senior member of the family, asking to nominate a substitute in place of the existing 'Karanma' employee. If the lapse on the part of the 'Karanma' employee is so grave, it is still open for the Devaswom Board to put an end to the 'Karanma right of the family' itself, by issuing notice to the Head/Senior member of the family, as envisaged. In the instant case, misconduct pointed out is quite serious involving misappropriation of funds while counting the collections in the Hundi, as captured by the CCTVs and telecast by a News channel [India Vision], which led to Ext. P1 suspension order. It may be true that the petitioner W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 35 was acquitted by the Criminal Court, because of the failure on the part of the prosecution in proving the offence beyond reasonable doubt. But in the case of disciplinary proceedings, preponderance of probability is sufficient to arrive at the guilt of the employees in departmental proceedings. There is no allergy even to 'hearsay evidence' as held by the Apex Court in State of Haryana and another Vs. Rattam Singh (1982 (1) LLJ
46) and Shri. J.D. Jain Vs. The Management of State Bank of Indian and another (1982 (1) LLJ 54). The petitioner stands on a much lower pedestal, not being a departmental employee, but a 'Karanma' employee and he is working only as a 'proxy', as nominated by the Head/senior member of the 'Karanma family', who could always be substituted by the Head/senior member of the family, without any need for disciplinary action.
29. It is evident from Ext. P12 proceedings that a notice in this regard was served to the Head/senior member of the family on 10.03.2014, to nominate a substitute/fresh hand in place of the petitioner. This W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 36 opportunity was not made use by the Head/senior member of the family having 'Karanma' right by substituting any other person. But the fact remains that, by virtue of the subsequent events and the interference made by this Court, the petitioner 'Karanma' employee is continuing in service. In view of the declaration of law, as mentioned above, it will be enough for the Devaswom to serve a notice to the petitioner as to the alleged incident asking for his explanation, if any and thereafter could proceed with further steps, to put an end to his service, instructing the Head/senior member of the family to nominate another person or to permit him to continue the service. When the Devaswom Board states that Ext. P10 charge sheet was given, receipt of same is disputed by the petitioner. Service of Ext. P10 is not proved before this Court [as there is no endorsement of receipt thereon], nor any material is produced by the Devaswom as to the sending of the same [by registered post or otherwise]. This Court is of the view that, to meet the requirements of principles of W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 37 natural justice, the Devaswom Board is required to issue a notice to the petitioner with reference to the incident on 05.01.2013 and the telecast of the incident captured by the CCTVs by a News channel [India Vision] calling for explanation, if any. Appropriate action could be pursued, thereafter, based on the decision to be taken as to whether he could be permitted to continue in service or to be substituted by another person from the 'Karanma' family. Exts. P12 and P12 (a) stand set aside, so as to facilitate such exercise. The Devaswom can proceed against the petitioner by issuing a fresh show-cause notice, affording an opportunity of hearing and take appropriate decision [either permitting him to continue in service or remove him; giving an opportunity to the Head of the family having 'Karanma' right to nominate another person]. The steps in this regard shall be finalized as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment.
30. Coming to the payment of subsistence allowance, W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 38 it is to be noted that the termination of service of a 'Karanma' employee may involve different instances:
(i) Misconduct or such other cause as
envisaged under Rule 13, adequate enough to
sustain a simple removal after obtaining the
explanation.
(ii) It may be a circumstance, where the
'Karanma' employee is sought to be placed under "suspension pending enquiry", particularly, where the act of the employee has caused some loss to the Devaaswom. The loss has to be assessed accordingly, to cause the same to be realized from the employee by pursuing appropriate steps
(iii) Based on the gravity of the misconduct/cause as aforesaid, it may have to be considered whether notice should be issued to the 'Head of the Karanma family' to put an end to the Karanma right itself.
In the case of simple removal, no detailed enquiry or procedure is contemplated and hence steps can be pursued W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 39 by issuing notice and calling for explanation, followed by appropriate orders of removal [if the explanation is not satisfactory]; with liberty to the Head of the family having 'Karanma' right to nominate another person. Here, the right of the family is not lost.
31. In the other instance, if the Devaswom Board decides to place 'Karanma' employee under suspension, pending domestic enquiry [as ordered in Ext. P1], the right of the 'Karanma' family gets prejudiced, if no substitute is sought to be nominated simultaneously. Admittedly, notice to nominate another person was issued by the Devaswom only on 10.03.2014, as discernible from Ext.P12. This being the position, it was obligatory for the Devaswom to have arranged payment of subsistence allowance to the 'Karanma' employee, though he was not a departmental employee and normal Service Rules are not applicable to him. Viewed in the said perspective, the subsistence allowance ordered to be paid by the learned single Judge, which is under challenge in W.A. No. 427 of 2014 [but caused to be paid as per the interim order W.A. No. 427 of 2014 and W.P.(C) No. 8545 of 2014 40 passed by this Court on 13.03.2014] does not warrant any interference.
In the result, W.A. No. 427 of 2014 stands dismissed and W.P.(C) No. 8545 of 2014 stands disposed of.
Sd/-
P.R.RAMACHANDRA MENON JUDGE Sd/-
N.ANIL KUMAR
kmd JUDGE