PETITIONER: SALIM ZIA Vs. RESPONDENT: STATE OF U.P. DATE OF JUDGMENT24/11/1978 BENCH: <NAME>, JASWANT BENCH: <NAME>, JASWANT REDDY, O. CHINNAPPA (J) CITATION: 1979 AIR 391 1979 SCR (2) 394 1979 SCC (2) 648 ACT: <ORG> , 1970,. Sec. 2(a) & Indian Penal Code , 1860 (Act 45 of 1860), Sec. 302-Accused firing at the deceased resulting in instant death-Accused claiming right of private defence of person, property-Onus 15 on accused may be discharged 'by establishing a mere preponderance of probabilities either in the cross-examination of prosecution witnesses or by adducing defence evidence. Appeal against. acquittal-Reversing the order of acquittal Principles, criteria and guidelines. HEADNOTE: The appellant's father one <NAME> leased out an acre of paddy growing land to the deceased. The prosecution alleged that while the deceased was harvesting the crop, the appellant and his brothers went to the field armed with a gun. There had Been some exchange of words between the appellant and the deceased as regards the share of the produce as agreed to between the deceased and the appellant's father. The appellant was alleged to have fired. at the deceased killing him on the spot. Accepting the appellant's version contained in a report stated to have been lodged by him at the police station ten minutes before the First Information Report was lodged, the Sessions Judge acquitted the appellant. The report stated that on the day of the occurrence the deceased was stealing paddy bags from the appellant's field and on seeing him (the appellant) the deceased fired from a revolver which hit the appellant on the right thigh and that finding that the deceased was determined to kill him the appellant fired two or three rounds with his gun which hit the deceased. On appeal by the State, <ORG> set aside the acquittal of the appellant and convicted and sentenced him to imprisonment for life. On Further appeal to this Court under s. 2 (a) of the <ORG> , 1970 it was contended on behalf of the appellant that <ORG> had acted with material irregularity in ignoring the guidelines laid down by this Court for interfering 'with the judgment and order of acquittal and convicting the appellant without referring to the conclusions correctly arrived at by the Sessions Judge and secondly the appellant was fully justified in opening fire in exercise of the right of private defence. Dismissing the appeal, ^ HELD: 1 (a) <ORG> was fully justified in reversing the order of acquittal of the appellant which was erroneously made by the Sessions Judge on the basis of surmises, and conjectures and in convicting him specially 395 when the prosecution story that the appellant fired at the deceased without any justifiable provocation was established to the hilt by the evidence of a number of prosecution witnesses who even according to the Sessions Judge gave a true account of the occurrence. [404D] (b) The legal position emerging from a long line of decisions starting with Sheo Swarup v. king Emperor. 61 I.A. 398 is: "<ORG> in an appeal against an order of acquittal under s. 417 of the Code of Criminal Procedure, 1898 has full power to review at large, the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence, the order of acquittal should be reversed." [403B-D] 2. The different pharaseology used in the judgments of this Court such as (a) substantial and compelling reasons; (b) good and sufficiently cogent reasons; (c) strong reasons; are not intended to curtail or place any limitation on the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion as stated above but in doing so it should give proper consideration to such matters as (i) the views of the trial judge as to the credibility of the witnesses (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he had been acquitted at his trial, (iii) the right of the accused to the benefit of any real and reasonable doubt and (iv) the slowness of an appellate court in disturbing la finding of fact arrived at by a judge who had the advantage, of seeing the witnesses. [403E- <CITATION> . AIR 1945 PC 151; <CITATION> ,  3 SCR 120, <CITATION> .,  3 SCC 474; Gopi Nath Ganga Ram Ram Surve & Ors. v. State of 11 Maharashtra,  3 SCC 627; <CITATION> .,  2 SCC 216: <CITATION> ,  2 SCC 424: <CITATION> ,  3 SCC 494; Barati v. State of U.P.,  4 SCC 258; referred to. (c) In the present case it cannot be said that <ORG> has lost sight of the principles laid down by this Court with regard to the disposal of appeals against acquittal. [404A] 2.(a) on the basis of expert medical evidence <ORG> come to the conclusion that the injuries on the person of the appellant were not gun shot injuries and could not be caused with a revolver but were fabricated to look like gun shot wounds for the purpose of creating a defence.  (b) The burden on the accused to establish the plea of self-defence is not as onerous as the one which lies on the prosecution. It is the prosecution which is required to prove its case beyond reasonable doubt and the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probability either by laying basis for that plea in cross-examination of prosecution witnesses or by adducing defence evidence [401H-402B] 396 In the instant case, however the appellant has not discharged that burden either by adducing any defence evidence or by eliciting from the prosecution witnesses the existence of facts and circumstances satisfying the requisite test of preponderance of probability entitling him to exercise the right of private defence either of person or property. [402C] <CITATION> ., AIR 1976 SC 966. <CITATION> ,  2 SCR 455; referred to. (c) The appellant has not been able to establish that the paddy field belonged to him or that it had not been leased out by him to the deceased on 'Ahdhiya ghalla batai' basis or that the deceased committed theft or attempted to commit theft of paddy, to which he i.e. the appellant was lawfully entitled. [402D] (d) The appellant has also not established that it was the deceased who fired any shot at him from the revolver and it was only in self-defence that he fired the shots from the gun in his possession which resulted in the death of the deceased. [402E] JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 213, 237 and 238 of 1977.

Appeal under Section 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and by Special Leave from the Judgment and order dated 13-4- 77 of <ORG> in Govt. Appeal Nos. 637/71 and Cr. A. No. 14/71 and Govt. A. No. 621/71.

<NAME>, <NAME>, <NAME> and <NAME> for the Appellant.

<NAME> for the Respondent.

The Judgment of the Court was delivered by <NAME> J. The above noted three appeals, the first two out of which viz. Criminal Appeal No. 213 of 1977 under section 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and Criminal Appeal No. 237 of 1977 by special leave challenge the reversal of acquittal and conviction of <NAME>, appellant under section 302 of the Indian Penal Code and section 27 of the Arms Act and the last one whereof viz. Criminal Appeal No. 238 of 1977 by special leave challenges the affirmance of conviction of the appellant under section 25 of the Arms Act will be disposed of by this judgment as they are all directed against the judgment and order dated April 13, 1977 of <ORG>.

