JUDGMENT K.K. Mathew, J. 1. The petitioner is a member of the Indian Administrative Service. He was appointed as a Member of the Board of Revenue and was promoted to act as the First Member of the Board of Revenue in December, 1961. He was holding the post of Commissioner of Hindu Religious and Charitable Endowments in addition to his duties as a Member of the Board of Revenue from 1-2-1957 to 19-10-1962. 2. On the basis of certain petitions containing allegations of corruption and nepotism against the petitioner in the discharge of his duties as Commissioner, the Government conducted an inquiry through X - Branch C. I. D. As the Government found that there was a prima facie case against the petitioner they instituted disciplinary proceedings against him. On 8-3-1963 the Government placed the petitioner under suspension under R.7 of the All India Services (Discipline and Appeal) R.1955, hereinafter called the Rules. The petitioner filed O. P. 485/1963 to quash the order of suspension which is marked in this proceeding as Ext. P-1. That petition was dismissed by Vaidialingam, J., and his decision is reported in Govinda Menon v. State of Kerala 1963 KLT 566 . The petitioner filed an appeal from that decision to the Division Bench and the Division Bench confirmed the decision of Vaidialingam, J. (See Govinda Menon v. State of Kerala 1963 KLT 1162 ). A copy of the charges dated 6-6-1963 was served on the petitioner together with the statement of allegations and he was directed to submit his written statement of defence. Petitioner filed his written statement before the Government. The Government passed an order stating that the explanation to the charges submitted by the petitioner was unacceptable and that the Government consider that the charges should be enquired into by an Enquiry Officer to be appointed under R.5(5) of the Rules, and appointed Sri. T. N. S. Raghavan I. C. S., as Enquiry Officer and he commenced the enquiry on 4th November 1963. 3. This writ petition was filed on 1-1-1964, and the prayers in the writ petition were to quash by a writ of certiorari or other appropriate writer order the proceedings initiated against the petitioner under the Rules, and for a writ of mandamus directing the 2nd respondent to allow the petitioner to function as the First Member of the Board of Revenue. 4. 4. Although the writ petition was filed on 1-1-1964, no application for stay of the proceeding before the Enquiry Officer was moved in the case. The Enquiry Officer proceeded with the enquiry and submitted his report to the 1st respondent. In the report he found that the petitioner was guilty of charges Nos. 1 to 4 and 9. The 1st respondent, the Union of India, accepted the findings and issued Ext. P-9 notice, directing the petitioner to show cause why he should not be removed from service. Soon after the show cause notice was served upon the petitioner, he filed an application for amendment of the writ petition by incorporating certain, additional grounds. This application was opposed by the respondents. We found that most of the new grounds raised in the affidavit of the petitioner were supplementary to the grounds already raised and relevant to the question in issue, namely, whether the Government had jurisdiction to institute disciplinary proceedings against the petitioner. We are therefore allowing the prayer for amendment. The prayer of the petitioner in the amendment petition is for the issue of a writ of prohibition restraining the 1st respondent from proceeding further in pursuance of Ext. P 9, the show cause notice and also for quashing it. The reason why the petitioner has sought this relief at this stage is stated by him in his affidavit and that is that in view of the ruling of this court in Narayana Moorthy v. State of Kerala 1964 KLT 180 it is not open to him to canvass the correctness of the findings as regards his guilt in his reply to the show cause notice. 5. I am of opinion that the ruling proceeds upon a misconception of the effect of the decisions of the Supreme Court on the point. I need only refer to two decisions of the Supreme Court where this question is dealt with to make the point clear. In Union of India v. H. C. Goel AIR 1964 SC 364 it is observed: "It would thus be seen that the object of the second notice is to enable the public servant to satisfy the Government on both the counts, one that he is innocent of the charges framed against him and the other that even if the charges are held proved against him the punishment proposed to be inflicted upon him is unduly severe". In State of Assam v. Bimal Kumur AIR 1963 SC 1612 it is stated: "In issuing the second notice, the dismissing authority naturally has to come to a tentative or provisional conclusion about the guilt of the public officer as well as about the punishment which would meet the requirement of justice in his case, and it is only after reaching conclusions in both these matters provisionally that the dismissing authority issues the second notice. There is no doubt that in response to this notice, the public officer is entitled to show cause not only against the action proposed to be taken against him, but also against the validity or the correctness of the findings recorded by the enquiring officer and provisionally accepted by the dismissing authority. In other words, the second opportunity enables the public officer to cover the whole ground and to plead that no case had been made out against him for taking any disciplinary action and then to urge that if he fails in substantiating his innocence, the action proposed to be taken against him is either unduly severe or not called for. This position is not in dispute." Therefore in pursuance of Ext. P-9 show cause notice, it is open to the petitioner to urge all his contentions to show that the findings provisionally arrived at by the 1st respondent as regards his guilt are not correct. Nor has the amendment of Art.311 by the 15th Amendment of the Constitution altered the scope of this opportunity. Petitioner's counsel urged that Ext. P-9 notice would indicate that the 1st respondent has finally accepted the findings as regards the guilt of the petitioner and that no useful purpose will be served by replying to the show cause notice and therefore Ext. P-9 should be quashed. It may be observed that it is only after a definite conclusion has been come to on the charges and the actual punishment to follow is provisionally determined that the show cause notice is issued. As the delinquent is entitled to canvass the correctness of the findings on the charges at this stage, the findings are necessarily tentative and provisional. The acceptance of the findings of the Enquiry Officer by the 1st respondent in Ext. P-9, though not qualified, is provisional and tentative in view of the provisions of Art.311. We have to read Ext. As the delinquent is entitled to canvass the correctness of the findings on the charges at this stage, the findings are necessarily tentative and provisional. The acceptance of the findings of the Enquiry Officer by the 1st respondent in Ext. P-9, though not qualified, is provisional and tentative in view of the provisions of Art.311. We have to read Ext. P-9 in the light of the constitutional right of the petitioner to urge his objections to the findings on the charges also. If so read, I do not think that the language of Ext. P-9 can be open to any objection. I am of opinion that Ext. P-9 embodies the conclusion of the 1st respondent as regards the guilt of the petitioner, which in law is necessarily provisional, and that the petitioner has got the constitutional right to urge his contentions against the findings both as regards the guilt and the quantum of punishment. As Ext. P-9 does not embody a final decision, no question of quashing it on that ground arises. If that be so, the question will arise whether it is meet that the court should interfere at this stage by issuing a writ of prohibition. 6. A writ of prohibition is a writ which forbids a court or tribunal to continue a proceeding therein in excess of its jurisdiction or in contravention of the law of the land. "The order of prohibition is an order, issuing out of the High Court of Justice, and directed to an ecclesiastical or inferior temporal court, which forbids that court to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land.' (See Halsbury's Laws of England, Vol. 11 page 113). Prohibition is never too late if any part of the proceeding is pending before the tribunal or court. (See E. and T. Agencies v. S. I. Trust AIR 1937 PC 265 at 276.) The fact that there is an alternative remedy is no bar to the issue of a writ of prohibition (See Bengal Immunity Co. v. State of Bihar AIR 1955 SC 661 at 726 para 144 and Lakshmana Shenoy v. I. T. Officer AIR 1954 TC 137 (FB)). v. State of Bihar AIR 1955 SC 661 at 726 para 144 and Lakshmana Shenoy v. I. T. Officer AIR 1954 TC 137 (FB)). In Shantaram D. Savi v. M. M. Chudasama AIR 1954 Bombay 361, it was held that where an enquiry in a disciplinary proceeding was conducted by an officer, who, under the rules, had no authority to conduct it, a writ of prohibition will issue. In O. K. Ghosh v. E. X. Joseph AIR 1963 SC 812 a writ of prohibition was issued to restrain disciplinary proceedings for the violation of R.4A and 4B of the Central Civil Services (Conduct) Rules, 1955, on the ground that the Rules are violative of the provisions of Art.19(1)(a), (b) and ©. 7. It was submitted that the grounds raised by the petitioner are grounds going to the root of the jurisdiction of the 1st respondent to proceed further on the basis of Ext. P-9 notice, and therefore a writ of prohibition is the appropriate remedy. It is no doubt true that the petitioner has raised certain grounds, which, if upheld, would go to the root of the validity of the disciplinary proceedings. Those grounds I propose to deal with in this order. As regards the other grounds which do not raise any patent lack or excess of jurisdiction but which are concerned with mere errors in the course of the proceeding, alleged to have been committed by the Enquiry Officer, I do not think it proper to deal with them in this case. 8. I will now deal with the jurisdictional grounds raised by the petitioner's counsel. In order to appreciate those grounds, it is necessary to have an idea of the charges against the petitioner. Charges Nos. 1 to 4 relate mainly to the conduct of the petitioner in sanctioning 30 leases in respect of the private forest lands belonging to five Devaswoms, and charge No. 9 concerns the refusal of the petitioner to attend a conference convened by the Chief Secretary to consider certain important matters connected with national emergency. Charges Nos. 1 to 4 and 9 are as follows: "1. Charges Nos. 1 to 4 and 9 are as follows: "1. That you, Shri. S. Govinda Menon, I. A. S., while employed in Government Service as Member, Board of Revenue and Commissioner, H. R. and C. E. (Administration) Department from 1st February 1957 to 19th October 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) Kottiyoor Devaswom, (5) Mundayanparamba Devaswom, etc. in utter disregard of the provisions in the Madras Hindu Religious and Charitable Endowments 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 administration of endowments, your conduct has been such as to render you unfit for the performance of your statutory duties under the Madras 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 upon him and influence the Collector in the performance of his statutory duty. 4. 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 R.3 of the All India Services (Conduct) R.1954, which enjoins every member of the service to maintain absolute integrity in all official matters. 9. That on 29th October 1962 you refused to attend a conference 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." At the end of the charges it is stated: "Your actions described above disclose misconduct, irregularities and gross recklessness in the discharge of your official duties." 9. S.20 of the Madras Hindu Religious and Charitable Endowments Act, Madras Act 19 of 1951, 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 order which may be deemed necessary for the proper administration of the endowments. S.29 of that Act states that any sale, exchange or mortgage and any lease for a term exceeding 5 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 that the Commissioner shall before according sanction publish the particulars of the proposed transaction, invite objections and consider them. Sub-s.(3) provides for communicating a copy of the order granting sanction to the Government and the trustee. Sub-s.(4) provides for an appeal against the order of the Commissioner to Government by the trustee or persons having interest. 10. Counsel for the petitioner prefaced his argument by tracing the heredity of the Madras Hindu Religious and Charitable Endowments Act, Act 19 of 1951 to the provisions of the Madras Act, Act 2 of 1927. S.10 of the latter Act provided that the local Government may by notification direct the constitution of a Board for the whole Presidency or any specified part thereof, vary the strength of territorial jurisdiction of the Board or abolish any such Board. S.10 of the latter Act provided that the local Government may by notification direct the constitution of a Board for the whole Presidency or any specified part thereof, vary the strength of territorial jurisdiction of the Board or abolish any such Board. S.11(1) said that the Board shall consist of a President and such number of other Commissioners not being less than two and not more than four as the local Government may fix. Sub-s.(2) of S.11 provided that every Board shall, by such name as the local Government may determine, be a body corporate and shall have perpetual succession and a common seal and shall by the said name, sue and be sued. S.14(2) provided that the Commissioners shall each receive, out of the funds of the Board, such salary as the local Government may fix. S.15 said that the local Government may suspend or remove any Commissioner from his office if he is convicted by a criminal court of any offence involving moral turpitude, if he is of unsound mind, if he applies to be adjudicated or is adjudicated a bankrupt or insolvent, or for corruption, misconduct or other sufficient cause. S.18 provided that the general superintendence of all religious endowments within the territorial jurisdiction of a Board shall vest in the Board and that the Board may do all things which are reasonable and necessary for the proper administration of the endowments. 11. By the Constitution of India, the State Legislature was given power to legislate for "charities and charitable institutions, charitable and religious endowments and religious institutions." See item 28 in List III of the 7th Schedule. The Madras Legislature enacted a comprehensive measure, the Madras Hindu Religious and Charitable Endowments Act, Act 19 of 1951, hereinafter called the Act. The main feature of the Act so far as we are concerned is, that instead of the Board, a Commissioner was constituted to supervise the affairs of the Devaswoms. S.99 of the Act gives power to the Government to revise all orders passed by the Commissioner and the other subordinate functionaries under the Act. The validity of some of the provisions of this enactment was questioned in the Madras High Court on the ground that those provisions offended Art.19, 25, 26 & 27 of the Constitution. S.99 of the Act gives power to the Government to revise all orders passed by the Commissioner and the other subordinate functionaries under the Act. The validity of some of the provisions of this enactment was questioned in the Madras High Court on the ground that those provisions offended Art.19, 25, 26 & 27 of the Constitution. The Madras High Court, among other sections, struck down S.76 which provided for the levy of contribution from the Devaswoms for the expenses incurred by the Government in connection with the ' supervision of Devaswoms. The Government preferred an appeal from that judgment to the Supreme Court and the Supreme Court substantially confirmed the Judgment of the Madras High Court. [See Commissioner H. R. E. v. L. T. Swamiyar AIR 1954 SC 282 .] In order to remedy the defects pointed out by the Supreme Court, the Madras Legislature passed Act 27 of 1954. Chap.9 of the Act was introduced by the Amending Act 27 of 1954. S.80 occurring in that chapter provides that the Commissioner shall be a corporation sole and shall have perpetual succession and a common seal. S.81 says that there shall be established a Hindu Religious and Charitable Endowments Administration Fund, that the fund shall vest ia the Commissioner, that the contribution payable under S.76(1) and the further sums payable under S.76(2) shall when realised be credited to the said fund, that it shall be lawful for the Commissioner to accept to the credit of the said fund grants or loans from, the Government and grants from any private person and that the Commissioner shall, out of the said fund, repay to the Government sums paid by the Government under S.76(4) and loans received from the Government. S.76 of the amended Act provides that in respect of the services rendered by Government and their officers and for defraying the expenses incurred on account of such services, every religious institution shall from the income derived by it, pay to the Commissioner annually such contribution not exceeding five per cent of its income as may be prescribed. Sub-s.(4) of that Section provides that the Government shall pay the salaries, allowances, pensions and other beneficial remuneration to the Commissioner and other officers employed for the purpose of the Act. 12. Sub-s.(4) of that Section provides that the Government shall pay the salaries, allowances, pensions and other beneficial remuneration to the Commissioner and other officers employed for the purpose of the Act. 12. The first proposition of counsel for the petitioner is that the Commissioner is a corporation sole and not a servant of Government, and against a person acting in the capacity of a Commissioner, the Government have no jurisdiction to take disciplinary proceeding. It was argued that acts or omissions of the petitioner in his capacity as Commissioner cannot be questioned in any disciplinary proceedings as the Commissioner is not a servant of Government subject to their administrative control. Before proceeding to consider this proposition it is necessary to refer to the relevant Rules in the Rules. R.4 of the Rules gives power to the appropriate Government to institute disciplinary proceedings against a member of the service for any of the acts which would render him liable to a penalty specified in R.3. The relevant portion of R.4 runs as follows: "(1) Where a member of the Service has committed any act or omission which renders him liable to any penalty specified in R.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-r.(2), to impose on him such penalty specified in R.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-r.(2), to impose on him such penalty specified in R.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. (2) The penalty of dismissal, removal or compulsory retirement shall not be imposed on a member of the Service except by an order of the Central Government." It cannot be disputed that the appropriate Government can take disciplinary proceedings against the petitioner, and that he can be removed from service by an order of the Central Government. But it was submitted that T. A. S. Officers are governed by statute and statutory rules, that act or omission referred to in R.4(1) of the rules can relate only to act or omission of an officer while serving under Government, that serving under the Government means subject to the administrative control of Government, which implies a master and servant relationship, and that the act or omission must relate to act or omission which is subject to the administrative control of Government, namely executive act. Reference was made to the decision in Pradayat Kumar v. C. J. of Calcutta AIR 1956 SC 285 to support the submission that serving under a Government means subject to the administrative control of the Government; to K. C. Deo Bhani v. Raghunath Misra AIR 1959 SC 589 at P. 594 and R. P. Kapur v. Union of India MR 1964 SC 787 para 11 for the proposition that disciplinary proceedings should have as its basis the relationship of master and servant; and to Mannalal Jain v. State of Assam AIR 1962 S. C. 386 and B. Rajagopala v. S. T. A. Tribunal AIR 1964 SC 1573 at P. 1579 for the contention that in exercising statutory powers, a statutory authority is not subject to the administrative control of Government. 13. R.4(1) of the rules does not impose any limitation or qualification as to the nature and character of the act or omission in respect of which disciplinary proceedings can be instituted. And as I understand it, R.4(1)(b) only says that the appropriate Government to institute disciplinary proceedings against a member of the service is the Government under which he was serving at the time of the commission of the act or omission. It does not say that the act or omission must have been committed in the discharge of his official duty or in the course of his employment as a Government servant. It does not say that the act or omission must have been committed in the discharge of his official duty or in the course of his employment as a Government servant. It was open to the State Government to take disciplinary proceedings against the petitioner in respect of his act or omission which cast a reflection upon his reputation for integrity or devotion to duty as a member of the service. In this connection I would refer to the rulings in Madhosingh v. State of Bombay AIR 1960 Bombay 285 and Laxmi Narain v. District Magistrate AIR 1960 Allahabad 55 to show that if an officer in the service of Government is guilty of behaviour unbecoming of an officer even though unconnected with the discharge of his official duties, disciplinary proceedings can be taken against him in respect of it. In Madhosingh v. State of Bombay AIR 1960 Bombay 285 it was observed: "Mr. Ranade, learned counsel for the petitioner, in the first instance, contends that the misconduct as found was committed by the petitioner not during the course of the employment but was outside the employment and therefore it was not open to the Police authorities to take any disciplinary action against the petitioner in that respect. We find it difficult to accept this contention. It is true that the misconduct in respect of which disciplinary action is taken against a servant must have reasonable relation to the nature of the service, but it need not necessarily arise in the course of employment. When a person accepts an employment by necessary implications he agrees to so conduct and behave himself as would not be inconsistent with the nature of his service. If he behaves and conducts himself in a manner which would be inconsistent with the nature of his service then that would affect or at any rate would be likely to affect the interests or good name of his employer. If and when it happens it is reasonable to hold that it would entitle the employer to take such disciplinary action against his employee as the nature & degree of misconduct would require & law would permit. If and when it happens it is reasonable to hold that it would entitle the employer to take such disciplinary action against his employee as the nature & degree of misconduct would require & law would permit. It is not that interest or good name of an employer is likely to be adversely affected only by an act of an employee during the course of an employment." The following observations in Laxmi Narain v. District Magistrate AIR 1960 Allahabad 55 are apposite: "If the petitioner's contention that a Government servant is not answerable to Government for misconduct committed in his private life is correct, the result would be that, however, reprehensible or abominable a Government Servant's conduct in his private life may be, the Government would be powerless to dispense with his services, unless and until he commits a criminal offence or commits an act which is specifically prohibited by the U. P. Government Servants Conduct Rules. This would clothe Government Servants with an immunity which would place the Government in a position worse than that of an ordinary employer." In Pearce v. Foster 1886 (17) QB 536, Lopes, L. J. said: "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." In my view it is not necessary that a member of the service should have committed act or omission in the course of the discharge of his duties as servant of 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 integrity or devotion to duty of an officer, there is no reason why disciplinary proceedings should not be instituted against him for that act or omission even though the act or omission relates to an activity in respect of which it cannot be predicated that there is the master and servant relationship. The question is whether such an officer is worthy of being a member of the service. The question is whether such an officer is worthy of being a member of the service. The test is not whether the act or omission was committed in the course of the discharge of his duties as a public servant; the test appears to be whether the act or omission has got proximate relation to the nature and conditions of his service, or will reflect upon his reputation for integrity or devotion to duty as a public servant. I think that even if the petitioner was not subject to the administrative control of Government when he was functioning as Commissioner and was not a servant of Government subject to their orders at the time, his act or omission as Commissioner could form the subject matter of disciplinary proceedings against him provided that the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the service. 14. I now proceed to examine the contention that the petitioner was not a servant of Government subject to their administrative control while he was functioning as Commissioner. To decide that question, it is necessary to refer to the provisions of the Act as amended by Act 27 of 1954 under which he was functioning as Commissioner and to examine the degree of control exercised by the Government over him and the other authorities functioning under the Act, S.7 enumerates the classes of authorities under the Act. Under S.8 Government is given the power to appoint the Commissioner and such number of Deputy and Assistant Commissioners as they think fit. S.10(1) says that the Commissioner shall, with the previous approval of Government, specify the area within which each Deputy Commissioner shall exercise the powers and discharge the duties assigned by or under the Act. S.10(2) states that the Commissioner may delegate any of the powers conferred by or under the Act including the powers and duties of an Assistant Commissioner which may be exercised by the Commissioner. S.11 gives power to the Commissioner to divide the State into divisions with the previous approval of Government to be put in charge of an Assistant Commissioner. S.11(3) provides that the Commissioner may delegate certain of his powers to the Assistant Commissioner subject to such restrictions and control as the Government may by general or special order lay down. S.11 gives power to the Commissioner to divide the State into divisions with the previous approval of Government to be put in charge of an Assistant Commissioner. S.11(3) provides that the Commissioner may delegate certain of his powers to the Assistant Commissioner subject to such restrictions and control as the Government may by general or special order lay down. S.15 states that the Government may make rules regarding the convening of meeting of the Area Committees, and the quorum for and the conduct of business at such meeting. S.34 provides that where the remuneration for any service to be performed by a devadasi in a temple consists of lands granted or continued in respect of, or annexed to such service by the Government, the Government shall enfranchise the said lands from the condition of service by imposition of quit rent. S.45 provides for the suspension, removal or dismissal of hereditary or non hereditary trustees by the Deputy Commissioner and by the Commissioner for wilful disobedience of any lawful orders issued under the provisions of the Act by the Government, the Commissioner or the Deputy Commissioner. S.54 provides that every trustee of a math or specific endowment attached to a math may, from time to time, submit to the Commissioner proposal for fixing the dittam or scale of expenditure in the institution & the amounts which should be allotted to the various objects connected with the institution. Sub-s.(2) provides that the trustee shall publish such proposal at the premises of the math and sub-s.(3) says that if on a scrutiny of such proposal and any suggestion made by any person having interest, it appears to the Commissioner that the scale of expenditure is at variance with the established usage of the institution, or is not justified by the financial position, the Commissioner may call for remarks from the trustee and if after considering the same the Commissioner is of opinion that any modification is required in the scale of expenditure, or any item in the scale of expenditure, he shall submit the case to the Government who shall pass such orders thereon as they think fit. S.63 provides that where the Commissioner has reason to believe that a religious institution which is governed by a scheme settled under the Act is being mismanaged the Commissioner may call upon the trustee or other person having interest to show cause why that institution should not be notified to be subject to the provisions of the Act. S.64(1) provides that the Government, on the receipt of a report from the Commissioner stating that no objection has been received to the notification, may by a notification published in the Gazette, declare the religious institution to be subject to the provisions of the Act. S.64(3) provides that if the Commissioner decides after hearing objections that the institution should be notified as aforesaid, he shall make a report to that effect to the Government, and the Government may by notification published in the Gazette, declare the religious institution to be subject to the provisions of this Act. S.66(1) provides that for every institution notified, the Commissioner shall appoint a salaried executive officer. S.76(1) states that in respect of services rendered by the Government and their officers and for defraying the expenses incurred on account of such services, every religious institution shall from the income derived by it, pay to the Commissioner annually such contribution not exceeding five per centum of its income. S.76(4) says that the Government shall pay the salaries, allowances, pensions and other beneficial remuneration of the Commissioner, Deputy Commissioner, Assistant Commissioners, and other officers and servants employed for the purpose of this Act. S.76(4) says that the Government shall pay the salaries, allowances, pensions and other beneficial remuneration of the Commissioner, Deputy Commissioner, Assistant Commissioners, and other officers and servants employed for the purpose of this Act. S.99 is a crucial section so far as this case is concerned and it is as follows: "(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. (2) The Government may stay the execution of any such decision or order, pending the exercise of their powers under sub-s.(1) in respect thereof." S.100 provides for the rule making power of the Government. S.104 says that on coming into force of the Act such members of the Board including the President and such of its subordinates may be appointed by the Government in their discretion to any offices provided for in the Act and sub-s.