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

2. The appellant, Sri. S. Govinda Menon is a member of the Indian Administrative Service. He was the First Member of the Board of Revenue, Kerala State & was holding the post of Commissioner of Hindu Religious and Charitable Endowments. On the basis of certain petitions containing allegations of misconduct against the appellant in the discharge of his duties as Commissioner the Kerala Government instituted certain preliminary enquires and thereafter started disciplinary proceedings against the appellant and also placed him under suspension under R.7 of the All India Services (Discipline and Appeal) Rules, 1955, hereinafter called the Rules. A copy of the charges together with a statement of certain allegations was served on 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 R.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 mandamus 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, alter 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 of a writ of prohibition restraining the first respondent Union of India from proceeding further in pursuance of the Show Cause Notice and also for quashing the same. The application for amendment was allowed by the High Court. The main contention of the appellant was that the proceedings initiated against him were entirely without jurisdiction as no disciplinary proceedings could be taken against him for acts and omissions with regard to his work as Commissioner underthe Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951), hereinafter called the Act and that the orders made by him being of quasi-judicial character can be impugned only in appropriate proceedings taken under that Act. After hearing the arguments advanced on both sides, Mathew, J. rejected the objections raised by the appellant regarding want of jurisdiction and held that the respondents bad power to proceed with the inquiry into the charges. S. Velu Pillai, J on the other hand, took the view that quasi-judicial decisions became final and conclusive if they were not set aside or modified in the manner prescribed by the statute and if the decisions are not so challenged, their correctness or legality must be taken to be conclusive, and such quasi-judicial decisions cannot form the subject-matter of charges in disciplinary proceedings against the appellant. Velu Pillai, J. held that the Union Government had therefore no jurisdiction to proceed with the inquiry on the first part of charge 1, charge 2, the first part of charge 3 and charge 4, but the Union Government had jurisdiction to proceed with the inquiry with regard to the second part of charge No. 1, the second part of charge No. 3 and charge No. 9. In view of this difference of opinion the matter was placed before Govinda Menon, J. who agreed with the view taken by Mathew, J. and in the result the writ petition of the appellant was dismissed.

Reasoning:
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.