Briefly stated, the case as put forth by the prosecution was that <NAME>, the father of the appellant who migrated to Pakistan and is now a Pakistani national, owned a big farm measuring approximately 250 acres in villages Hamid Nagar and Parbatbans within the jurisdiction of <ORG>, Bilaspur, District Rampur. Out of the said area of the farm, <NAME> had leased out one acre of paddy growing land to <NAME>, deceased, the son of <NAME> (P.W. 17) who was a Mistri or Mechanic by profession on 'Ahdhiya ghalla batai' basis in lieu of his services for maintaining in working order the hand pumps installed by the former for irrigating the farm. On November 11, 1969, the appellant armed himself with a 12 bore double barrel gun belonging to his uncle, <NAME>, and accompanied by his younger brothers, <NAME> and <NAME> who have since been acquitted, went to the aforesaid field where the deceased was harvesting and thrashing the crop raised by him and told the latter that this time he would be allowed only one third and not one half of the produce. Thereupon the deceased protested asserting that he was entitled to half of the produce as agreed to between him and the appellant's father and that cruelty and injustice should not be perpetrated on him. Annoyed at the audacity of the deceased, the appellant's aforesaid brothers started hurling abuses at the deceased and exhorted the appellant to finish the deceased without being deterred by the consequences which they right have to face Thereupon, the appellant fired four shots at the deceased from his aforesaid gun as a result whereof the deceased fell down and died on the spot. Intimation of the incident was sent by <NAME> (P.W. 1) to <NAME> (P.W. 17), the father of the deceased through <NAME> (P.W. 7). On his return after apprising <NAME> of the incident, <NAME> was deputed by <NAME> to carry the report (Exh. Ka. 1) which he got written by <NAME> (P.W. 11 ) to the <ORG>, Bilaspur where it was lodged at 5.10 P.M. When <NAME> reached the <ORG>, he found the appellant already present over there. On receipt of Exhibit Ka. <NAME> (P.W. 18) registered a case under section 302 of the Penal Code and repaired to the scene of occurrence after sending the appellant to <ORG> at Bilaspur for examination of the injuries on his person and recording his statement. On arrival at the place of occurrence, <NAME> prepared the inquest report and sent the dead body of the deceased for postmortem examination to <ORG> at Rampur where Dr. <NAME>, M. O. In-charge of the Hospital conducted the autopsy and found the following injuries on the body of the deceased:-

"1. Multiple lacerated gun shot wounds of entry in an area 2"x1/2" on front and outer side of right thigh lower part. The wounds are oval and congested and margins are inverted. Size 1/2x1/2x depth to wounds of exit near hip.

2. Multiple lacerated gun shot wounds of exit in an area 2 1/2"x2"" on back of right thigh lower part and back of right knee joint. The margins of wound are averted. Size 1/2x1/2, There is fracture of thigh bone in its lower part in injuries 1 and 2.

3. Lacerated gun shot wound of entry with inverted and tattooed margins 1 1/4"x1 1/4" x depth wound of exist in abdominal wall near it right side upper joint abdominal wall.

4. Lacerated gun shot wound of entry 1/2"x1/4"x depth upper from abdominal wall 1 1/2" to margin injury No. 3. Inverted and tattooed margins.

5. Lacerated gun-shot wound of exit with averted margins right side of abdominal wall 1 1/4" to injury No. 4 with a loop of small intestine coming out.

6. Lacerated gun shot wound exit with averted margins on right side abdominal wall 11 above and behind injury No. 5 size 1/4"x1/4"x abdominal vacity deep.

7. Lacerated gun-shot would 4 1/4"x2 1/4"x thickness of right palm. Entry palmer side with inverted margins and exit on back of hand with averted margins with fractures of matacarpals of little and ring fingers.

8. Multiple gun-shot wounds in an area 7 1/2x4"

on front and outer side of right shoulder and right arms, wounds of entry. With a central wound 1 1/4"x1/4"x2" surrounded by many small wounds 1/10"x1/10" and varying depths. 16 shots recovered.

9. Lacerated gun-shot wound of entry 1 1/4"x1"x cranial cavity deep on right side back of head 11" behind right ear brain flowing out".

On internal examination of the dead body, the Doctor found all bones of the vault and base of skull fractured. He also found not only the brain membranes but the brain itself lacerated and flowing out of the surface injury. He took out 15 pellets and one piece of wad out of the brain. He also found the membrane of the abdomen ruptured. According to the Doctor, the death of the deceased was due to coma as a result of gun-shot injury on the head. On the basis of dispersal of shot and tattooing and the shape of wounds the Doctor opined that the aforesaid injuries were not caused from a distance of 15 to 20 paces but were caused from a close distance.

After usual investigation, the appellant and his aforesaid two brothers were proceeded against in the Court of Additional District Magistrate (J), <NAME>, who committed them to <ORG> to stand their trial under section 32 and section 302 read with section 34 of the Indian Penal Code respectively. At the said trial, the prosecution examined 18 witnesses including <NAME>, <NAME>, <NAME>, <NAME>, Mst. <NAME> and <NAME> who claimed to be the eye witnesses of the occurrence. By his judgment and order dated December 23, 1970, the Sessions Judge while observing that he was inclined to think that the prosecution story was true accepted the appellant's version contained in Exhibit Ka-13 said to have been lodged by him at the Police Station, Bilaspur about ten minutes prior to the report (Exh. Ka 1) to the effect that he had gone on a round of his Father's farm at about 4.00 P.M. carrying with him his uncle's double barrel 12 bore gun; that on reaching his field in Parbatbans, he saw <NAME> deceased and <NAME> stealing his paddy bags; that at that time <NAME> of <NAME>, <NAME> alias Anis and <NAME> of village Koela were working in the vicinity of that place; that seeing this, he challenged <NAME> and <NAME> whereupon <NAME> fired at him from a revolver hitting him on the right thigh; that he remonstrated with <NAME> who fired another shot at him which grazed past his left thigh and that finding that <NAME> was determined to kill him and there was no hope of escape, he fired two or three shots from his uncle's gun which he was carrying in consequence whereof <NAME> fell down and <NAME> ran away and that taking away the revolver from <NAME>'s hand, he had reached the Police Station in the tractor driven by his brother, <NAME>. The Sessions Judge acquitted the appellant and his brothers giving them the benefit of doubt observing that the prosecution had failed to adequately demolish the defence version which left a reasonable doubt that the prosecution might have suppressed the revolver used by <NAME> and that the appellant had fired in the exercise of the right of private defence. On appeal, <ORG> set aside the acquittal of the appellant rejecting the defence version and convicted him as stated above and sentenced him to life imprisonment under section 302 of the. Indian Penal Code and three years rigorous imprisonment under section 27 of the Arms Act maintaining his conviction and sentence of one year's rigorous imprisonment under section 25 of the Arms Act. It is against this judgment and order of <ORG> that the present appeals are directed Appearing in support of the appeals, Mr. <NAME> has vehemently urged that <ORG> has acted with material irregularity in ignoring the guidelines repeatedly laid down by this Court for interfering with the judgment and order of acquittal and convicting the appel-

lant without referring to the conclusions, which in the proved circumstances of the case, had been correctly arrived at by the Sessions Judge. He has further urged that the genesis of the prosecution story not having been established and the deceased who was seen stealing the bags of paddy having opened fire at the appellant, the latter was full justified in firing back at the deceased in exercise of the right of private defence. He has also urged that the F.I.R. (Exh. Ka. 1) which was unduly delayed (and could not have reached the Police Station at 5.10 P.M. as sought to be made out by the prosecution) threw a grave doubt on the veracity of the prosecution story.

We have given our anxious consideration to the submissions of the counsel for the appellant but find ourselves unable to accede to the same. Two inextricably linked up questions that fall for consideration in this case in view of the stand of the appellant are whether the two in juries viz. (1) lacerated wound 1 cm x 1 cm x muscle deep on medial side of left thigh in its middle with inverted margins but without any scorching, tattooing or blackening and (2) lacerated wound 1/4cmx1/4cm x muscle deep on the middle and back of left thigh, inner side with averted margins but without any scorching, tattooing or blackening stated by D.W. 1, Dr. K. L. Verma. Medical officer, <ORG>, to have been observed by him on the person of the appellant at 6.00 P.M. On November 11,1969 were caused as a result of shots fired from revolver (Exh.