(2) says that the condition of service of persons so appointed shall be regulated by the rules made by the Government from time to time as if they had entered the service of Government on the date of their first entertainment as members of the Board or as its subordinates, as the case may be. 15. From these provisions it would appear that the Government have got a substantial measure of control over the Commissioner, the other functionaries under the Act, and over the administration of the Devaswoms. Counsel for the petitioner submitted that the legislature has invested the Government with part of the judicial power of the State under S.99 to revise the orders passed by the Commissioner and the other functionaries under the Act and that the Government in their executive or administrative capacity have no power to control them. Counsel for the petitioner submitted that the legislature has invested the Government with part of the judicial power of the State under S.99 to revise the orders passed by the Commissioner and the other functionaries under the Act and that the Government in their executive or administrative capacity have no power to control them. In other words, the submission was that the only power which the Government exercise over the Commissioner is the one under S.99 and that that power is quasi judicial in character as it is clear from the proviso that the persons who might be prejudicially affected by the order to be passed by Government must be given notice and an opportunity of being heard. It is no doubt true that the Government exercise a quasi judicial power when they revise an order of the Commissioner or other subordinate functionaries passed in the exercise of their quasi judicial capacity, but it does not follow that the Government cannot pass administrative orders exercising control over the Commissioner and the other authorities under S.99. S.99 is wide enough to include within its coverage all the administrative orders passed by the Commissioner and the other authorities. The Commissioner as corporation sole can act only by passing orders in his quasi judicial or administrative capacity. All these orders can be revised under the section. It was submitted by counsel for the petitioner that even though Government may revise the administrative orders of the Commissioner and the other authorities, the jurisdiction exercised by the Government under S.99 is only quasi judicial, by virtue of the judicial power vested in them and not by virtue of any administrative control over the Commissioner and the other functionaries under the Act. It is difficult to accept this argument. If it is assumed and counsel for the petitioner proceeded on that assumption that the Government can revise the administrative orders passed by the Commissioner and the other subordinate authorities under the Act, the nature of the order to be passed by the Government must necessarily be administrative, even though they may have to conform to the procedure laid down in S.99. It is a mistake to suppose that because the Government are also given judicial or quasi judicial power under S.99, they cannot exercise any administrative power under the section. It is a mistake to suppose that because the Government are also given judicial or quasi judicial power under S.99, they cannot exercise any administrative power under the section. In considering the question whether the Board of Review constituted under S.41 of the Australian Income Tax Assessment Act, 1922-1925 to review the decision of the Commissioner of Taxation, was a court exercising judicial power of the Commonwealth within the meaning of S.71 of the Australian Constitution or is merely an administrative or executive tribunal, the Judicial Committee of the Privy Council said: "An administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a Court, strictly so called. Mere externals do not make a direction to an administrative officer by an ad hoc tribunal an exercise by a Court of Judicial power …………………………….. …………………………………………………………………………………………….. In that view they have come to the conclusion that the legislation in this case does not transgress the limits laid down by the Constitution, because the Board of Review are not exercising judicial powers, but are merely in the same position as the Commissioner himself namely, they are another administrative tribunal which is reviewing the determination of the Commissioner who admittedly is not judicial, but executive." Shell Company of Australia v. Federal Commissioner of Taxation (1931 AC 275 at 298). It is not correct to infer the nature of an order merely from the general scope of a tribunal's function. The power actually exercised in making each particular order must be examined. When a right of appeal or revision is given from an administrative order, since the order has been made according to the notion of policy and expediency by the administrator, the appellate or revisional authority can have no standard for reviewing them in the ordinary sense, unless the standard is provided by the relevant statute. It can only apply in turn its own ideas of policy and expediency. If it alters the orders made by the administrative authority, it is really substituting its own notions of policy and expediency for that of the authority below. And the statute by providing an appeal or revision from the order of an administrative authority by necessary implication makes the appellate or revisional authority's order based on its notions of policy and expediency supersede the other. And the statute by providing an appeal or revision from the order of an administrative authority by necessary implication makes the appellate or revisional authority's order based on its notions of policy and expediency supersede the other. It is quite common for a tribunal whose functions are mainly judicial to be given administrative functions also. A tribunal having both powers deals with certain subjects judicially and others administratively, and a single order may represent the joint exercise of both judicial and administrative powers. "Judges have caused confusion by contrasting judicial and 'administrative' (legislative) tribunals as though they were necessarily separate and distinct, as though to show that a tribunal exercises judicial functions were enough to show that it cannot act 'administratively', and vice versa. But such an assumption can be altogether misleading. For it is quite common for a tribunal whose functions are mainly judicial to be given 'administrative' (legislative) functions too, and vice versa. A tribunal having these dual functions usually deals with certain subject matters judicially, and with others legislatively. But a single order may represent the joint exercise of both judicial and legislative powers. The licensing of public houses furnishes instances." ('Administrative Tribunals and the Courts' by D. M. Gordon - 49 LQR 94 at 119.) Therefore it is not correct to say that S 99 does not confer upon the Government administrative power to exercise control over the acts of the Commissioner. The proviso to S.99 making it imperative that the Government should give notice to the person who will be prejudicially affected by the order indicates only that in circumstances where such prejudice is likely to be caused, notice must be given. The presence of the proviso is not an indication that the Government cannot pass administrative orders under the section or that all orders passed under the section are quasi judicial in character. The fact that most of the orders passed by the Commissioner and the subordinate authorities are administrative in character and that the Government are given the power to revise them and to set aside and supersede them or to remit them for reconsideration would show that the Government's administrative control over the Commissioner and the other authorities in respect of their administrative activity under the Act is complete. That the procedure by which an order is to be passed is that which is to be always observed in a judicial or quasi judicial process is not determinative that the order itself is judicial or quasi judicial. Even for passing an administrative order, notice and hearing may be insisted upon by a statute. The requirement of notice and hearing can never be taken as conclusive of the nature of the order. In Local Government Board v. Arlidge 1915 AC 120 the question arose as to the procedure to be followed in appeal before the Local Government Board against an order of a Local Authority closing a dwelling house. At page 150 Lord Moulton observed: "In the present case, however, the Legislature has provided an appeal, but it is an appeal to an administrative department of State and not to a judicial body. It is said, truth, fully, that on such an appeal the Local Government Board must act judicially, but this, in my opinion, only means that it must preserve a judicial temper and perform its duties conscientiously, with a proper feeling of responsibility, in view of the fact that its acts affect the property and rights of individuals." If all the orders passed by the Commissioner in his administrative capacity can be set aside in revision by Government and superseded by their own orders, where is the independent discretionary or administrative power of the Commissioner? 16. It is now necessary to advert to the argument of the petitioner's counsel that the Commissioner having been constituted a corporation sole with a separate and independent personality, is not subject to the control of Government. In this connection it is relevant to see the object with which S.80 and 81 of the Act were enacted. In Commr. H. R. E. v. L. T. Swamiyar AIR 1954 SC 282 it was held among other things that S.76 of the Act was invalid as the fund collected under S.76 was not earmarked for the purpose for which it was collected but became merged in the consolidated fund of the State. That decision was rendered on 16th March 1954. The amending Act 27 of 1954 came into force on 22nd September 1954. That decision was rendered on 16th March 1954. The amending Act 27 of 1954 came into force on 22nd September 1954. The amending Act itself was challenged in the Madras High Court and the decision of the Madras High Court is reported in Sudhindra v. H. R. & C. E. Commr., AIR 1956 Madras 491. There was an appeal from that decision to the Supreme Court and the decision of the Supreme Court is reported in S. T. Swamiyar v. Commmr. H. R. & C. E., AIR 1963 SC 966 . In stating the objects of S.80 and 81 introduced by the amending Act 27 of 1954 the Supreme Court observed at page 975: S. 80 makes the Commissioner a corporation sole with perpetual succession and S.81 provides for the constitution of the Madras Hindu Religious and Charitable Endowments Administration Fund. These sections have been enacted with the object of establishing a distinct fund out of the income of the endowments totally unrelated to the general revenues of the State. By S.82 contributions which had been levied under the Act XIX of 1951 before it was amended by the Act XXVII of 1954 under S.76(1) and (2) have been validated……." Therefore the reason why the Commissioner was constituted a corporation sole is that the legislature thought that by this device it was possible to create a separate fund with perpetual succession. It is difficult to find from the provisions of the amending Act, Act 27 of 1954, that any change in the administrative control of the Government over the Commissioner and the other functionaries was intended. In Commissioner, H R. E. v. L. T. Swamiyar AIR 1954 SC 282 at P. 287 it was observed: "The new Act (Act 19 of 1951) has abolished this Board and the administration of religious and charitable institutions has been vested practically in a department of the Government, at the head of which is the Commissioner." It that be so, the question for consideration is whether the object of the legislature in enacting S.80 and 81 was to alter the character of that department so as to make it an independent entity? If from the control exercised by Government under the relevant provisions of Act 19 of 1951 the Supreme Court could infer that the Commissioner was not an independent functionary but only the head of a department subject to the administrative control of Government, from the mere fact that the Commissioner has been constituted a corporation sole, and a separate fund created, is impossible to infer that this functionary has become an independent entity, or what was a department of Government under Act 19 of 1951 ceased to be so? The fact that the Commissioner is constituted a corporation sole can have little effect on the nature of the control exercised by Government. Both a natural person as well as a corporate entity could be subject to the administrative control of Government. Incorporation is not determinative of the question. It is not because an organ of Government has received separate incorporation that it is thereby cut adrift from the Government, and submitted to all the incidents of corporate life. In England the Minister of Agriculture and Fisheries is a corporation sole for the purpose of acquiring and holding land; the Minister of Fuel and Power is a corporation sole for all purposes; the Minister of Housing and Local Government is a corporation sole; but they do not for this reason cease to be part of the Government. What is intended by the incorporation must be gathered from the circumstances of each particular case, and in this case it is possible to regard the incorporation as a device mainly for the purpose of creating and perpetuating a separate fund. Reference was made to Salmond on Jurisprudence, 10th Edition, Chap.15, page 329, to show that in the case of corporation sole the true occupant of the office is the offspring of law and that he never dies or retires and that he cannot be a servant of Government. "In the case of corporations sole, the purely legal nature of their personality is equally apparent. The chief difficulty in apprehending the true nature of a corporation of this description is that it bears the same name as the natural person who is its sole member for the time being, and who represents it and acts for it. Each of them is the Sovereign, or the Solicitor to the Treasury, or the Secretary of State for War. Each of them is the Sovereign, or the Solicitor to the Treasury, or the Secretary of State for War. Nevertheless under each of these names two persons live. One is a human being, administering for the time being the duties and affairs of the office. He alone is visible to the eyes of laymen. The other is a mythical being whom only lawyers know of, and whom only the eye of the law can perceive. He is the true occupant of the office; he never dies or retires; the other, the person of flesh and blood, is merely his agent and representative, through whom he performs his functions. The living official comes and goes, but this offspring of the law remains the same for ever." The question whether a corporation sole has a separate personality is itself a matter of controversy. Mailland said: "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' page 103). Markby characterised it as a "curious thing" and said: "And on an examination of the position of so called corporations sole it will be seen that they are not really juristical persons, but only natural persons peculiarly situated as regards the acquisition and incurring of rights and duties." (See Markby's Elements of Law" page 91,) Keeton observes: "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…………………………………………………………………………………………..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. Wdford, 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., pages 155 and 162.) It is not necessary to enter the academic thicket and resolve the controversy whether a corporation sole is a true juristic person or not. (See 'Elementary Principles of Jurisprudence* by Keeton, 2nd Edn., pages 155 and 162.) It is not necessary to enter the academic thicket and resolve the controversy whether a corporation sole is a true juristic person or not. Assuming that it is a juristic person, I do not think, that would make any difference in my conclusion, as both a juristic entity as well as a natural person can be subject to the administrative control of Government. Reference was also made to the decision in Tamlin v. Hannaford (1950) 1 K. B. 18 at p. 25. In that case the Court of Appeal held that the British Transport Commission was not an agent of the Crown. The court followed the previous practice by not laying down any precise test to determine whether public corporations were Crown agents. Among the factors influencing the court were that previously transport had been carried on by private enterprise; that execution could be levied against the commission; the comparative looseness of ministerial control; the Act setting up the Commission neither relieved it of the liability of its predecessors, nor declared it to be the agent of the Crown; the Commission did not exercise the normal functions of a Government department. Denning, L. J. observed: "The only fact in this case which can be said to make the British Transport Commission a servant or agent of the Crown is the control over it which is exercised by the Minister of Transport; but there is ample authority both in this Court and in the House of Lords for saying that such control as he exercises is insufficient for the purpose. (See Cannon Brawery Co. Ltd. v. Central Control Board (Liquor Traffic) - 1918 (2) Ch. 101, 113.) When Parliament intends that a new corporation should act on behalf of the Crown, it as a rule says so expressly, as it did in the case of the Central Land Board by the Town and Country Planning Act, 1947, which was passed on the very same day as the Transport Act, 1947. In the absence of any such express provision, the proper inference, in the case, at any rate, of a commercial corporation, is that it acts on its own behalf, even though it is controlled by a government department." 17. In the absence of any such express provision, the proper inference, in the case, at any rate, of a commercial corporation, is that it acts on its own behalf, even though it is controlled by a government department." 17. The case has been criticised because of the inadequate examination of the important, and perhaps the crucial question the degree of control exercised over the Commission by the Minister. "It is to be regretted that the Court of Appeal did not go more fully into the reasons for its decision. Much of the judgment seemed to indicate a contrary conclusion, but the reasons stated which can be extracted were these. First, that the Commission was not exempted from the obligations which bound the railway companies which it superseded; secondly, that execution was leviable against the Commission; thirdly, that the Commission was not expressly stated to be acting on behalf of the Crown; fourthly, that it was not a government department nor did its powers fall within the province of government; fifthly, that the Minister of Transport, despite his powers and despite the fact that he had to account to Parliament for his stewardship, did not exercise sufficient control over the Commission. It seems to us, with respect, that the first three of these reasons are not conclusive one way or the other; that the fourth is, as to its first part, irrelevant and, as to its second part, open to serious question; and that the fifth, being the crux of the whole matter, would have merited detailed examination, and is not adequately proved by the only case quoted in its support." (See 'Public Corporations as Crown Servants' by J. A. G. Griffith in 12 Modern Law Review 496 at 498.) In Bank Voor Handel En Scheepvaart N. V. v. Slatford 1953 (1) QB 248 Denning, L. J. advanced the proposition that submission to orders is not the criterion to decide whether a person is a servant of the Crown. When considering the question whether the custodian of enemy property was a servant of the Crown, the learned Judge said at page 295: "In this connection, I would observe that the test of being a servant does not rest nowadays on submission to orders. When considering the question whether the custodian of enemy property was a servant of the Crown, the learned Judge said at page 295: "In this connection, I would observe that the test of being a servant does not rest nowadays on submission to orders. It depends on whether the person is part and parcel of the organisation." And as regards the scope of his decision in Tamlin's case, he observed: "I am quite sure that the great Judges who spoke of 'the province of government' in the nineteenth century did not mean to include in it the wide range of activities in which governments now embark; and we have recently in this court refused to extend immunity to these activities. The point was distinctly raised in Tamlin v. Hannaford (1950 (1) KB 18, 21) when Mr. Redmond Barry, K. C. (as he then was) said that the real question was "what at this date is the true 'province and sphere of Central Government?' " and we answered it by declining to give Crown immunity to the commercial activities of Government." The case went up in appeal before the House of Lords and the House of Lords reversed the decision of the Court of Appeal. Lord Reid said: "In my judgment the question whether the custodian is a servant of the Crown depends on the degree of control which the Crown through its Ministers can exercise over him in the performance of his duties." (Bank Voor Handel En Scheepvaart N. V. v. Administrator of Hungarian Property 1954 AC 584 at 616.) 18. The question whether the British Broadcasting Corporation (B. B. C.) is a servant of the Crown came up for consideration in the recent case of British Broadcasting Corporation v. Johns (1965) 1 Ch. D. 32. It was contended on behalf on the B. B. C. that: "(1) The Sovereign personally is immune from the operation of any statute unless named in the statute. (2) Seivants or agents of the Crown are equally immune unless named in the statute. (3) Persons who are not Crown servants or agents are immune if they are in consimili casu with Crown servants or agents. (4) Persons are to be regarded as being in consimili casu with servants or agents of the Crown if they are appointed to carry out Government purposes. (3) Persons who are not Crown servants or agents are immune if they are in consimili casu with Crown servants or agents. (4) Persons are to be regarded as being in consimili casu with servants or agents of the Crown if they are appointed to carry out Government purposes. (5) Government purposes include the traditional provinces of Government (for instance, the making of war or peace, the administration of justice or the maintenance of law and order). (6) Government purposes also include non traditional provinces of Government if the Crown has constitutionally asserted that they are to be within the province of government." It was the failure to make out the last proposition that influenced the court to come to the conclusion that the B. B. C. is not a servant of the Crown. Willmer, L. J. observed at page 60: "In my judgment, however the argument for the B. B. C breaks down in relation to proposition (6), because I find it impossible to accept the contention that the Crown has ever asserted that broadcasting should be within the province of government. I do not find it necessary to express any view as to whether it would be within the prerogative of the Crown to assert any such claim." Danckwerts, L. J. said at page 72: "To sum up, the B. B. C. undoubtedly was formed to carry out public services, and there is a certain measure of control through the Postmaster General, and its operations are financed through the Postmaster General out of public funds. The fact that the B. B. C. was incorporated by Royal Charter is not a conclusive factor. The fact that the B. B. C. was incorporated by Royal Charter is not a conclusive factor. The point at issue really is whether it is a body exercising functions of the Government in such a manner and form that it is entitled to the prerogative immunity of the Crown from taxation." Therefore, in determining whether any given body is a part of the general Government of the country it is material to consider the nature of its function or office whether its essential character is governmental, i. e. implies the exercise of authority, or whether it is the mere substitute for private enterprise (either in the way of profit or of philanthropy); whether it belongs to the general welfare of the country or to the special interest of some part of it; the history of the function of the organ in the particular community; and the control or direction under which it is exercised. In the case of Bainbridge v. Postmaster General (1960 (I) KB 178 the inference to be drawn from the vesting in a coporate entity of functions formerly left to private enterprises is overborne by a concursus of facts that the coporate entity was a department of State which in the past had always been treated as representing the Crown; that the office of Postmaster General had been regarded not as one for the management of a business but as a branch of public revenue and police, and so an essential part of Government. 19. Petitioner's counsel referred to the rulings in Ranjit Ghosh v. D. K. Corporation AIR 1960 Cal. 549 & Narayanaswami v. Krishnamurthi AIR 1958 Madras 343. These cases decide that the servants of the public corporations considered in those cases are not servants of Government, and therefore they do not hold civil posts under Government. Beyond formulating the tests already adverted to, these cases do not provide an answer to the question in issue, which, I think, has to be resolved on an application of the relevant tests in the light of the legislative aim. 20. In this connection it is necessary to consider the question whether it is within the traditional province of Government in this country to exercise control over religious and charitable institutions. 20. In this connection it is necessary to consider the question whether it is within the traditional province of Government in this country to exercise control over religious and charitable institutions. It is a matter of common knowledge that even from very early times religious and charitable institutions in India came under the special protection of the ruling authority. The rulers of the country always asserted their right to visit the institutions in order to prevent fraud and redress the abuses in their management. Although there is little written authority regarding the jurisdiction of the Hindu kings over the temples and endowments it is clear that these were regulated by a sort of customary law which, in the last resort, had to be enforced by the Court. (See Sitharama Chetty v. Sir S. Subramania Iyer ILR 39 Madras 700. After the advent of the British rule it came to light that the income of many of the endowments was misspent or misappropriated by persons in charge of the same and the British Government asserted the right of supervision over endowed property as was exercised by the former rulers. In 1810 a regulation was passed for Bengal. Similar regulations for Madras and Bombay were made in 1817 and 1827. This regulating process went on and is being continued even after India became a Republic. "It appears however that from very early times religious and charitable institutions in this country came under the special protection of ruling authority. In the celebrated Rameswar Pagoda case (LR 1 IA 299), it was pointed out by the Judicial Committee that the former rulers of this country always asserted the right to visit endowments of this kind to prevent and redress the abuses in their management. 'There can be little doubt', thus observed Their Lordships, 'that the superintending authority was exercised by the old rulers'. Mr. Nelson in his Madura Manual says 'The principal Pagodas with their enormous establishments, their officiating priests, etc. were managed by Dharma Karta or trustee and manager for life who as stated above was usually a monk and a Guru……The Dharma Kartas held but little communication one with another and recognised no earthly superior except the King himself. Each was independent of all control and acted altogether as he pleased. were managed by Dharma Karta or trustee and manager for life who as stated above was usually a monk and a Guru……The Dharma Kartas held but little communication one with another and recognised no earthly superior except the King himself. Each was independent of all control and acted altogether as he pleased. This freedom led naturally to gross abuses and the king was compelled occasionally to interfere in the management of some of the churches'." ('Hindu Law of Religious and Charitable Trust', by Mukherjea, 2nd Edn., page 29). In 'Hindu and Muhammedan Religious Endowments' by P. R. Ganapathi Iyer, page 23 it is observed: "That the Hindu kings as a matter of fact exercised supervision over Hindu temples will be clear from numerous historical records." At page 25 it is stated: "In Malabar this sovereign right of superintendence was known as Melkoima. Mr. Graema, the Special Commissioner of Malabar defines Melkoima as the right which the sovereign power possessed over property of which ownership is in others'. It is a right of superintendence and incident of sovereignty ………West, J., in Manohar Ganesh Tambekar v. Lakshmyram Govindram in a passage already referred to refers to a document of 1793 as showing that the native Governor of the Fort of Pavghar exercised "a visitatorial power to prevent waste of the temple property by either the Tambekar managing the dedicated village or the Shevaks holding the accumulated offerings at the shrines''. In an earlier passage the same learned Judge observed that "Bombay Regulation XVII of 1827 gave to the Collector a visitatorial power enabling him to enforce an honest and proper administration of religious endowments". In Sesadri Ayyangar v. Nataraja Ayyar (1898 ILR 21 M. 179) both Collins, C. J. and Davies, J., cite the passage of the Judicial Committee in the Rameswaram Pagoda case." In Sitharama Chetty v. Sir Subramonia Iyer ILR 39 Madras 700, Willis, C. J. and Seshagiri Ayyar, J., relied on the dictum of the Privy Council in Rameswaram Pagoda case and expressed the opinion that the powers delegated to the Board were analogous to the powers conferred on visitors in England. Counsel for the petitioner said that there is no reliable evidence to show that from ancient times the sovereign had asserted any visitatorial right in respect of the temples in Malabar. Counsel for the petitioner said that there is no reliable evidence to show that from ancient times the sovereign had asserted any visitatorial right in respect of the temples in Malabar. Even assuming this to be so, the fact that the temples in a geographical area of the State were not subjected to this jurisdiction is irrelevant for the decision of the question whether control over the Devaswoms is a traditional governmental function. The authorities therefore support the conclusion that supervision and control of Hindu Religious and Charitable Institutions is a function within the traditional province of Government and that Government at all times except during a certain period of time constitutionally asserted that it is within their province. Under the Constitution, India is a secular State. But that would not preclude the secular administration of religious institutions. "It is a secular administration of the religious institutions that the legislature seeks to control, and the object as enunciated in the Act, is to ensure that the endowments attached to the religious institutions are properly administered and their income is duly appropriated for the purposes for which they were founded or exist. There is no question of favouring any particular religion or religious denomination in such cases." [See Commissioner, H. R. E. v. L. T. Swamiyar AIR 1954 SC 282 at pp. 296 and 297.] A distinction has always been made between the traditional sovereign functions of the State and the comparatively new commercial ventures which the State has undertaken in modern times. See the decision of the Supreme Court in Civil Appeal No. 105/1963 for this distinction in connection with the liability of the State for acts of public servants. So far as the traditional sovereign functions are concerned, the creation of incorporated agencies to carry on these functions would not alter their character as governmental agencies. The agencies will be treated as part of the organisation of the Government unless the statute creating them clearly indicates a different intention. 21. It may also be noted that under S.76(4) of the Act the salary of the Commissioner is to be paid by Government. The agencies will be treated as part of the organisation of the Government unless the statute creating them clearly indicates a different intention. 21. It may also be noted that under S.76(4) of the Act the salary of the Commissioner is to be paid by Government. But it was argued that under S.81(2) the Commissioner shall out of the fund repay the Government the sum paid by the Government under S.76(4) and that really the salary of the Commissioner is to be paid from the fund, and therefore he is not a servant of Government. "But the fund from which a servant is paid is not conclusive at common law to determine who his master is: the question is one of control." See 'Crown Proceedings' by Glanville L. Williams, page 39.) S. 76(1) speaks of services rendered by Government and their officers. S.104(2) provides for the regulation of the conditions of service of the members of the Board who are appointed to offices provided for in the Act, as if they had entered the service of Government on the date of their first entertainment as members of the Board. These provisions give some indication of the character of the offices held by the Commissioner and the other functionaries under the Act. 22. I think the petitioner was in the service of the Government and he was subject to the administrative control of the Government in respect of his administrative functions under the Act. I should not be understood to mean that the petitioner was subject to the administrative control of Government in the performance of his quasi judicial functions under the Act. The only control exercised by Government over the quasi judicial acts of the Commissioner is the one under S.99. 23. Linked with this contention is the argument of petitioner's counsel that since the petitioner was exercising statutory powers under the Act he could not be under the control of the Government and therefore was not a servant of the Government when exercising those powers. It was argued that when a person exercises statutory functions he cannot be considered to be a servant of Government in the exercise of these functions. In support of this contention counsel relied on the following observations in State of M.P. v. Singhai Kapoorchand AIR 1961 M. P. 316 Para 9. It was argued that when a person exercises statutory functions he cannot be considered to be a servant of Government in the exercise of these functions. In support of this contention counsel relied on the following observations in State of M.P. v. Singhai Kapoorchand AIR 1961 M. P. 316 Para 9. "The contention of Shri Sen that the Deputy Commissioner paid out of the revenues of the State and was otherwise subordinate to the State Government in administrative capacity does not, in any way affect the position that while acting under the statutory powers he did not act as a servant of the Government. Those powers were not derived by him from the State Government and the State Government had no control over him while he exercised those powers. In fact, the State Government could not interfere in any manner with the powers exercised by him. He was not, therefore, acting as a servant of the State Government in any sense." This is a case where liability was sought to be imposed upon the State for alleged negligence in the performance of statutory duty by an officer of Government. It has no relevance in considering the question whether the appropriate authority is competent to institute disciplinary proceedings when that duty was performed recklessly or without conforming to the essential conditions for performance of the same. I have already dealt with the question of the administrative control exercised by the Government over the Commissioner. Administrative orders are passed by the Commissioner under the provisions of the Act and therefore they are statutory in character. Though the Commissioner cannot be said to be an agent of Government in passing these statutory orders, these statutory orders are liable to be set aside and superseded by the orders of Government under S.99. 24. It was next submitted that the petitioner was exercising a quasi judicial function in passing the orders sanctioning the leases, and therefore his orders cannot be questioned except in accordance with the provisions of the Act. The proposition put forward was that quasi judicial and administrative orders unless vacated under the provisions of the Act are final and binding on the Government and cannot be questioned by the executive Government through disciplinary proceedings. The proposition put forward was that quasi judicial and administrative orders unless vacated under the provisions of the Act are final and binding on the Government and cannot be questioned by the executive Government through disciplinary proceedings. It was argued that an appeal is provided under S.29(4) against an order according sanction for lease, that it is open to any party aggrieved to file an appeal and question the legality, correctness or propriety of the order, that the Government can in revision under S.99 either at the instance of any party or suo motu examine the correctness, propriety or legality of the order, and that so long as these modes have not been adopted or if adopted and failed, the Government cannot institute disciplinary proceedings and reexamine the legality, propriety, or correctness of the order. Counsel said that an order passed in the exercise of quasi judicial function is final and can be set aside only in one of the appropriate methods known to law and if it is not so set aside the order would become final with the result that the Government or any other outside agency would be precluded from questioning its validity or correctness; and relied on the principle laid down in Ujjam Bai's case AIR 1962 SC 1621 in support of this contention. That principle is this: An order made by an authority under a statute which is intra vires and in the undoubted exercise of its jurisdiction cannot be challenged on the sole ground that it is passed on a misconstruction of a provision of the Act or of a notification issued thereunder. The validity of such an order cannot be questioned in a petition under Art.32 of the Constitution. The proper remedy for correcting an error in such an order is to proceed by way of appeal or if the error is an error apparent on the face of the record then by an application under Art.226 of the Constitution. 