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TMI Blog1967 (2) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant who thereafter filed a written statement of defence. After perusing the written statement the Government passed orders that his explanation was unacceptable and that the charges should be enquired into by an Enquiry Officer to be appointed under rule 5 of the Rules. Accordingly Sri T. N. S. Raghavan a retired I.C.S. Officer was appointed to hold the inquiry. The appellant then filed the present writ petition before the High Court of' Kerala praying for grant of a writ of certiorari to quash the proceedings initiated against, him and for a writ of mandwmus calling upon. respondent No. 2, State of Kerala, to allow him to function as the. First Member of the Board of Revenue. As no application for stay was made and as no order of stay Was passed by the High Court Sri T. N. S. Raghavan proceeded with the inquiry and submitted his report to the Union Government finding the appellant guilty of charges 1 to 4 and 9. The union of India, after consideration of the report, issued a 'Show Cause Notice' Ex. P-9. The appellant thereafter filed an application before the High Court for amendment of the writ petition. The prayer in this amended petition was for the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t charge the period of the lease is 36 years. In one case the period is 96 years and in the rest of the leases the period of lease is 99 years. The total area covered by all the leases comes to over 50,000 acres. Charges 1 to 4 and 9 read as follows: 1. That you, Shri S. Govinda Menon, I.A.S., while employed in the Government. Service as member, Board of Revenue and Commissioner, H. R. C. E. (Administration) Department from 1- 2-1957 to 19-10-1962 issued sanctions granting leases of extensive and valuable forest lands belonging to the Devaswoms under your control as Commissioner such as (1) Pulpally Devaswom, (2) Kallaikulangara Emoor Bhagavathi Temple, (3) Nadivilla Vallathu Devaswom, (4) Kottiyor Devaswom, (5) Mundayanparamba Devaswom etc., in utter disregard of the provisions in the Madras Hindu Religious and Charitable Endowment Act, 1951 and the rules issued thereunder. In several cases you had yourself initiated the proposals for leases which should have been made by the trustee and acted in judgment on them by sanctioning the leases. In many cases of the leases aforesaid and otherwise generally in regard to the control and supervision exercised by you over the administ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y immovable property belonging to any religious institution shall be -null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution, and the Commissioner shall, before according sanction, publish particulars of the proposed transaction, invite objections and consider them. Sub-section (3) provides for communicating a copy of the order granting sanction to the Government and to the trustee. Sub-section (4) provides for an appeal against the order of the Commissioner to the Government by the trustee or any person having interest. Section 99(1) states: 99. (1) The Government may call for and examine the record of the Commissioner or any Deputy or Assistant Commissioner, of any Area Committee or of any trustee in respect of any proceeding, not being a proceeding in respect of which a suit or an appeal to a Court is provided by this Act, to satisfy themselves as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein; and, if, in any case, it appears to the Government that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion sole and shall have perpetual succession and a common seal and may sue and be sued in his corporate name. It was argued that the acts and omissions of the appellant in his capacity as Commissioner cannot be questioned in any disciplinary proceedings as the Commissioner is not a servant of the Government subject to its administrative control. Before examining this proposition it is necessary to consider rule 4 of the Rules which states: 4. Authority to institute proceedings and to impose penalty:- (1) Where a member of the Service has committed any act or omission which renders him liable to any penalty specified in rule 3 (a) if such act or omission was committed before his appointment to the service, the Government under whom be is for the time being serving shall alone be competent to institute disciplinary proceedings against him and, subject to the provisions of sub-rule (2), to impose on him such penalty specified in rule 3 as it thinks fit. (b) if such act or omission was committed after his appointment to the Service, the Government under whom such member was serving at the time of the commission of such act or omission shall alone be competent to institute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant was, at the time of' the alleged misconduct, employed as the First Member of the Board of Revenue and he was at the same time performing the duties of Commissioner under the Act in addition to his duties as the First Member of the Board of Revenue. In our opinion, it is not necessary that a member of the Service should have committed the alleged act or omission in the course of discharge of his duties as a servant of the Government in order that it may form the subject-matter of disciplinary proceedings. In other words, if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is no actual master and servant relationship. To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the Government; The -test is whether the act or omission has some reasonable connection with the nature and condition of his service or whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gregate. As Maitland said: If our corporation sole really were an artificial person created by the policy of man we ought to marvel at its incompetence. Unless custom or statute aids it, it cannot (1) 17 Q.B.D. 536, 542. (so we are told) own a chattel, not even a chattel real. A different and an equally inelegant device was adopted to provide an owning 'subject' for the ornaments of the church and the minister thereof-adopted at the end of the Middle Ages by lawyers who held themselves debarred by the theory of corporations from frankly saying that the body of parishioners is a corporation aggregate. And then, we are also told that in all probability a corporation sole 'Cannot enter into a contract except with statutory authority or as incidental to an interest in land .......... Be that as it may, the ecclesiastical