4) in the course of the same occurrence which resulted in the death of the deceased and whether the appellant was protected by the right of private defence of person or property.

In regard to the first question, <ORG> has after careful scrutiny of the, depositions of <NAME>, Dr. <NAME>, and Dr. <NAME>, Chief Medical officer, Lucknow whom it examined as an expert under section 391 of the Code of Criminal Procedure come to the conclusion that the above noted injuries were not gun shot injuries and could not be caused with revolver (Exh. 4) and were fabricated to look like gun shot wounds for the purpose of creating a defence. It has rightly pointed out that there is no mention in the injury report (Ex. Kha. II) prepared by Dr. <NAME> after examination of the person of the appellant that the said injuries were through and through or communicating wounds and that since Dr. <NAME> admittedly did not try to as certain by use of probe whether they were communicating injuries or not, he could not be expected to give a categoric opinion about their character merely on the basis of the condition of their margins or edges. <ORG> has also correctly pointed out that the aforesaid injuries on the person of the appellant were not gun shot wounds as usually the entrance wound in fire arm injuries is smaller and the exit wound is bigger but curiously enough this was not the case here. <ORG> has also rightly found that the aforesaid injuries on the person of the appellant could not be gun shot wounds as the exit wound was not only smaller in dimension than the entry wound but was also smaller in dimension than the size of the cartridge (Exh. 7) taken out of the revolver (Exh. 4) which according to the appellant was used by the deceased for causing injuries on his person. The observations of <ORG> receive ample confirmation from the statement of Dr. <NAME> which appears to have been based on his personal experience and notable works on Medical Jurisprudence and Toxicology by celebrated authors like <NAME>, <NAME>, <NAME> and others that in case of a bullet injury except where the bullet gets fragmented after entering the body and only a portion thereof passes out of the exit wound or the bullet remains embedded in the body and does not pass out in the normal course and is subsequently taken out or except in case of a point blank wound (which is not the case of defence), it is practically and usually not possible that the size of the wound of exit may be smaller than the diameter of the bullet. On being shown the aforesaid bullet (exh. 7) Dr. <NAME> stated that if the diameter of the bullet is .8 cm it could not usually cause the exit wound described as injury No. 2 in Exhibit Kha. II unless the bullet got fragmented inside the body or only a small length thereof pierced and made the exit wound. Dr. <NAME> has also expressly stated that considering the data as given in Exhibit Kha. II it is doubtful that the aforesaid two injuries claimed by Dr. <NAME> to have been observed by him on the person of the appellant were bullet injuries. Thus the forensic medicine expert evidence in respect of the characteristics of the wounds said to have been observed on the person of the appellant rules out the case of the infliction of the injuries on the person of the appellant by revolver (Exh. 4).

That these injuries were caused in the course of the same incident which resulted in the death of the deceased also seems to be highly improbable in view of the statement of <NAME>, Investigating Officer, who reached the scene of occurrence within an hour of the lodging of the report (Exh. Ka. I) that he did not even on search find any blood at any place except in front of or underneath the body of the deceased.

This takes us to the consideration of the other crucial question viz. whether the appellant was protected by the right of private defence of person or property. It is true that the burden on all accused person to establish the plea of self defence is not as onerous as the one which lies on the prosecution and that while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying a basis for that plea in the cross-examination of prosecution witnesses or by adducing defence evidence. ( <CITATION> (1) and <CITATION> (2). In the instant case, however, the appellant has not discharged that burden either by adducing any defence evidence or by eliciting from the persecution witnesses the existence of facts and circumstances satisfying the requisite test of preponderance of probabilities entitling him to exercise the right of private defence either of person or of property.

In relation to the right of private defence of property, it may be observed that the appellant has not been able to establish by producing any witness in defence or by eliciting from the prosecution witnesses the aforesaid paddy field belonged to him or that it had not, as stated by <NAME> (P.W.17), <NAME> (P.W.1) and <NAME> (P.W.7), been leased out by the appellant's father to the deceased on 'Ahdhiya ghalla batai' basis or that the deceased and <NAME> (P.W.1) committed theft or attempted to commit theft of the paddy to which he was lawfully entitled.

The appellant has also not established by examining any of the three witnesses alleged by him in his report (Exh. Ka. 13) to be working in the vicinity of the place of occurrence or by eliciting from the eye witnesses produced by the prosecution or summoned and examined by the Court that <NAME> deceased-fired any shot at him from revolver (Exh. 4) and that it was only in self defence that he fired the shots from the gun in his possession which resulted in the death of the deceased. <NAME> (P.W.7) has in answer to a question put to him in cross-examination emphatically denied that <NAME> deceased was armed with a revolver or that he fired any shot in the course of the incident which resulted in his death. <NAME> (P.W.1) has also unequivocally stated in cross-examination that <NAME> deceased did not use any revolver at the spot and that neither he nor <NAME> committed any theft of the paddy as alleged by the appellant. Even <NAME> and Mst. <NAME> who were examined as Court witnesses have clearly stated that <NAME> did not fire any pistol at the spot. It is, therefore, crystal clear that the Sessions Judge grossly erred in assuming that the appellant was fired at by <NAME> and that it was in exercise of the right of private defence that he in turn fired at <NAME> to save his own life.

(1) A.I.R. 1976 S.C. 966.

(2) [1960] 2 S.C.R. 455.

Let us now examine the contention of counsel for the appellant that in reversing the order of acquittal and convicting the appellant under section 302 af the Indian Penal Code and section 27 of the Arms Act, <ORG> ignored the principles laid down by this Court for interference with the orders of acquittal. The scope and powers of the appellate court in an appeal against acquittal were clearly defined by <ORG> in <CITATION> (1) and <CITATION> (2) which received the stamp of approval of this Court in <CITATION> (3) <CITATION> (4) Gopi Nath Ganga Ram Surve & Ors. v. State of Maharashtra(5) <CITATION> .(6) <CITATION> (7) <CITATION> (5) and <NAME> v. State of U.P.(9). The legal position emerging from these decisions may be summarised thus:

"1. <ORG> in an appeal against an order of acquittal under section 417 of the Code of Criminal Code, 1898 has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence, the order of acquittal should be reversed.

2. The different phraseology used in the judgments of this Court such as-

(a) 'substantial and compelling reasons';

(b) 'good and sufficiently cogent reasons';

(c) 'strong reasons', are not intended to curtail or place any limitation on the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion as stated above but in doing so it should give proper consideration to such matters as (i) the views of the trial Judge as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he: has been acquitted at his trial, (iii) the (1) 61 I.A.398.

(2) A.I.R.1945 P.C.151.

(3) [1961] 3 S.C.R.120.

(4) [1970] 3 S.C.C.474.

(5) [1970] 3 S.C.C.627.

(6) [1973] 2 S.C.C.216.

(7) [1973] 2 S.C.C.424.

(8) [1974] 3 S.C.C.494.

(9) [1974] 4 S.C.C.258.