25. The first question for consideration is whether the petitioner was exercising a quasi judicial power when granting sanction for leases. Considering the terms of S.29(1) and the relevant rules thereunder, I am inclined to think that the function of the Commissioner under S.29 can be characterised as quasi judicial. 25. The first question for consideration is whether the petitioner was exercising a quasi judicial power when granting sanction for leases. Considering the terms of S.29(1) and the relevant rules thereunder, I am inclined to think that the function of the Commissioner under S.29 can be characterised as quasi judicial. It was because it was found that the trustees were making improvident alienations of Devaswom properties that it was considered necessary by the legislature to put a check on their power by entrusting the power of sanctioning sales, mortgages, and leases for periods exceeding 5 years of Devaswom properties to the Commissioner. The Commissioner has a paramount duty to protect the interest of the Devaswoms concerned. Unlike a court passing a decree ex parte for the absence of defendant, without looking into the truth of the plaintiff's claim, the Commissioner has to be satisfied that the transaction proposed is beneficial or necessary notwithstanding the fact that no objections have been preferred or if preferred not prosecuted. S.29 requires that before according sanction the Commissioner must issue notice of the proposals with the necessary particulars, call for objections, consider them, and then pass the order. Even if no objections are preferred the Commissioner has still to consider the question whether the proposed lease is beneficial or necessary. 26. The first part of charge No. lis that the petitioner in utter disregard of the provisions of the Act and the rules thereunder passed orders sanctioning leases in the cases mentioned in the statement of allegations. I am extracting the statement of allegations under this part of the charge, as much has been said about it: ''You were the commissioner H. R. & C. E. (Administration) Department from 1st February 1957 to 19th October 1962. Under S.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, & objections, if any, received should be considered by the commissioner before the sanction is accorded. By the rules made under S.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 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 S.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 have 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 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 land 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 cases:" It seems to me that the first part of charge No. 1 read with the relevant allegations is that in utter disregard of the provisions of S.29 and the rules thereunder and without being satisfied that the leases were beneficial to the Devaswoms the petitioner sanctioned them and that this action of the petitioner discloses misconduct, irregularity and gross recklessness in the discharge of his official duty. In other words, the first part of charge No. 1 read with the relevant allegations amounts to this: that the petitioner accorded sanction for the leases in respect of the private forest lands belonging to the Devaswoms in utter disregard of the provisions of S.29 and the relevant rules thereunder, that the petitioner had a duty to observe the provisions of the section and the rules and be satisfied that the leases were beneficial to the Devaswoms, but without observing the provisions of the section and the rules and without being satisfied that the leases were beneficial he sanctioned them; that this conduct discloses misconduct, irregularity and gross recklessness in the discharge of his official duty. The charge is 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. The allegations set out the provisions of S.29 and the rules and say that contrary to them, the leases have been sanctioned. In 'Criminal Law' by Glanville, L. Williams, 1953 Edn., page 49 it is stated: "Negligence is of two kinds, being either advertent negligence (commonly called recklessness) or inadvertent negligence. In recklessness there is foresight of the possible consequence of conduct, whereas in inadvertent negligence there is no such foresight. For many, if not most, legal purposes recklessness is classed with intention. It is like intention that the consequence is foreseen, but the difference is that whereas in intention the consequence is desired, or is foreseen as a certainty, in recklessness it is foreseen as possible or probable but not desired." At page 65 it is said: "The formulation above, equiparating malice with intention or recklessness, is preferable to the traditional statement that where an act is wilful or reckless this is 'evidence' of malice, or that in such circumstances 'the law implies' malice. Such statement suggests that the legal requirement is 'malice', and that this requirement can be established by evidence of something else, viz., intention or recklessness. But in truth there are not two things, malice on the one hand and intention or recklessness on the other. Malice in law means intention or recklessness. Such statement suggests that the legal requirement is 'malice', and that this requirement can be established by evidence of something else, viz., intention or recklessness. But in truth there are not two things, malice on the one hand and intention or recklessness on the other. Malice in law means intention or recklessness. Hence the proposition that 'the law implies malice from a wilful act' is merely verbiage." The question is whether the disciplinary authority is entitled to enquire into the subject matter of the charge, when ex hypothesi the petitioner was discharging a quasi judicial function in passing the orders according sanction for the leases. 27. The only relevant point to be considered at this stage is whether if this part of the charge is proved by evidence a case will be made out for disciplinary proceedings against the petitioner. It is said that the manner in which the provisions of S.29 and the rules thereunder were violated is not specified in the first part of charge No. 1 or the allegations thereunder, and therefore the charge is defective. This contention is an aspect of the larger contention of the petitioner that the charges are defective in that they are not specific. That will arise for consideration only when it is sought to be proved that the petitioner has been prejudiced by vagueness of the charges and that there has been consequent failure or miscarriage of justice; and the question can be decided only after an appraisal of the conduct of the petitioner in the enquiry as also of the evidence adduced by him. It is premature to say that the first part of charge No. 1 is not sustainable because the charge or the allegations have not stated the manner in which the provisions of the section and the rules have been violated. It was contended that the allegation that the duty of the petitioner was that he should be satisfied that the leases sanctioned were beneficial to the Devaswoms and that contrary to it he accorded the sanctions, does not take into account the aspect of necessity. which by itself can support the leases. This is true enough to the extent it goes, but it makes an assumption that the findings of the Commissioner in all the leases sanctioned by him were that they were necessary. That is not correct. which by itself can support the leases. This is true enough to the extent it goes, but it makes an assumption that the findings of the Commissioner in all the leases sanctioned by him were that they were necessary. That is not correct. Leases were sanctioned by the Commissioner only on the basis that they were beneficial and it must follow that the charge and allegations are sustainable as regards those leases. Apart from that, the first part of charge No. 1 read with the allegations is that in utter disregard of the provisions of S.29 and the rules under the Act, the petitioner accorded sanction for the leases. Will it not import that the petitioner violated the terms of the section which says that the Commissioner can accord sanction only if the lease is either necessary or beneficial? So the question which I ask myself is whether on the basis of the first part of charge No. 1 and the allegations in support of it, a case for disciplinary proceedings is made out. An utter disregard of the provisions of the section and the rules thereunder which discloses recklessness or misconduct in an officer in the discharge of his official duty is a sufficient ground for disciplinary action against him. It is wrong to assume that for utter disregard of the provisions of the statute and the rules, which discloses recklessness or misconduct, disciplinary action cannot be taken. It was argued that the orders according sanction are being impeached on new materials and evidence and not on the basis of those which were before the petitioner at the time when he passed them. It would be a grievous fault, if that were so; but are we really concerned with it now, when we are examining the sustainability of the first part of charge No. 1 on the basis of the statement in that charge and the allegations thereunder? Are we not unconsciously straying into the region of evidence when we say that the orders are being impeached on new materials and evidence? 28. Are we not unconsciously straying into the region of evidence when we say that the orders are being impeached on new materials and evidence? 28. It is said that when the provisions of the section and the rules are disregarded the result is an order which is either illegal or improper and that the illegal or improper order can be questioned in appeal or revision, and if not so questioned, the order would become final and that nobody can reopen the order in order to find out whether there was a reckless disregard of the observance of the terms of the section and the rules The fact that the propriety or the legality of an order could be questioned in appeal or revision but was not so questioned, would preclude the disciplinary authority from showing that the order was passed in utter disregard of the provisions of the statute and the rules thereunder amounting to recklessness, is a proposition for which I have not been able to find any authority. When the question of the propriety or legality of an order of sanction is brought before the Government in appeal or revision what the Government are concerned with is the propriety or the legality of the order as such. They are not concerned with the conduct of the officer who passed the order. They are only concerned with the merit of the case. But in disciplinary proceedings Government are concerned with the conduct of the officer ia the discharge of his duties. 29. Suppose a Commissioner who is bound under the provisions of S.29 to issue notice of the proposal for lease, call for objections, consider them, and pass the order, were to enter into negotiations with the objectors or buy them off with prospect of lucre, and without considering their objections pass an order according sanction for the lease, or suppose a Commissioner by advertent negligence were to accord sanction for a lease without issuing the notice of the proposal for the lease and calling for objections, or pass an order according sanction saying that the lease is beneficial to the Devaswom when, as a matter of fact, he was not satisfied about its beneficial character, the order would certainly be improper and illegal and therefore it could be questioned in appeal or revision. But does it follow that if it is not so questioned, the disciplinary authority cannot take proceeding against the Commissioner on the ground that he has discharged his duties recklessly by utterly disregarding the conditions for the exercise of his power? It was contended that the allegations are insufficient to make out a case of recklessness. An utter disregard of the provisions of S.29 and the rules may amount to recklessness in the discharge of official duty. The Government propose to prove by evidence that the disregard in this case is such as to amount to recklessness and misconduct. Most of the distinctions in law are distinctions in degree. The superlative "in utter" in the charge is intended to indicate the degree of the disregard of the provisions of the section and the rules, and cannot be brushed aside as a mere epithet. Recklessness and misconduct are not sought to be deduced from erroneous conclusions of the petitioner as regards the beneficial character or the necessity of the leases sanctioned. They are sought to be made out from the total disregard of the petitioner of the conditions for the exercise of his power. Then it is said that the words 'misconduct', 'irregularity' and 'gross recklessness' cannot apply to all the actions impugned. If any of these words namely, 'mis conduct', 'irregularity' or 'recklessness' is a surplusage or out of place in the context of some of the actions of the Commissioner, does it follow that the charge is materially defective on that account ? Even if any one of the words is inapt in the context of a particular action, that would not show that the charge itself is defective. The failure to prove that a particular action is grossly reckless will not prevent the Government from showing that it is either irregular or would amount to misconduct. The fact that an action is described as disclosing' misconduct, irregularity or gross recklessness', will not prevent the disciplinary authority from showing that the act proved would disclose the one or the other among them. 30. It is a well established rule that judicial officers are immune from liability at the instance of a party deeming himself to be aggrieved by the judicial acts or orders. 30. It is a well established rule that judicial officers are immune from liability at the instance of a party deeming himself to be aggrieved by the judicial acts or orders. In Anderson v. Gorrie (1895 (1) QB 668 at p. 671), the Court quoted with approval the classical passage of Compton, J., in Fray v. Blackburn (3B and S.576 at p. 578). " It is a principle of our law that no action will lie against a judge of one of the superior courts for a judicial act, though it be alleged to have been done maliciously and corruptly............................... The public are deeply interested in this rule, which indeed exists for their benefit, and was established in order to secure the independence of the judges, and prevent their being harassed by vexatious actions." This protective mantle thrown over a judge's shoulders is a garment that was woven by the common law of England. The law in India is also the same. (See S.1 of the Judicial Officers Protection Act, Act 18 of 1850). The type of protection which a quasi judicial authority enjoys may be different in scope and ambit. The House of Lords in the case of Everett v. Griffiths (1921 (1) AC 631), considered that question. A Chairman of the Board of Guardians duly empowered to make orders for the reception of pauper lunatics signed an order, after inquiry and upon the certificate of a medical practitioner, for the reception of the plaintiff as a 'pauper lunatic in an asylum for lunatics. The plaintiff brought an action against the chairman and the medical practitioner for negligence in having respectively made the reception order and given the medical certificate. It was held that the chairman was acting in a quasi judicial capacity when he made the reception order and that as at the time of making the reception order he was honestly satisfied as to the plaintiff's insanity, no action for negligence lay against him, and that he was entitled to judgment, and that as regards the medical practitioner, on the facts, there was no evidence to be left to the jury of any want of care on his part and that he too was entitled to judgment. Viscount Haldane said at page 659: "My Lords, the question so stated would be one of considerable difficulty, if we were called on in the present appeal to decide it abstractly, as one depending on a general principle. The tendency of modern legislation has recently been to entrust to many who are prima facie only administrative officers, functions which have some judicial attributes at all events, although they remain primarily administrators. What protection do they enjoy ? The point of law is to day not as simple as it was, comparatively speaking, some years ago. The recent decisions of this House in Board of Education v. Rice (1911 AC 179) and in Local Government Board v. Alridge (1915 AC 120) indicate that in the case of administrative awards there are at least some enforceable obligations which those making them must observe. What these are and to what extent they go has to be ascertained by considering the statutes creating the quasi judicial powers, and the particular forms in which a general principle has been implied in the establishment of such judicial authority. This question may prove in particular cases a delicate and obscure one. Some limitations of the application in such instances of the broad principle of complete judicial immunity may well prove to be involved in its resolution. I should here again be loath to try to lay down general principles in answer to what is a fresh legal problem of far reaching importance, without having heard full argument. I should be the more reluctant to attempt to do so because I think that no such general question really arises here. For provided that the person entrusted by Parliament with the statutory duty of satisfying himself in the fashion prescribed by the Act of 1890 and then to act, in fulfilment of the statutory duty which is that of the justice under S.16, keeps within his jurisdiction observing the prescribed conditions, and acting bona fide and honestly, I think that he is doing only what Parliament has called on him to do, and has thereby made lawful, and that the only tribunal that could make him responsible for a mistake in the exercise of the discretion entrusted to him must be such, if any, as is expressly established by Parliament for the purpose. If he does his best to act fairly within the limits laid down for him, he has acted upto the standard prescribed and I do not think he can be made liable to an action at common law for want of care beyond this. For assuming that he has actually satisfied himself acting honestly and bona fide in arriving at his conclusion and proceeding on it, he has done the very thing which the statute told him to do, and no further question arises." Viscount Cave said at page 678 : "If, indeed, he were to make a reception order maliciously or dishonestly, without being genuinely 'satisfied' as to the insanity of the person to be detained, it might be said that the conditions of the section had not been observed. But where (as in this case) the order is made honestly and in good faith, the person making it cannot afterwards be made liable in damages on the ground that he exercised a wrong judgment as to the inquiries which he should make or as to the conclusion which he should draw from the facts proved. So to hold would be to expose a justice, honestly exercising his powers under the section, to the peril of having his judgment reviewed in every case by a jury in an action for negligence." Lord Atkinson after a consideration of the nature of the function of the chairman of the Board of Guardians in passing an order of reception said that it was judicial in character and that as there was no proof of dishonesty or lack of bona fides, the defendants were not liable. Lord Moulton observed at page 696 : "The law may of course affix conditions as to the exercise of any such public duty. It may provide, as in this case, that the assistance and certificate of a medical practitioner must be obtained and that the justice must himself examine the person affected by the decision. Lord Moulton observed at page 696 : "The law may of course affix conditions as to the exercise of any such public duty. It may provide, as in this case, that the assistance and certificate of a medical practitioner must be obtained and that the justice must himself examine the person affected by the decision. If the legislature so provides it is clear that the justice or other public officer exercising the jurisdiction must comply with the conditions if he is to bring himself within the protection." The effect of the decision, as I understand it, is this: a person exercising a quasi judicial power is liable in damages to a party injured if the person exercising it has acted without bona fides or dishonestly or failed to comply with the essential conditions for its exercise. The words of Lord Haldane would bear repetition: that the officer will be immune from liability if he "he keeps within jurisdiction, observing the prescribed conditions, and acting bona fide and honestly". If these are not fulfilled, an action in damages would by implication lie. All the law lords except perhaps Viscount Finlay seem to insist on bona fides, honesty and the observance of the prescribed conditions, for the exercise of the power as essential conditions for immunity from liability. Gross recklessness even if held to be not malice is hardly consistent with bona fides. If for such an improper exercise of quasi judicial power an action would lie at the instance of the party injured, I can see no reason why it should not form the subject of a charge in a disciplinary proceeding. Liability in damages at the suit of a party injured by quasi judicial act in such cases, presupposes the existence of an act in law which is wrongful. The liability is founded on the fault of the officer. And is there any law which precludes the appropriate authority from taking disciplinary action against the officer for that fault ? Liability in damages at the suit of a party injured by quasi judicial act in such cases, presupposes the existence of an act in law which is wrongful. The liability is founded on the fault of the officer. And is there any law which precludes the appropriate authority from taking disciplinary action against the officer for that fault ? If for the purpose of deciding the bona fides and honesty of the officer, or whether the conditions prescribed by the statute and the rules have been observed, an order passed by him can be reopened and examined at the instance of the party injured, I can see no reason why a disciplinary authority cannot do so for the purpose of showing that the officer acted in utter disregard of the conditions prescribed for the exercise of his power and was guilty of misconduct or recklessness. Assuming that the law in India is different and that the extent of the civil immunity enjoyed by an administrative officer exercising quasi judicial function is the same as that accorded to judges under S.1 of the Judicial Officers Protection Act, it would make no difference in my conclusion as regards the liability of that officer to disciplinary proceedings for his quasi judicial acts, for even though a judicial officer is immune from liability for his judicial acts and orders, done or passed without bona fides or with malice, or recklessly, when sued at the instance of a party injured thereby, he is answerable for his conduct to the appropriate authority. 31. The reason and the range of judicial immunity can be seen from the following extract: "Therefore, in the case of Floyd v. Barker (1608 (12) Co. Re. 23), Coke emphasized this immunity; and though he did not wholly dissociate it from its early dependence upon the technical conception of a court of record, he put it for the first time on its modern basis of public policy. Re. 23), Coke emphasized this immunity; and though he did not wholly dissociate it from its early dependence upon the technical conception of a court of record, he put it for the first time on its modern basis of public policy. 'Records', he said, 'are of so high a nature that for their sublimity they import verity in themselves; and none shall be received to aver anything against the record itself; and in this point the law is founded upon great reason; for if the judicial matters of record should be drawn in question, by partial and sinister supposals and averments of offenders, or any on their behalf, there will never be an end of causes; but controversies will be infinite." The judges are to make an account to God and the King only. Otherwise those who are the most sincere would not be free from continual caluminations. Clearly we have reached the basis upon which this immunity is based by the modern cases." ('History of English Law' by W. S. Holdsworth, Vol. VI, page 237.) This passage would make it clear that according to Lord Coke judges are to render an account to the King for their improper judicial acts. The reason why judges are protected from action by the parties injured by their judicial acts though done maliciously, is, the interest of the public in securing the independence of the judges and to prevent vexatious actions from being brought against them. It is not for the sake of judges that protection is given but for the sake of public interest in securing their independence. In Girjashankar Narsiram v. Gopalji Gulabbhai ILR 30 Bombay 241 at 245 Jenkins, C. J., said: "The protection afforded to judicial officers rests on public policy. And though thereby a malicious Judge or Magistrate may gain a protection designed not for him, but in the public interest it happily does not follow that he can exercise his malice with impunity. His conduct can be investigated elsewhere and due punishment awarded." The reason for the protection disappears when it is seen that there is greater public interest in punishing an officer, who is reckless in the performance of his judicial function by utterly disregarding the relevant statute or rules or is actuated by dishonest motives. His conduct can be investigated elsewhere and due punishment awarded." The reason for the protection disappears when it is seen that there is greater public interest in punishing an officer, who is reckless in the performance of his judicial function by utterly disregarding the relevant statute or rules or is actuated by dishonest motives. If this be so in the case of judges, the case must be a fortiori so far as quasi judicial officers are concerned. Lord Moulton said in 1921 (1) AC 631 at page 696: "I wish to avoid the use of the words 'judicial act', not because I think them unsuitable, but because there are varying degrees of protection given in respect of the performance of judicial acts according to the judicial position of the person performing them." Even if an administrative authority is immune from liability like judges for his quasi judicial act to the party injured on the ground of public interest, I can see no reason why he should not be answerable to the disciplinary authority for the utter disregard of the conditions prescribed for the exercise of his quasi judicial power. The first part of charge No. 1 in the case is not that the petitioner in the exercise of his quasi judicial function passed erroneous orders. If that were so, no disciplinary proceeding would have been competent, as erroneous orders may result from bona fide mistake, error, or even inadvertent negligence. There never was a judge, or an officer exercising quasi judicial function, who has not committed mistakes or errors. But the charge definitely says that the petitioner gave sanction for leases without being satisfied that they were beneficial to the Devaswoms concerned in utter disregard of the relevant statutory provisions and rules and that this conduct discloses gross recklessness and misconduct in the discharge of his official duty. 32. It was argued for the petitioner that for acts intra vires the Commissioner's powers no charge can lie against the Commissioner. Reference was made to a passage in Halsbury's Laws of England Vol. 9, page 71 in this connection. 32. It was argued for the petitioner that for acts intra vires the Commissioner's powers no charge can lie against the Commissioner. Reference was made to a passage in Halsbury's Laws of England Vol. 9, page 71 in this connection. "Where the officers or directors of a corporation or company actively participate in an act which it is beyond the powers of the corporation to perform, they are each, to the extent of his participation, liable personally for the consequences." It was submitted that since the orders according sanction for the leases were within the power of the Commissioner, even if he has not observed the essential conditions for the exercise of the power for according sanction or exercised the power without bona fides or recklessly, that cannot furnish the basis for disciplinary proceedings. Although a corporation has got a distinct personality, it can act only through human beings. A human being who acts on behalf of a corporation acts as its agent, and a wrongful act done by the agent will certainly be attributed to the corporation if it was done in the course of his employment as agent. This does not mean that the agent who has committed the wrongful act or who was reckless in the performance of his duty is exempt from liability. He is liable whether the wrongful or reckless act is authorised by the corporation or not. No authorisation by a principal would justify the commission of a wrongful or reckless act by an agent. Besides we must not forget that we are dealing with a disciplinary proceeding and that only a human being can be subjected to it. I think there is no substance in the argument that as the acts of the petitioner as Commissioner were intra vires the Act, he is not liable to be punished in disciplinary proceedings for them. 33. The next point urged on behalf of the petitioner was that it was not open to the Government in their executive capacity to question the legality, propriety or correctness of the orders sanctioning the leases in disciplinary proceedings as the Act itself has made a complete provision for questioning the legality, propriety or correctness of the orders. 33. The next point urged on behalf of the petitioner was that it was not open to the Government in their executive capacity to question the legality, propriety or correctness of the orders sanctioning the leases in disciplinary proceedings as the Act itself has made a complete provision for questioning the legality, propriety or correctness of the orders. Reference was made to the provisions of S.93 and 96 of the Act and it was submitted that in view of the provisions contained in those sections as well as of the general scheme of the Act, it was not open to the Government to challenge the correctness or the validity of the orders sanctioning the leases either by disciplinary proceedings or otherwise. In this connection counsel for the petitioner referred to the decision of the Privy Council in Secretary of State v. Mask & Co. AIR 1940 PC 105 and said that the test to decide whether the jurisdiction of the forum designated by the statute is exclusive or not is whether the statute creating the forum has made it the final authority to decide the controversy between the parties. At page 110 it is observed: "It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." The question was considered by the Supreme Court in Firm Radha Krishnan v. Ludhiana Municipality AIR 1963 SC 1547 . The following observations of Subba Rao J., are relevant: "The statute may specifically provide for ousting the jurisdiction of civil courts; even if there was no such specific exclusion if it creates a liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the Civil Court's jurisdiction is not completely ousted. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the Civil Court's jurisdiction is not completely ousted. A suit in a Civil court will always lie to question the order of a tribunal created by a statute even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions." In Gaekwar Sarkar of Baroda v. Gandhi Kachrabhai ILR 27 Bombay 344 it was held that if there is abuse of the statutory power it is open to a party aggrieved to seek appropriate relief by means of a suit. Therefore even if under the relevant statute a suit is expressly barred, that would not prevent a party aggrieved by an order from challenging its validity on the ground that there has been an abuse of power or that the provisions of the statute have not been complied with or that the statutory tribunal has not acted in compliance with the fundamental principles of judicial procedure. 