# S. GOVINDA MENON v. THE UNION OF INDIA & ANR

- **Citation:** [1967] 2 S.C.R. 566
- **Court:** Supreme Court of India
- **Decided:** 1967-02-02
- **Bench:** K. N. Wanchoo, V. llAMAsWAMI
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-govinda-menon-v-the-union-of-india-anr-4007
- **Pages:** 17

## Headnote

All India Services (Discipline and Appeal Rules), 1955-rr 4(1) 5(2)
7(1).
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Madras Ilindu Religious and Charitable Endowments Act XIX of 1951,
SS. 20, 29, 80, 81, 99, 100(2)(nr).
Government servant acting in capacity of 'Corporation sole'-Allegations of misconduct in discharge of rluries-Whetlrer disciplinary proceed1nRs can be taken against liifn under r. 4( 1 )--Or wlzethi!r his decisions can
only be questioned in appeal or revisiori-Wl~!tlier suspension under r.
7(1) can be ordered only after framing of charges under r. 5(2)-Whether
leases for over five years requir11d to be b_y pllblic auction-Whether Com.
missio.,er can himself initiate proposals of leases.
While the appellant, who was a member of tho Indian Administrath-e
Service and the First Member of the Board of Revenue, Kerala State, was
holding the post of Commissioner of Hindu Religious ond Charitable Endowments, certain complaints were made against him relating to the grant
of cenain leases. The State Government instituted disciplinary proceedings
a~inst him and placed him under 'uspension under Rule 7 of the All
India Services (Discipline and Appea1') Rules, 1955.
An Enquiry Officer
\\'as thereafter appointed under Ruic 5 to investigate the charges.
The
appellant filed a petition for the grant of a writ of certiorari to quash the
proceedings initialed against him and for a writ of n1andamus calling upon
the Stale Government lo pennit him lo function as the First Member of
the Board of Revenue.
In the meantime, the Enquiry Officer having sul>-
mitted a report to the Union Government finding the appellant guilty of
some of the charges. a ~how cau"e notice was issued to him. At this stage
the appellant applied for and obtained an amendment of his writ petition
and by the amended petition sought a writ of prohibition re.straining the
Union Government from proceeding further u00n and for quashing the
show cause notice. The writ pe1ition was dismissed by the High Court.
In <!,ppeal to this Court, it wac; cont-ended. inter alia for the appellant
(I) that in view of s. 80 of ~adras Act XIX of 1951
which provides
that the Commissioner shall be a Corporation sole, a person acting in
the caoacitv of a Commissioner is not a Government servant and there
"·as
1herefore
no jurisdiction to take disciplinary
proceedings
against
him under Rule 4( I); (ii) that the Commissioner wa.• exercising a quasijudiciat function in sanctioning teases under the Act which were the subjectmaller of the complaint< against him : his orders could therefore onlv he
questioned in appeal as provided under s. 29(4) of the Act or examined
by the Government in revisiott under s. 99 and not by the executive Government through disciplinary proceedin~s; (iii) that the main charge against
the appellant was not sustainahle : there wao;; nothing improper in hi~
having sanctioned leases for over five_ years without auction or in his havin{!
initialed proposals for leases in favour of specified individuals; (iv) that
the proceedings under Ruic 4(1) "''ere invalid as there was n() form~l order
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GOVINDA MENON I'. UNION (Ramaswami, J.)
567
instituting these proceedings; and (v) that the appellant could not be suspended until after charges had been framed against him.
HELD : No case had been made out for the grant of a writ of prohibition under Art. 226.
The King v. North (1927] I K.B. 491; Regina v. Comptroller.General
of Patents and Designs [1953] 2 W.L.R. 760, 765; Parisienne Basket Shoes
proprietary Ltd. v. Wl\vte 59 C.L.R. 369, referred to.
(i) Even if the appellant was not subject to the administrative control
of the Government when be was functioning as Commissioner, his act or
omission as Commissioner could form the subject-matter of diseiplinary
proceedings under Rule 4(1) provided the act or omission would reflect
upon his reputation for integrity or devotion to duty as a n1ember of the
Service. [574 BJ
Pearce v. Foster l 7 Q.B.D. 536, 542; referred to.
There was no for

## Text

_Characters 0–39,664 of 48,657. This is a partial read: ask again with offset=39664 for what follows._

S. GOVINDA MENON
v.