corporation sole is no juristic person'; he or it is either natural man or juristic abortion. (See 'Selected Essays of' Maitland pp. 100 103). Keeton has also observed as follows It was a device for transmitting real property to a, succession of persons without the necessity for periodic. conveyances. It was never intended that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the cases mentioned in the statement of allegations. The relevant portion of the allegation reads as follows: You were the Commissioner H. R. C. E. (Admn.) Department from 1-2-1957 to 19-10-62. Under section 29 of the Madras Hindu Religious and Charitable Endowments Act of 1951, any exchange, sale or mortgage and any lease for a term exceeding 5 years of any immovable property belonging to or given or endowed for the purpose of any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution. Under the proviso to the section, the particulars of the proposed transactions shall be published at least in one daily newspaper inviting objections and suggestions with respect. to the proposals and the suggestions and objections, if any, received should be considered by the Commissioner before the sanction is accorded. By the rules made under section 29, clauses (1) and (3) of the Act, notice of the proposals for a lease for a period exceeding five years of immovable property belonging to a religious institution shall contain particulars of the nature of the proposed transaction, the correct description ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disciplinary proceedings if there was prima facie material for showing recklessness or misconduct on the part of the appellant in the discharge of his official duty. It is true that if the provisions of s. 29 of the Act or the Rules are disregarded the order of the Commissioner is illegal and such an order could be questioned in appeal under s. 29(4) or in revision under s. 99 of the Act. But in the present proceedings what is sought to be challenged is not the correctness or the legality of the decision of the Commissioner but the conduct of the appellant in the discharge of his duties as Commissioner. The appellant was proceeded against because in the discharge of his functions he acted in utter disregard of the provisions of the Act and the Rules. It is the manner in which he discharged his functions that is brought up in these proceedings. In other words, the charge and the allegations are to the effect that in exercising his powers as Commissioner the appellant acted in abuse of his power and it was in regard to such misconduct that he is being proceeded against. It is manifest therefore that though, the propriety and legality of the sanction to the leases may be questioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er under rule 9. In this connection reference was made by the appellant to rule 2(2) which provides that auction is to be conducted in the case of a lease for a period of one year or more within one month, and in the case of a lease for a period of less than one year, within 15 days after the date of the trustee's decision regarding the period for which the lease should be given. It was said that it would be impossible to conduct an auction in such a case within one month of the date of the trustee's decision because a minimum period of 30 days is prescribed between the notice and hearing of objections under s. 29. It was said that some more time will necessarily have to be allowed for the trustees to send an application after they decide the period of the lease and for the Commissioner to issue the notice himself and to communicate his ,sanction to the trustees.' We do not think there is any substance in this argument because it is open to the trustee to hold the auction in the first place under Rule 1 even in the -case of a lease for a period over 5 years and then send the proposal to the Commissioner for sanction. We are accordingly of the opinion that Rule 1 made un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legislature contemplated such a consequence. In this context it is necessary to remember that under the general law the trustee is the person competent to make alienation or grant lease of Devaswom properties. It is true that the Sup Cl/67-8 legislature has put a restriction on the power of alienation and the power of granting leases by s. 29 of the Act, but the statutory restriction on the power of the trustee should not be interpreted in such a way as to abrogate all his power in respect of alienation or. lease. We are accordingly of the opinion that the Commissioner has no power to initiate specific proposal for lease of the trust properties and the argument of the appellant on this point must be rejected The third part. of charge No.1 is not a separate charge but could be enquired. into along with other parts of charge No, 1. As regards charges 2, 3 and 4 it is not shown on behalf of the appellant that there is any defect of jurisdiction and that the respondents-cannot proceed with the inquiry. The next question to be considered is whether the disciplinary proceedings against the appellant were validly instituted as required by Rule 4(1)(b) of the Rules. It was submitted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rave charges of serious irregularity and official misconduct on the part of the accused or The detailed enquiry into the charges by the X-Branch is in progress. The evidence in the case has to be collected from a large number of officers who are subordinate to the accused officer in his capacity as First Member of the Board of Revenue. In the interest of the proper conduct of the enquiry it is necessary that the officer should not be allowed to continue in that post. Having regard to the nature of the charges against the officer and the circumstances the proper course would be to place him under suspension. Shri S. Govinda Menon I.A.S. First Member Board of Revenue, is therefore placed under suspension under Rule 7 of the All India Services (Discipline and Appeal) Rules 1955 till the disciplinary proceedings initiated against him are completed. A perusal of this document shows that the Government had accepted the proceedings taken in, the matter uptil that date and had decided to go forward with the disciplinary proceedings. In our opinion, there is no formal order necessary to initiate disciplinary proceedings under Rule 4(1) of the Rules and the order of the State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X
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