34. Quite apart from this, Government were not a party to any of these orders. Therefore, it cannot be said that the Government were bound by them. The principle enunciated in Ujjam Bai's case can have no application to the facts of this case because that principle can apply only if the Government were a party to these orders. The Government do not want to set aside these orders so far as the parties to these orders are concerned. They do not want by this proceeding to take away the legal effect of these orders as res judicata and set the matters at large as between the parties to them. What they want to do in this proceeding is to show that in exercising the quasi judicial power under S.29 the conditions prescribed for the exercise of the power, were not observed by the petitioner and that was because he utterly disregarded the provisions of S.29 and the rules by his gross recklessness in the discharge of his official duty. It is impossible to say that the Government would be precluded from showing them, by virtue of the fact that those orders have become final under the Act. 35. It is impossible to say that the Government would be precluded from showing them, by virtue of the fact that those orders have become final under the Act. 35. This is a convenient place to dispose of the contention of the petitioner as regards the sustainability of the other charges. As regards the second part of charge No. 1, it was argued that there is no prohibition in law in the Commissioner himself initiating proposals for lease, and therefore the charge cannot be sustained. The question for consideration is whether the Commissioner can initiate specific proposals for lease in favour of specified individuals or entities with all the terms and conditions. According to the common law of the country trustee is the person competent to make alienations or grant leases of Devaswom properties. The legislature thought that it was necessary to put a check on this power because many of the trustees were misusing the power. The legislature by S.76 of Act 2 of 1927 and S.29 of the Act put a restriction on the power of alienation and the right to grant leases. This statutory curb on the common law power of trustee to alienate or lease the properties of Devaswoms should not be interpreted in such a way as to take away all his powers in respect of alienation or lease. It cannot be disputed that the trustee has the power to grant lease when the period does not exceed five years. The provisions of S.39 make an inroad into common law power of the trustee. There is always a presumption in the construction of statute that the legislature intends to abrogate the common law only to the extent to which it specifically provides. (See Craies on Statute Law, 5th Edn., pages 114 and 115). If that rule of construction is applied here, then it would follow that the Commissioner is given only the power to sanction alienation, or lease with period exceeding five years, and that the power to make proposals of alienation, or lease with period exceeding five years, rests with the trustee. 36. It is not disputed that the trustee is the proper person to initiate proposals for such lease. What is contended for is that under S.20 of the Act the Commissioner himself can make specific proposals for lease and sit in judgment over them under S.29. 36. It is not disputed that the trustee is the proper person to initiate proposals for such lease. What is contended for is that under S.20 of the Act the Commissioner himself can make specific proposals for lease and sit in judgment over them under S.29. Reliance was placed on the ruling reported in Rama Varma v. Inspector, H. R. & C. E. 1959 KLT 1147, in support of this proposition. That ruling is authority for the proposition that if a statute authorises an officer to decide a dispute initiated by him nobody can complain in a court that there is violation of the principles of natural justice. In other words, that ruling only says that if there is legislative authorisation, a person can be a judge in his own cause, or in a cause where there is real like hood of bias. But in order that the ruling may apply, one has to ascertain whether the terms of S.20 are reasonably clear to show that the Commissioner has the power of initiating proposals for lease. If the terms of the section are not clear one should be very slow to come to that conclusion. Under S.29 the Commissioner is given a specific power, namely, to accord sanction for alienation, and lease with term exceeding five years. It would appear that that is his only power. The section would seem to imply that the proposals for lease must originate elsewhere, and that the only function of the Commissioner is either to accord sanction or not. If the language of S.20 is understood to mean that the Commissioner has also the power to initiate proposals it would result in the Commissioner sitting in judgment over the proposals initiated by him. That is certainly repugnant to the principles of common law that a person shall not be judge in a cause when there is real likelihood of bias, and that justice must not only be done but seem to be done. It is a well accepted principle in the construction of statute that the legislature will not be presumed to alter the fundamental principles of common law unless that intention is clear. " 'Statutes', said the Court of Common Pleas in Arthur v. Bokenham, 'are not presumed to make any alteration in the common law further or otherwise than the Act does expressly declare'. " 'Statutes', said the Court of Common Pleas in Arthur v. Bokenham, 'are not presumed to make any alteration in the common law further or otherwise than the Act does expressly declare'. In Holfe v. Floper, it was contended that it was the intention of the Victorian Legislature by the Act 5 Vict. No. 17, S.39, to alter the well known principle of bankruptcy law, that a joint creditor having a security upon the separate estate is entitled to prove against the joint estate without giving up his security. In deciding against this contention the Judicial Committee said: 'If this were the establishment of a new code of Insolvent law, and it was the object of the colonial legislature to prevent the operation of a rule which they considered unjust, it is hardly to be imagined that they would have committed their intention to the equivocal meaning of a few words in a single section of the Act 8." (Craies on Statute Law 5th Edn., pages 114 & 115). Having expressed its specific intention that the Commissioner is to have a certain power in respect of alienation and lease of Devaswom properties, I cannot presume that the legislature conveyed any other power in connection with alienation and lease to the Commissioner under S.20 unless the terms of that section are clear to convey that power. Express mention of one power generally implies the exclusion of any other power in respect of that subject. Expressio unius est exclusio altering. I am not saying that this maxim is an infallible guide in all circumstances, but considering the general scheme of the Act and also the fact that if the Commissioner were to have the power of initiation it would result in the violation of a fundamental principle of natural justice, I am loath to imply a power of initiating specific leases in the Commissioner. I have no doubt that the legislature would have said if the point had been present to its mind. What a court has to do in such circumstances is expressed in the following passage: "Interpretation is generally spoken of as if its chief function was to discover what the meaning of the Legislature really was. I have no doubt that the legislature would have said if the point had been present to its mind. What a court has to do in such circumstances is expressed in the following passage: "Interpretation is generally spoken of as if its chief function was to discover what the meaning of the Legislature really was. But when a Legislature has had a real intention, one way or another, on a point, it is not once in a hundred times, that any doubt arises as to what its intention was. If that were all that a Judge had to do wits a statute, interpretation of statutes, instead of being one of the most difficult of a Judge's duties, would be extremely easy. The fact is that the difficulties of so called interpretation arise when the Legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; then what the Judges have to do is, not to determine what the Legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present". (See 'Nature and Sources of Law', 1916 Edn. by John Chipman Gray, page 165). The trustee is bound to administer and manage the properties of the Devaswom and he has all the powers subject to the provisions of the Act for the provident and beneficial administration of religious institutions. He is bound to obey only the lawful orders passed by the Commissioner, under the Act (See S.23). It is said that if the trustee is inactive, indolent or to collude with encroachers or trespassers on the properties and does not make proposals for lease, the interest of the Devaswom would suffer, and therefore, the Commissioner must have the power in himself to make specific proposals for lease. I am not impressed by the argument. If the contingency visualised above were to happen the Commissioner can direct the trustee to make proposals of lease. But that would not authorise him to make the trustee a mere instrument for making the proposals initiated by the Commissioner. In other words what the Commissioner can do in such a contingency is to direct the trustee to make his own proposals. But that would not authorise him to make the trustee a mere instrument for making the proposals initiated by the Commissioner. In other words what the Commissioner can do in such a contingency is to direct the trustee to make his own proposals. What, it is asked, is the Commissioner to do if the trustee does not come forward with proposals in spite of his direction or order? Is he to sit with folded arms a helpless onlooker? S.23, as I have already said, says that all lawful orders of the Commissioner must be obeyed by the trustee. If the trustee were to disobey the direction to make proposals, S.45 authorises the Commissioner or the Deputy Commissioner to suspend, remove or dismiss the trustee for disobedience of the lawful order of the Commissioner. Suppose the trustee were to fail to execute a lease which has been sanctioned by the Commissioner; the Commissioner can no doubt direct him to execute the lease. But if the trustee were to refuse even then, can the Commissioner execute the lease himself? I think not. It was argued that the Commissioner can direct the trustee to do what the trustee can do. I agree that it is so. But then the proposal would be the proposal of the trustee and not of the Commissioner. If the Commissioner has power to direct the manager or trustee to send up proposals initiated by the Commissioner, it is really a case of the Commissioner himself initiating the proposals and making the manager or trustee a conduit pipe for transmitting them to him. The Commissioner is not the person authorised to find out the specific lessee to whom the land is to be leased or to fix the rent, premium or timber value in respect of the property for which the lease is to be granted. They relate far too much to the administrative details of the management of the Devaswoms. If the Commissioner cannot initiate proposals directly he cannot do it indirectly by making the trustee a tool in his hands. When the Commissioner makes a proposal for specific lease with all the terms and conditions he is not passing any order within the meaning of the latter part of S.20. Making a proposal for lease by the Commissioner for being sanctioned by the Commissioner cannot be said to be an order. When the Commissioner makes a proposal for specific lease with all the terms and conditions he is not passing any order within the meaning of the latter part of S.20. Making a proposal for lease by the Commissioner for being sanctioned by the Commissioner cannot be said to be an order. The first part of S.20 speaks of the general superintendence and control of the Commissioner. I cannot bring myself to the conclusion that the words 'superintendence' and 'control' are apt expressions to convey a power for originating proposals for specific leases with all their terms and conditions. 37. It is said that the proposals for lease made by the Commissioner were all in respect of the lands belonging to Pulpally Devaswom for which a scheme had been settled under Act 2 of 1927 and that under the terms of the scheme the Commissioner was authorised to initiate proposals for lease. I am unable to find any provision in the scheme which gives that power to the Commissioner. I would extract Clause.4, 10, 13 and 15 of the scheme: "(4) The manager shall work under the supervision and direction of the trustee and shall be responsible to the Board for his management of the institutions. The Manager shall have the right to represent the devaswoms in all proceedings, civil, criminal and revenue instituted by or against the devaswoms. (10) The temple accounts shall be audited by an auditor appointed by the Board every year. The Board shall be entitled to issue such directions as are necessary and proper in connection with the management of the institution from time to time and the manager and the trustee shall be bound to observe such directions. (13) The manager shall not be entitled to sell timber or other forest produce and elephants without the consent in writing of the trustee. The manager shall not be entitled to grant cutting leases or any kind of renewals without the previous consent and sanction of the trustee obtained in writing. (15) The Board shall have power to issue directions from time to time in regard to the internal management of the temple." The scheme was framed by the Board under S.63 of Act 2 of 1927. S.76 of that Act was practically the same as S.29 of the Act and S.20 of the Act corresponds to S.18 of that Act. (15) The Board shall have power to issue directions from time to time in regard to the internal management of the temple." The scheme was framed by the Board under S.63 of Act 2 of 1927. S.76 of that Act was practically the same as S.29 of the Act and S.20 of the Act corresponds to S.18 of that Act. The Board which framed the scheme must be deemed to have made it in conformity with the provisions of Act 2 of 1927. I will never presume that the Board intended to confer upon themselves a power to sit in judgment over their own proposals. Unless the provision in the scheme is clear and specific I do not think that I will be justified in implying a power of initiation from the terms of Clause.10 or 15. Initiating a proposal for lease in this context can only mean making a proposal for lease by the Board for being sanctioned by themselves. If the Board were to make a proposal the proposal is made by the Board to themselves. The Board would then not be issuing any direction unless it be a direction to themselves. Making a proposal to themselves cannot be said to be a direction issued by the Board regarding the management of the affairs of the Devaswom within the meaning of Clause.10 or 15. The power of the Board which the Commissioner derived by succession is a power to issue directions regarding the management of the Devaswom. By its very nature a direction can be issued only to somebody other than the person'. who issues it. Therefore, it is impossible to spell out from the terms of clause (10) or (15) a power in the Commissioner for initiating proposals for lease for being sanctioned by himself. An argument drawn from inconvenience is forcible in law, but is never decisive. It is not contended that the manager or trustee has no power to initiate proposals. The contention is that besides the manager or the trustee the Commissioner has also the power. The anomaly that will result from coexistent powers cannot be overlooked. If both the manager or trustee and the Commissioner were to make proposals for lease in respect of the same properly, should both proposals be published and objections called for or only that of the Commissioner? The anomaly that will result from coexistent powers cannot be overlooked. If both the manager or trustee and the Commissioner were to make proposals for lease in respect of the same properly, should both proposals be published and objections called for or only that of the Commissioner? Yet it cannot be said the manager or trustee has no right to make the proposal, and if he has the right, the Commissioner must publish the proposal and hear the objections and make a decision. There is no warrant for the view that the Commissioner's proposal should have precedence or priority over the proposal made by the manager. I think the two powers cannot coexist. The allegations relating to this part of the charge recite the letter of the Commissioner dated 27th April 1962 stating that he (the Commissioner) is incompetent to grant leases on his own initiative. The allegations are definite and clear that the proposals were made by the fit person under orders or directions of the petitioner. I am of opinion that there is no substance in the contention that the Commissioner has power to initiate proposals for specific leases containing the terms and conditions. If that be so, the second part of charge No. 1 is sustainable in law. 38. The third part of charge No. 1 cannot be treated as a charge by itself. I do not think that it would constitute a separate charge. It only envisages the consequence resulting from proof of the 1st and 2nd parts of charge No. 1. I think the Enquiry Officer himself did not treat it as a separate charge and therefore no further discussion is necessary in respect of it. 39. So far as charge No. 2 is concerned, I am of opinion that the subject matter of the charge is really included in the first part of charge No. 1. The allegations are that the petitioner did not consider the objections to the proposals for lease in favour of Sri. P. Narayanan Nair and Sri Vayala Idicula on their merits on the ground that the objectors were not present. The allegations are that the petitioner did not consider the objections to the proposals for lease in favour of Sri. P. Narayanan Nair and Sri Vayala Idicula on their merits on the ground that the objectors were not present. The allegations refer to a memo, dated 17th September 1962 issued to the fit person of the Pulpally Devaswom by the petitioner stating that the fit person should consider whether the lease granted by the petitioner is beneficial to the Devaswom and if it is not, to submit fresh proposals. Reference is also made to a memo, dated 3rd September 1962 issued by the petitioner to the trustee of the Naduvila Vallattu Devaswom stating that it was brought to the attention of the petitioner that there was timber growth of value in the forest lands given on lease to Sri. G. Valavi and that the correctness or otherwise of this statement could not be verified easily and directing the trustee to dispose of the timber growth in public auction as per the rules fixing the upset price at Rs. 25 per acre if it was beneficial to the Devaswom. Then the statement of allegations goes on to say that, "It is clear that in both these cases you had not properly exercised your statutory duty under S.29 of the H. R. and C. E. Act and satisfied yourself that the leases sanctioned were actually beneficial to the Devaswom". The only other allegation is that the petitioner granted leases without auction and fixed the premium, rental and timber value arbitrarily thereby causing wrongful gain to the lessees and wrongful loss to the Devaswom whose interest the petitioner was bound by law to protect. It appears to me that the charge is substantially the same as the first part of charge No. 1, namely, that the petitioner has utterly disregarded the provisions of S.29, and the rules thereunder relating to the hearing of objections, and that he was not satisfied about the beneficial character of the leases mentioned in the allegations. The charge, no doubt, speaks of the wrongful loss to the Devaswom and wrongful gain to the lessees, but it is clear that the leases in favour of Vayala Idicula and P. Narayanan Nair were not, as a matter of fact, executed, and therefore there was no wrongful loss to the Devaswom or wrongful gain to the lessees. The charge, no doubt, speaks of the wrongful loss to the Devaswom and wrongful gain to the lessees, but it is clear that the leases in favour of Vayala Idicula and P. Narayanan Nair were not, as a matter of fact, executed, and therefore there was no wrongful loss to the Devaswom or wrongful gain to the lessees. This being the nature of the charge, I think, its scope is the same as that of the first part of charge No. 1. The memos referred to in the allegations may probably serve as evidence to prove the first part of Charge No. 1, but cannot be the basis to support the second charge. My finding that the second charge is really included in the first part of charge No. 1 does not affect my ultimate conclusion about the result of this petition. 40. Now I turn to the first part of charge No. 3. Analysing the allegations under this charge, they amount to this : that the petitioner gave to Sri C. K. Sankar permission to construct sheds and post watchmen on 200 acres of land before sanction was accorded for leasing the property to him by the petitioner as Commissioner, nay, even before a proposal or application in that behalf was made by the manager; that the petitioner accorded sanction to Sri Ayyappan Nair to construct sheds and post watchmen on his plots before the permission for lease was granted by the District Collector under the M. P. P. F. Act; that the petitioner passed an order on an application, dated 17th February 1962 allowing the lessee to construct sheds for his agent and watchmen on the land, even though the District Collector had not sanctioned the lease; that like orders were passed by the petitioner permitting witnesses Sri Somasekhara Pillai and Sri Ramakrishna Pillai to construct huts and post watchmen on the plots allotted to them; and the petitioner directed witness Sri Madhavan Nair to hand over possession to Sri P: Narayanan Nair. 41. The question is whether the petitioner had power to permit these persons to occupy the Devaswom properties in the circumstances mentioned above. It is contended on behalf of the petitioner that both under the Scheme and under S.20 he had the power. The charge says that he had no authority under the Act and the rules thereunder. 41. The question is whether the petitioner had power to permit these persons to occupy the Devaswom properties in the circumstances mentioned above. It is contended on behalf of the petitioner that both under the Scheme and under S.20 he had the power. The charge says that he had no authority under the Act and the rules thereunder. The management of Pulpally Devaswom is vested in the trustee. The manager is to work under the supervision of the trustee. The trustee or the manager would not have been competent to induct a stranger into possession of the Devaswom properties or allow him to occupy the same by constructing sheds or posting watchmen before the Commissioner accorded sanction for tease in his favour. Allowing a stranger to construct sheds and post his agents and watchmen is prima facie evidence of allowing him to occupy the trust property. The agents or the watchmen will not be servants of the Devaswom or the trustee. The agents and watchmen being appointed by the stranger, will be responsible only to the stranger and will be his agents and watchmen. I think a trustee has not only no power to allow an interloper to enter into and construct sheds and post watchmen ia the trust property before the lease is sanctioned by the Commissioner or the Collector, but that it would be a breach of trust on his part to do so. 42. Under clause (10) of the Scheme the Commissioner can give only such directions which are necessary and proper for the management of the institution. The power to issue direction is a conditional power. The satisfaction of the condition is necessary in order that the Commissioner may have the power to issue direction. The existence of the power would depend upon the decision of the question whether the direction is necessary and proper. But who will decide the question whether direction is necessary and proper and therefore the Commissioner has power? It might be that under S.99 the Government can finally say that a direction is necessary and proper and therefore the Commissioner has power. But will the decision of the Government bind this court? But who will decide the question whether direction is necessary and proper and therefore the Commissioner has power? It might be that under S.99 the Government can finally say that a direction is necessary and proper and therefore the Commissioner has power. But will the decision of the Government bind this court? Notwithstanding the fact that the property and necessity of an executive order are not meet subjects for decision by court, this court may be called upon to decide them if the existence of the power depends upon the decision of them. It is not possible for the court to decide them in the abstract without referring to the evidence. The court cannot decide the question dissociated from the facts and circumstances under which the direction was issued. Speaking for myself, I find it impossible to decide the question whether the directions issued by the Commissioner were necessary and proper, without knowing the circumstances under which they were issued. Clause (15) relied on by the petitioner does not in any way alter the situation. It is not possible to construe that clause as authorising the Commissioner to give any and every sort of directions. That construction will nullify the operation of clause (10). If the wide language used in clause (15) was intended to enable the Commissioner to make any direction he pleases, if will certainly come into conflict with clause (10) which authorises him only to issue such directions as are necessary and proper. No inference, I think, is possible from the use of the words 'temple' in clause (15) and 'institution' in clause (10), for those words are used rather indiscriminately in the Scheme. To what purpose does clause (10) put a limitation on the power of the Board and therefore of the Commissioner, if the Commissioner can disregard that limitation by saying that he acted under clause (15) and not under clause (10). Clauses (10) and (15) operate in the same field and it is impossible to give full effect to both clauses. As both these clauses relate to the power of the Commissioner to give directions regarding the management of the Devaswom and as both cannot coexist, I think the better way of construing these clauses is to say that clause (15) must yield to clause (10). As both these clauses relate to the power of the Commissioner to give directions regarding the management of the Devaswom and as both cannot coexist, I think the better way of construing these clauses is to say that clause (15) must yield to clause (10). Even otherwise it is difficult to say that the Commissioner can issue any direction as he pleases under clause (15). The result of this construction is that the Commissioner has power only to give such directions as are necessary and proper for the management of the Devaswom. Prima facie it is not possible to say that the Commissioner had the power to allow the persons mentioned in the allegations to enter into the private forest lands belonging to the Devaswom and construct sheds and post watchmen. The charge is that the petitioner took action for putting the "lessees in possession of lands and to fell trees". It will be open to the petitioner to set up the facts and circumstances under which the directions were issued and establish that they were necessary and proper, and therefore he had the power to issue them. There might be circumstances when such directions may be necessary and proper. But it is a matter for the petitioner to establish. In the nature of this proceeding I can only look at the charge and the allegations in support of it to see whether the charge is sustainable. I cannot go into the evidence to decide the question whether the directions were necessary and proper in order to determine whether the petitioner had the power to issue the directions. 43. I do not also think that prima facie the Commissioner has power under S.20 to pass an order allowing an interloper to enter into and construct sheds and post watchmen in the properties belonging to the Devaswom. The Commissioner's jurisdiction under that section though expressed only to be subject to the provisions of the Act is not unlimited. He cannot pass any order he likes under the section. Every order passed by him is liable to be revised by Government under S.99 of the Act and the Government may pass an order superseding the order passed by the Commissioner. The power of superintendence and control includes the power to pass such orders as are deemed necessary to ensure the proper administration of the endowment. Every order passed by him is liable to be revised by Government under S.99 of the Act and the Government may pass an order superseding the order passed by the Commissioner. The power of superintendence and control includes the power to pass such orders as are deemed necessary to ensure the proper administration of the endowment. But it is a mistake to suppose that because of the amplitude of that power, any and every kind of orders can be passed by the Commissioner under the Section. If the trustee could not have without committing breach of trust allowed a stranger with no rights to occupy the trust property, the Commissioner could not by an order passed under S.20 have done so. An order allowing a person to enter into the properties of the Devaswom to construct sheds and post watchmen is an administrative order and the authority of the Commissioner to pass it can be decided only by answering the question whether the terms of S.20 which are said to give him the authority to pass the order have been complied with. If S.20 does not give power to the Commissioner to pass any order he likes, the question whether he has power to pass a particular order cannot be decided in the abstract without reference to the circumstances under which it was passed. Assuming that the Commissioner has the power to pass such orders as are deemed necessary for the proper administration of the endowment it has still to be proved that the Commissioner deemed at the time when he passed the orders that it was necessary for the proper administration of the endowment that such orders should have been passed. The subjective satisfaction of the petitioner that it was necessary to pass the orders to ensure the proper administration of the endowment is itself a matter to be proved by him when the charge denies his authority to pass the orders. Therefore without going into the evidence it is not possible to say whether the orders passed by the Commissioner were authorised by the terms of the section. It is open to the Government to show that the Commissioner did not really deem it necessary for the proper administration of the Devaswom that these orders should be passed, but passed them for other purposes, and therefore he had no authority to pass them. It is open to the Government to show that the Commissioner did not really deem it necessary for the proper administration of the Devaswom that these orders should be passed, but passed them for other purposes, and therefore he had no authority to pass them. As the charge definitely says that the Commissioner had no authority under the Act or the rules thereunder to pass these orders, the charge must be taken as a denial of all the circumstances, including the circumstance that the petitioner deemed the orders to be necessary to ensure the proper administration of the endowment. Therefore the question whether the Commissioner had authority to pass the orders would depend upon the proof that the Commissioner deemed them necessary for the proper administration of the Devaswom. It will be open to the petitioner to prove that he deemed them to be necessary to ensure the proper administration of the endowment, and that he did not pass them for any collateral purpose. I cannot go into the evidence and decide that question in this proceeding. I would hold that the first part of charge No. 3 is sustainable. 44. As regards the second part of charge No. 3, I am of opinion that it is sustainable. The allegation, if proved, would make out the charge.' 45. Even if I am wrong as regards my finding on the first part of charge No. 3, it would not in any way affect the jurisdiction of the 1st respondent to proceed with Ext. P. 9 notice. The jurisdiction of the disciplinary authority will remain unaffected even if some of the charges are found to be unsustainable, provided the charges found to be sustainable would merit the punishment proposed. In State of Orissa v. Bidyabhushan AIR 1963 SC 779 Para 9 it was observed: "If the High Court is satisfied that if some but not all of the findings of the Tribunal were 'unassailable' the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant." 46. Charge No. 4 relates to the sanction of leases of extensive forest lands with valuable tree growth to the petitioner's relatives, neighbours and friends contrary to the provisions of R.3 of the Central Civil Services (Conduct) Rules, which enjoins every member of the service to maintain absolute integrity in all official matters. The allegations under this charge are that the petitioner accorded sanction for a lease in favour of his nephew one Balakrishna Menon. There is no statement in the charge or the allegations thereunder that the lease in favour of Balakrishna Menon was initiated by the petitioner. The petitioner would have been competent, nay, bound to consider the question of according sanction under the doctrine of necessity if a proposal for lease was made by the trustee or manager to a relative or friend of the petitioner. It the Commissioner alone is competent under the Act to accord sanction for lease it would not be open to him to refuse to consider a proposal for lease in favour of a relative on the ground that the proposed lessee is his relative. The doctrine of necessity would then come into play and the Commissioner would be competent to accord sanction; but I think, the Commissioner cannot initiate a proposal for lease in favour of his relative and then invoke the doctrine of necessity to justify his sitting in judgment over it. Although there is no statement in charge No. 4 or the allegations thereunder that the lease in favour of Balakrishna Menon was initiated by the petitioner, the allegation under part 2 of charge No. 1 would show that the lease in favour of Balakrishna Menon was initiated by the petitioner. If that be so, I cannot shut my eyes to the fact that there is the allegation that the lease in favour of Balakrishna Menon was initiated by the petitioner. If that be so, I cannot shut my eyes to the fact that there is the allegation that the lease in favour of Balakrishna Menon was initiated by the petitioner. In that case it would not have been open to the petitioner to have sanctioned the lease in favour of Balakrishna Menon both on the ground that he had no authority to initiate the proposal and also on the ground that he sat in judgment over his own proposal and accorded sanction for the lease to his relative. So far as the first aspect of the matter is concerned, namely, that the petitioner had no authority to initiate the proposal for the lease, that is the subject matter of the second part of charge No. 1. So far as the second aspect is concerned, namely, that the petitioner was not right in according the sanction for the lease in favour of his nephew, that is covered by the present charge. In the allegations, it is said that Bhavani Amma is a relative of the petitioner and the sanction accorded for the lease in her favour is mentioned' as another instance of the violation of R.3 of the Central Civil Services (Conduct) Rules. From the allegations under the second part of charge No. 1 it is seen that the petitioner has initiated the lease in her favour. The case therefore would be covered by the charge. The Enquiry Officer has found that Bhavani Amma is not a relative of the petitioner. That is an aspect of the matter with which I am not concerned at present, as I am only concerned with the jurisdictional question whether the charge as framed is sustainable. There is no allegation anywhere that the lease in favour of Sri Nandakumar was initiated by the petitioner. If that be so, even if Sri Nandakumar is proved to be a friend or neighbour of the petitioner, there could be no objection to the Commissioner according sanction for the lease in his favour. There is no other specific allegation under this charge. Therefore my finding on charge No. 4 is that it is sustainable to the extent indicated above. 