<NAME>

right of the accused to the benefit of any real and reasonable doubt; and (iv) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

We have perused the impugned judgment with care but do not think that the principles laid down by this Court in the above mentioned decisions with regard to disposal of acquittal appeals were lost sight of by <ORG> The appellant's version that the injuries observed on his person by Dr. <NAME> on November 11, 1969 were the result of shots fired by the deceased from revolver (Exh. 4) not having been established and the appellant having admitted that he fired two or three shots at the deceased, <ORG> was fully justified in reversing the trial court's order of acquittal of the appellant which was erroneously made by the Sessions Judge on the basis of surmises and conjectures and convicting him specially when the prosecution story that the appellant fired at the deceased without any justifiable provocation was established to the hilt by the evidence of a number of prosecution witnesses who even according to the Sessions Judge gave a true account of the occurrence.

In the result, we do not find any merit in these appeals which are dismissed. As the appellant appears to be on bail, he will surrender himself to his bail bond to undergo the unexpired portion of his sentence.

Before parting with the file,, we would like to observe that since the appellant's statement under section 342 of the Code of Criminal Procedure shows that he is a novelist and has made valuable contribution to enrich the Urdu literature, the <ORG> may consider the desirability of giving him a special class and entrusting such work to him during his incarceration as may help sustain his aforesaid interest, promote his creative genius and result in his emancipation.

N.V.K. Appeal dismissed.


PETITIONER: S. GOVINDA MENON Vs. RESPONDENT: THE UNION OF INDIA & ANR. DATE OF JUDGMENT: 02/02/1967 BENCH: <NAME>, V. BENCH: <NAME>, V. WANCHOO, K.N. CITATION: 1967 AIR 1274 1967 SCR (2) 566 CITATOR INFO : R 1971 SC 823 (11) E 1972 SC 554 (15,16,17,62) RF 1979 SC1022 (11) ACT: All India <ORG>s (Discipline and Appeal Rules), 1955--rr. 4(1), 5(2), 7(1). Madras <ORG> Act XIX of 1951, ss. 20 , 29 , 80 , 81 , 99 , 100 (2) (m). <ORG> servant acting in capacity of 'Corporation sole'--Allegations of misconduct in discharge of duties- Whether disciplinary proceedings can be taken against him under r. 4(1)--Or whether his decisions can only be questioned in appeal or revision-Whether suspension under r. 7(1) can be ordered only after framing of charges under r. 5(2)-Whether leases for over five years required to be by public auction-Whether Commissioner can himself initiate proposals of leases. HEADNOTE: While the appellant, who was a member of <ORG> and the First Member of <ORG>, Kerala State, was holding the post of Commissioner of <ORG>, certain complaints were made against him relating to the grant of certain leases. <ORG> instituted disciplinary proceedings against him and placed him under suspension under Rule 7 of the All India <ORG>s (Discipline and Appeals) Rules, 1955. An Enquiry Officer was thereafter appointed under Rule 5 to investigate the charges. The appellant filed a petition for the grant of a writ of certiorari to quash the proceedings initiated against him and for a writ of mandamus calling upon <ORG> to permit him to function as the First Member of <ORG>. In the meantime, the Enquiry Officer having submitted a report to <ORG> finding the appellant guilty of some of the charges. a show cause notice was issued to him. At this stage the appellant applied for and obtained an amendment of his writ petition and by the amended petition sought a writ of prohibition restraining <ORG> from proceeding further upon and for quashing the show cause notice. The writ petition was dismissed by <ORG>. In appeal to this Court, it was contended, inter alia for the appellant (i) that in view of s. 80 of Madras Act XIX of 1951 which provides that the Commissioner shall be a Corporation sole, a person acting in the capacity of a Commissioner is not a <ORG> servant and there was therefore no jurisdiction to take disciplinary proceedings against him under Rule 4(1); (ii) that the Commissioner was exercising aquasijudicial function in sanctioning leases under the Act which were the subject matter of the complaints against him : his orders could therefore only be questioned in appeal as provided under s. 29(4) of the Act or examined by the <ORG> in revision under s. 99 and not by the executive <ORG>al through disciplinary proceedings; (iii) that the main charge against the appellant was not sustainable : there was nothing improper in his having sanctioned leases for over five, years without auction or in his having initiated proposals for leases in favour of specified individuals; (iv) that the proceedings under Rule 4(1) were invalid as there was no formal order 567 instituting these proceedings and (v) that the appellant could not be suspended until after charges had been framed against him. HELD : No case had been made out for the grant of a writ of prohibition under Art. 226. The King v. <NAME>  1 K.B. 491; <NAME> v. Comptroller- General of Patents and Designs  2 W.L.R. 760, 765; <ORG> v. <NAME> 59 C.L.R. 369, referred to. (i) Even if the appellant was not subject to the administrative control of the <ORG> when he was functioning as Commissioner, his act or omission as Commissioner could form the subject-matter of disciplinary proceedings under Rule 4(1) provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the <ORG>. [574 B] <NAME> v. <NAME> 17 Q.B.D. 536, 542; referred to. There was no force in the contention that the Commissioner has a separate legal personality as corporation sole and is therefore exempt from disciplinary proceedings. [575 F] (ii) The allegations against the appellant were to the effect that in exercising his powers as Commissioner, he acted in abuse of his powers and it was in regard to such misconduct that he was being proceeded against. Therefore, although the propriety and legality of the sanction to the leases may be questioned in appeal or revision under the Act, the <ORG> was not precluded from taking disciplinary action for misconduct if this was called for. [577 H] (iii) The contention that the main charge against the appellant was not sustainable must be rejected. The Commissioner has no authority to sanction any leases without auction. Rule 1 requiring public auction framed under s. 100(2)(m) covers all leases and there is no exception in respect of leases exceeding 5 years failing within the scope of s. 29(1) . Furthermore, the Commissioner has no power under s. 20 to initiate specific proposals for lease of the trust properties. [579 A--C] (iv) The contents of the order instituting disciplinary proceedings under Rule 4(1) showed that the <ORG> had accepted the proceedings :taken up to then and decided to go forward with the-disciplinary proceedings. There was therefore no formal order necessary to initiate disciplinary proceedings under Rule 4(1) of the Rules and the order passed by <ORG> must be deemed to be an order under Rule 1 of the Rules initiating disciplinary proceedings. [580 F; 581 E, F] (v) It cannot be said that the suspension of the appellant under Rule 7 'Could only be ordered after- charges had been framed against him in :accordance with Rule 5(2). The framing of the charges under Rule 5(2) is necessary to enable the member of the service to, meet the case against him-whereas under s. 7(1) the <ORG> may place him under suspension if satisfied that this is necessary having regard to the nature of the charges -and the circumstances of the case. The word ",charges" in Rule 7(1) should be given a wider meaning as denoting the accusations or imputations against the member of the <ORG>. [582 D-F] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1366 of 1966.

Appeal from the judgment and order dated January 5, 1966 of <ORG> in Original Petition No.1 of 1964. The appellant appeared in person.

<NAME> and <NAME>, for respondent No. 1. <NAME>, <NAME>, <NAME>, <ORG> and <NAME>, for respondent No. 2.

