High Court Kerala High Court

R.Prakasan vs Travancore Devaswom Board on 23 August, 2007

Kerala High Court
R.Prakasan vs Travancore Devaswom Board on 23 August, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 21109 of 2007(K)


1. R.PRAKASAN, KOIPPELLI, KIZHEKKETHIL,
                      ...  Petitioner

                        Vs



1. TRAVANCORE DEVASWOM BOARD, REPRESENTED
                       ...       Respondent

2. COMMISSIONER, TRAVANCORE DEVASWOM BOARD,

3. ASSISTANT DEVASWOM COMMISSIONER,

                For Petitioner  :SRI.P.RAVINDRAN

                For Respondent  :SRI.D.SREEKUMAR, SC, TDB

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :23/08/2007

 O R D E R
                       ANTONY DOMINIC, J.
                      ===============
                   W.P.(C) NO. 21109 OF 2007
                 ====================

            Dated this the 23rd day of August, 2007

                          J U D G M E N T

Petitioner is a Sambathi under the first respondent Board

and has been posted at the Thrippakkudam Devaswom since

16/7/06. Ext.P2 is a show cause notice issued by the 2nd

respondent, in which certain allegations of misconduct have been

raised against th petitioner, based on a report of the Sub Group

Officer. It is also stated that the Sub Group Officer has reported

that in the circumstances narrated therein, petitioner should be

immediately transferred from the Sub Group. For the

misconducts alleged, he was called upon to show cause why

further action should not be initiated against him. On receipt of

Exhibit P2, petitioner submitted Ext.P3 reply. In Ext.P3, he has

made allegations against the Sub Group Officer and concluded by

stating that it was on account of his refusal to obey the illegal

demands of the Sub Group Officer that the illmotivated report

was furnished by the Sub Group Officer. He therefore requested

WPC 21109/07
: 2 :

the authorities to exonerate him from the charges. Thereafter

petitioner received Ext.P4 during May 2007, whereunder he has

been transferred to Harippad Devasom. Against Ext.P4 order of

transfer, petitioner submitted Ext.P5 appeal and during its

pendency he was allowed to continue at Thrippakkudam

Devaswom itself. Later by Ext.P6, he was relieved from the post

and thereafter he got Ext.P7 order dated 8/6/07, which is the

proceedings of the Devasom Commissioner rejecting his appeal.

Challenging Exts.P4 and P7 and to direct the authorities to allow

him to continue at Thrippakkudam Devaswom for a period of

three years from 16/7/06, this writ petition has been filed.

2. The respondents have filed a statement. It is stated

that the Sub Group Officer submitted a report containing serious

allegations against the petitioner and on the basis of the report,

Ext.P2 show cause notice was issued. It is also stated that it is

on the basis of the report of the Sub Group Officer that the

petitioner was transferred to Harippad Devaswom. According to

the Board, the transfer norms, in particular Clause 3 thereof,

empowers the authorities to transfer an employee on the basis of

WPC 21109/07
: 3 :

complaints and lapses. It is also stated that the appeal filed by

the petitioner before the 2nd respondent has been rejected on the

basis of the “aforementioned report of the 3rd respondent”, the

Sub Group Officer.

3. The learned counsel appearing for the writ petitioner

submits that by Ext.P2 show cause, the petitioner was called

upon to show cause on various allegations including as to why he

should not be transferred from Thrippakkudam and that reply has

been given. Before considering or taking a decision on the reply

so given, Ext.P4 order of transfer was issued. According to him, it

is only on the basis of the report of the Sub Group Officer, whose

illegal demands were not acceded by the petitioner. The learned

counsel submits that the transfer norms permit an employee to

continue at a station for a minimum period of three years and

that except in exceptional situation, the employees should not be

disturbed before expiry of the period.

4. I have considered the submissions of the learned

counsel. On going through Ext.P2 show cause notice, I notice

that it was issued calling upon the petitioner to show cause as to

WPC 21109/07
: 4 :

why disciplinary action should not be initiated against him. The

allegations of misconducts based on which action is proposed,

have been mentioned in the show cause notice. Show cause

notice also mentioned that in the background of the allegations of

misconduct, the report of Sub Group Officer requires that the

petitioner shall be transferred from out of the Devaswom

immediately. According to me, he was called upon to show cause

only against the allegations of misconduct, and not against that

part of Ext.P2, wherein it mentions about the report for

transferring him from the Devaswom. Therefore, the contention

of the petitioner that before a decision was taken in the light of

the reply submitted by the petitioner, he has been transferred is

without any substance.

5. As regards the contention of the learned counsel for

the petitioner for continuance of an employee at a place for three

years and except in exceptional situation the employee should

not be disturbed, that cannot be reason for retaining the

petitioner at a station in the light of the allegations that are

raised against him. In any case, such norms cannot bind the

WPC 21109/07
: 5 :

Devaswom in all circumstances and cannot be a foundation for

continuance. Therefore the contention that Ext.P4 has been

issued without any application of mind does not survive.

6. Ext.P5 appeal has been decided by Ext.P7. Ext.P7

does not contain any reason except that show cause notice has

been given. The statement filed by the Board shows that the

appeal was rejected on the basis of the report of the 3rd

respondent, Sub Group Officer. In the light of the fact that the

petitioner has raised allegations against the 3rd respondent, in the

reply to the show cause notice and also in the appeal

memorandum filed by him, the appellate authority ought not

have confined its examination to the report of the 3rd respondent

alone. Appellate authority should have independently examined

the merits of the contentions, which has not been done.

Therefore, Ext.P7, to the extent it rejects the appeal of the

petitioner reflects non application of mind and requires to be

quashed.

7. Accordingly, Ext.P7, to the extent the petitioner’s

appeal has been rejected, is quashed and the 2nd respondent will

WPC 21109/07
: 6 :

reconsider Ext.P5 appeal of the petitioner, as expeditiously as

possible and pass fresh orders thereon. This shall be done within

a period of four weeks from the date of receipt of a copy of this

judgment.

Writ petition is disposed of as above.

ANTONY DOMINIC, JUDGE.

Rp