47. There remains only charge No. 9. As there are allegations, which, if proved, would make out the charge, the charge is sustainable. 48. There is no other specific allegation under this charge. Therefore my finding on charge No. 4 is that it is sustainable to the extent indicated above. 47. There remains only charge No. 9. As there are allegations, which, if proved, would make out the charge, the charge is sustainable. 48. The next proposition put forward was that the Minister in charge of the Hindu Religious and Charitable Endowments can alone revise or review the acts and orders of the Commissioner in the exercise of the judicial power of the State, and no other Minister or the Government can in the exercise of the executive power question the correctness, regularity, legality or propriety of the Commissioner's acts and orders. It was urged that under the Rules of Business the Minister in charge of the H. R. and C. E. Department is the delegate of the Governor and that so long as he has not questioned the orders according sanction for the leases by interfering with them in his judicial capacity under S.99 of the Act, it was not open to any other Minister or Ministers to question the correctness, legality or propriety of those orders by instituting disciplinary proceedings. R.22 of the Rules of Business provides that except as otherwise provided cases shall ordinarily be disposed of by or under the authority of the Minister in charge, who may by means of standing orders, give such directions as he thinks fit, for the disposal of cases in his department. R.26 provides that when the subject of a case concerns more than one department, no order shall be issued nor shall the case be laid before the Council of Ministers, until it has been considered by all the departments concerned, unless the case is one of extreme urgency. R.34(1)(xxii) says that all cases in which the conduct of officers appointed by the former Secretary of State for India, officers of the Indian Administrative Service and Indian Police and State Service Officers is involved and which the Secretary to Government in the Department concerned considers to be of sufficient importance shall be submitted to the Chief Minister. R.34(1)(xxii) says that all cases in which the conduct of officers appointed by the former Secretary of State for India, officers of the Indian Administrative Service and Indian Police and State Service Officers is involved and which the Secretary to Government in the Department concerned considers to be of sufficient importance shall be submitted to the Chief Minister. The contention of counsel was that it was without the knowledge and consent of the minister in charge of the concerned department that disciplinary proceedings have been initiated & that when the concerned minister had given his judicial approval of the orders, no other minister or ministers could in their executive capacity initiate disciplinary proceedings which would have the effect of reopening these orders. I have already given my reasons for coming to the conclusion that even though an order according sanction may become final, that would not preclude the Government from instituting disciplinary proceedings if the order has been passed without observing the essential conditions prescribed by the relevant statute and the rules by a reckless disregard of them or has been passed without bona fides. So the only point for consideration, here, is whether under the Rules of Business disciplinary proceedings could have been initiated without the concurrence of the minister in charge of the H. R. & C. E. It was submitted for the respondents that the question of initiation of disciplinary proceedings is a subject which is included in Schedule I to the Rules of Business, namely, Government Servants Conduct Rules, and that this subject could be dealt with in the Chief Secretariat, i. e. the Chief Minister's Secretariat, and therefore, no other minister need have been consulted for initiating disciplinary proceedings against the petitioner. I do not see much force in this submission. It was also submitted that the Rules of Business are meant only for convenient transaction of Governmental business and that no legal grievance can be founded on alleged violation of any of these rules. In this connection reference was made by counsel for respondents to Basu's Commentary on the Constitution of India, Vol. It was also submitted that the Rules of Business are meant only for convenient transaction of Governmental business and that no legal grievance can be founded on alleged violation of any of these rules. In this connection reference was made by counsel for respondents to Basu's Commentary on the Constitution of India, Vol. 3,4th Edn., page 254, where the learned author states that the rules framed under Art.166(3) are secret and are not meant to be published; and to Muralidhar v. State of Andhra Pradesh AIR 1959 A. P. 437 at 441 para 18 to show that these rules have not the force of the law because they are not published in the Gazette. 49. The petitioner ceased to be the Commissioner on 12th October 1962 and he was suspended on 8th March 1963. By the Gazette notification dated 10th October 1962 allocating subjects to the various ministers, General Administration was assigned to the Chief Minister and anti corruption matters to the Home Minister. There can be no dispute that the conduct enquired in this proceeding is that of a member of the I. A. S. I think the Chief Minister with the concurrence of the Home Minister could have initiated disciplinary proceedings and they have done so. There is nothing in the case to show that the minister concerned has given his judicial approval to all the leases sanctioned by the Commissioner. I doubt whether an inference of judicial approval is permissible from the negative conduct of the minister in failing to interfere in revision with the orders according sanction. I am of opinion that the approval (except in the few cases where there were appeals) implied from the negative conduct of the minister in not interfering with the orders passed by the petitioner, would not preclude the appropriate minister or ministers from questioning the conduct of the petitioner in disciplinary proceedings. Besides, the charges against the petitioner are not confined to his conduct as Commissioner of the H. R. & C. E. They extend to other matters falling within the departments of other ministers also. 50. I doubt whether the petitioner is entitled to raise this question, as Ext. P-1 at any rate contains a decision by the Government to initiate disciplinary proceedings against him. 50. I doubt whether the petitioner is entitled to raise this question, as Ext. P-1 at any rate contains a decision by the Government to initiate disciplinary proceedings against him. When an order is passed in the name of the Governor as the Head of the State, it is not open to the Court to go into the question as to who among the ministers tendered the advice to the Governor for passing the order. The advice tendered by the minister or ministers to the Governor cannot be enquired into by a court as Art.163(3) of the Constitution is bar to such an enquiry. Here, the only question for consideration is whether the disciplinary proceedings against the petitioner were validly instituted. The court is not really concerned with the allocation of Governmental business as among the several ministers. If there is a valid order initiating disciplinary proceedings the fact that that order was passed on the advice of all or some of the ministers is immaterial. At any rate the Court cannot go into that question and say that the order is invalid on the ground that the minister really concerned was not consulted before the order was passed. Whatever political consequences there might be, I doubt whether a court can pronounce an order, properly authenticated, as invalid on the ground that the order was passed without consulting the minister concerned. For, a minister is no more than an adviser to the Governor. In Bachittar Singh v. State of Punjab AIR 1963 SC 395 it is observed: "We may further observe that constitutionally speaking, the Minister is no more than an Adviser and that the head of the State, the Governor or Rajapramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State." And considering the Rules of Business as one for the regulation of Governmental business among the various departments, and the fact that they are not meant to be published, I think, the petitioner cannot found a justiciable grievance on an alleged breach of the same. 51. 51. The next proposition put forward by counsel was that assuming the Commissioner is a servant of the Government against whom disciplinary proceedings could be taken, yet leases granted by the Commissioner have been authorised, approved and ratified by the Government through its duly delegated minister and it is not open to the Chief Minister to initiate disciplinary proceedings in respect thereof. Counsel submitted that in a speech by the concerned minister on the floor of the House he has practically approved the leases sanctioned by the Commissioner, and therefore, it was not open to the Chief Minister to institute disciplinary proceedings for passing the orders. Items Nos. 1 to 9 mentioned in Appendix I to the report of the Enquiry Officer belong to Pulpally Devaswom. Counsel said that the leases in respect of these items had the approval of the Minister of the H. R. and C. E. as evidenced by the proceedings of a conference (see Ext. P-2-Vol. III of the Paper Book, page 170); that the leases of items 10 to 32 were not questioned in appeal or revision; that the order sanctioning the lease of item No. 33 was questioned in appeal before the Government; that the appeal was dismissed (see Ext. D-30); that the further challenge of that order in a writ petition also met with the same fate (see Ext. D-37); that the lease of item No. 34 had been approved by the order of the Minister (see Ext. P-920-Vol. III of the Paper Book, page 111); and therefore the Government are estopped from questioning the orders sanctioning the leases. 52. The tenor of the speech made by Mr. V. K. Velappan, the Minister in charge of the H. R. and C. E. on the floor of the House on 11th April 1962 was to encourage the granting of leases in view of the circumstances existing at the time. When the minister concerned has approved the leases, counsel submitted, it is not open to any other minister to challenge the validity of these leases by starting disciplinary proceedings. The Enquiry Officer did not accept this plea because according to him the speech made by the minister cannot take the place of an order of Government, and therefore the speech cannot afford a shield to the petitioner's orders. The Enquiry Officer did not accept this plea because according to him the speech made by the minister cannot take the place of an order of Government, and therefore the speech cannot afford a shield to the petitioner's orders. It was argued that even though there was no order by the Government, the speech would operate as an admission on the part of the Government. Reliance was placed on the decision in Shib Nath v. Porter AIR 1943 Cal. 377 where it was held that speech made by a minister on the floor of the House was binding on the Government as an admission; and on the decision in Collector of Bombay v. Bombay Corporation AIR 1951 SC 469 at 476 for the proposition that S.115 of the Evidence Act is equally applicable to Government, and therefore the Government were estopped from instituting disciplinary proceedings. The ruling in Robertson v. Minister of Pensions 1948-2 All ER 767 at 768 was also pressed in aid of the contention that the doctrine of estoppel will apply to Government. In that case Denning, L. J. said: "The Crown cannot escape by saying that estoppels do not bind the Crown, for that doctrine has long been exploded. Nor can the Crown escape by praying in aid of the doctrine of executive necessity, i. e., the doctrine that the Crown cannot bind itself so as to fetter its future executive action. That doctrine was propounded by Rowlatt, J., in Redariaktiebelaget Amphitriste v. B., but it was unnecessary for the decision, because the statement there was not a promise which was intended to be binding but only an expression of intention." That was a case where by the Pensions (Navy, Army, Air Force, Nursing and Auxiliary Services) Transfer of Powers Order, 1939, the entire administration of disablement claims in respect of military service after September 2, 1939, was transferred to the Minister of Pensions. In December, 1939, the claimant was injured in an accident while on military service, and in July 1940, he was examined by a medical board, and was found unfit for general service. In 1941 he wrote a letter to the War Office, requesting that the question of attributability in regard to the disability should be settled. On April 8, 1941, without consulting the Minister of Pensions, the War Office replied that the claimant's disability had been accepted as attributable to military service. In 1941 he wrote a letter to the War Office, requesting that the question of attributability in regard to the disability should be settled. On April 8, 1941, without consulting the Minister of Pensions, the War Office replied that the claimant's disability had been accepted as attributable to military service. On the faith of that assurance the claimant took no steps to obtain independent medical opinion or to secure possession of the X ray plates relating to his accident, and these were now no longer available. The question was whether the assurance contained in the letter from the War Office was binding on the Minister of Pensions. It was held that the letter from the War Office was intended to be binding and to be acted on, and the fact that the claimant had, as a result of that letter, forborne from getting a medical opinion was sufficient to have made the letter binding if it had been written by a private person. Since the letter from the War Office was clear and explicit, the doctrine of executive necessity could not be implied therein, so as to entitle the Crown to revoke the decision without cause, and that as the War Office was an agent for the Crown, the Crown was bound by the letter and, therefore, other Government departments, being also agents of the Crown, were also bound, and, accordingly, the letter was binding on the Minister of Pensions. The speech of Viscount Simonds in Howell v. Falmouth Boat Construction Co. Ltd. 1951 AC 837 seems to throw some doubt on the principle enunciated by Denning, L. J. 53. All the leases were sanctioned by the Commissioner before the speech of the concerned minister. Therefore the orders sanctioning the leases could not have been induced by it. The plea is also totally inconsistent with the case that the petitioner was discharging a quasi judicial function in granting the sanctions. Therefore it is difficult to accept the plea that the petitioner, believing in the truth of a statement, acted upon it to his detriment, and therefore the Government were estopped and cannot go back upon the representation contained in the speech by instituting disciplinary proceedings. Therefore it is difficult to accept the plea that the petitioner, believing in the truth of a statement, acted upon it to his detriment, and therefore the Government were estopped and cannot go back upon the representation contained in the speech by instituting disciplinary proceedings. Counsel submitted that for the purpose of this .argument the petitioner may be treated as a Government servant, and since the servant has acted on the representations contained in the orders referred to above, the Government were estopped from instituting disciplinary proceedings, as the servant has acted on the faith of the representations made by the master. The orders of the concerned minister evidencing the so called approval of the leases were passed before the Commissioner sanctioned them. Assuming that these orders are valid, and binding on the Government could they afford a plea of estoppel to the petitioner? I think not. No approval previous to the orders of sanction passed by the Commissioner will estop the Government from taking disciplinary proceedings because the orders of approval cannot be deemed to be an authorisation to the Commissioner to disregard the provisions of the Act and the rules thereunder, nor can the Commissioner say that he, in his quasi judicial capacity, acted on the strength of those orders. It is also not possible to say that the speech of the minister made subsequent to the orders passed by the Commissioner will estop the Government, as nothing has been done on the strength of that speech so as to estop them. Assuming for the purpose of argument that the speech of the minister would amount to an admission on the part of the Government, what was the admission about. By no stretch of imagination could that speech be regarded as an approval of the specific leases sanctioned by the Commissioner with full knowledge of all the attending circumstances under which they were sanctioned. 54. The next point for consideration is whether disciplinary proceeding was validly instituted as required by R.4(1)(b) of the Rules. The petitioner's submission was that there was no order of Government for instituting disciplinary proceedings. For the respondents it was argued that the contention is barred by res judicata by reason of the decision of the Division Bench in S. Govinda Menon v. State of Kerala 1963 KLT 1162 . The petitioner's submission was that there was no order of Government for instituting disciplinary proceedings. For the respondents it was argued that the contention is barred by res judicata by reason of the decision of the Division Bench in S. Govinda Menon v. State of Kerala 1963 KLT 1162 . It may be recalled that the order of suspension was challenged in O. P. 485/63 and Vaidialingam, J., dismissed the petition. [S. Govinda Menon v. States of Kerala 1963 KLT 566 ]. Against that decision the petitioner filed an appeal. The Division Bench dismissed the appeal and the order is reported in 1963 KLT 1162 . The contention of the petitioner is that the only issue considered in those orders was whether the petitioner could be suspended before the charges were framed. In order to show that that was the only issue considered, reference was made to the order in C. M. P. 1685/63 in O. P. 485 of 1963 by which the court is said to have restricted itself to a consideration of the question whether prior to the framing of charges the petitioner could have been suspended. It is alleged that the only contention which was passed upon by the court was whether an order of suspension could be passed before charges were framed, having regard to the language of R.7 of the Rules. No doubt this was the only contention considered by the learned single Judge in 1963 KLT 566 . But in the order of the Division Bench, the question considered was when the disciplinary proceedings commenced? and it was answered by saying that the proceedings were initiated when the Government decided to take the proceedings. Then the question is considered whether a decision was taken for initiating disciplinary proceedings; and Their Lordships said that even if there was no separate formal order in that behalf, Ext. P-11 order (the same as Ext. P-1 here) incorporates the decision of Government to initiate disciplinary proceedings. In Para.8 of the report the learned Judges observed: "It is clear from what has been stated above that even if there was no decision to initiate disciplinary proceedings before the date of Ext. P. H, a decision was taken on that date. Counsel for the appellant urged that the decision of the Government was only to institute a further detailed enquiry and not disciplinary proceedings. This is incorrect. Ext. P. H, a decision was taken on that date. Counsel for the appellant urged that the decision of the Government was only to institute a further detailed enquiry and not disciplinary proceedings. This is incorrect. Ext. P-11 states that the enquiry conducted till then has disclosed certain charges of nepotism and corruption on which the Government proposed to take action." I think the effect of the decision of the Division Bench is that even if there was no formal order for initiating disciplinary proceedings against the petitioner before Ext. P-11 order (Ext. P1 here), there was a decision on that date and that the order of suspension was passed with jurisdiction. If that be so, the petitioner is precluded from agitating the question afresh. Petitioner's counsel said that since the Union of India were not a party to O. P. 485/63 they are prevented from taking advantage of that finding. I am of opinion that the matter is res judicata because the Union of India are in privity with the State Government in the disciplinary proceedings initiated against the petitioner. The disciplinary proceedings initiated by the State Government have been accepted by the Union of India and Ext. P-9 notice issued. The Union of India being in privity with the State Government and bound by the decision of the Division Bench referred to above, are entitled to take advantage of the finding there. The rule of res judicata is applicable to writ proceeding. Daryao v. State of U.P. AIR 1961 SC 1457 . The matter was directly and substantially in issue before the Division Bench as the decision of the Bench turned upon the question whether the disciplinary proceedings had commenced before the petitioner was suspended and whether the order of suspension was passed with jurisdiction. The argument that the issue was only collateral is without any basis. The question is therefore res judicata even if the cause of action here may be different. Assuming that the matter is at large, I am of opinion that there is no substance in the contention. Ext. P-1 order would indicate that disciplinary proceedings have been initiated against the petitioner. Even if there was no separate order for instituting disciplinary proceedings, Ext. P-1 would show that the Government have accepted the proceedings taken in the matter up till then and have decided to take further steps in continuance thereof. Ext. Ext. P-1 order would indicate that disciplinary proceedings have been initiated against the petitioner. Even if there was no separate order for instituting disciplinary proceedings, Ext. P-1 would show that the Government have accepted the proceedings taken in the matter up till then and have decided to take further steps in continuance thereof. Ext. P-1 is clear that the Government have decided to implement and go forward with the disciplinary proceedings that have been initiated against the petitioner and that, I think, would suffice. Even if there was no previous decision or order for initiating disciplinary proceedings against the petitioner, such a decision is embodied in Ext. P-1. I adopt the reasoning of the Division Bench on this point. 55. The next argument was that R.5(5) gives an unguided discretion to the Government to appoint a Board of Enquiry or an Enquiry Officer to conduct the enquiry or conduct it by themselves, and since discretion is uncanalised there is likelihood of discrimination, and therefore, R.5(5) is ultra vires the Constitution. R.5(5) is as follows: "After the written statement is received from the member of the service in accordance with sub-r.(3) or if no such written statement is received within the time allowed, Government may, if it considers it necessary, appoint a Board of Inquiry or an Inquiry Officer to inquire into the charges framed against the member of the service and shall have the charges inquired into as provided in sub-r.(6). If the Government does not consider it necessary to appoint a Board of Inquiry or an Inquiry Officer, the Government shall inquire into the charges in such manner as it deems fit." It is not known how it is more advantageous to a delinquent to have the enquiry conducted by a Board than by an Enquiry Officer. I do not see what material difference is there to the delinquent whether the enquiry is conducted by a Board or an officer. The findings in the report drawn up by an Inquiry Officer or a Board are not binding upon the disciplinary authority. The enquiry is only for the purpose of finding the facts of the case. In these circumstances, lam notable to perceive how the discretion Vested in the Government to appoint a Board or an Enquiry Officer to conduct the inquiry, is discriminatory. The enquiry is only for the purpose of finding the facts of the case. In these circumstances, lam notable to perceive how the discretion Vested in the Government to appoint a Board or an Enquiry Officer to conduct the inquiry, is discriminatory. Petitioner's counsel relied on the ruling reported in state of Orissa v. Dhirendranath Das ( AIR 1961 SC 1715 ), Jagannath Prasad v. State of Uttar Pradesh ( AIR 1961 SC 1245 ) and S. C. Prashar v. Vosantsen (AIR 1963 SC 1376) for the proposition that if there are two enactments or rules under which an enquiry can be conducted and if the provisions of the one are more advantageous to the Government servant than the provisions of the other, and if the Government are given no guidance as to the enactment or the rules under which the enquiry is to be conducted, there is discrimination, and therefore the enquiry will be vitiated. In State of Orissa v. Dhirendranath Das ( AIR 1961 SC 1715 ) the question was whether a Lower Division Assistant in the Secretariat of the Orissa Government, who was found guilty of certain misdemeanour by a Tribunal appointed under rules framed by the Orissa Government after an enquiry held in that behalf and ordered to be dismissed from service, was properly dismissed. In a petition by the public servant under Art.226 praying for a writ declaring illegal the order of dismissal, it was held by the Orissa High Court, that as on the date on which the enquiry was directed against the petitioner in the case there were two sets of rules in operation, and as it was open to the Government to select either the one or the other for enquiry against a public servant, without any guide to canalise its discretion, the discretion conferred was arbitrary, and violative of Art.1.4 of the Constitution. The High Court accordingly declared the order of dismissal inoperative. The High Court accordingly declared the order of dismissal inoperative. The Supreme Court said: "If the two sets of rules were in operation at the material time when the enquiry was directed against the respondent and by order of the Governor, the enquiry, was directed under the Tribunal Rules which are more drastic and prejudicial to the interest of the respondent, a clear case of discrimination arises and the order directing enquiry against the respondent and the subsequent proceedings are liable to be struck down as infringing Art, 14 of the Constitution." In Jagannath Prasad v. State of Uttar Pradesh ( AIR 1961 SC 1245 ), it was held that there is no discrimination even if the two sets of rules are not similar in all respects. "The fact that an order made by a police authority is made appealable whereas the order passed by the Governor is not made appealable is not a ground on which the validity of the Tribunal Rules can be challenged. In either case, the final order rests with the Governor who has to decide the matter himself. Equal protection of the laws does not postulate equal treatment of all persons without distinction; it merely guarantees the application of the same laws alike and without discrimination to all persons similarly situated. The power of the Legislature to make a distinction between persons or transactions based on a real differentia is not taken away by the equal protection clause. Therefore by providing a right of appeal against the order of police authorities acting under the Police Regulations imposing penalties upon a member of the Police force, and by providing no such right of appeal when the order passed is by the Governor, no discrimination inviting the application of Art.14 is practised." Here, there is no question of any procedural inequality, whether the enquiry is conducted by a Board or an Officer, as the manner and method of enquiry contemplated by the rules being the same. I therefore overrule the contention. 56. The second part of the argument of counsel centred round ground No. 3 in the affidavit of the petitioner in support of the amendment petition, namely that the approach, reasoning and finding of the Enquiry Officer in his report which have been adopted by the 1st respondent as establishing the guilt are vitiated on several grounds. 56. The second part of the argument of counsel centred round ground No. 3 in the affidavit of the petitioner in support of the amendment petition, namely that the approach, reasoning and finding of the Enquiry Officer in his report which have been adopted by the 1st respondent as establishing the guilt are vitiated on several grounds. It is stated that the Enquiry Officer was largely influenced by the observations of Mr. Justice Raman Nayar in O. P. No. 2306/1962, that the provision of R.5(2) requiring the communication of definite charges together with statement of allegations under each charge was not complied with, that as no charge can be supported by allegations not mentioned under that charge and that allegations under one charge cannot support another charge, the Enquiry Officer committed an error in not observing those salutory rules, that evidence which would support the defence has been totally ignored by the Enquiry Officer, that before the commencement of the oral enquiry and during, the enquiry the petitioner had requested the Enquiry Officer to furnish him with copies of documents and arrange for the production of the relevant files necessary for the preparation of the defence and effective cross examination of the prosecution witnesses, but that the copies of the documents were not furnished, nor the relevant files produced, that the Enquiry Officer has based his findings on irrelevant and inadmissible evidence, that the finding on charge No. 9 is not supported by evidence, that several irrelevant documents have been marked and admitted in evidence, and that the Enquiry Officer had added new charges and allegations and investigated them. 57. I am not satisfied that these grounds raise questions which would affect the jurisdiction of the 1st respondent to continue the proceeding in pursuance of Ext. P-9. I do not think that these grounds, even if made out, would make the enquiry or the report void for lack of jurisdiction. They relate to errors of procedure or mistakes in the application of rules not relating to jurisdiction, alleged to have been committed by the Enquiry Officer in the exercise of his jurisdiction and are not set questions to be considered in an application for a writ of prohibition. Secondly, I do not think that I should consider these questions as the report of the Enquiry Officer has not become final. The report cannot and does not embody any final decision. Secondly, I do not think that I should consider these questions as the report of the Enquiry Officer has not become final. The report cannot and does not embody any final decision. The Enquiry Officer is only a fact finding agency and the 1st respondent is not bound to accept the findings recorded in the report. Venkataraman v. Union of India AIR 1954 SC 376 Para 14 and Jagannatha Prasad v. State of Uttar Pradesh AIR 1961 SC 1245 Paras 16 and 23. It is open to the 1st respondent to differ from the findings in the report after considering the representations of the petitioner to Ext. P-9 notice. I also think that the primary jurisdiction to consider these questions is with the 1st respondent. It is only after the 1st respondent has passed upon these questions, and made a final decision, that a Court should normally be called upon to decide them. If this Court were to entertain these questions at this stage, it may be dealing with hypothetical matters. It is not known whether the 1st respondent would accept the findings recorded by the Enquiry Officer as regards the guilt of the petitioner in respect of charges Nos. 1 to 4 and 9 after considering his representations to Ext. P-9 notice. I am of opinion that when an authority is constituted to consider these questions, that is the authority to deal with them in the first instance and the court should defer consideration of them until after that authority has applied its mind to them. The primary jurisdiction to deal with these matters at this stage is with the 1st respondent. I therefore consider that the various alleged infirmities of the report or of the procedure adopted by the Enquiry Officer are matters which should be considered by the 1st respondent in the first instance. So I decline the invitation of counsel to consider his arguments relating to these matters. But it is necessary to consider the argument of counsel for the petitioner that the whole proceedings have been vitiated by mala fides. There is no specific allegation of mala fides in the affidavits of the petitioner. It is necessary that allegation of mala fides must be supported by specific averments. But it is necessary to consider the argument of counsel for the petitioner that the whole proceedings have been vitiated by mala fides. There is no specific allegation of mala fides in the affidavits of the petitioner. It is necessary that allegation of mala fides must be supported by specific averments. Venkatachalam Iyer v. State of Madras AIR.;1957 Madras 623; R. L. Aurora v. State of U.P. AIR 1958 Allahabad 126 and Sudhindra Nath v. Sailendra Nath AIR 1952 Calcutta 65. Petitioner's counsel relied upon Partap Singh v. State of Punjab MR 1964 SC 72 and said that in law mala fides means the exercise of a power for a purpose different from the one for which it is designed. Counsel submitted that the observations of Raman Nayar, J., in O. P. 2306/62 prompted the Government to start the disciplinary proceedings against the petitioner. Counsel also said that on the floor of the house the minister concerned had stated that the leases were granted in pursuance of the decision of the Government, and therefore the Goverment were as much responsible for sanctioning the leases as the petitioner himself, and that it was to avoid the responsibility of the Government and to demonstrate to the public that in according sanction for the leases the Government had no part that the petitioner was made the scapegoat. I am not satisfied that the Government had any ulterior motive in instituting the disciplinary proceedings against the petitioner. I do not find any allegation or material from which the conclusion is possible that the Government were actuated by any oblique motive or that the disciplinary proceedings have been taken for a purpose different from the one for which they are designed. I see no force in the argument that the Government were actuated by mala fide motives in taking disciplinary action against the petitioner. 