Case: S. Govinda Menon Vs. The Union Of India &amp; Anr

by res judicata by reason of the decision of the Kerala High Court in S. Govinda Menon v. State of Kerala 1963 KLT.1162. In that case, the order of suspension was challenged by the appellant by a writ petition in O. P. No. 485 of 1963 which was dismissed by Vaidialingam, J. Against that decision the appellant preferred an appeal which was dismissed by the Division Bench. It was contended by the appellant that the only issue considered in that case was whether the appellant could be suspended before the charges were framed and the rule of res judicata was not applicable. We shall assume in favour of the appellant that the question is not barred by res judicata. Even so, we are of the opinion that there is no substance in the contention of the appellant that there was no valid institution of the disciplinary proceedings under R.4(1). A persual of the order of the Government, Ex. P-1 would itself indicate that disciplinary proceedings had been initiated against the appellant. Exhibit P-1 reads as follows:"The Government have received several petitions containing serious allegations of official misconduct against Sri S. Govinda Menon. I. A. S., First Member, Board of Revenue, and formerly Commissioner, Hindu Religious and Charitable Endowments (Administration). Preliminary enquires caused to be conducted into the allegations have shown prima facie, that the officer is guilty of corruption, nepotism and other irregularities of a grave nature. The Kerala High Court had also occasion to comment on the conduct of the officer in their judgment in O. P. 2306/62 delivered on 12th February 1963. The judgment begins with the observation thatthis case, if it has served little else, has served to expose a disquieting state of affairs regarding the disposal of valuable forest lands belonging to a religious institution known as the Sree Pulpally Devaswom of which I trust due notice will be taken by the competent authority in the interests of the public administration and preservation of our forest wealth no less than in the interests of this particular institution.The judgment in the above case and the preliminary report of the X-Branch Police have disclosed the following grave charges of the serious irregularity and official misconduct on the part of the accused officer.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 R.7 of the All India Services (Discipline and Appeal) R.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 until 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 R.4(1) of the Rules and the order of the State Government under Ext. P-1 must be deemed to be an order under R.4(1) of the Rules initiating disciplinary proceedings.13. It was lastly submitted that the order of suspension of the appellant dated March 8, 1963 is not in compliance with R.7 of the Rules which states:7. Suspension during disciplinary proceedings. (1) If having regard to the nature of the charges and the circumstances in any case, the Government which initiates any disciplinary proceedings is satisfied that it is necessary or desirable to place under suspension the member of the Service against whom such proceedings are started that Government may(a) if the member of the Service is serving under H pass an order placing him under suspension, or ...............................................It was pointed out that definite charges were framed on June 6,1963 and the Government had no authority to suspend the appellant before the date of framing charges. Reference was made to R.5(2) which states:"5. (2) The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the member of the Service charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case."It was argued by the appellant that the word "charges" which occurs in R.5(2) and R.7 should be given the same meaning and no order of suspension could be passed under R.7 before the charges are framed under R.5(2) against the appellant. We do not think there is any substance in this argument. R.5(2) prescribes that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges. Under R.5(3) a member of the Service is required to submit a written statement of his defence to the charge or charges. The framing of the charge under R.5(2) is necessary to enable the member of Service to meet the case against him. The language of R.7(1) is however different and that rule provides that the Government may place a member of the Service under suspension "having regard to the nature of the charge/charges and the circumstances in any case" if the Government is satisfied that it is necessary to place him under suspension. In view of the difference of language in R.5(2) and R.7 we are of the opinion that the word "charges" in R.7(1) should be given a wider meaning as denoting the accusations or imputations against the member of the Service. We accordingly reject the argument of the appellant on this aspect of the case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is not disputed that the appropriate Government has power to take disciplinary proceedings against the appellant and that he could be removed from service by an order of the Central Government, but it was contended that I. A. S. Officers are governed by statutory rules, thatany act or omission referred to in R.4(1) relates only to an act or omission of an officer when serving under the Government, and that servingunder the Government means subject to the administrative control of the Government and that disciplinary proceedings should be, therefore, on the basis of the relationship of master andare unable to accept the proposition. contended for by the appellant as correct. R.4 (1) does not impose any limitation or qualification as to the nature of the act or omission in respect of which disciplinary proceedings" can be instituted. R.4 (1) (b) merely says that the appropriate Government competent to institute disciplinary proceedings against a member of the Service would be the Government under whom such member was serving at the time of the commission of such act or omission. It does not say that the act or omission must have been committed in the discharge of his duty or in the course of his employment as a Government servant. It is therefore open to the Government to take disciplinary proceedings against the appellant in respect of his acts or omissions which cast a reflection upon his reputation for integrity or good faith or devotion to duty as a member of the Service. It is not disputed that the appellant 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 the act or omission has cast any reflection upon the reputation of the member of the Service for integrity or devotion to duty as a public servant. We are of the opinion that even if the appellant was not subject to the administrative control of the Government when he was functioning as Commissioner under the Act and was not the servant of the Government subject to its orders at the relevant time, his act or omission