THE UNION OF INDIA & ANR.
February 2, 1967
(K. N. WANCHOO AND V. llAMAsWAMI, JJ.]
All India Services (Discipline and Appeal Rules), 1955-rr 4(1) 5(2)
7(1).
.
'
•
Madras Ilindu Religious and Charitable Endowments Act XIX of 1951,
SS. 20, 29, 80, 81, 99, 100(2)(nr).
Government servant acting in capacity of 'Corporation sole'-Allegations of misconduct in discharge of rluries-Whetlrer disciplinary proceed1nRs can be taken against liifn under r. 4( 1 )--Or wlzethi!r his decisions can
only be questioned in appeal or revisiori-Wl~!tlier suspension under r.
7(1) can be ordered only after framing of charges under r. 5(2)-Whether
leases for over five years requir11d to be b_y pllblic auction-Whether Com.
missio.,er can himself initiate proposals of leases.
While the appellant, who was a member of tho Indian Administrath-e
Service and the First Member of the Board of Revenue, Kerala State, was
holding the post of Commissioner of Hindu Religious ond Charitable Endowments, certain complaints were made against him relating to the grant
of cenain leases. The State Government instituted disciplinary proceedings
a~inst him and placed him under 'uspension under Rule 7 of the All
India Services (Discipline and Appea1') Rules, 1955.
An Enquiry Officer
\\'as thereafter appointed under Ruic 5 to investigate the charges.
The
appellant filed a petition for the grant of a writ of certiorari to quash the
proceedings initialed against him and for a writ of n1andamus calling upon
the Stale Government lo pennit him lo function as the First Member of
the Board of Revenue.
In the meantime, the Enquiry Officer having sul>-
mitted a report to the Union Government finding the appellant guilty of
some of the charges. a ~how cau"e notice was issued to him. At this stage
the appellant applied for and obtained an amendment of his writ petition
and by the amended petition sought a writ of prohibition re.straining the
Union Government from proceeding further u00n and for quashing the
show cause notice. The writ pe1ition was dismissed by the High Court.
In <!,ppeal to this Court, it wac; cont-ended. inter alia for the appellant
(I) that in view of s. 80 of ~adras Act XIX of 1951
which provides
that the Commissioner shall be a Corporation sole, a person acting in
the caoacitv of a Commissioner is not a Government servant and there
"·as
1herefore
no jurisdiction to take disciplinary
proceedings
against
him under Rule 4( I); (ii) that the Commissioner wa.• exercising a quasijudiciat function in sanctioning teases under the Act which were the subjectmaller of the complaint< against him : his orders could therefore onlv he
questioned in appeal as provided under s. 29(4) of the Act or examined
by the Government in revisiott under s. 99 and not by the executive Government through disciplinary proceedin~s; (iii) that the main charge against
the appellant was not sustainahle : there wao;; nothing improper in hi~
having sanctioned leases for over five_ years without auction or in his havin{!
initialed proposals for leases in favour of specified individuals; (iv) that
the proceedings under Ruic 4(1) "''ere invalid as there was n() form~l order
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GOVINDA MENON I'. UNION (Ramaswami, J.)
567
instituting these proceedings; and (v) that the appellant could not be suspended until after charges had been framed against him.
HELD : No case had been made out for the grant of a writ of prohibition under Art. 226.
The King v. North (1927] I K.B. 491; Regina v. Comptroller.General
of Patents and Designs [1953] 2 W.L.R. 760, 765; Parisienne Basket Shoes
proprietary Ltd. v. Wl\vte 59 C.L.R. 369, referred to.
(i) Even if the appellant was not subject to the administrative control
of the Government when be was functioning as Commissioner, his act or
omission as Commissioner could form the subject-matter of diseiplinary
proceedings under Rule 4(1) provided the act or omission would reflect
upon his reputation for integrity or devotion to duty as a n1ember of the
Service. [574 BJ
Pearce v. Foster l 7 Q.B.D. 536, 542; referred to.
There was no force in the contention that the Commissioner has a
separate legal personaJity as corporation sole and is therefore exempt from
disciplinary proceedings. [575 F]
(ii) The allegations against the appellant were to the effect that in
exercising his powers as Commissioner, he acted in abuse of his powers and
it was in regard to such misconduct that he was being proceeded against.