58. I would dismiss the petition, but in the circumstances, without any order as to costs. Velu Pillai, J.- 1. On the jurisdictional issue, learned counsel for the petitioner formulated five propositions for consideration; besides, he raised a few points, two of which alone we think, pertain to jurisdiction and merit consideration at this stage. 58. I would dismiss the petition, but in the circumstances, without any order as to costs. Velu Pillai, J.- 1. On the jurisdictional issue, learned counsel for the petitioner formulated five propositions for consideration; besides, he raised a few points, two of which alone we think, pertain to jurisdiction and merit consideration at this stage. On all these, and on the issue as to mala fides, I am in agreement with my learned brother, except the second proposition, or to be precise, the application of that proposition to some of the charges of which the petitioner has been found to be guilty and the consequential order to be passed on the writ petition; I am also in agreement, on the third and fourth propositions but subject to the reservations I propose to indicate in dealing with them. All other points which learned counsel had urged before us, are not being considered or dealt with, because they do not relate to patent lack of jurisdiction. 2. The second proposition is that quasi judicial and administrative orders of the Commissioner, unless vacated under the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951, referred to for short as the Act, are final and binding on the Government and cannot be questioned by the executive Government through disciplinary proceedings. The proposition is relied on to contend, that the disciplinary enquiry into the concerned charges, which had been ordered and been now completed, was in truth and substance, no more than an enquiry into the regularity of the proceedings held or the correctness, legality, or propriety of the decisions or orders passed, by the petitioner. Learned counsel contended for certain sub propositions. According to him, the Act is a self contained code, all rights and reliefs under it must be sought within its framework, and subject to its provisions the jurisdiction of Commissioner is exclusive and his acts and orders cannot be questioned by the executive Government, and he relied on the following decided cases. In Bhaishankar Nanabhai v. The Municipal Corporation of Bombay ILR 31 Bombay 604 it was held, that "where a special tribunal, out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that Act. then, except so far as otherwise expressly provided or necessarily implied that tribunal's jurisdiction to determine those questions is exclusive. then, except so far as otherwise expressly provided or necessarily implied that tribunal's jurisdiction to determine those questions is exclusive. It is an essential condition of those rights, that they should be determined in the manner prescribed by the Act to which they owe their existence. In such a case, there is no ouster of the jurisdiction of the ordinary Courts, for they never had any." In Secretary of State v. Mask and Co. AIR 1940 PC 105 at 110 the Privy Council observed, that "by S.188 and 191 (of the Sea Customs Act, 1878), a precise and self contained code of appeal is provided in regard to obligations which are created by the statute itself.......It is difficult to conceive, what further challenge of the order was intended to be excluded, other than a challenge in the Civil Courts." To this, there is however a reservation to be mentioned while dealing with the next case. That case is, Addanki Tiruvenkata Thata Desika Charyulu v. State of Andhra Pradesh AIR 1964 S. C. 807 in which, the question was whether an inam village was or was not an 'estate'. From the decision of the Settlement Officer, an appeal lay to a tribunal specially constituted, and there was an express bar to the jurisdiction of the Civil Courts. At page 816 of the report, the Supreme Court remarked: "The very provision setting up an hierarchy of judicial tribunals for the determination of the question on which the applicability of the Act depends is sufficient in most cases for inferring that the jurisdiction of the Civil Courts to try the same matter as barred." But there are two limitations, the first being the reservation made in Secretary of State v. Mask and Co. AIR 1940 PC 105 cited, that:- "It is also well settled that even if jurisdiction is so excluded the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." This reservation, which has nothing to do with disciplinary action, is meant to safeguard the right of suit of the aggrieved party, however restricted, even in cases where such right is excluded by statute. In G. Veerappa Pillai v. Raman and Raman Ltd. AIR 1952 SC 192 at 196 the Supreme Court said: "Thus we have before us a complete and precise scheme for regulating the issue of permits, providing what matters are to be taken into consideration as relevant, and prescribing appeals and revisions from subordinate bodies to higher authorities. The remedies for the redress of grievances or the correction of errors are found in the statute itself and it is to these remedies that resort must generally be had." 3. The next sub proposition is, that quasi judicial decisions which have become final & binding, cannot as decisions, be interfered with by Government. When a quasi judicial authority exercises its power under the Act its findings which are binding, cannot be impeached collaterally or on an application for certiorari. Jurisdiction is not lost by a wrong decision. In Smt. Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC 1621 at 1630 the Supreme Court remarked as follows: "An error of law or fact committed by a judicial or quasi judicial body cannot, in general, be impeached..............These principles govern not only the findings of inferior courts stricto sensu but also the findings of administrative bodies which are held to be acting in a judicial capacity." In B. Rajagopala Naidu v. The State Transport Appellate Tribunal, Madras, AIR 1964 S. C. 1573 at 1579 decided under S.43A, Motor Vehicles Act (Central) the court said: “In interpreting S.43A, we think, it would be legitimate to assume that the legislature intended to respect the basic and elementary postulate of the rule of law, that in exercising their authority and in discharging their quasi judicial function the Tribunals constituted under the Act must be left absolutely free to deal with the matter according to their best judgment. It is of the essence of fair and objective administration of law that the decision of the Judge or the Tribunal must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State. If the exercise of discretion conferred on a quasi judicial tribunal is controlled by any such direction, that forges fetters on the exercise of quasi judicial authority and the presence of such fetters would make the exercise of such authority completely inconsistent with a well accepted notion of judicial process. If the exercise of discretion conferred on a quasi judicial tribunal is controlled by any such direction, that forges fetters on the exercise of quasi judicial authority and the presence of such fetters would make the exercise of such authority completely inconsistent with a well accepted notion of judicial process. It is true that law can regulate the exercise of judicial powers. It may indicate by specific provisions on what matters the tribunals constituted by it should adjudicate. It may by specific provisions lay down the principles which have to be followed by the Tribunals in dealing with the said matters. The scope of the jurisdiction of the Tribunals constituted by statute can well be regulated by the statute and principles for guidance of the said tribunals may also be prescribed subject of course to the inevitable requirement that these provisions do not contravene the fundamental rights guaranteed by the Constitution. But what law and the provisions of law may legitimately do cannot be permitted to be done by the administrative or executive orders. This position is so well established that we are reluctant to hold that in enacting S.43A the Madras Legislature intended to confer power on the State Government to invade the domain of the exercise of judicial power." In K. S. Ramamurthy Reddiar v. Chief Commissioner, Pondicherry, AIR 1963 SC 1464 at 1468 the Court - held that, "the quasi judicial authority was not under the control of the Government of India like an executive or administrative authority and therefore it was not possible for this Court to issue a direction to the Government of India to direct a quasi judicial authority to give effect to the decision of this Court 'by the exercise of their powers of control over the authority outside the territory of India' .................. Now if the authorities were administrative or executive the control of the Government of India would not only be by virtue of appointment, payment and disciplinary action, but it would also extend to directing the authority to carry out its functions in a particular manner and a purely executive or administrative authority can always be directed by the Government of India under which it is functioning to act in a particular manner with respect to its functions ............................. it is impossible in the case of a quasi judicial or judicial authority, for in the very nature of things, where rule of law prevails, it is not open to the Government, ........... to direct a quasi judicial or judicial authority to decide a particular matter before it in a particular manner ....... .... a quasi judicial or a judicial authority cannot be said to be an authority under the control of the Government of India within this meaning." 4. It follows from what has been stated above, that quasi judicial decisions become final and conclusive as decisions, if they are not set aside or modified in any of the modes prescribed by the statute in that behalf. Such orders cannot of course affect the interests of those who are not parties to them or are not bound by them. In that sense, the government also are not bound by them. Even a party to such a decision can sue to set it aside, if the conditions requisite for doing so are made out. This however is a different matter. If the decisions are not challenged, as decisions, they have to stand, and their propriety, correctness and legality, must be deemed to be conclusive. But this is not to say, that even if the authority is guilty of misconduct in the exercise of his quasi judicial powers, Government as the disciplinary authority, has no power to proceed against him for such misconduct as distinguished from the quasi judicial decision itself; all that learned counsel contended for was, that the quasi judicial decision itself should not be made the subject of the charge. 5. 5. It was the complaint of the petitioner, which was at the foundation of a substantial part of the arguments of his learned counsel, that of the charges on which the petitioner has been found guilty, charges 1 to 4, with the exception of the second part of charge 3, concerned wholly and exclusively, the exercise by the petitioner of his functions as Commissioner under or in pursuance of the statute and the rules, some of which, as under S.29 of the Act, are quasi judicial; in other words, the complaint was, that these charges pertain to the correctness, legality, propriety, and regularity of the decisions made, orders passed, and steps taken, by the petitioner, under or in pursuance of the Act and the Rules, and they are not to be tested by way of disciplinary proceedings at all, which will of course have to be on new materials and evidence, in the place of those which were before him at the time he made the decisions, or passed the orders, or took the steps. As a parallel, the learned counsel pointed out the anomaly in instituting disciplinary proceedings against a judicial officer, upon a judgment he has rendered, and thereby testing its correctness or legality or propriety or regularity and this again not on materials on which he rendered it, but on new facts and new materials which may have been collected and on fresh evidence which may have become available. So stated, there seems to be considerable force in the contention. 6. Relying on the observations of the Supreme Court in State of Andhra Pradesh v. S. Sree Rama Rao AIR 1963 SC 1723 at 1727, that "the charge and the 'statement of facts' form part of a single document" the learned counsel for the respondents argued, that the charges and the statement of allegations in this case, must be treated as one document; this is so. The case before the Supreme Court concerned disciplinary proceedings against a Sub Inspector of Police. What constitutes "statement of allegations" in the present case has to be determined, having regard to the relevant provisions of R.5 of the All India Services (Discipline and Appeal) Rules, 1955, applicable to I. A. S. officers. R.5(1)(2) and (6) are extracted below: "5. The case before the Supreme Court concerned disciplinary proceedings against a Sub Inspector of Police. What constitutes "statement of allegations" in the present case has to be determined, having regard to the relevant provisions of R.5 of the All India Services (Discipline and Appeal) Rules, 1955, applicable to I. A. S. officers. R.5(1)(2) and (6) are extracted below: "5. (1) Without prejudice of the provisions of the Public Servants Inquiry Act, 1850, no order shall be passed imposing any of the penalties specified in R.3 on a member of the service unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. (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. (6) If the member of the service desires to be heard in person, he shall be so heard. If he desires that an oral inquiry be held or if the Government so directs, an oral inquiry shall be held by the Board of Inquiry or the Inquiry Officer, as the case may be. At such inquiry evidence shall be heard as to such of the allegations as are not admitted and the member of the service charged shall be entitled to cross examine the witnesses, to give evidence in person and to have such witnesses called as he may wish: Provided that the Board of Inquiry or the Inquiry Officer, as the case may be, may, for reasons to be recorded in writing, refuse to call a witness." 7. Charges are thus to be equated with "grounds on which it is proposed to take action", and are to be communicated to the concerned member of the service, together with a statement of the allegations on which each charge is based and of any other circumstance which it is proposed to take into consideration in passing orders on the case. Allegations are those that constitute the basis of each charge or which support it and are therefore necessarily related to it. Allegations are those that constitute the basis of each charge or which support it and are therefore necessarily related to it. Allegations which do not support it or are not related to it or are irrelevant, do not afford grounds on which a finding of guilt can be made, and such allegations have, for the present purpose, to be ignored. Under sub-r.(6), evidence has to be confined to such of the allegations as are not admitted; that is, evidence must be relevant to the allegations. The petitioner has a complaint, that by a misinterpretation of this sub-rule, the Enquiry Officer had admitted a large volume of evidence which are irrelevant to the charges and the allegations, but being not strictly or purely a jurisdictional point, it has to be left out of the purview of the present discussion. 8. I shall endeavour to analyse the charges and the related allegations as fully as I can, but as briefly as possible, with a view to examine how far the petitioner's contention is justified. The first part of charge 1 is, that the petitioner "issued sanctions granting leases", "in utter disregard of the provisions" of the "Act and the Rules issued thereunder". The statement of allegations relating to this part, set out the substance of S.29(1) together with the proviso to it, of the Rules framed under sub-s.(1) and (3) of that section, and of the Role framed under S.100(2)(m) which requires that leases shall be made by public auction except with the previous sanction of the Deputy Commissioner. Then the statement emphasised the duty of the Commissioner to dispose of lands only by public auction, and to accord sanction only after giving notice of the proposals inviting objections and suggestions and after satisfying himself, "that the transaction is beneficial to the Devaswom". Then followed the allegation, that "contrary to the above provisions", leases were sanctioned in thirty cases which were all specified. The specification is followed by the allegation, that "in all the above cases the leases were sanctioned without auction in contravention of the Rules issued under S.100(2)(m)" of the Act. As for the utter disregard of the Rules, the contravention of the Rule requiring auction is quite a specific allegation and this was considered to be a main point in this part of the charge. As for the utter disregard of the Rules, the contravention of the Rule requiring auction is quite a specific allegation and this was considered to be a main point in this part of the charge. The Enquiry Officer has found, "that public auction is not obligatory in respect of leases falling under S.29(1) and that the sanctions given by him are not illegal merely because the leases were in favour of particular persons mentioned in the concerned applications by the trustees". Apart from this finding, the charge as based on this allegation must be held to be without jurisdiction on the sole ground that no such rule as alleged exists as applicable to the case, just as in O. K. Ghosh v. E. X. Joseph ( AIR 1963 SC 812 ), the proceedings were held invalid, the rule on which the charge was founded being itself invalid. 9. S.29(1) including the proviso and the rules framed under sub-ss.(1) and (3) may, it is conceivable, be disregarded in various ways, and one has to scan the rest of the allegations under this part of the charge closely, to find out in which way they were disregarded. In these circumstances, it is nothing strange, that the petitioner complained in Para.8 of his written statement, that "the sanctions accorded by me are not impugned on the ground, that the leases are not necessary or beneficial to the Devaswoms .................What exactly are the provisions of the Act and the rules issued thereunder which have been violated by me are not stated. Presumably the basis of the charge appears to be the grant of leases without auction............", and in Para.10, that as "I cannot gather from the charge what other provisions of the Act and the Rules I have violated, I cannot offer a reply". I am referring to this, not for considering whether the petitioner has been prejudiced or not in the enquiry, which is quite a different thing, but only for emphasising the need for a close analysis of the allegations to find out the specific provision which was said to have been disregarded. I am referring to this, not for considering whether the petitioner has been prejudiced or not in the enquiry, which is quite a different thing, but only for emphasising the need for a close analysis of the allegations to find out the specific provision which was said to have been disregarded. Analysing the relative allegations, and examining them from the jurisdictional point of view, the specific allegation that I am able to preceive in relation to the charge, is that the leases were given "contrary to the" provisions which cast a duty on the petitioner "to accord sanction (only) if he is satisfied that the transaction is beneficial to the Devaswom". That this does not touch the aspect of necessity, which is a different concept and which might support such of the leases as were found to be necessary, cannot be gain said. In two of the orders of sanction which are to be found on Volume III of the paper book, the leases were held to be beneficial and necessary and in one of them the lease was held to be necessary and in the other two, the leases were held to be beneficial. There is no allegation regarding the disregard of any particular rule framed under S.29(1) and (3). Thus, the charge of "utter disregard of the provisions in............the Act and the Rules issued thereunder" is based on the sanctioning of certain leases, without being satisfied that they were beneficial to the Devaswom. 10. If the issue in a cause before a Judge in a court of law, is whether a lease is beneficial or necessary and the Judge finds that he is satisfied that it is necessary or beneficial, the finding may be open to challenge by way of appeal or revision as maybe provided, on the ground that it was reached in disregard of particular provisions of law or of relevant and important materials, and the memorandum of appeal or revision may even complain of utter disregard of such provisions or materials. But I cannot bring myself to hold, apart from any extraneous or collateral fact, that the Judge can be subjected to disciplinary proceedings on a charge, that the facts as found and the law as stated, are not true and correct. But I cannot bring myself to hold, apart from any extraneous or collateral fact, that the Judge can be subjected to disciplinary proceedings on a charge, that the facts as found and the law as stated, are not true and correct. To this extent at least, I conceive there is no difference between a Judge, and an authority in the exercise of quasi judicial power. To pursue the analogy, if in reaching the finding, the Judge was actuated by malice or mala fides or by corrupt or unworthy motives, he may not escape disciplinary proceeding; but the proceedings would then be, not on the facts as found or the law as applied, but for those extraneous or collateral matters which induced him to come to that finding. I think the position of a quasi judicial authority is not radically different, although certain differences may exist. There is no allegation whatever, that the petitioner was actuated by malice or mala fides or by corrupt or unworthy motives. The respondent's learned counsel argued, that the petitioner had, in sanctioning the leases, abused his powers; such an allegation is wanting in these charges although it finds a place in charges 5, 6 and 7. 11. But at the end of the ten charges, occurs the following passage:- "Your actions described above disclose misconduct, irregularities and gross recklessness in the discharge of your official duties." This purports to be a conclusion from the actions referred to in the several charges that precede. Quasi judicial and statutory acts, pure and simple, do not per se amount to misconduct or gross recklessness, whatever the terms imply. I think, enough has been said by me to establish, that a quasi judicial authority can be proceeded against by disciplinary action, only for such collateral matters as are referred to above and not for errors in its findings or conclusions. To maintain disciplinary proceedings which concern judicial or quasi judicial orders, the charge and the allegations must relate to such collateral matters as would deprive the Judge or the officer, of the immunity to which he is otherwise entitled. The use of such epithets as malicious, mala fide, etc., in the charge, without relevant allegations to support them cannot form the basis of disciplinary proceedings. The use of such epithets as malicious, mala fide, etc., in the charge, without relevant allegations to support them cannot form the basis of disciplinary proceedings. Jurisdiction for instituting disciplinary proceedings in respect of judicial or quasi judicial orders, is not to be acquired by simply impeaching the finding or the conclusion and adding such epithets. Otherwise, it would mean, that a simple challenge to the findings & conclusions embodied in the order, perhaps in a superlative form, like "utter disregard", followed by such words, as malicious, or mala fide, etc., is all that is needed to subject the authority to disciplinary proceedings. The question is not whether the charge as framed is defective and the petitioner is prejudiced by the defect, but is really what the charge is and implies. I am dealing with this aspect at some length because, though the term "recklessness" occurs along with "misconduct" and "irregularity", as a conclusion in the passage extracted, it is suggested, that the term "reckless" may be held at least to qualify or to apply to the term "utter disregard" occurring in the charge. Even if such a reading is permissible and recklessness in such a collateral fact as malice or mala fide, which would deprive the petitioner of the immunity against disciplinary proceedings, there must at least be the requisite allegations which go to make up recklessness in the context of a quasi judicial order in the statement of allegations. R.5(2) quoted above provides, that the grounds on which it is proposed to take action shall be reduced to the form of charges and there shall be a statement of allegations on which each charge is based. Under this, I cannot conceive of a charge without the related allegations; the charge and. allegations form one document. This is more especially the case, when disciplinary proceedings are so closely connected with judicial or quasi judicial orders. The only allegation in this part of the statement is, as stated, that leases were granted without being satisfied that they were beneficial. This is nothing but a direct challenge or a frontal attack on the findings in the orders as to benefit. The allegation is not that the several orders did not embody findings of necessity or benefit. The only allegation in this part of the statement is, as stated, that leases were granted without being satisfied that they were beneficial. This is nothing but a direct challenge or a frontal attack on the findings in the orders as to benefit. The allegation is not that the several orders did not embody findings of necessity or benefit. Recklessness if it has any application in the context, must, I suppose, consist of some of the several processes by which, or must relate to the manner in which, the quasi judicial conclusion as to benefit or necessity was reached and it seems meaningless to attack simply the finding or the conclusion. For example, if in coming to a conclusion on the question of necessity or benefit, there were several material or important points to consider, which the petitioner wilfully ignored, such points ought to form the subject of allegations; other instances too may be conceived. Otherwise the charge is only on the finding. It requires much straining on my part, to spell an accusation of recklessness merely from the charge, that leases were granted without benefit. I feel no doubt that the term "disregard" by itself, notwithstanding the use of the adjective "utter" is not sufficient to import a charge of one of those collateral facts which would attract disciplinary proceedings It strikes me, that the petitioner did not himself understand the charge as imputing recklessness to him in the process of reaching his finding, for in Para.38 of his written statement, he said, that his actions "could not, fairly and impartially considered, lead to any inference of misconduct, irregularity or gross recklessness"; in other words, he seems to have looked upon this as an alleged conclusion. But it is needless to state, that his understanding of the charge is not conclusive on what the charge imports. 12. The second part of charge I is, that in several cases, the petitioner initiated proposals for the leases and sat in judgment on them by sanctioning them. The relevant allegations may be summarised thus. (1) On 4th November 1961, the petitioner gave P. W. 1, the fit person of Pulpally Devaswom, a list of persons to whom lands may be leased, showing the area to be given to each, with a direction to him to file applications under S.29. (2) On that date itself, P. W. 1 made the application for sanction. (1) On 4th November 1961, the petitioner gave P. W. 1, the fit person of Pulpally Devaswom, a list of persons to whom lands may be leased, showing the area to be given to each, with a direction to him to file applications under S.29. (2) On that date itself, P. W. 1 made the application for sanction. The proposal was to lease 1950 acres at certain rates in favour of some of those whose names were included in the list given to him. P. W. 1 said, that he presented the application under the petitioner's orders. (3) The petitioner did not pass orders on 16th December 1961, when the application came before him, but he got an application of the same date typed, stating that, (a) the mention of the area as 1950 acres was a rough estimate, (b) after actual survey, the area was found to be 2500 acres & (c) the entire area was intended to be leased to the applicants, some of whose names were not in the original application. P. W. 1 signed that application as directed. 13. The effect of the allegations was summarised thus: "The initiative for the leasing out of the Devaswom lands in all the above cases was taken by you and not by the 'fit person' of the devaswom as required by law. Ultimately, the leases based on these applications were sanctioned by you under S.29 of the H. R. & C. E. Act thereby sitting in judgment on your own proposals................................_............Your action in granting the above lease without auction, adding names not included in the applications published in the Mathrubhumi dated 10th November 1961 and assigning particular areas to each of the 14 lessees in the group, were quite irregular." 14. The rest of the allegations are not perhaps quite relevant to the charge; but there is one allegation which need not be ignored, that the petitioner told P. W. 15, that he would not be given 500 acres, but only something less and that he may apply. The allegation that a few persons named, presented their applications to the petitioner, means nothing, without an allegation as to what he did with them. The allegation that a few persons named, presented their applications to the petitioner, means nothing, without an allegation as to what he did with them. There is also an allegation which cannot be said to form the basis of the charge and was perhaps meant to meet a possible defence based on the affidavit filed by the petitioner in O. P. 2306 of 1962, that the Pulpally leases had the approval of the Minister in charge of Hindu Religious Endowments and that they were granted in implementation of certain decisions taken at a conference. There is no charge, that the petitioner acted simply as directed by the Minister or in accordance with the decisions at the conference. 15. The leases referred to in the allegations under this part of the charge were all of lands which belong to the Pulpally Devaswom, which was being administered under a scheme framed under the 1927 Act, under which, by clause (3) thereof, the Manager of the Devaswom is responsible to the Board constituted under that Act for his management, and by clauses (10) and (15), the Board was entitled to issue directions from time to time in connection with the management of the institution, including "internal management", the Manager and the trustee being bound to comply with them. By virtue of S.103 of the Act (of 1951), the scheme must be deemed to have been settled under it, & has statutory force. By the Act, the Commissioner has succeeded to the powers & duties of the Board. The competency of the Commissioner to initiate leases has to be tested, both under S.20 of the Act & under the scheme. By S.20, the general superintendence & control of all religious endowments is vested in the Commissioner and this includes the power to pass any orders which may be deemed necessary to ensure the proper administration of such endowments. The Enquiry Officer has also held, that "it was open to the Commissioner under S.20 of the H. R. and C. E. Act to initiate steps or give directions to the trustees to put the administration of these lands on a proper footing''. The Enquiry Officer has also held, that "it was open to the Commissioner under S.20 of the H. R. and C. E. Act to initiate steps or give directions to the trustees to put the administration of these lands on a proper footing''. If say, in order to prevent large scale encroachments on lands which the Devaswom is unable to resist, or to prevent the commission of waste on such lands, or to meet the burden of basic tax imposed on the lands which perhaps yielded no appreciable income, or for other adequate reasons, the Commissioner feels that leasing of lands is a feasible course, nothing in S.20 precluded him from giving directions of a general nature to the trustee. Such a power must be deemed to be implicit in S.20 and does not clash with his quasi judicial power under S.29, of according sanctions to particular bases but not so, I venture to think, a power to initiate particular proposals for the disposal of lands. The power under the scheme is undoubtedly wider and more specific, being to give directions in connection with the management of the institution from time to time. But it seems to me, that even this cannot extend so far, as to confer a power on the Commissioner of initiating particular proposals of leases, on which he has to sit in judgment under S.29. I do not doubt the competence of the legislature to confer such a power on him, even if by so doing, he is enabled to act as a judge in his own cause, but I feel that neither the language of S.20 nor that of the scheme, warrants the conclusion that the legislature did confer such a power. As stated in one of the allegations under this part of the charge, the petitioner himself wrote to the Government on the 27th April 1962, (Ext. P-107 being the letter) that he "is not competent to grant leases of temple lands on his own initiative". Though his individual opinion is not conclusive on a question of abstract competency, it is not to be ignored completely. This part of the charge is not without jurisdiction. 16. P-107 being the letter) that he "is not competent to grant leases of temple lands on his own initiative". Though his individual opinion is not conclusive on a question of abstract competency, it is not to be ignored completely. This part of the charge is not without jurisdiction. 16. I also hold, that the third part of charge 1 is no charge, but is only the result of the first and second parts of that charge, and so far as it is the result of the former, it is without jurisdiction. 