The Judgment of the Court was delivered by <NAME>, J. This appeal is brought, by certificate, against the judgment of <ORG> dated January 5, 1966 dismissing Original Petition No.1 of 1964 filed by the appellant.

The appellant, <NAME> is a member of <ORG>. He was the First. Member of <ORG>, Kerala State and was holding the post of Commissioner of <ORG>. On the basis of certain petitions containing allegations of misconduct against the appellant in the discharge of his duties as Commissioner <ORG> instituted certain preliminary enquiries and thereafter started disciplinary proceedings against the appellant and also placed him under suspension under rule 7 of the All India Services (Discipline and Appeal) Rules, 1955, hereinafter called the 'Rules'. A copy of the charges together with a statement of certain allegations was served on the appellant who thereafter filed a written statement of defence. After perusing the written statement the Government passed orders that his explanation was unacceptable and that the charges should be enquired into by an Enquiry Officer to be appointed under rule 5 of the Rules. Accordingly Sri <NAME> a retired I.C.S. Officer was appointed to hold the inquiry. The appellant then filed the present writ petition before <ORG> Kerala praying for grant of a writ of certiorari to quash the proceedings initiated against, him and for a writ of mandwmus calling upon. respondent No. 2, State of Kerala, to allow him to function as the. First Member of <ORG>. As no application for stay was made and as no order of stay Was passed by <ORG> Sri <NAME> proceeded with the inquiry and submitted his report to <ORG> finding the appellant guilty of charges 1 to 4 and 9. The union of India, after consideration of the report, issued a 'Show Cause Notice' Ex. P-9. The appellant thereafter filed an application before <ORG> for amendment of the writ petition. The prayer in this amended petition was for the issue of a writ of prohibition restraining the first respondent <ORG>-from proceeding further in pursuance of the 'Show Cause Notice' and also for quashing the same. The application for amendment was allowed by <ORG>. The main contention of the appellant was that the proceedings initiated against him were entirely without jurisdiction as no disciplinary proceedings could be taken against him for acts and omissions with regard to his work as Commissioner under the Madras <ORG> Act , 1951 (Madras Act XIX of 1951), hereinafter called the 'Act' and that the orders made by him being of quasi-judicial character can be impugned only in appropriate proceedings taken under that Act. After hearing the arguments advanced on both sides, <ORG> rejected the objections raised by the appellant regarding want of jurisdiction and held that the, respondents had power to proceed with the inquiry into the charges. <NAME>, J. on the other hand, took the view that quasi judicial decisions became final and conclusive if they were not set aside or modified in the manner prescribed by the statute and if the decisions are not so challenged, their correctness or legality must be taken to be conclusive, and such quasi judicial decisions cannot form the subject-matter of charges in disciplinary proceedings against the appellant. <NAME> J. held that <ORG> had therefore no jurisdiction to proceed with the inquiry on the first part of charge 1, charge 2, the first part of charge 3 and charge 4, but <ORG> had jurisdiction to proceed with the inquiry with regard to the second part of charge No. 1, the second part of charge No. 3 and charge No. 9. In view of this difference of opinion the matter was placed before <NAME> who agreed with the view taken by <ORG> and in the result the writ petition of the appellant was dismissed.

It is necessary at this stage to set out the charges leveled against the appellant. Charges 1 to 4 relate mainly to the conduct of the appellant in sanctioning 30 leases regarding the private forest lands of 5 <ORG> and charge No. 9 concerns the refusal by the appellant to attend a conference convened by the Chief Secretary to consider certain important matters connected with the national emergency. In 17 of the leases relating to the first charge the period of the lease is 36 years. In one case the period is 96 years and in the rest of the leases the period of lease is 99 years. The total area covered by all the leases comes to over 50,000 acres. Charges 1 to 4 and 9 read as follows:

"1. That you, Shri <NAME>, I.A.S., while employed in the Government. Service as member, <ORG> and Commissioner, <ORG> from 1- 2-1957 to 19-10-1962 issued sanctions granting leases of extensive and valuable forest lands belonging to the Devaswoms under your control as Commissioner such as (1) Pulpally Devaswom, (2) Kallaikulangara Emoor Bhagavathi Temple, (3) Nadivilla Vallathu Devaswom, (4) Kottiyor Devaswom, (5) Mundayanparamba Devaswom etc., in utter disregard of the provisions in the Madras Hindu Religious and Charitable Endowment Act, 1951 and the rules issued thereunder. In several cases you had yourself initiated the proposals for leases which should have been made by the trustee and acted in judgment on them by sanctioning the leases. In many cases of the leases aforesaid and otherwise generally in regard to the control and supervision exercised by you over the 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 there by caused wrongful gain to the lessees and wrongful loss to the <ORG>.

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 autho- rity 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, <ORG> to bear upon him and influence the Collector in the performance of his statutory duty.

4. That you sanctioned the lease of extensive forest lands with valuable tree- growth belonging to various Devaswoms to your relations, neighbours and friends contrary to the provision in Rule 3 of the All India Services (Conduct) Rules 1954, which enjoins every member of the service to maintain absolute integrity in all official matters.

9. That on 29-10-1962 you refused to attend a conference of the Members of <ORG> and the Inspector General of Police which was called together by the Chief Secretary in the Secretariat to discuss important matters connected with the national emergency and was thereby guilty of gross dereliction of duty and of discourtesy to the Chief Secretary."

Section 20 of the Act provides that the administration of all religious endowments shall be subject to the general superintendence and control of the Commissioner; and that such superintendence and control shall include the power to pass any orders which may be deemed necessary for the proper administration of the endowments. Section 29 of the Act states that any sale, exchange or mortgage and any lease for a term exceeding five years of any immovable property belonging to any religious institution shall be -null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution, and the Commissioner shall, before according sanction, publish particulars of the proposed transaction, invite objections and consider them. Sub-section (3) provides for communicating a copy of the order granting sanction to the <ORG> and to the trustee. Sub-section (4) provides for an appeal against the order of the Commissioner to the <ORG> by the trustee or any person having interest. Section 99(1) states:

"99. (1) The Government may call for and examine the record of the Commissioner or any Deputy or Assistant Commissioner, of any Area Committee or of any trustee in respect of any proceeding, not being a proceeding in respect of which a suit or an appeal to a Court is provided by this Act, to satisfy themselves as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein; and, if, in any case, it appears to the Government that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, they may pass orders accordingly:

Provided that the Government shall not pass any order prejudicial to any party unless he has had a reasonable opportunity of making his representations."

The jurisdiction for grant of a writ of prohibition is primarily supervisory and the object of that writ is to restrain courts or inferior tribunals from exercising a jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine courts or tribunals of inferior or limited jurisdiction within their bounds. It is well-settled that the writ of prohibition lies not only for excess of jurisdiction or for absence of jurisdiction but the writ also lies in a case of departure from the rules of natural justice (See Halsbury's Laws of England, 3rd Edn., Vol. II, p. 114). It was held for instance by <ORG> in <NAME> that as the order of the judge of the consistory court of July 24, 1925 was made without giving the vicar an opportunity of being: heard in his defence, the order was made in violation of the principles of natural justice and was therefore an order made without jurisdiction and the writ of prohibition ought to issue. But the writ does not lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings. It is also well-established that a writ of prohibition cannot be issued to a court or an inferior tribunal for an error of law unless the error makes it go outside its (1) [1927] 1 K.B. 41 1.

jurisdiction (See <NAME> v. Comptroller-General of Patents and Designs,(1) and <ORG> v. Whyte(2). A clear distinction must therefore be maintained between want of jurisdiction and the manner in which it is exercised. If there is want of jurisdiction then the matter is coram non Judice and a writ of prohibition will lie to the court or inferior tribunal forbidding it to continue, proceedings therein in excess of its jurisdiction.