as Commissioner could form the subject-matter of disciplinary proceedings provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of thedo not think there is any substance in this argument. It is true that the Commissioner has been made a Corporation sole under S.80 of the Act which states that the Commissioner shall have perpetual succession and a common seal and may sue and be sued in his corporate name. S.81 (1) of the Act provides for the establishment of a Fund called The Madras Hindu Religious and Charitable Endowments Administration Fund and further states that the Fund shall vest in theaccordingly reject the contention of the appellant that the Commissioner has a separate legal personality as corporation sole under S.80 of the Act and that he is exempt from disciplinary proceedings for any act or omission committed in his capacity as Commissioner. In our opinion, the object of the legislature in enacting S.80 and 81 of the Act was to constitute a separate Fund and to provide for the vesting of that Fund in the Commissioner as a corporation sole and thereby avoid the necessity of periodic conveyances in the transmission of title to thatis apparent that the first part of charge No.1 read with the relevant allegations is that in utter disregard of the provisions of S.29 of the Act and the Rules and without being satisfied that the bases were beneficial to the devaswoms the appellant sanctioned them and this action of the appellant discloses misconduct, irregularity and gross recklessness in the discharge of his official duties. The charge is therefore one of misconduct and recklessness disclosed by the utter disregard of the relevant provisions of S.29 and the Rules thereunder in sanctioning thewe shall proceed on the assumption that the commissioner was performing quasi-judicial functions in granting leases under S.29 of the Act. Even upon that assumption we are satisfied that the Government was entitled to institute 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 proceeding. 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 appeal or revision under the Act, the Government is not precluded from taking disciplinary action if there is proof that the commissioner had acted in gross recklessness in the discharge of his duties or that he failed to act honestly or in good faith or that he omitted to observe the prescribed conditions which are essential for the exercise of the statutory power. We see no reason why the Government cannot do so for the purpose of showing that the commissioner acted in utter disregard of the conditions prescribed for the exercise of his power or that he was guilty of misconduct or gross negligence. We are accordingly of the opinion that the appellant has been unable to make good his argument on this aspect of theare unable to accept this argument as correct. The statement of allegations in respect of charge No.1 sets out the provisions of S.29 of the Act, the rules made under cls. (1) and (3) of that section and the rules made under S.100(2)(m) of thedo 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 R.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 R.1 made under S.100(2) (m) of the Act providing for auction applies to leases for over 5 years under S.29 of the Act and the commissioner had therefore no authority for sanctioning any leases without auction under S.29(1) of the Act. In other words, R.1 requiring public auction framed under S.100(2)(m) covers all leases and there is no exception in respect of leases exceeding 5 years falling within the scope of S.29(1) of the Act. We accordingly reject the argument of the appellant on this aspect of theis not disputed by the appellant that the trustee is the proper person to initiate a proposal for lease of the trust properties, but it is argued that under S.20 of the Act the commissioner can make specific proposals for leases and that he can himself sanction them under S.29. The first part of S.20 speaks of the general superintendence and control of the commissioner over the administration of all religious endowments. The section goes on to state that such superintendence and control shall include the power to pass an order which may be necessary to ensure that such endowments are properly administered and their income is really appropriated for the purpose for which they were founded. In our opinion, the language of this section does not suggest that the commissioner himself is vested with the power to make specific proposals for leases of trust properties. Under S.29 of the Act the commissioner is given a specific power to accord sanction for any alienation and for leases for a term exceeding 5 years. That section implies that the the proposals for leases must originate from the trustees and not from the commissioner himself and that the only function of the commissioner is to accord sanction to such proposals. If the language of S.20 is understood as suggesting that the commissioner has power to initiate proposals it would mean that the commissioner himself may sit in judgment over the proposals initiated by him. It cannot be supposed that the 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 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 proposals for lease of the trust properties and the argument of the appellant on this point must beshall assume in favour of the appellant that the question is not barred by res judicata. Even so, we are of the opinion that there is no substance in the contention of the appellant that there was no valid institution of the disciplinary proceedings under R.4(1). A persual of the order of the Government, Ex. P-1 would itself indicate that disciplinary proceedings had been initiated against theperusal of this document shows that the Government had accepted the proceedings taken in the matter until 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 R.4(1) of the Rules and the order of the State Government under Ext. P-1 must be deemed to be an order under R.4(1) of the Rules initiating disciplinarydo not think there is any substance in this argument. R.5(2) prescribes that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges. Under R.5(3) a member of the Service is required to submit a written statement of his defence to the charge or charges. The framing of the charge under R.5(2) is necessary to enable the member of Service to meet the case against him. The language of R.7(1) is however different and that rule provides that the Government may place a member of the Service under suspension "having regard to the nature of the charge/charges and the circumstances in any case" if the Government is satisfied that it is necessary to place him under suspension. In view of the difference of language in R.5(2) and R.7 we are of the opinion that the word "charges" in R.7(1) should be given a wider meaning as denoting the accusations or imputations against the member of the Service. We accordingly reject the argument of the appellant on this aspect of the case.