17. The second part of charge 2 does not arise, because none of the Pulpally leases to which it relates has been executed and neither wrongful gain to the lessee nor wrongful loss to the Devaswom has resulted. The first part of charge 2 is, that the petitioner fixed the premium for lease, the rental, and the timber value arbitrarily, disregarding whether they were beneficial to the institution as he was required to do under the Act. The allegation which seems to be relevant to this part of the charge may be summarised thus. Some of the objectors had offered better terms, but their objections were rejected on the ground of their absence at the enquiry, without considering the bona fides of the objection and without auctioning the lands. The effect of the allegations was stated thus: "By granting leases without auction and fixing the premium, rental and timber value arbitrarily, you have caused wrongful gain to the lessees and wrongful loss to the Devaswoms whose interests you were by law bound to protect." Other allegations also have been made, but they appear to me to be irrelevant to the charge as it stands. For example, with reference to two memos addressed to pw. 1 and to the trustee of Nadu villa Vellatu Devaswom there occurs the following statement: "It is clear, that in both these cases you had not properly exercised your statutory duty under S.29 of H. R.&C. E. Act and satisfied yourself that the leases sanctioned were actually beneficial to the Devaswoms". That this statement has nothing to do with charge 2 cannot be disputed. But to treat charge 2 as pertaining to charge 1, would be to treat the allegations under the former as those under the latter and vice versa. That this statement has nothing to do with charge 2 cannot be disputed. But to treat charge 2 as pertaining to charge 1, would be to treat the allegations under the former as those under the latter and vice versa. This appears to me to be illegal, as contrary to R.5 (2) referred to above and is not warranted. 18. The real and the only question to consider under this charge is, whether the rejection of the objections, in some of which better terms were offered, on the ground that the objectors did not attend the enquiry as notified can be said to be entirely outside the scope of quasi judicial procedure or beyond the petitioner's statutory powers. There is no provision in the Rules as to what the Commissioner may do, when objectors fail to attend in support of their objections, especially so, when they have offered better terms but are not present to stand by them. Generally speaking, the Rules framed under S.29(1) and (3) provide, that the notice to be published and served, shall specify the date on which an enquiry, if any is proposed to be held, to consider the objections or suggestions. It also provides, that the publication of the notice "shall be deemed to be sufficient intimation to persons having interest". If nothing more is alleged in the charges and the allegations, than that objections were filed, but the objectors did not appear, and that the Commissioner dismissed the objections, can it be held that the Commissioner has transgressed the limits of quasi judicial procedure? In Ext. D-37, the judgment of this Court passed on a writ petition to quash an order of sanction (Item 33 in Appendix I of the Enquiry Report) passed by the petitioner and confirmed on appeal by Government, the learned Judge ruled thus, on the power of the Commissioner to dismiss the objection: "Therefore, when the petitioner has sent his objections on the basis of this notification appearing in the papers that notification must have also indicated to the petitioner that the objections will be taken up on 30th June 1961. Admittedly he was not present at the office of the Commissioner in the Board of Revenue on 30th June, 1961. Admittedly he was not present at the office of the Commissioner in the Board of Revenue on 30th June, 1961. Therefore, an objection cannot now stand that he was not aware of the fact that objections will be taken up on 30th June 1961, nor can be complained that he was not given an opportunity to sustain his objections when admittedly he did not appear on that date. No doubt it is seen that the matter was adjourned to a later date and even regarding this aspect the petitioner is not entitled to get a fresh notice. If he had presented himself on 30th June 1961 he would have been informed about the matter being adjourned to a later date. Therefore, the petitioner's grievance in all these respects cannot be accepted by this court.". (Vol. III, P. 158). With respect, I agree; this is a declaration of the law on the point, by this Court. Such dismissal cannot be held to be outside the powers of the Commissioner under the Act and the Rules or beyond the limits of quasi judicial procedure. Even if it is, it is a matter to be set right in appeal under S.29(4) or in revision under S.99, apart from any allegation of a collateral fact or of oblique or unworthy motive on the part of the petitioner. 19. The first part of charge 3 is, that the petitioner took action, "for putting the lessees in possession of the lands and to fell the trees thereon for which you (the petitioner) had no authority under the Act and the Rules". But the relevant allegations are, that the petitioner allowed an applicant for a lease and some of the proposed lessees to construct sheds on the property for watchmen before he accorded sanction to the lease in the former case and before the Collector sanctioned the leases under the M. P. P. F. Act in the latter cases, and that the petitioner directed P. W. 1 "to hand over possession of the plot to Sri P. Narayanan Nair". The other allegations do not appear to have a bearing on the charge as it stands. 20. The charge and the allegations concern Pulpally Devaswom lands. The other allegations do not appear to have a bearing on the charge as it stands. 20. The charge and the allegations concern Pulpally Devaswom lands. As I read them, the challenge is only of the petitioner's competency to give such permission or directions before he sanctioned the lease in the one case and the Collector accorded sanction in the others, and not on the propriety or otherwise of the directions or permission, as being in some manner detrimental to the interests of the Devaswom. If supposing, there have been large scale encroachments on Devaswom lands and an apprehension of encroachment, especially on the eve of lands being leased, and the petitioner permitted watch men to be posted and allowed the construction of sheds for their use, T do not think, that the petitioner would be acting beyond his powers in giving such permission or directions. To take a clear case, had there been no lease at all, and no proposal even to lease, it seems not open to question, that a Commissioner would be acting well within his powers under S.20 of the Act, in giving such permission or directions for the prevention of apprehended trespass and for the preservation of the property and of the tree growth; his power to do so, as a super manager as it were, under the Pulpally Scheme, can hardly be doubted. I am of the opinion, that this power both under S.20 and the scheme, is not in any way curtailed or affected, simply because the watchmen are those nominated by the proposed lessees or the applicants for leases who might for that reason be supposed to take a greater interest in looking after the property. That the petitioner was moved to take such action does not affect his competency. Until the leases materialised, they could only be considered to be the watchmen of the Devaswom; if ultimately the leases did not materialise, and the lessees or the watchmen did not wish to continue as watchmen they were free to depart. In giving such permission or directions at any rate, there was no clash with the exercise of the quasi judicial power under S.29. The allegation of giving possession to Narayanan Nair is not complete for supporting the charge. In giving such permission or directions at any rate, there was no clash with the exercise of the quasi judicial power under S.29. The allegation of giving possession to Narayanan Nair is not complete for supporting the charge. If possession of the plot was given to him as its lessee, before the lease was sanctioned to him by the petitioner and the Collector, such act would certainly be incompetent and unauthorised. But if, for example, as Ext. P-39, the original order shows, Narayanan Nair was permitted "to enter on the land and employ watchmen and construct temporary sheds for their occupation", that case is on a par with the others, the entry being really for constructing sheds for watchmen. The conflict with S.29, could arise only in the case of a sale, or mortgage or lease for a term exceeding five years. In other cases, the Commissioner can pass orders under S.20 or give directions under the scheme. Even if Ext. P-39 is to be ignored altogether, the Commissioner's power to direct possession to be given when it is necessary to do so, under S.20 and under the scheme cannot be denied, though the propriety of the direction may be open to question, depending on the circumstances. The words "handing over of possession" in the abstract, in the allegation, be it to the intended or proposed lessee, is not per se blameworthy, except in relation to the circumstances in which that act is done, as to which there is no allegation. The allegation is not that possession was given to him as a lessee or as an alienee. The actions referred to cannot be tested on abstract competency, but only on their propriety in individual cases. The first part of charge 3 is not sustainable. On the allegations, the second part of this charge is with jurisdiction. 21. Charge 4 is that the petitioner sanctioned leases of lands to relations, neighbours and friends, in violation of R.3 of the All India Services (Conduct) Rules, 1954. That rule reads: "Every member of the service shall at all times maintain absolute integrity and devotion to duty." 22. The relevant allegation is, that the petitioner sanctioned a lease of 200 acres to his relations, Balakrishna Menon, and Bhavani Amma, Balakrishna Menon being his direct nephew, the relationship of Bhavani Amma being not indicated, and another lease to Nanda Kumar, a neighbour. The relevant allegation is, that the petitioner sanctioned a lease of 200 acres to his relations, Balakrishna Menon, and Bhavani Amma, Balakrishna Menon being his direct nephew, the relationship of Bhavani Amma being not indicated, and another lease to Nanda Kumar, a neighbour. The sanction of leases in favour of relations or neighbours is not ultra vires the powers of the Commissioner under the Act, if the power to accord sanction is solely vested in him. In Wade on Administrative Law, page 134, it is stated: "Where statute empowers a minister or an official to act, he will often be the one and only person who can do so. There is no way of escaping responsibility if he is personally interested. Transfer of responsibility is, indeed, a recognized type of ultra vires." Marshall on Natural Justice, page 38: "A Judge who would otherwise be disqualified may act in a case of necessity where no other Judge has jurisdiction. That the 'necessity' rule is part of the common law is undoubted." 23. When a proposal of lease comes up before him, the Commissioner is called upon to decide whether the lease is beneficial or necessary; the power to decide is conferred on him and on no other and he cannot decline to exercise the power on the ground, that the applicant is a relation or a friend or a neighbour. But it is seen from the allegations under the second part of charge l, that the leases in favour of Balakrishna Menon and Bhavani Amma were initiated by the petitioner, though there is no such allegation under it, concerning the lease to Nanda Kumar, If charge 4 is to be decided also on the above allegation under charge 1, I have no difficulty in holding, that the doctrine of necessity has no application; for, all that was necessary for the Commissioner to do, was to refrain from initiating a lease in favour of a relation. But as I have held, under R.5(2) extracted earlier, in entering a finding of guilt on a charge, it is permissible only to consider the allegations stated under that charge; otherwise no limit can be set, and all the allegations have to be read in relation to all the charges; this would be an impossible situation, and in my opinion contrary to the rule. Under the 2nd part of charge 1, the competency of the petitioner to initiate proposals is to be tested. This charge is to test whether the petitioner was competent to sanction a lease because it was in favour of a relation, or a friend, or a neighbour, in view of R.3 of the Conduct Rules; for example, the lease to Nanda Kumar was not initiated by the petitioner. Reading charge 4 in the light of the allegations under that charge alone, the charge is without jurisdiction. 24. Charge 9 is outside the scope of the petitioner's duties as Commissioner, and relates to alleged dereliction of duty, in having refused to attend a conference convened by the Chief Secretary, at the instance of the Chief Minister. Whatever be the evidence let in, I fail to see how, on the allegations, the charge can be said to be without jurisdiction. 25. From what has been discussed above, it follows that the 2nd part of charge 1, the 2nd part of charge 3, and charge 9 alone are with jurisdiction, and that the 3rd part of charge 1 is no independent charge at all but is the result of the other parts of charge 1. The 3rd part of charge 1 in so far as it is based on the first, part of that charge, and the rest of the charges, that is, the first part of charge 1, charge 2, the 1st part of charge 3, and charge 4 are without jurisdiction. In ultimate analysis, the 1st part of charge 1, charge 2, the first part of charge 3 and charge 4, pertain to the correctness or legality or propriety or regularity of the decisions made, orders passed, and steps taken by the petitioner in the exercise either of his quasi judicial power under S.29 or of his powers under S.20 of the Act, or the scheme which too has statutory force. As observed, the petitioner's order of sanction as to the lease, item 33 in Appendix I of the Enquiry Report, was sustained in appeal to Government and later, in proceedings in this Court under Art.226 of the Constitution by Ext. D-37. The orders sanctioning the leases referred to as items 1 to 3 and 8 in Appendix I of the Enquiry Report are pending in appeal to Government. D-37. The orders sanctioning the leases referred to as items 1 to 3 and 8 in Appendix I of the Enquiry Report are pending in appeal to Government. The remaining orders have not been challenged by way of appeal or revision. 26. The 3rd proposition formulated is, that for acts intra vires the powers of the Commissioner, no charge can lie against the petitioner and the fourth proposition is, that under the Act and the Rules of Business of the Government, the concerned Minister alone representing the Government may revise or review the acts and orders of the Commissioner, in the exercise of the judicial power of the State; no other Minister or the Government in the exercise of the executive power may question in any manner, either by disciplinary proceedings or otherwise, the correctness, regularity, legality or propriety of the Commissioner's acts and orders. I share the view of my learned brother, that if the petitioner had been guilty of such wrongful act or conduct as is amenable to disciplinary proceedings while exercising his powers under the Act and the Rules, Government can institute such proceedings against him. I also agree, that for such wrongful act or conduct, the Chief Minister to whom the portfolio of general administration was allotted can, with the concurrence of the Home Minister to whom the portfolio of anti corruption was allotted, initiate disciplinary proceedings. But, as I understand the two propositions, they are founded upon the main contention of learned counsel for the petitioner, that the charges as framed, except charge 9, do not relate to any such wrongful act or conduct of the petitioner but to acts which are intra vires the powers of the Commissioner, and pertain to the correctness, regularity, legality or propriety of his acts and orders, and that in the absence of a charge for such wrongful act or conduct no disciplinary proceedings can lie against the petitioner. Wrongful act or conduct cannot be said to be inter vires the powers of the Commissioner. The correctness, regularity, legality and propriety, of the Commissioner's acts and orders per se, can in my view, be questioned only in appeal under S.29(4) or in revision under S.99 of the Act. For this, under the Rules of Business, the Minister in charge of Hindu Religious Endowments is alone clothed with the requisite power. The correctness, regularity, legality and propriety, of the Commissioner's acts and orders per se, can in my view, be questioned only in appeal under S.29(4) or in revision under S.99 of the Act. For this, under the Rules of Business, the Minister in charge of Hindu Religious Endowments is alone clothed with the requisite power. While, therefore, I agree with my learned brother, that for wrongful act or conduct as is amenable to disciplinary proceedings, the petitioner can be proceeded against and that the Chief Minister may in concurrence with the Home Minister, institute such proceedings against the petitioner, I desire to make it clear, that such proceedings cannot be instituted on charges, so far as they do not pertain to any such wrongful act or conduct of the petitioner in the exercise of his powers. 27. In the view, that some of the charges alone are with jurisdiction and the others are not, it is for consideration, whether prohibition can issue and if so how. In such cases, the rule is stated thus in Halsbury's Laws of England, Vol. 11, Para.216, at page 116: "Where proceedings in an inferior court are partly within and partly without its jurisdiction, prohibition will lie against doing what is in excess of jurisdiction..................Where part only of a party's request for a prohibition proves to be well founded, the Court will, if the matter is divisible, limit the prohibition to that part." This is no novel principle in India. It is seen from the judgment of the Supreme Court in O. K. Ghos v. E. X Joseph AIR 1963 SC 812 that the decision of the Bombay High Court which was under appeal, was on a petition under Art.226, for certiorari and prohibition, in relation to two charges levelled against the appellant in disciplinary proceedings. The High Court dismissed the petition so far as it related to one of the charges, on the ground, that one of the relevant rules was valid, and allowed the petition so far as it related to the other charge on the ground that the other rule was invalid; in other words, the disciplinary proceedings were held to be partly without jurisdiction. This is one instance; the judgment of the High Court it is said, has not been reported. This is one instance; the judgment of the High Court it is said, has not been reported. In Sewpujanrai Indrasanarai v. Collector of Customs AIR 1958 SC 845 the Supreme Court held, that the Collector of Customs had no jurisdiction to impose any of the two conditions for the release of confiscated gold, but that the invalid conditions were severable from the rest of the impugned order. Referring to the prayers for mandamus & prohibition, concerning the orders of seizure, detention & confiscation, the court observed, that "these prayers were neither unnecessary nor a mere surplusage; they were appropriate for purpose of avoiding the conditions which the Collector had imposed for release of the gold", and quoted the rule in Halsbury's Laws of England. The court also relied on its prior decision in Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 S. C. 538 in which a part of the notification made under S.3 of the Commissions of Enquiry Act was held to be bad, but severable from the rest, & relief was granted on that footing. Finally, the Supreme Court ruled, that there was no "insuperable difficulty in the present case in prohibiting respondents 1 to 3 from enforcing the two invalid conditions which the Collector of Customs had imposed for release of the gold on payment of the fine in lieu of confiscation, and the time limit of four months fixed by the Collector must accordingly run from the date of this order". In Thangal Kunju Musaliar v. Venkitachalam Potti, ( AIR 1954 TC 131 ) a writ of prohibition was applied for and granted against the Indian Income Tax Investigation Commission for all but two years; that decision was affirmed by the Supreme Court in A. Thangal Kunju Musaliar v. M. Venkitachalam Potti ( AIR 1956 SC 246 ). 28. In the present case it is undoubted, that each charge with its related allegations, is separate and divisible from the others. To my mind, the ruling of the Supreme Court in State of Orissa v. Bidyabhushan Mohapatra (AIR 1963 SC 797) has no relevance in deciding, whether prohibition can issue as to part only of the proceedings. In that case, the Supreme Court held that the High Court was in error, in quashing a punishment based on four charges, when only two of them were found by the High Court to be unsustainable. In that case, the Supreme Court held that the High Court was in error, in quashing a punishment based on four charges, when only two of them were found by the High Court to be unsustainable. In the present case, it needs no mention by me, that the disciplinary authority is free to impose whatever punishment it is competent to impose, on the basis of the findings on the charges which are found by me to be sustainable; that is no concern of this Court. But having held some of the charges to be without jurisdiction, it is my clear duty to prohibit the disciplinary authority from proceeding to dispose of the matter before it, on the basis of the findings on those charges. 29. In the result, adhering as far as possible to the form of the order in Sewpujanrai's case ( AIR 1958 SC 845 ), I allow the writ petition in part, in so far as it seeks a direction restraining the first respondent from proceeding against the petitioner on the basis of the following charges and parts of charges which have been framed for enquiry, namely:- (i) the first part of charge 1, reading, that the petitioner " issued sanctions granting leases..................................in utter disregard of the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951, and the Rules issued thereunder", (ii) the third part of charge 1, reading, that the petitioner's "conduct has been such as to render you (him) unfit for the performance of your (his) statutory duties under the Madras Hindu Religious and Charitable Endowments Acts or as a responsible officer of the Government", in so far as it is based on the first part of charge 1 only, referred to above, (iii) the first part of charge 3, reading, that the petitioner " not only initiated proposals for the leases and sanctioned them yourself (himself) but also took further action for putting the lessees in possession of the lands and to fell the trees thereon for which you (he) had no authority under the Act and the Rules" and (iv) charges 2 and 4. I direct the parties to bear their costs in this petition. Govinda Menon, J.- 1. I direct the parties to bear their costs in this petition. Govinda Menon, J.- 1. This Writ Petition has been referred to me under S.23 of the Travancore - Cochin High Court Act, 1125, as the learned Judges, Velu Pillai and Mathew JJ., who originally heard the petition differed in their conclusions as to the jurisdiction of the Union of India to take disciplinary proceedings against the petitioner on some of the charges. 2. A few facts may now be stated:- The petitioner, 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 also holding the post of Commissioner of Hindu Religious and Charitable Endowments. On the basis of certain petitions containing allegations of misconduct against the petitioner in the discharge of his duties as Commissioner, the Kerala Government, after conducting certain preliminary inquiries, started disciplinary proceedings against him, keeping him under suspension under R.7 of the All India Services (Discipline and Appeals) Rules, 1955 (shorty stated the Rules). A copy of the charges was then served on him, together with the statement of allegations directing him to submit his written statement of defence. The petitioner filed his written statement and after a careful scrutiny of the same, Government passed orders that the explanation to the charges was unacceptable and that the charges should be enquired into by an Inquiry Officer to be appointed under R.5(5) of the Rules. Accordingly, Sri T. N. S. Raghavan, a retired I C. S. Officer was appointed as the Inquiry Officer. This writ petition was therefore, filed praying for a writ of certiorari to quash the proceedings initiated against the petitioner and for a writ of mandamus calling upon the second respondent, the State of Kerala, to allow him to function as the First Member of the Board of Revenue. No application for stay was sought for and as there was no stay the Inquiry Officer proceeded with the inquiry and submitted his report to the Union Government, finding the petitioner guilty of charges 1 to 4 and 9. The Union of India after a consideration of a report issued a show cause notice Ext. P-9. Thereupon the petitioner filed an application for amendment of the writ petition and learned Judges who heard the petition allowed the prayer for amendment. The Union of India after a consideration of a report issued a show cause notice Ext. P-9. Thereupon the petitioner filed an application for amendment of the writ petition and learned Judges who heard the petition allowed the prayer for amendment. The prayer in the amended petition was for the issue of a writ of prohibition restraining the first respondent, the Union Government, from proceeding further in pursuance of the show, cause notice and also for quashing the same. The contention of the petitioner is that the proceedings initiated against him were entirely without jurisdiction as no disciplinary proceedings could be taken against him for acts or omissions in respect of his work as Commissioner under the Madras Hindu Religious and Charitable Endowments Act (shortly stated the Act), that orders passed by him being quasi judicial in character can be impugned only in appropriate proceedings as provided under the Act. 3. The question for decision,' therefore, before the learned Judges was whether the Government had jurisdiction to continue the disciplinary proceedings. In support of the contention that the Government had no jurisdiction learned counsel for the petitioner formulated five propositions for consideration before the learned Judges. They were:- Proposition No. 1. - The Commissioner is a corporation sole, not the servant of the Government, that against a person acting in the capacity of a Commissioner, the Government has no jurisdiction to take disciplinary proceedings; Proposition No.2 - That quasi judicial orders and administrative orders of the Commissioner unless vacated under the provisions of the Act are final and binding on the Government and cannot be questioned by the executive Government through disciplinary proceedings; Proposition No. 3. - For acts intra vires the Commissioner's powers, no charge can lie against the Commissioner; Proposition No. 4 - Under the Acts and Rules of Business of the Government the concerned Minister alone representing the Government may revise or review the acts and orders of the Commissioner in exercise of the judicial power of the State; no other minister or the Government in the exercise of the executive power may question in any manner either by disciplinary proceedings or otherwise the correctness, regularity, legality or propriety of the Commissioner's acts and orders; Proposition No. 5. - Assuming, the Commissioner is a servant of the Government against whom disciplinary proceedings could be taken, yet leases granted by the Commissioner have been authorised, approved and ratified by the Government through its duly delegated Minister and it is not open to the Chief Minister to initiate disciplinary proceedings in respect thereof. 4. After hearing elaborate arguments advanced by learned counsel appearing on either side, Mathew, J., negatived the objections raised regarding the want of jurisdiction and held that the Government had powers to proceed with the inquiry into the charges. Velu Pillai, J., on the other hand, took the view that quasi judicial decisions become final and conclusive if they are not set aside or modified in any of the modes prescribed by the statute in that behalf, and if the decisions are not so challenged their propriety, correctness and legality must be deemed to be conclusive and such quasi judicial decisions should not be subject of the charges in a disciplinary proceeding and the Union Government had, therefore, no jurisdiction to proceed with the enquiry into the first part of charge 1, charge 2, the first part of charge 3 and charge 4 and that enquiry into the second part of charge 1, second part of charge 3 and charge 9 alone could be enquired into. In view of this difference of opinion between the two learned Judges, the matter has been placed before me for my opinion. 5. The matter on which there is disagreement has been indicated in the judgment of Mr. Justice Velu Pillai. At the beginning of his judgment the learned Judge observes: ''On the jurisdictional issue, learned counsel for the petitioner formulated five propositions for consideration; besides, he raised a few points, two of which alone, we think, pertain to jurisdiction and merit consideration at this stage. On all these and on the issue as to mala fide, I am in agreement with my learned brother, except on the second proposition, or to be precise, on the application of that proposition to some of the charges of which the petitioner has been found to be guilty, on the consequential order to be passed on the writ petition and subject, on the third and fourth propositions, to the reservations, I propose to indicate in dealing with them. All other points, which learned counsel had urged before us, are not being considered or dealt with, because they do not relate to patent lack of jurisdiction." 6. Before I deal with the charges on which difference exists, it would be useful to see what the charges are. The main and the most important of the charges is charge No. 1, which relates to the sanctions accorded by the petitioner under S.29 (1) of the Act in respect of certain long term leases of large extents of forest land belonging to certain Devaswoms mentioned by the Inquiry Officer in Appendix I of his report. The period of the lease is 36 years in 17 of the cases, 96 years in one case and 99 years in all the rest of the cases. The total extent covered by these leases comes to over 50,000 acres. Charge No. 1 reads as follows: "That you, Shri Govinda Menon, I. A. S., while employed in the Government service as a member, Board of Revenue and Commissioner H. R. and C. E. (Administration) Department from 1st February 1957 to 19th October 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) Kallekulangara Emoor Bhagavathi temple., (3) Naduvil Vellat devaswom, (4) Kottiyoor devaswom, (5) Mundayan Paramba devaswom in utter disregard of the provisions in the Madras Hindu Religious and Charitable Endowments Act, 1961 and the rules issued thereunder. In several cases, you had yourself initiated the proposal 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 of endowments, your conduct has been such as to render you unfit for the performance of your statutory duties under the Madias Hindu Religious and Charitable Endowments Act or as a responsible officer of the Government................" 7. The statement of allegations under this part of the charge sets out, in detail, the provisions of S.29 & the rules and states that contrary to these provisions, leases were sanctioned by the petitioner. S.29(1) of the Act requires the Commissioner to satisfy himself that the lease for which he has to accord sanction is either necessary or beneficial to the institution. S.29(1) of the Act requires the Commissioner to satisfy himself that the lease for which he has to accord sanction is either necessary or beneficial to the institution. The proviso to the section says that before such sanction is accorded, the particulars relating to the proposed transaction shall be published in such manner as may be prescribed, inviting objections and suggestions with respect thereto; and all objections and suggestions received from the trustee or other persons having interest shall be duly considered by the Commissioner. Rules have been framed under the section in regard to the particulars to be published and the manner of publication and the rules require that the notice of the proposals should contain, among others, particulars regarding the nature of the proposed transaction, the correct description of the properties with information regarding survey number, extent, and boundaries and the probable price or rental expected and the notice should specify a reasonable time being not less than 30 days within which objections or suggestions should be sent and also the date on which the enquiry would be held. R.1 of the Rules framed under S.100(2)(m) of the Act provides that all leases have to be made by public auction. So the first part of charge No. 1 regarding the sanctioning of the leases read with the relevant allegations show that the gravamen of the charge is that in utter disregard of the provisions of S.29 and the rules thereunder and without taking care to see whether such leases were either necessary or beneficial to the Devaswom concerned the petitioner sanctioned them, which action of the petitioner discloses misconduct, irregularity and gross recklessness in the discharge of his duties as Commissioner. The charge is thus one of misconduct and recklessness disclosed by the utter disregard of the relevant provisions of the Act and the rules in the matter of sanctioning leases. 8. The Inquiry Officer has found that the rule under S.100(2)(m) regarding auction is not intended to cover long term leases falling within the scope of S.29(1) of the Act and both the learned Judges are agreed that that is the correct interpretation of the rule. 8. The Inquiry Officer has found that the rule under S.100(2)(m) regarding auction is not intended to cover long term leases falling within the scope of S.29(1) of the Act and both the learned Judges are agreed that that is the correct interpretation of the rule. The contention of the learned counsel for the petitioner is that the only rule said to have been violated in this part of the charge is the rule regarding auction and when once it is seen that the rule has no application, the entire charge would fall to the ground. But failure to hold auction is not the only rule that is said to have been contravened. The statement of allegations in respect of charge 1, as stated already, sets out the provisions of S.29 of the Act, the rules made under clauses (1) and (3) of that section and the rules made under S.100(2)(m) and it says that contrary to the above provisions leases were sanctioned. So contravention of not only rule under S.