The first proposition put forward by the appellant is that the Commissioner is a corporation sole and not a servant of the Government and against a person acting in the capacity of a Commissioner the Government have no jurisdiction to take disciplinary proceedings. Reference was made to s. 80 of the Act which states that "the Commissioner shall be a corporation sole and shall have perpetual succession and a common seal and may sue and be sued in his corporate name." It was argued that the acts and omissions of the appellant in his capacity as Commissioner cannot be questioned in any disciplinary proceedings as the Commissioner is not a servant of the Government subject to its administrative control. Before examining this proposition it is necessary to consider rule 4 of the Rules which states:

"4. Authority to institute proceedings and to impose penalty:-

(1) Where a member of the Service has committed any act or omission which renders him liable to any penalty specified in rule 3

(a) if such act or omission was committed before his appointment to the service, the Government under whom be is for the time being serving shall alone be competent to institute disciplinary proceedings against him and, subject to the provisions of sub-rule (2), to impose on him such penalty specified in rule 3 as it thinks fit.

(b) if such act or omission was committed after his appointment to the Service, the Government under whom such member was serving at the time of the commission of such act or omission shall alone be competent to institute disciplinary proceedings against him and subject to the provisions of sub-rule (2), to impose on him such penalty specified in rule 3 as it thinks fit and the Government under whom he is serving at the time of the institution of such proceedings shall be bound to render all reasonable facilities to the Government instituting and conducting such proceedings. (1) [1953] 2 W.L.R. 760,765.

(2) 59 CL.R. 369.

(2) The penalty of dismissal, removal or compulsory retirement shall not be imposed on a member of the Service except by an order of <ORG>.

It is not disputed that the appropriate <ORG> has power to, take disciplinary proceedings against the appellant and that he could be removed from service by an order of <ORG>, but it was contended that I.A.S. Officers are governed by statutory rules, that 'any act or omission' referred to in rule 4(1) relates only to an act or omission of an officer when serving under the <ORG>, and that "serving under the <ORG>" means subject to ,the administrative control of the <ORG> and that disciplinary proceedings should be, therefore, on the basis of the relationship of master and servant. It was argued that in exercising statutory powers the Commissioner was not subject to the administrative control of the <ORG> and disciplinary proceedings cannot, therefore, be instituted against the appellant in respect of an act or omission committed by him in the course of his employment as Commissioner. We are unable to accept the proposition contended for by the appellant as correct. Rule 4(1) does not impose any limitation or qualification as to the nature of the act or omission in respect of which disciplinary proceedings can be instituted. Rule 4(1)(b) merely says that the appropriate <ORG> competent to institute disciplinary proceedings against a member of the <ORG> would be the <ORG> under whom such member was serving at the time of the commission of such act or omission. It does not say that the act or omission must have been committed in the discharge of his duty or in the course of his employment as a <ORG> servant. It is therefore open to the <ORG> to take disciplinary proceedings against the appellant in respect of his acts or omissions which cast a reflection upon his reputation for integrity or good faith or devotion to duty as a member of the <ORG>. It is not disputed that the appellant was, at the time of' the alleged misconduct, employed as the First Member of <ORG> and he was at the same time performing the duties of Commissioner under the Act in addition to his duties as the First Member of <ORG>. In our opinion, it is not necessary that a member of the <ORG> should have committed the alleged act or omission in the course of discharge of his duties as a servant of the <ORG> in order that it may form the subject-matter of disciplinary proceedings. In other words, if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is no actual master and servant relationship. To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the <ORG>; The -test is whether the act or omission has some reasonable connection with the nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the <ORG> for .integrity or devotion to duty as a public servant. We are of the opinion that even if the appellant was not subject to the administrative control of the <ORG> when he was functioning as Commissioner under the Act and was not the servant of the <ORG> subject to its orders at the relevant time, his act or omission as Commissioner could form the subject-matter of disciplinary proceedings provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the <ORG>. ,In this context reference may be made to the following observations ,of <NAME>, L. J. in <NAME> v. Foster(1) :

"If a servant conducts himself in a way inconsistent with the faithful discharge of hip duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time but also if he discovers it afterwards, in dismissing that servant."

It was also contended by the appellant in this connection that as the Commissioner was made a <ORG> sole under s. 80 of the Act as a separate and independent personality, he was not subject to the control of the Government and no disciplinary proceedings 'Could be initiated against him. We do not think there is any substance in this argument. It is true that the Commissioner has been made a <ORG> sole under s. 80 of the Act which states that the ,Commissioner shall have perpetual succession and a common seal and may sue and be sued in his corporate name. Section 81(1) of the Act provides for the establishment of a Fund called '<ORG>' and further states that the Fund shall vest in the Commissioner. It was argued for the appellant that the corporate entity created by s. 80 of the Act has a separate legal personality. But there is a juristic distinction between a <ORG> sole and a ;<ORG> aggregate and the <ORG> sole is not endowed with a separate legal personality as the <ORG> aggregate. As <NAME> said:

"If our corporation sole really were an artificial person created by the policy of man we ought to marvel at its incompetence. Unless custom or statute aids it, it cannot (1) 17 Q.B.D. 536, 542.

(so we are told) own a chattel, not even a chattel real. A different and an equally inelegant device was adopted to provide an owning 'subject' for the ornaments of the church and the minister thereof-adopted at the end of the Middle Ages by lawyers who held themselves debarred by the theory of corporations from frankly saying that the body of parishioners is a corporation aggregate. And then, we are also told that in all probability a corporation sole 'Cannot enter into a contract except with statutory authority or as incidental to an interest in land .......... Be that as it may, the ecclesiastical corporation sole is no juristic person'; he or it is either natural man or juristic abortion." (See 'Selected Essays of' Maitland" pp. 100 & 103).

<NAME> has also observed as follows "It was a device for transmitting real property to a, succession of persons without the necessity for periodic. conveyances. It was never intended that this device should' be erected into a psychological person with a developed existence of its own In dealing with a corporation sole, the courts have never treated it as a conception similar in essential characteristics to a corporation aggregate. They have restricted its utility to the transmission of real, or exceptionally, by custom, as in <NAME> v. <NAME>, and now by statute, personal property from one holder of an office, lay or ecclesiastical, to his successor" (See 'Elementary Principles of Jurisprudence' by <NAME>, 2nd Edn. pp. 155 &

We accordingly reject the contention of the appellant that the Commissioner has a separate legal personality as corporation sole under s. 80 of the Act and that he is exempt from disciplinary proceedings for any act or omission committed in his capacity as. Commissioner. In our opinion, the object of the legislature in enacting ss. 80 and 81 of the Act was to constitute a separate <ORG> and to provide for the vesting of that <ORG> in the Commissioner as a corporation sole and thereby avoid the necessity of periodic conveyances in the transmission of title to that <ORG>.

