(2012) 236 KLR 121 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 10TH DAY OF FEBRUARY 2012/21ST MAGHA 1933 WPC.No. 23125 of 2011 (M) ---------------------------------- PETITIONER(S): -------------------- JAYAN K.S,/O.SANKUNNY, KULAVATHRE HOUSE, P.O.PUNAYURKULAM THRISSUR DISTRICT-679561 BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S): -------------------- 1. THE STATE OF KERALA REP.BY SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF REVENUE (DEVASWOM),SECRETARIAT,THIRUVANANTHAPURAM. PIN-695001 2. SRI N.RAJU,EMPLOYEE,GURUVAYUR DEVASWOM, GURUVAYUR,THRISSUR DISTRICT.PIN-680101 R1 BY ADV. GENERAL SRI. K.A. DANDAPANI R2 BY ADVS. SRI.KRB.KAIMAL (SR.) SRI.B.UNNIKRISHNA KAIMAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/01/2011, ALONG WITH WPC. 28814/2011, WPC. 30742/2011, THE COURT ON 10/02/2012 DELIVERED THE FOLLOWING: svs W.P.(C). NO. 23125/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF RELEVANT PAGES OF THE SERVICE BOOK OF THE 2ND RESPONDENT. P2: COPY OF JUDGMENT DATED 5TH MARCH 2004 IN WPC.NO. 34442 OF 2003. P3: COPY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KERALA TO SRI.T.V.KRISHNA DAS. P4: COPY OF NEWS REPORT APPEARED IN MATHRUBHUMI DATED 14.8.2011. P5: COPY OF THE G.O(Rt) NO.3455/2011/RD DATED 12/08/2011. RESPONDENT'S EXHIBITS: R1(a):COPY OF THE JUDGMENT IN CCC NO.1052/2010 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHAVAKKAD ALONG WITH PETITION FILED BY APP DATED 23/11/2011. /TRUE COPY/ P.A. TO JUDGE. svs Thottathil B.Radhakrishnan & C.T.Ravikumar, JJ. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).Nos.23125, 28814 & 30742 of 2011 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of February, 2012 Head Note:- Guruvayoor Devaswom Act, 1978 - Sections 3 and 4 - Composition of committee - representative of the employees - The Act does not provide for the employees to choose a representative among themselves for this or for any other purpose. The provision "a representative of the employees of the Devaswom nominated by the Hindus among the Council of Ministers" only means that the nomination made by the Hindus among the Council of Ministers from among the employees would be the person who shall be treated to represent the employees in the Committee. Interpretation of Statutes - Guruvayoor Devaswom Act, 1978 - Sections 3 and 4 - When composition of committee and the mode of constituting that committee is statutorily provided for, by conferring upon a class of persons, the authority to nominate, from an identifiable class of persons, namely, employees, the field of choice to make the nomination cannot be restricted or diluted from the statutory prescription. Though the phrase "representative of the employees" is used, there is no statutory indication that Legislature ever intended a process by which the employees would choose from among themselves, thereby carrying out a field of choice, from which alone could the Hindus among the Council of Ministers have to make the nomination. Guruvayoor Devaswom Act, 1978 - Sections 3 and 4 - Composition of committee - representative of the employees - allegations of moral turpitude - In the absence of any allegation that the individual concerned has been convicted of any offence involving moral turpitude or that he has been guilty of corruption as found by a competent court, no disqualification can be traced as against the person concerned. Judgment "CR" Thottathil B.Radhakrishnan, J. 1.An employee of the Guruvayoor Devaswom was nominated by the Hindus among the Council of Ministers as a Member of the Guruvayoor Devaswom Managing Committee constituted under Section 3 of the Guruvayoor Devaswom Act, 1978, hereinafter referred to as the "Act". 2.These writ petitions filed challenging the aforesaid nomination are, one by an organization claiming to be espousing the cause of the devotees and the other two by individuals professing to be devotees. 3.The complaint against the individual concerned is that while serving the Devaswom as an employee, his conduct was subject of disciplinary proceedings on two occasions, both, according to the writ petitioners, being on allegations of moral turpitude. A plea, as of law, argued in one of the writ petitions is that the provision in Section 4(1)(d) of the Act enabling nomination can be only of a representative of the employees and not one among the employees, that is to say, there must be a process by which the employees choose representatives and, that chosen group should be the constituency from which nomination could be made by the Hindus among the Council of Ministers. 4.Section 4(1)(d) of the Act provides for a representative of the employees of Devaswom nominated by Hindus among the Council of Ministers, to be a member of the Committee. 5. In fact, in 1999, a question was raised before this Court touching the issue of representation and nomination from among the employees. The argument advanced was that the right to be associated in the management of the temple having been conferred on the employees by enabling them to have a representative of theirs in the Managing Committee, the right to elect that member or to recommend their nominee must also be with the employees. The provision for the exercise of power of nomination by the Council of Ministers was argued as arbitrary and unreasonable and violative of the fundamental rights of the employees to be associated in the management. That argument found its waterloo at the hands of the Full Bench of this Court(Five Judges) by the decision in Guruvayoor Devaswom Employees' Association v. State of Kerala, 1999 (3) KLT 745. 