Therefore, although the propriety and legality of the sanction to the leases
may be questioned in appeal or revision under the Act, the Government
was not precluded from taking disciplinary action for misconduct if this
was called for. [577 HJ
(iii) The contention that the main charge against the appellant was
not sustainable must be rejected.
The Commissioner has no authority to
sanction any leases without auction.
Rule 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( l).
Furthermore, the Commis~ioner has no power under s. 20 to initiate specific proposals for lease -0f the trust properties [579 A-CJ
(iv) The contents of the order instituting disciplinary proceedings under
Rule 4(1) showed that the Government had accepted the proceedings
taken up to then and decided to go forward with the disciplinary proceed·
ings. There was therefore no formal order necessarv to initiate disciplinary
proceedings under Rule 4( 1) of the Rules and the order passed by the
State Government must be deemed to be an order under Rule I of the
Rules ini'iating disciplinary proceedings, [580 F; 581 E, F]
(v) It cannot be said that the suspension of the appellant under Rule 7
could only be ordered after charges had been framed against him in
accordance with Rule 5(2). The framing of the charges unler Rule 5(2)
is necessary to enable the member of the service to meet the case against
him-whereas under s. 7 ( 1) the Government may place him under suspension if satisfied that this is necessary having regard to the nature of
the charges and the circumstances of the case.
The word "charges" in
Rule 7(1) should be given a wider meaning as denoting the accusations
or imputations again•! the member of the Service. [582 D·FJ
. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1366 of
1966.
568
SUPREME comr llEPOJlTS
[1967] 2 s.c.R.
Appeal from the judgment and order dated January 5, 1966
of the Kcrala High Court in Original Petition No. l of 1964. The
appellant appeared in person.
N. N. Bi11dra and R. 11. Dhebar, for respondent No. I.
Sarjoo Prasad, N. N. Venkltacha/am,
A. G. Pud/ssery and
M. R. K. Pillai, for respondent No. 2.
The Judgment of the Court was delivered by
Ramaswaml, J, This appeal is brought, by certificate, against
the judgment of the High Court of Kerala dated January 5, 1966
dismissing Original Petition No. l of 1964 filed by the appellant.
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 and 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 enquiries and thereafter started disciplinary proceedings against the appellant and also
placed him under suspension under rule 7 of the All India Services
(Discipline and Appeal) Rules, 1955, hereinafter called the 'Rules'.
A copy of tho 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 appoin·
tcd under rule 5 of the Rulc.s. Accordingly Sri T. N. S. Raghavan
a retired I.C.S. Officer was appointed to hold tho inquiry. The
appellant then filed the present wnt 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 Kcrala, to allow him to function as tho
First Member of the Board of Revenue,
As no application for
stay was made and as no order of star wus passed. by the High Court
Sri T. N. S. Raghavan proceeded with the inquiry and submitted
his report to the Union Oovornment finding the appellant guilty
of chargos 1 to 4 and 9, The Union of India, after consideration
of tho report, Issued a 'Show Cause Notice' Ex. P·9. The appellant
thoroaf'tor filed an appllcatlon boforo the High Court for amendment
of the writ petition. Tho prayer in this amended petition was for
tho issue of a writ of prohibition restraining the first respondontUnlon of India-from proceeding further in pursuance of the 'Show
Cause Notice' and also for quashing the same. Tho appllcatlon for
amendment was allowed by the High Court, The main contention
of tho appellant was that the proceedings lnith1ted against him were
entirely without jurisdiction as no disciplinary proceedings could ho
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GOVINDA MENON v. UNION (Rama.rwami, I.)
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taken against him for acts and omissions with regard to his work
as Commissioner under the 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 had 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 I, 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. I, 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.
It is necessary at this stage to set out the charges levelled against
the appellant. Charges I to 4 relate mainly to the conduct of the
appellant in sanctioning 30 leases regarding the private forest lands
of 5 Devaswoms and charge No. 9 concerns the refusal by the appcl·
!ant to attend a conference convened by the Chief Secretary to consider certain important matters connected with the national emergency,
ln 17 of the leases relating to the first 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 S0,000 acres. ChArges I to 4 and 9 read
as follows:
"1. That you, Shri S.
Govinda Menon, I.A.S.,
while employed in tho Government Service 11s member,
Board of Revenue and Commissioner, H. R. & c. E.