(2)(m) is referred to, but contravention of rules made under clauses (1) and (3) of S.29 also comes within the charge. 9. Apart from the rule regarding auction, the Inquiry Officer has referred to the contravention of various other rules in the matter of publication of notice fixing the date for enquiry, in some cases holding no enquiry at all, granting leases without specifying the period of lease and so on. Reference has been made in para 43 of the report to an instance where on the date of enquiry at which the objectors were present, a discussion took place in the presence of the petitioner and an agreement was reached that in case 100 acres of forest land were allotted to each of the 11 objectors they would withdraw their objections and in pursuance of the agreement, the objections were withdrawn and leases were actually sanctioned to these objectors by the petitioner without the requisite proposal or publication and calling for objections or entering a finding as to the beneficial nature of the transaction. Likewise, reference has been made in the report as to the undesirability of granting long term leases, for example, for 99 years and that too of large blocks extending even up to 30,000 acres amounting practically to permanent alienation of trust properties bestowing little or no thought to the harm that is likely to be caused to the Devaswom, not to speak of the want of any real benefit to the institution. It is unnecessary for the purpose of deciding the question of jurisdiction to enter into a detailed discussion of these matters. I am mentioning this only for the purpose of showing that the failure to hold auction is not the only contravention of rules that is relied on in support of the charge. Various other contraventions of rules and dereliction of duty and misconduct on the part of the petitioner in sanctioning these leases have been referred to. Dereliction from duty would amount to misconduct, according to the definition of misconduct given in Black's Law Dictionary (4th Edn.). Whether in the statement of allegations each contravention should have been separately mentioned apart from generally stating that there was contravention of the rules or whether they are matters which need be proved only at the time when evidence is adduced and whether by such omission any prejudice has been occasioned and thereby the inquiry is vitiated are not questions which would affect the jurisdiction to hold the disciplinary enquiry. 10. If, therefore, the correct position is that the contravention of the rule regarding auction is not the only contravention that is included in the charge,' then the decision in Ghosh v. Joseph AIR 1963 SC 812 relied upon bise Velu Pillai, J., can have no application. In the said case disciplinary proceeding were started against a Central Government employee only on the ground of having contravened the provisions of R.4A and 4B of the Central Civil Service (Conduct) Rules, 1955, in that he actually participated in the various demonstrations organised in connection with the strike of the Central Government in the employees and that he had taken an active part in the preparations made for one strike. The High Court had found that R.4B was ultra vires. The High Court had found that R.4B was ultra vires. On appeal the Supreme Court held that R.4A, in the form in which it stood prohibiting any form of demonstration is 'violative of the Government Servants' rights under Art.19(1)(a) and (b) and therefore struck down the rule. Thus the departmental proceedings were quashed on the ground that the rule said to have been contravened by the Government servant was held void as infringing the fundamental rights guaranteed under Art.19 of the Constitution. The decision can be of no help to the petitioner as the contravention alleged against him is not merely of the rule regarding auction. 11. Learned counsel then raised the argument, that judicial officers are immune from liability at the instance of a party deeming himself to be aggrieved by their judicial acts or orders passed by them. Justice Mathew has exhaustively dealt with this question after referring to the observations made by the learned Judges in Anderson v. Gorrie (1895 (1) QB 668 and summed up by saying: "The effect of the decision, as I understand it, is this: a person exercising a quasi judicial power is liable in damages to a party injured if the person exercising it has acted without bona fides or dishonestly or has failed to comply with the essential conditions for its exercise. The words of Lord Haldane would bear repetition: that the officer will be immune from liability if he 'keeps within jurisdiction, observing the prescribed conditions, and acting bona fide and honestly'. If these are not fulfilled, an action in damages would by implication lie. All the law lords except perhaps Viscount Finlay seem to insist on bona fides, honesty and the observance of the prescribed conditions for the exercise of the power as essential conditions for immunity from liability. Gross recklessness even if held to be not malice is hardly consistent with bona fides. If for such an improper exercise of quasi judicial power an action would lie at the instance of the party injured, I can see no reason why it should not form the subject of a charge in a disciplinary proceeding." I am in respectful agreement with the view expressed by the learned Judge. 12. Learned counsel for the petitioner cited the decision in State of M.P. v. Kapoorchand AIR 1961 M. P. 316. 12. Learned counsel for the petitioner cited the decision in State of M.P. v. Kapoorchand AIR 1961 M. P. 316. The question that arose for decision in that case was whether the State Government could be made liable for the negligence of one of its officers. On behalf of the Government it was contended that the officer concerned was acting under the powers vested in him by provisions of the C. P. Land Revenue Act and was exercising statutory powers and duties imposed on him by the legislature. Their Lordships held that the officer was acting under the statutory powers which were more or less of a judicial nature and was, therefore, protected under S.1 of the Judicial Officers Protection Act. No question arose in that case whether the officer was answerable to the Government and whether any departmental action could be taken by the State Government against its employee for his gross dereliction of duty. 13. Learned counsel for the respondent, on the other hand, has brought to my notice an extreme case decided by the Orissa High Court reported in Kishore Das v. State of Orissa AIR 1965 Orissa 183, where a subordinate Judge presiding over a civil court had been dealt with under the disciplinary proceedings on the ground that he acted in abuse of his power, wherein exercising his functions as a judicial officer he passed an order of injunction in violation of the provisions of the Civil Procedure Code. 14. Learned counsel for the petitioner then proceeded to argue that if the provisions of S.29 or the rules are disregarded the resultant order becomes an illegal and an improper order and such orders could be questioned only in an appeal under S.29(4) or revision under S.99 and if not so questioned the order would become final and could not, in any way, be questioned or reopened even by way of disciplinary proceedings. When the question of the propriety or legality of an order of sanction is brought up before the Government in appeal or revision they are not concerned with the conduct of the officer who passed the order, they are concerned only with the merits of the case, about the propriety and the legality of the order. The petitioner is proceeded against in these proceedings because in discharging his function he acted in utter disregard of the provisions of the Act and the rules. The petitioner is proceeded against in these proceedings because in discharging his function he acted in utter disregard of the provisions of the Act and the rules. It is the manner in which he discharged his function that is brought up in this proceeding, in substance that he acted in abuse of his powers and is guilty of misconduct. In other words, the charge and the allegations are to the effect that in exercising his powers as Commissioner the petitioner acted in abuse of his powers and it is for such misconduct that he is proceeded against. Abuse is only one form of excess. If he has abused his power, then he is not acting under the statute. On the other hand, he is doing something which the statute has not authorised. Recklessness in the discharge of duties is misconduct, or in other words utterly ignoring the principles in accordance with which alone the power under S.29 of the Act has to be exercised. Even though Justice Velu Pillai holds the view that quasi judicial decisions become final and conclusive as decisions if they are not set aside or modified in any of the modes prescribed by the statute in that behalf and their propriety, correctness and legality, must be deemed to be conclusive. Learned Judge himself has stated: "But this is not to say, that even if the authority is guilty of misconduct in the exercise of quasi judicial powers, Government as the disciplinary authority, has no power to proceed against him for such misconduct, as distinguished from the quasi judicial decision itself." Learned Judge has also stated that if there is abuse of power disciplinary proceedings could be started; but What is stated is that there is no such allegation. 15. The charge against the petitioner is not that he, in the exercise of his quasi judicial functions passed erroneous orders, for if it were so no disciplinary proceedings would have been competent. 15. The charge against the petitioner is not that he, in the exercise of his quasi judicial functions passed erroneous orders, for if it were so no disciplinary proceedings would have been competent. As stated by Justice Mathew, "There never was a Judge or an officer exercising quasi judicial functions who has not committed mistakes or errors in his judgment." But the charge here is that the petitioner gave sanctions for these leases without caring to satisfy himself whether they were really beneficial to the Devaswom and in utter disregard of the relevant statutory provisions and rules and that he contravened various rules which ought to have been followed by him before granting sanction and that in certain cases he exceeded his power and such conduct discloses gross recklessness and misconduct in the discharge of his duties. I cannot agree with the contention that in view of S.93 and 96 of the Act the Government is precluded from questioning the conduct of the petitioner, that he discharged his duties recklessly by utterly disregarding the conditions for the exercise of his power. Misconduct is not sought to be proved by showing that the conclusions reached by him were erroneous, but from the total disregard and flouting of the rules which is a condition precedent to the exercise of his power. 16. Learned counsel in support of his argument that it was not open to challenge the correctness or validity of the order made by the petitioner except in the manner provided, referred to the decision of the Privy Council in Secretary of State v. Mask and Co. AIR 1940 PC 105 , where Their Lordships observed: "By S.188 and 191 (of she Sea Customs Act, 1878), a precise and self contained code of appeal is provided in regard to obligations which are created by the statute itself..........It is difficult to conceive what further challenge of the order was intended to be excluded other than a challenge in the civil courts." The same principles were applied by the High Courts in India. In Nanabhai v. The Municipal Corporation of Bombay ILR 31 Bombay 604, Their Lordships of the Bombay High Court held: "Where a special tribunal, out of the ordinary course is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive. It is an essential condition of those rights that they should be determined in the manner prescribed by the Act, to which they owe their existence. In such a case there is no ouster of the jurisdiction of the ordinary courts for they never had any." 17. But these decisions can be of no help to the petitioner, so long as it is clearly understood that what is sought to be challenged is not the correctness of the decision, but the question whether the petitioner had not complied with and not acted in conformity with the provisions laid down in the Act and the rules. In Secretary of State v. Mask AIR 1940 PC 105 , (cited supra) Lord Taukerton observed: "It is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act had not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." The same view was expressed in the case in Desika Charyulu v. State of A. P. AIR 1964 SC 807 by Their Lordships of the Supreme Court. 18. I may refer to an early case of the Privy Council in Gackwar Sarkar of Baroda v. Gandhi Kachrabhai ILR 27 Bombay 344. In that case the defendants by the negligent construction of railway made in exercise of their powers under the Railway Act had caused the plaintiff's land to be flooded in the rainy season and consequently damaged. The Railways Act provided that a suit shall not lie to recover compensation for damage caused by the exercise of the powers thereby conferred, but that the amount of such compensation shall be determined in accordance with the Land Acquisition Act, 1870. In spite of this bar the plaintiff brought a suit for damages for injury alleged to have been caused to his field. In spite of this bar the plaintiff brought a suit for damages for injury alleged to have been caused to his field. It was argued that though the statutory authority of the Act of 1890 might have been abused or exceeded, the remedy of the aggrieved party was only to proceed under the Land Acquisition Act and not by a civil suit. Rejecting the plea the Judicial Committee observed: "It would be simply a waste of time to deal seriously with such contentions as these. It has been determined over and over again that if a person or a body of persons having statutory authority for the construction of works ... ... ... .... exceeds or abuses the powers conferred by the legislature, the remedy of a person injured in consequence is by action or suit, and not by a proceeding for compensation under the statute which has been so transgressed." 19. The same view was expressed by a Full Bench of the Lahore High Court in Administrator, City of Lahore v. Abdul Majid AIR 1945 Lahore 81, where also the argument that when in a special Act a special remedy is provided for the aggrieved persons, it is that remedy alone which can be availed of and recourse to civil courts cannot be had. Mahajan, J., after an exhaustive survey of the whole case law, both English and Indian on the subject stated: "There was overwhelming authority in support of the view advanced by the respondents that the civil courts could interfere even with the discretionary orders of public bodies if those orders were an abuse of the power vested in them, or, in other words, were in any way unreasonable, arbitrary, capricious, oppressive or partial." It was further observed: "When a jurisdiction is vested in a committee and it either irregularly exercises that jurisdiction or errs in the exercise of that jurisdiction, in those cases the remedy of the subject against the order of the committee is by preferring an appeal to the commissioner under the provision of S.225 and the order of the appellate authority would conclude the matter. Such a decision cannot be collaterally attacked in a civil court. Such a decision cannot be collaterally attacked in a civil court. Where, however, the committee acts in excess of the powers conferred by the Act or abuses those powers, then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess and for usurpation of power the remedy provided by the Act cannot be held to be exclusive." 20. This question was considered by the Supreme Court in the decision in Firm Seth Radha Kishun v. Administrator, Ludhiana AIR 1963 SC 1547 , where again the question raised was whether a suit would lie in a civil court claiming refund of the terminal tax collected by the Ludhiana Municipality under the provisions of the Punjab Municipal Act. It was held therein that a suit for the refund of the terminal tax will not lie when the remedy provided by the Act is not pursued by the claimant, but even in such cases, the civil court's jurisdiction is not completely ousted. A suit in a civil court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final if the said tribunal abuses its powers or does not act under the Act but in violation of its provisions. If, therefore, a private individual can get reopened an order passed by a quasi judicial authority, if he has acted beyond his powers or abused his position, I am unable to see how the Government would be precluded from starting disciplinary proceedings on the same grounds. The Government do not seek to get the orders set aside or to take away the legal effect of the orders. What they want to do in this proceeding is to show that in exercising the quasi judicial power under S.29, the conditions prescribed for the exercise of the power were not observed and that was because he utterly disregarded the provisions of S.29 and the rules framed thereunder. 21. What they want to do in this proceeding is to show that in exercising the quasi judicial power under S.29, the conditions prescribed for the exercise of the power were not observed and that was because he utterly disregarded the provisions of S.29 and the rules framed thereunder. 21. If, therefore, the view taken up by Velu Pillai, J., that the disciplinary enquiry into the charges was, in truth and substance, no more than an enquiry into the regularity of the proceedings held or the correctness, legality or propriety of the orders passed by the petitioner in his capacity as Commissioner is not correct, and if really the petitioner is proceeded against for the utter disregard of the provisions of the Act and for the extreme callousness and recklessness exhibited by him in the discharge of his duties as Commissioner and for abuse of power, there is no scope for any difference of view between the two learned Judges. On a careful and anxious consideration of the points debated in the case, I express my respectful dissent from the view taken by Justice Velu Pillai that part 1 of charge 1 is without jurisdiction and that it cannot form the subject matter of disciplinary proceedings. As for the second part of charge 1, that the petitioner himself had in several cases initiated proposals which should properly have been made by the trustees and that he should have only sanctioned the leases proposed, if the conditions are satisfied, both the learned Judges have agreed that this part of the charge is not without jurisdiction and could be proceeded with. The third part of charge No. 1 is, I agree, not a separate charge but could be enquired into along with the other parts of charge No. 1. 22. Now I come to charge No. 2. The third part of charge No. 1 is, I agree, not a separate charge but could be enquired into along with the other parts of charge No. 1. 22. Now I come to charge No. 2. It reads: "That you fixed the premium for lease, rental and the timber value arbitrarily disregarding whether they were beneficial to the institution as you were required to do under the Act and you thereby caused wrongful gain to the lessees and wrongful loss to Devaswom." In the statement of allegations in support of this charge it is stated that at the conference held on 2nd November 1961 it was decided that the rate for timber would be fixed after negotiations with the Elixir Trading Company, Kottayam, who had offered attractive rates and that no such negotiation was, in fact, held. It is then staged that in certain instances, particularly in regard to lease to P. Narayanan Nair and Vayala Idiculla the objectors had offered higher premium and timber value but the objections were rejected only on the ground that the objectors were not present, without considering whether the objections were bona fide and if upheld, would have resulted in benefit to the Devaswom. The allegations further referred to two memos sent by the petitioner, one dated 17th September 1962 to the 'fit person' of the Pulpally Devaswom directing him to consider whether the lease already sanctioned was beneficial to the Devaswom and another dated 3rd September 1962 to the trustee of the Naduvil Vellat Devaswom directing him to dispose of the timber in public auction and it stated that these letters prima facie showed that in both the cases the petitioner had not properly exercised his statutory duty under S.29 and satisfied himself that the leases sanctioned were actually beneficial to the Devaswom. Justice Mathew has stated that this charge is substantially the same as the first part of charge No. 1 and its scope being the same as that of the first part of charge No. 1, there is no jurisdictional defect. Velu Pillai, J., on the other hand, would say that as none of the Pulpally leases referred to in the allegations have really been executed, there could be no question of wrongful gain to the lessees or wrongful loss to the Devaswom. Velu Pillai, J., on the other hand, would say that as none of the Pulpally leases referred to in the allegations have really been executed, there could be no question of wrongful gain to the lessees or wrongful loss to the Devaswom. As far as the first part of charge No. 2 was concerned Velu Pillai, J., took the view that the main charge under this head was that some of the objectors had offered better terms, but their objections were rejected on the ground of their absence at the enquiry & without considering the bona fides of the objection or the benefit to the Devaswom. About the legality of the rejection of the objections in the absence of objectors, learned Judge referred to Ext. D-37, a judgment of Vaidialingam, J. Ext. D-37 arose on a writ petition filed by one of the objectors whose grievance was that the petitioner passed orders sanctioning the lease without hearing him. Vaidialingam, J., held that there could be no grievance so far as the petitioner in the writ petition was concerned inasmuch as he did not appear on the date of hearing. That was the only point decided. The question as to what the duties of the Commissioner were in such circumstances did not come up for consideration & was not decided. The question whether objections should be considered or not will depend upon whether such objections have any relevancy in the determination of the propriety of the lease and whether the premium amount and timber value were properly fixed or were arbitrarily fixed. The question would be whether the petitioner even if the objectors were absent should not have exercised due care and attention in deciding upon the terms of the lease in the light of the better terms offered and whether the lease, in fact, was beneficial to the institutions concerned. In any case, I am unable to see any jurisdictional defect in the charge and I agree with Mathew, J., that the inquiry into this charge should proceed. 23. In any case, I am unable to see any jurisdictional defect in the charge and I agree with Mathew, J., that the inquiry into this charge should proceed. 23. Charge No. 3 is in the following terms: "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 lands and to fell the trees thereon for which you had no authority under the Act and the rules." In the statement of allegations it is stated that the petitioner initiated proposals marking out particular plots in the sketch to be leased out to particular individuals, took personal interest in the matter of granting leases to them, getting them permits from the Collector under the Madras Preservation of Private Forests Act and that his Personal Assistant wrote a demi official letter to the Personal Assistant to the Collector to see that sanctions were accorded. Mathew, J., has stated that analysing the allegations what appears is that the petitioner gave permission to construct sheds and post watchmen in some cases before permission to lease was granted by the Collector and in one case before his sanctioning the lease and directing the fit person to hand over possession. Learned Judge held that prima facie the petitioner has no power to permit persons to enter into the property before lease is actually executed after obtaining permission of the Collector. But whether the petitioner would be justified and whether such directions were necessary and proper in the peculiar circumstances of the case are matters depending on the evidence, but would not affect the jurisdiction to proceed with the enquiry. Velu Pillai, J., on the other hand found that the petitioner was competent to give directions under S.20 of the Act and that the first part of charge No. 3 is not sustainable and that disciplinary proceedings could be continued only in respect of the second part of charge No. 3. The report of the Inquiry Officer shows that in a number of cases the petitioner had issued directions to the fit person to permit the proposed lessees to enter upon the property, construct sheds and to employ watchmen. To P. Narayanan Nair permission was granted under letter Ext. P-39 on the same date on which an application was received from him by the petitioner. To P. Narayanan Nair permission was granted under letter Ext. P-39 on the same date on which an application was received from him by the petitioner. To one Sankaran permission was granted on 19th March 1952, while application for sanction of the lease was received only on 26th March 1962. In the case of leases to Kolathu Iyer and Kunhikrishnan Nair, they had on getting permission to enter the property started planting rubber even though the Collector's permission under the M. P. P. F. Act had not been received. Learned counsel for the respondent has argued that all these might lead to complications and if ultimately permission to lease is not granted the trustees will have to go to the civil court for evicting the persons who had already taken possession. There is considerable force in the submission made. Whatever that might be, I do not think any question of jurisdiction arises and the Government can proceed with the inquiry into this charge. 24. Charge No. 4 is as follows: "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 provisions in R.3 of All India Services (Conduct) Rules, 1954 which enjoins every member of the service to maintain absolute integrity in all official matters." Rule 3 of the All India Services (Conduct) Rules, 1954 enjoins on every member of the service to maintain absolute integrity and devotion to duty. In the relevant allegations mention has been made of sanctioning lease to Balakrishna Menon and Bhavani Amma who were relations of the petitioner and to one Nanda Kumar, a neighbour of the petitioner. As stated in the report of the Inquiry Officer there is evidence that Balakrishna Menon is a relation and one of the two plots containing the greatest density of tree growth was allotted to him. As far as Bhavani Amma is concerned though there is no evidence that she is related to the petitioner, the Inquiry Officer has in Para.79 referred to the keen personal interest taken by the petitioner in the matter of granting the lease to her and her group. If what the petitioner is alleged to have done is calculated to reflect on his integrity and devotion to duty, disciplinary proceedings could be taken. If what the petitioner is alleged to have done is calculated to reflect on his integrity and devotion to duty, disciplinary proceedings could be taken. Velu Pillai, J , has stated that the sanctioning of leases in favour of relations or neighbours is not ultra vires the powers of the Commissioner as the power to accord sanction is solely vested in him, and secondly that it could be sustained by the doctrine of necessity. Justice Mathew, on the other hand, has stated that the Commissioner cannot initiate a proposal for lease in favour of relations and then invoke the doctrine of necessity to justify his sitting in judgment over it. Reading charge No. 4 in the light of the allegations and facts elicited in the course of inquiry, I am unable to hold that there is any patent lack of jurisdiction. Whether it was the petitioner who initiated the proposals in this case is a matter of evidence and cannot be gone into at this stage. It was open to the Government to take disciplinary proceedings against the petitioner in respect of his act or omission which would cast a reflection upon his reputation for integrity or devotion to duty as a member of the service. If a person conducts himself in a way inconsistent with the faithful discharge of his duty as a public servant it would amount to misconduct. 25. Both the learned Judges have agreed in holding that there has been a valid initiation of disciplinary proceedings and that the various objections raised against the validity of the disciplinary proceedings are not tenable; then it follows on this view of the law that in subsequent stages of the enquiry also no question of want of jurisdiction can arise. Even if there are defects in the formulation of the charges or in the allegations referred to or that in respect of any particular charge there is no sufficient evidence to sustain that charge, no question of want of jurisdiction can arise. Want of evidence on matters of facts cannot possibly take away jurisdiction. They are matters which the Inquiry Authority and the Government have to take note of in dealing with the question as to whether a particular charge is proved and can be sustained. They are matters which are incidental to the exercise of jurisdiction legally vested in the Inquiry Officer. They are matters which the Inquiry Authority and the Government have to take note of in dealing with the question as to whether a particular charge is proved and can be sustained. They are matters which are incidental to the exercise of jurisdiction legally vested in the Inquiry Officer. We cannot confuse defects, if any, in the charges, with lack of jurisdiction. If this distinction is kept in mind and we do not embark on an exhaustive examination of the charges or the evidence in support of the charges at this stage, it can be seen that there is no jurisdictional defect calling for the issue of a writ of prohibition. 26. It was stated by the learned counsel for the petitioner that a writ of prohibition would lie not only against patent lack of jurisdiction but also in cases where there is a contravention of statutory or other laws or legal principles, or there is violation of the rules of natural justice or where the conclusion is reached on no evidence. Decisions have been cited by learned counsel on both sides, but both the learned Judges, Velu Pillai and Mathew, JJ., have proceeded on the basis that they were considering only the question whether there was patent lack of jurisdiction. Mathew, J., has stated: "As regards other grounds which do not raise any patent lack of exercise of jurisdiction but which are concerned with mere errors in the course of the proceedings alleged to have been committed by the Inquiry Officer, I do not think it proper to deal with them." Velu Pillai, J., has also taken the same view and it was on this ground that the learned Judge found that some of the charges cannot be enquired into. When dealing with the matter on a reference, I am afraid, I can only consider whether there are any such patent lack of jurisdiction which would take away the right of the Government to continue the disciplinary proceedings in respect of any of the charges. The relief asked for by the petitioner is for a writ of prohibition. When dealing with the matter on a reference, I am afraid, I can only consider whether there are any such patent lack of jurisdiction which would take away the right of the Government to continue the disciplinary proceedings in respect of any of the charges. The relief asked for by the petitioner is for a writ of prohibition. A writ of prohibition is an order directed to an inferior tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws, of the land, statutory or otherwise (vide the decision in East India Commercial Co. Ltd., Calcutta v. Collector of Customs, Calcutta AIR 1962 SC 1893 at 1903. Writ of prohibition and writ of certiorari are usually issued at different stages of the proceedings. When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a writ of prohibition, and on that, an order will issue forbidding the inferior court from continuing the proceedings. But where a court has jurisdiction to entertain an application, it does not lose its jurisdiction by coming to a wrong conclusion, whether it be wrong in law or in fact. It does not lose its jurisdiction even if its conclusion on any aspect of its proper field of inquiry is entirely without evidential support for the question whether a tribunal his jurisdiction or not depends not on the truth or falsehood of the facts into which it has to inquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable at the commencement, not at the conclusion of the inquiry. 27. Nobody can seriously doubt the importance and necessity of proper disciplinary action being taken against Government servants for proved misconduct or abuse of power. Such action is absolutely necessary in the interests of general public for serving whose interests the Government machinery exists and functions. 27. Nobody can seriously doubt the importance and necessity of proper disciplinary action being taken against Government servants for proved misconduct or abuse of power. Such action is absolutely necessary in the interests of general public for serving whose interests the Government machinery exists and functions. This court will undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court at this stage in a writ of prohibition. These are matters which it would be open to the petitioner to urge in showing that the finding provisionally arrived at by the Union Government is not correct. (vide the decisions in Union of India v. Goel AIR 1964 SC 364 and The State of Assam v. Bimal Kumar Pandit AIR 1963 SC 1612 ). The report of the Inquiry Officer is only a fact finding inquiry and Ext. P-9 does not embody a final decision. I am not prepared to agree with the learned counsel that the second opportunity is after all chimerical and illusory. For all these reasons, I agree with the conclusions reached by Mathew, J., and find no good grounds for the issue of a writ of prohibition. The petition has only to be dismissed. ORDER OF COURT Under S.23 of the Travancore - Cochin High Court Act, 1125, the order has to follow the opinion of the majority of the Judges who have heard this case. We accordingly dismiss this petition. There will be no order as to costs.