6.The Act does not provide for the employees to choose a representative among themselves for this or for any other purpose. The provision "a representative of the employees of the Devaswom nominated by the Hindus among the Council of Ministers" only means that the nomination made by the Hindus among the Council of Ministers from among the employees would be the person who shall be treated to represent the employees in the Committee. When composition of committee and the mode of constituting that committee is statutorily provided for, by conferring upon a class of persons, the authority to nominate, from an identifiable class of persons, namely, employees, the field of choice to make the nomination cannot be restricted or diluted from the statutory prescription. Though the phrase "representative of the employees" is used, there is no statutory indication that Legislature ever intended a process by which the employees would choose from among themselves, thereby carrying out a field of choice, from which alone could the Hindus among the Council of Ministers have to make the nomination. There is no room in the legislative setting of Section 4(1)(d) of the Act to hold so. The argument in this regard is, therefore, rejected. 7.On to the other contentions as to the alleged disqualification of the person concerned. 8.Section 4 of the Act provides for composition of committee. Clauses (d) and (e) of sub-section (1) thereof provides for nomination. Clause (d) deals with nomination of a representative of the employees of the Devaswom and clause (e) provides for nomination of 5 persons from among persons having interest in the temple. Sub-section (2) of Section 4 enumerates disqualification for being nominated under clause (e). Of them, clause (v) provides disqualification if the person is subject to any of the disqualifications mentioned in clause (a), (b) and (c) of sub-section (3) of section 5. Now, examining section 5, it can be seen that persons nominated under clauses (d) or (e) of sub-section (1) of Section 4, i.e. to say, from among the employees or from among persons having interest in the temple, fall as a homogeneous clause for the purpose of section 5. The duration of office of each of such nominated persons is governed by sub-section (1) of section 5. Sub-section (2) provides for resignation and cessation of acceptance of the resignation by the Government. Sub-section (3) of section 5 provides for removal from office of a member referred to in sub-section (1), thereby meaning anyone out of the afore-noted homogeneous clause, if he falls within the disqualification mentioned in that sub-section. While clauses (a) to (c) of section 5(3) would be relevant even at the stage of making a nomination under causes (d) or (e) of section 4(1), the incurring of the disqualification on a ground referable to misconduct in the administration of the Devaswom in terms of clause (d) of section 5(3) can visit a person only after he becomes a member of the committee because, until then, that person would not have any involvement in the administration of the Devaswom. The reason for this is that section 3(1) of the Act would show that the administration of the Devawom shall be vested in the committee. Therefore, unless a person becomes part of the committee as a member, he cannot be held to have incurred any disqualification referable to misconduct in the administration of the Devaswom. However, the first limb of clause (d) of section 5(3) that a person gets disqualified if he stands guilty of corruption would take within its sweep such situation referable even apart from the administration of Devaswom. We say this because, the Legislature would never have envisaged bringing a person who has been found guilty of corruption being nominated to the Guruvayoor Devaswom Managing Committee to administer, control and manage that Devaswom. It is salutary to presume that the Legislature always endeavours to uphold the Rule of Law and the Constitution. But, to characterise a person that he has been guilty of corruption has to be done only on the basis of a finding of guilt by a court of competent jurisdiction and not otherwise. In the absence of any allegation that the individual concerned has been convicted of any offence involving moral turpitude or that he has been guilty of corruption as found by a competent court, no disqualification can be traced as against the person concerned. 9.For these reasons, it can safely be concluded that there is no ground in law on the basis of the provisions of Section 4 or even Section 4 to hold that the person concerned was not eligible to be nominated. 10.Be that as it may, looking also at the incidents alleged, we see from the materials on record that the allegations never led to any action, worth noticing, against the employee concerned. The final report in the criminal case led to the management vacating the punishment. The so-called incidents never visited the person concerned with any disqualification as would fall within the pale of Section 4 or Section 5 of the Act. We, therefore, do not find any ground to uphold the contention of the writ petitioners. 11.Not only that, even if we are to take that the nomination has to be of a representative of the employees, we see that no employee of Guruvayoor Devaswom has come forward to challenge the nomination of the person concerned, either in law or on facts. Therefore also, we do not see any merit in these writ petitions. They are devoid of any public interest worth mentioning. For the aforesaid reasons, these writ petitions fail and are accordingly dismissed. No costs. Sd/- Thottathil B.Radhakrishnan, Judge. Sd/- C.T.Ravikumar, Judge. Sha/ |