(Administration) Department from l-2·1957 to 19·10·1962
issued sanctions granting leases of extensive and valuable
forest lands belonging to the Devaswoms under your control
as Commluloncr such as (I) Pulpal!y Oevaswom, (2)
Kallalkulangara Emoor Bbagavathl Temple, (3) Nadivllla
Vallathu Deva1wom, (4) Kottlyor Devaswom, (S)Mundayan·
paramba Dcvaawom etc., In utter .. d. lsrcga. rd of.the provis· l·on ... '
m the Madras Hindu Religious and Charitable Endowment
Act, 1951 and the rules issued thereunder. In 11evcral cases
570
SUPREME COURT REPORTS
(1967] 2 S.C .. R.
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 administration of endowments, your conduct has been such as to
render you unfit for the performance of your statutory
duties under the Yladras Hindu Religious and Charitable
Endowments Act or as a responsible Officer of the Government.
2. That you had fixed the premium for lease, the rental
and the timber value arbitrarily disregarding whether they
were beneficial to the institutions as you were required to
do under the Act and you thereby caused wrongful gain to
the lessees and wrongful loss to the Devaswoms.
3. That you not only initiated proposals for the leases
and sanctioned them yourself, but also took further action
for putting the lessees in possession of the lands and to fell
the trees thereon for which you had no authority under the
Act and the Rules.
In particular you attempted to
influence the Collector of Kozhikode, the statutory authority for the sanctioning of leases of private forests under
the M. P. P. F. Act by causing your Personal Assistant to
write to the Personal Assistant to the Collector thereby
bringing the weight of your Official position as his official
superior in your capacity as 1st Member, Board of Revenue
to bear uron him and influence the Collector in the performance of his statutory duty.
4. That you sanctioned the lease .of extensive forest
lands with valuable tree-growth belonging to various Devaswoms to your relations, neighbours and friends contrary to
the provision in Rule 3 of the All India Services (Conduct)
Rules 1954, which ,enjoins every member of the service to
maintain absolute integrity in all official matters.
9. That on 29-10-1962 you refused to attend a conferrence of the Members of the Board of Revenue and the
Inspector General of Police which was called together by
the Chief Secretary in the Secretariat to discuss important
matters connected with the national emergency and was
thereby guilty of gross dereliction of duty and of discourtesy to the Chief Secretary."
Section 20 of the Act provides that the administration of all
religious endowments shall be subject to the general superintendence and control of the Commissioner; and that such superintendence and control shall include the power to pass any orders
which may be deemed necessary for the proper administration of
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the endowments. Section 29 of the Act states that any sale, exchange or mortgage and any lease for a term exceeding five years of
any 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. Su b-scction ( 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, they may pass orders accordingly:
Provided that the Government shall not pass any order
prejudicial to any party unless he has had a reasonable
opportunity of making his representations."
The jurisdiction for grant of a writ of prohibition is primarily
supervisory and the object of that writ is to restrain courts or
inferior tribunals from exercising a jurisdiction which they do not
possess at all or else to prevent them from exceeding the limits of
their jurisdiction. In other words, the object is to confine courts or
tribunals of inferior or limited jurisdiction within their bounds.
It is well-settled that the writ of prohibition lies not only for excess of
jurisdiction or for absence of jurisdiction but the writ also lies in a
case of departure from the rules of natural justice (See Halsbury's
Laws of England, 3rd Edn., Vol. 11, p. 114). It was held for instance
by the Court of Appeal in The King v. North(') that as the order of
the judge of the consistory court of July 24, 1925 was made without
giving the vicar an opportunity of being heard in his defence, the
order was made in violation of the principles of natural justice and
was therefore an order made without jurisdiction and the writ of
prohibition ought to issue. But the writ does not lie to correct the
course, practice or procedure of an inferior tribunal, or a wrong
decision on the merits of the proceedings. It is also well-establishedthat a writ of prohibition cannot be issued to a court or an inferior
tribunal for an error of law unless the error makes it go outside its
(I) (1927] I K.B. 411.
572
SUPREME COURT REPORTS
(1967] 2 s.c.R.
jurisdiction (See Regina v. Comptroller-General of Patents lllld
Designs,(') and Parisienne Basket Shoes Proprietary Ltd. v. Whyte(2).