We next proceed to examine the contention of the appellant that the Commissioner was exercising a quasi-judicial function in sanctioning the leases under the Act and his orders cannot therefore be questioned except in accordance with the provisions of the Act. The proposition put forward was that quasi-judicial orders, unless vacated under the provisions of the Act are final and binding and cannot be questioned by the executive Government through disciplinary proceedings. It was argued that an appeal is provided under s. 29(4) of the Act against the order of the Commissioner granting.

sanction to a lease and that it is open to any party aggrieved to file such an appeal and question the legality or correctness of the order of the Commissioner and that the Government also may in revision under S. 99 of the Act examine the correctness or legality of the order. It was said that so long as these methods were not adopted the Government could not institute disciplinary proceedings and re-examine the legality of the order of the Commissioner granting sanction to the leases.

The first part of charge No.1 was that the appellant in utter disregard of the provisions of the Act and the Rules made thereunder, passed orders sanctioning the leases, in the cases mentioned in the statement of allegations. The relevant portion of the allegation reads as follows:

"You were the Commissioner <ORG> from 1-2-1957 to 19-10-62. Under section 29 of the Madras Hindu Religious and Charitable Endowments Act of 1951, any exchange, sale or mortgage and any lease for a term exceeding 5 years of any immovable property belonging to or given or endowed for the purpose of any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution. Under the proviso to the section, the particulars of the proposed transactions shall be published at least in one daily newspaper inviting objections and suggestions with respect. to the proposals and the suggestions and objections, if any, received should be considered by the Commissioner before the sanction is accorded. By the rules made under section 29 , clauses (1) and (3) of the Act, notice of the proposals for a lease for a period exceeding five years of immovable property belonging to a religious institution shall contain particulars of the nature of the proposed transaction, the correct description of the properties and information regarding the survey number, extent and boundaries, the probable price or the rental as the case may be. The rules made under section 100(2) of the Act provide that all leases of lands, buildings, sites or other immovable properties and rights belonging to a religious institution shall be made by public auction. Leases otherwise than by public auction should not be resorted to except with the previous sanction of the Deputy Commissioner. It follows from the above that the proposals for leasing out the <ORG> 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 <ORG>. After the Commissioner accords sanction further steps for leasing out the lands have to be taken by the trustee who is the lessor and the proposed lessee. Contrary to the above provisions leases were sanctioned by you in the following cases.

It is apparent that the first part of charge No.1 read with the relevant allegations is that in utter disregard of the provisions of s. 29 of the Act and the Rules and without being satisfied that the leases were beneficial to the <NAME> the appellant sanctioned them and this action of the appellant discloses misconduct, irregularity and gross recklessness in the discharge of his official duties. The charge is therefore one of misconduct and recklessness disclosed by the utter disregard of the relevant provisions of s. 29 and the Rules thereunder in sanctioning the leases. On behalf of the respondents it was argued both by Mr. <NAME> and Mr. <NAME> that the Commissioner was not discharging quasi-judicial functions in sanctioning leases under s. 29 of the Act, but we shall proceed on the assumption that the Commissioner was performing quasi- judicial functions in granting leases under s. 29 of the Act. Even upon that assumption we are satisfied that the Government was entitled to institute disciplinary proceedings if there was prima facie material for showing recklessness or misconduct on the part of the appellant in the discharge of his official duty. It is true that if the provisions of s. 29 of the Act or the Rules are disregarded the order of the Commissioner is illegal and such an order could be questioned in appeal under s. 29(4) or in revision under s. 99 of the Act. But in the present proceedings what is sought to be challenged is not the correctness or the legality of the decision of the Commissioner but the conduct of the appellant in the discharge of his duties as Commissioner. The appellant was proceeded against because in the discharge of his functions he acted in utter disregard of the provisions of the Act and the Rules. It is the manner in which he discharged his functions that is brought up in these proceedings. In other words, the charge and the allegations are to the effect that in exercising his powers as Commissioner the appellant acted in abuse of his power and it was in regard to such misconduct that he is being proceeded against. It is manifest therefore that though, the propriety and legality of the sanction to the leases may be questioned in appeal or revision under the Act, the Government is not precluded from taking disciplinary action if there is proof that the Commissioner had acted in gross recklessness in the discharge of his duties or that he failed to act honestly or in good faith or that he omitted to observe the prescribed conditions which are essential for the exercise of the statutory power. We see no reason why the Government cannot do so for the purpose of showing that the Commissioner acted in utter disregard of the conditions prescribed for the exercise of his power or that he was guilty of misconduct or gross negligence. We are accordingly of the opinion that the appellant has been unable to make good his argument on this aspect of the case. We pass on to consider the next contention of the appellant that the first part of charge No.1 is not sustainable because the only rules said to have been violated was the rule regarding auction. It was argued that the rule regarding auction did not apply to long-term leases falling within the scope of s. 29(1) of the Act and the first part of charge No.1 was therefore not sustainable. We are unable to accept this argument as correct. The statement of allegations in respect of charge No.1 sets out the provisions of s. 29 of the Act, the rules made under cls. (1) & (3) of that section and the rules made under s. 100(2)(m) of the Act and it says that contrary to the above provisions leases were sanctioned. Rule 1 of the Rules framed under s. 100(2)(m) of the Act reads as follows:

"All leases of lands, buildings, sites and other immovable properties and rights belonging to a religious institution shall be made by public auction held in the places in which the properties are situate or the rights exist. The Deputy Commissioner may if he is satisfied that in any case the holding of an auction at a place other than the one in which, the properties proposed to be leased are situated will not be detrimental to securing a proper bid, permit such auction, but no auction shall be held in a village situated in a district other than the one in which the property is situate."

It was argued on behalf of the respondents that all leases had to be made by public auction and the Commissioner had no authority to sanction any leases without auction and that the power to waive the public auction is given to the Deputy Commissioner and not to the Commissioner under rule 9. In this connection reference was made by the appellant to rule 2(2) which provides that auction is to be conducted in the case of a lease for a period of one year or more within one month, and in the case of a lease for a period of less than one year, within 15 days after the date of the trustee's decision regarding the period for which the lease should be given. It was said that it would be impossible to conduct an auction in such a case within one month of the date of the trustee's decision because a minimum period of 30 days is prescribed between the notice and hearing of objections under s. 29 . It was said that some more time will necessarily have to be allowed for the trustees to send an application after they decide the period of the lease and for the Commissioner to issue the notice himself and to communicate his ,sanction to the trustees.' We do not think there is any substance in this argument because it is open to the trustee to hold the auction in the first place under Rule 1 even in the -case of a lease for a period over 5 years and then send the proposal to the Commissioner for sanction. We are accordingly of the opinion that Rule 1 made under s. 100(2)(m) of the Act providing for auction applies to leases for over 5 years under s. 29 of the Act and the Commissioner had therefore no authority for sanctioning any leases without auction under s. 29(1) of the. Act. In other words, Rule 1 requiring public auction framed under s. 100(2)(m) covers all leases and there is no exception in respect of leases exceeding 15 years falling within the scope of s. 29(1) of the Act. We accordingly reject the argument of the appellant on this aspect of the case.