A clear distinction must therefore be maintained between want of
jurisdiction and the manner in which it is exercised. If there is
want of jurisdiction then the matter is coram non judice and a writ of
prohibition will lie to the court or inferior tribunal forbidding it to
continue proceedings therein in excess of its jurisdiction.
The first proposition put forward by the appell<1nt is that the
Commissioner is a corporation sole and not a servant of the Government and against a person acting in the capacity of a Commissioner
the Government have no jurisdiction to take disciplinary proceedings. Reference was made to s. 80 of the Act which states that "the
Commissioner shall be a corporation 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 he 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 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 and the Government under whom he is serving
at the time of the institution of such
proceedings
shall be bound to render all reasonable facilities
to the Government instituting and conducting such
proceedings.
(l) (t953J 2 W.L.R. 760, 765.
(2) 59 C.L.R. 369.
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(2) The penalty of dismissal, removal or compulsory
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retirement shall not be imposed on a member of the Service
except by an order of the Central Government.
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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, that 'any act or omission' referred to in rule 4(1) relates only
to an act or omission of an officer when serving under the Government, and that "serving under 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 and servant. It was argued that in exercising statutory
powers the Commissioner was not subject to the administrative
control of the Government and disciplinary proceedings cannot,
therefore, be instituted against the appellant in respect of an act or
omission committed by him in the course of his employment as
Commissioner. We are unable to accept the proposition contended for by the appellant as correct.
Rule 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. Rule
4(l)(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 derntion 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 nb actual master and servant relationship. To
put it differently, the test is not whether the act or omission was
commitied by the appellant in the course of the discharge of his
574
SUPREME COURT REPORTS
(1967] 2 S.C.R
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 refle~tion 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 adminis·
trative control of the Government when he was functioning
as
Commissioner under the Act and was not the servant of the Govern·
ment subject to its orders at the relevant time, his act or omission
as Commissioner could form the subject-matter of disciplinary pro·
ccedings provided the act or omission would reflect upon his repu·
talion for integrity or devotion to duty as a member of the Service.
In this context reference may be made to the following observations
-0f Lopes, L. J. in Pearce v. Foster(') :
"If a servant conducts himself in a way inconsistent
with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the
carrying on of the service or the business. It is sufficient
if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and
the master will be justified, not only if he discovers it at the
time, but also if he discovers it afterwards, in dismissing
that servant."
It was also contended by the appellant in this connection that as
the Commissioner was made a Corporation sole under s. 80 of the
Act as a separate and independent personality, he was not subject
to the ccntrol of the Government and no disciplinary proceedings
could be initiated against him.
We do not think there is any sub·
stance in this argument.
It is true that the Commissioner has been
made a Corporation sole under s. 80 of the Act which states tha! the
Commissioner shall have perpetual succession and a common seal
and may sue and be sued in his corporate name.
Section 81(1)
of the Act provides for the establishment of a Fund called 'The
Madras Hindu Religious and Charitable Endowments Administra·
tion Fund' and further states that the Fund shall vest in the Commissioner. It was argued for the appellant that the corporate entity
created by s. 80 of the Act has a separate legal personality.
But
there is a juristic distinction between a Corporation sole and a
Corporation aggregate and the Corporation sole is not endowed with
a separate legal personality as the Corporation
aggregate. 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
(I} 17 Q.B.D. S36, S42.
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GOVINDA MENON v. UNION (Ramaswami, /.)
575
(so we are told) own a chattel, not even a chattel real.
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different and an eqnally 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. JOO & 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 device should
be erected into a psychological person with a developed
existence of its own ................ In dealing with a
corporation sole, the courts have never treated it as a
conception similar in essential characteristics to a corporation aggregate. They have restricted its utility to the
transmission of real, or exceptionally, by custom, as in
Byrd v. Wilford,
and
now by statute,
personal
property from one holder of an office, lay or ecclesiastical, to his successor" .-(See 'Elementary Principles of
Jurisprudence' by Keeton, 2nd Edn. pp. 155 & 162)."
We accordingly 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 ss. 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 that Fund.
We next proceed to examine the contention of the appellant
that the Commissioner was exercising a quasi-judicial function in
sanctioning the leases under the Act and his orders cannot therefore
be questioned except in accordance with the provisions of the Act.
The proposition put forward was that quasi-judicial orders, unless
vacated under the provisions of the Act are final and binding and
cannot be questioned by the executive Government through disciplinary proceedings. It was argued that an appeal is provided under
s. 29(4) of the Act against the order of the Commissioner granting
576
SUPREME COURT REPORTS
(1967] 2 S.C.R
sanction to a lease and that it is open to any party aggrieved to file
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such an appeal and question the legality or correctness of the order
of the Commissioner and that the Government also may in revision
under s. 99 of the Act examine the correctness or legality of the order.
It was said that so long as these methods were not adopted the
Government could not institute disciplinary proceedings and
re-examine the legality of the order of the Commissioner granting
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sanction to the leases.
The first part of charge No. 1 was that the appellant in utter
disregard of the provisions of the Act and the Rules made thereunder,
passed orders sanctioning the leasl':; in 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 (I)
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 of the properties and information regarding the survey number, extent and boundaries, the probable price or the rental as the case may be. The rules made
under section 100(2) of the Act provide that all leases of
lands, buildings, sites or other immovable properties and
rights belonging to a religious institution shall be made
by public auction. Leases
otherwise than by public
auction should not be resorted to except with the previous
sanction of the Deputy Commissioner. It follows from the
above that the proposals for leasing out the Devaswom
lands have to be initiated by the Trustee or the 'Fit Person'
and that such leases bave ordinarily to be granted only by
auction. In exceptional cases, lands may be leased out
by the trustee without auction subject to the previous
sanction of the Deputy Commissioner. This provision does
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GOVINDA MENON v. UNION (Ramaswami, /.)
577
not, however, authorise the Commissioner, to dispose of
lands without auction.
His duty is to give notice of the
proposal which may be received from the trustee, to call for
objections and suggestions and to accord sanction if he is
satisfied that the transaction is beneficial to the Devaswom.
After the Commissioner accords sanction further steps for
leasing out the lands have to be taken by the trustee who is
the lessor and the proposed lessee. Contrary to the above
provisions leases were sanctioned by you in the following
cascs.
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It is 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 leases
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 the leases. On behalf of the respondents
it was argued both by Mr. Sarjoo Prasad and Mr. Bindra that the
Commissioner was not discharging quasi-judicial functions in
sanctioning leases under s. 29 of the Act, but we 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. Butin 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 Commisioner. 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
bis 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
578
SUPREME COURT REPORTS
[1967] 2 S.C.R.
observe the prescribed conditions which are essential for the exercise
of the statutory power. We sec 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 the case.
We pass on to consider the next contention of the appellant
that the first part of charge No. I is not sustainable because the only
rule said to have been violated was the rule regarding auction. It was
argued that the rule regarding auction did not apply to long-term
leases falling within the scope of s. 29(1) of the Act and the first
part of charge No. I was therefore not sustainable. We are 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 els. (1) & (3) of that section and the rules made
under s. 100(2)(m) of the Act and it says that contrary to the above
provisions leases were sanctioned.
Rule 1 of the Rules framed
under s. lOO(Z)(m) of the Act reads as follows:
"All leases of lands, buildings, sites and other immovable properties and rights belonging to a religious institution shall be made by public auction held in the places
in which the properties are situate or the rights ex.isl. The
Deputy Commissioner may if he is satisfied that in any
case the holding of an auction at a place other than the
one in which the properties proposed to be leased are
situated will not be detrimental to securing a proper bid,
permit such auction, but no auction shall be held in a village
situated in a district other than the one in which the
property is situate."
It was argued on behalf of the respondents that all leases had to be
made by public auction and the Commissioner had no authority to
sanction any leases without auction and that the power to waive
the public auction is given to the Deputy Commissioner and not to
the Commissioner 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 ill 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
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GOVINDA MENON v. UNION (Ramaswami, I.)
579
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 I even in the case of a lease for a period
over 5 years and then send the proposal to the Commi:ssioner for
sanction. We are accordingly of the opinion that Rule 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, Rule 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 the case.
As regards the second part of charge No. I, it was argued by the
appellant that there was no prohibition in the Act for the Commissioner to himself initiate the proposal for leases and therefore the
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charge cannot be sustained. The question for consideration is
whether the Commissioner could initiate a proposal for lease in
favour of a specified individual with all the terms and conditions.
It is 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
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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.