As regards the second part of charge No. 1, it was argued by the appellant that there was no prohibition in the Act for the Commissioner to himself initiate the proposal for leases and therefore the charge cannot be sustained. The question for consideration is whether the Commissioner could initiate a proposal for lease in favour of a specified individual with all the terms and conditions. It is not disputed by the appellant that the trustee is the proper person to initiate a proposal for lease of the trust properties, but it is argued that under s. 20 of the Act the Commissioner can make specific proposals for leases and that he (:an himself sanction them under s' 29. The first part of s. 20 speaks of the general superintendence and control of the Commissioner over the administration of all religious endowments. The section goes on to state that. such superintendence and control shall include. the power to pass an order which may be necessary to ensure that such endowments are properly administered and their income is really appropriated for the purpose for which they were founded. In our opinion, the language of this section does not suggest that the Commissioner himself is vested with the power to make specific proposals for leases of trust properties. Under s. 29 of he Act the Commissioner is given a specific power to accord sanction in for any alienation and for leases for a term exceeding 5 years. That section implies that the proposals for leases must originate from the trustees and not from the Commissioner himself and that the only function of the Commissioner is to accord sanction to' such proposals. If the language of s. 20 is understood as suggesting that the Commissioner has power to initiate proposals it would mean that the Commissioner himself may sit in judgment over the proposals initiated by him. It cannot be supposed that the legislature contemplated such a consequence. In this context it is necessary to remember that under the general law the trustee is the person competent to make alienation or grant lease of <ORG> properties. It is true that the Sup Cl/67-8 legislature has put a restriction on the power of alienation and the power of granting leases by s. 29 of the Act, but the statutory restriction on the power of the trustee should not be interpreted in such a way as to abrogate all his power in respect of alienation or. lease. We are accordingly of the opinion that the Commissioner has no power to initiate specific proposal for lease of the trust properties and the argument of the appellant on this point must be rejected The third part. of charge No.1 is not a separate charge but could be enquired. into along with other parts of charge No,

1. As regards charges 2, 3 and 4 it is not shown on behalf of the appellant that there is any defect of jurisdiction and that the respondents-cannot proceed with the inquiry. The next question to be considered is whether the disciplinary proceedings against the appellant were validly instituted as required by Rule 4(1)(b) of the Rules. It was submitted by the. appellant that there was no formal order of the Government for instituting these proceedings. For the respondents it was contended that the question is barred by res judicata by reason of the decision of <ORG> in <CITATION> .(1). In that case, the order of suspens on was challenged by the appel- lant by a writ petition in O. P. No. 485 of 1963 -which was dismissed by <NAME>, J. Against that decision the appellant 'preferred an appeal which was dismissed by the Division Bench. It was contended by the appellant that the only issue considered in that case was whether the appellant could be suspended before the charges were framed and the rule of res judicata was not applicable. We shall assume in favour of the appellant that the question is not barred by res judicata. Even so, we are of the opinion that to there is no substance in the contention of the appellant that there was no valid institution of the disciplinary proceedings under rule 4(1). A perusal of the order of the Government, Ex.P-1 'would itself indicate that disciplinary proceedings had been initiated against the "appellant. Exhibit P-1 reads as follows:

"The Government have received several petitions con-' taining serious alleptions of official misconduct against Shri <NAME>, I.A.S. First Member, <ORG> and formerly Commissioner, Hindu Religious and Charita-. ble Endowments (Administration). Preliminary enquires, caused to be conducted into the allegations have shown prima facie, that the officer is guilty of corruption,, nepotism and other irregularities of a grave nature. <ORG> had also occasion to comment on the conduct of the officer in their judgment in O.P. 2306/62 delivered on - 12th February 1963. The judgment begins with the (1) [1963] K.L.T. 1162.

observation that 'this case, if it has served little else, has served to expose a disquieting state of affairs regarding the disposal of valuable forest lands belonging to a religious institution known as <ORG> of which I trust due notice will be taken by the competent authority in the interests of the public administration and the preservation of our forest wealth no less than in the interests of this particular institution'.

The judgment in the above case and the preliminary report of the X-<ORG> police have disclosed the following, grave charges of serious irregularity and official misconduct on the part of the accused or The detailed enquiry into the charges by the X-<ORG> is in progress. The evidence in the case has to be collected from a large number of officers who are subordinate to the accused officer in his capacity as First Member of <ORG>. In the interest of the proper conduct of the enquiry it is necessary that the officer should not be allowed to continue in that post. Having regard to the nature of the charges against the officer and the circumstances the proper course would be to place him under suspension. <NAME> <ORG>, is therefore placed under suspension under Rule 7 of the All India Services (Discipline and Appeal) Rules 1955 till the disciplinary proceedings initiated against him are completed."

A perusal of this document shows that the <ORG> had accepted the proceedings taken in, the matter uptil that date and had decided to go forward with the disciplinary proceedings. In our opinion, there is no formal order necessary to initiate disciplinary proceedings under Rule 4(1) of the Rules and the order of the State <ORG> under Ex. P-1 must be deemed to be an order under Rule 4(1) of the Rules initiating disciplinary proceedings. It was lastly submitted, that the order of suspension of the appellant dated March 8,1963 is not in compliance with Rule 7 of the Rules which states:

"7. Suspension during disciplinary proceedings

(1) If having regard to the nature of the charges and the circumstances in any case, the Government which initiates any disciplinary proceeding; is satisfied that it is necessary or desirable to place under suspension the member of the Service against whom such proceedings are started that Government may-

(a) if the member of the Service is serving under it pass an order placing him under suspension, or It was pointed out that definite' charges were framed on June 6, 1963 and the Government had not authority to suspend, the appellant before the date of framing charges. Reference was made to Rule 5(2) which states:

"5..(2) The grounds oil which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the member of the Service charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case."

It was argued by the appellant that the word "charges" which occurs in Rule 5(2) and Rule 7 should be given the same meaning and no order of suspension could be passed under Rule 7 before the charges are framed under Rule 5(2) against the appellant. We do not think there is any substance in this argument. Rule 5(2) prescribes that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges. Under rule 5(3) a member of the <ORG> is required to submit a written statement of his defence to the charge or charges. The framing of the charge under Rule 5(2) is necessary to enable the member of <ORG> to meet the case against him. The language of rule 7(1) is however different and that rule provides that the <ORG> may place a member of the <ORG> under suspension "having regard to the nature of

-the charge/charges and the circumstances in any case" if the Government is satisfied that it is necessary to place him under suspension. In view of -,he difference of language in Rule 5(2) and Rule 7 we are of the )pinion that the word "charges" in rule 7(1) should be given a wider meaning as denoting the accusations or imputations against the member of the <ORG>. We accordingly reject the argument of the appellant on this aspect of the case For the reasons already expressed we hold that the appellant has made out no case for the grant of a writ of prohibition under Art. 226 of the Constitution and the majority judgment of <ORG> dated January 5, 1966 is correct and this appeal must be dismissed. In the circumstances of the case we do not make any order as to costs.

R.K.P.S. Appeal dismissed.