P.K. Mohanti, J.
1. This writ application is directed against an order of the Commissioner of Endowments confirming an appellate order of fine Assistant Commissioner of Endowments made under Section 32(2) of the Orissa Hindu Religious Endowments Act, 1951 (hereinafter referred to as the 'Act').
2. Opposite Party No. 3 Bata Krushna Mohanty was appointed by the Commissioner of Endowments as the Debottar Manager of the Debottar Department at Daspalla. The Executive Officer of Daspalla started a disciplinary proceeding against opposite party No. 3 on charges of misconduct and misappropriation of Debotar funds and by his order dated 4-2-81 inflicted the penalty of removal from service. Aggrieved by this order opposite party No. 3 preferred an appeal under Section 32(2) of the Act which was allowed by the Assistant Commissioner of Endowments (opposite party No. 2). The order of removal from service was set aside and O. P. No. 3 was directed to be reinstated in service with the benefit of back wages. O. P. No. 2 came to hold that the order of the Executive Officer imposing the penalty was without jurisdiction. The petitioner preferred a revisional application before the Commissioner of Endowments who by his order dated 7-9-1981 confirmed the order of opp. party No. 2. It is urged in this writ application that the petitioner being an Executive Officer was competent to take disciplinary action against opp. party No. 3 under Section 32 with Section 56 (2) of the Act.
3. The Commissioner of Endowments (O. P. No. 1) filed counter contending, into alia, that the temples situated at Daspalla are separate public religious institutions and before the merger of the ex-State of Daspalla with the State of Orissa the temples were managed by the Debottar Department of the Ruler. After merger, the religious institutions of Daspalla were taken over by the Government of Orissa and are managed under direct control of the Endowment Department as per the provisions of Chap. VII of the Act. The Sub-Deputy Collector of Daspalla was appointed as an Executive Officer of the Daspalla Dabottar by the Commissioner of Endowments to manage the day to day affairs of the institutions; but the specific powers and duties which will be exercised and performed by him have not been defined by the Commissioner as required under Section 53 (b) of the Act. In the year 1969, it was felt necessary to appoint a whole-time Debottar Manager for overall management of the properties of all the institutions of Daspalla Debottar since the Executive Officer being the Tahasildar of Daspalla had multiferious duties and could not pay adequate attention to Debottar affairs and accordingly the Government of Orissa in the Law Department were moved by the Commissioner of Endowments for creation of the post of Debottar Manager and the Government agreed to the creation of the post by their letter dated 23rd Aug., 1969. The Debottar Manager is not an officer-holder or servant attached to any particular religious institution and he does cot receive any remuneration from the funds of any particular institution but from the general establishment funds of the Daspalla Debottar which also includes subsidy grant sanctioned by the State Government. The Executive Officer not being the employer of O. P. No. 3 was not competent to start a disciplinary proceeding against him and to inflict any penalty. Endowment Commissioner being the appointing authority of the Debottar Manager can only start a disciplinary proceeding against him. Section 32 of the Act is not appliable to the persons appointed by the Commissioner for discharging the duties in respect of the entire debottar and is applicable only to office-holders and servants of any particular institution who are appointed and controlled by the trustee under Section 32 of the Act.
4. The stand taken by O. P. No. 3 is that he was appointed by the Commissioner of Endowments by office-order dated 9-5-1978 and duties were assigned to him by the Deputy Commissioner of Endowments as per Annex. B and he has been placed in overall charge of the properties of all the religious institutions of Daspalla Debottar and the Executive Officer was not competent to start a disciplinary proceeding against him.
5. The relevant provisions of the Act are reproduced below:
'Section 32. Punishment of office-holders and servants in religious institutions :--
(1) All office-holders and servants attached to a religious institution or in receipt of any emolument or perquisite from the institution shall, whether the office or service is hereditary or not be, controlled by the trustee, and the trustee may fine, suspend, remove or dismiss any of them for breach of trust. Incapacity, disobedience of orders, neglect of duty, misconduct or other sufficient cause.
(2) Any office-holder or servant punished by a trustee under Sub-section (1) may, within one month from the date of the communication of the order to him, appeal to the Assistant Commissioner whose order shall be final.
XX XX XX'
Section 56 (2) is in the following terms:
'Section 56(2). Control of Collector, Assistant Commissioner and Endowment Commissioner--
(1) XX XX XX
(2) The Executive Officer appointed under Section 52 shall be deemed to be a trustee for purpose of Sections 32 and 34 and Chapters VIII, IX and X.'
6. After merger of the ex-State of Daspalla with the State of Orissa the religious institutions of Daspalla were taken over by the State Government and are managed under the direct control of the Commissioner of Endowments under the provisions of Chap, VII of the Act. The Sub-Deputy Collector of Daspalla was appointed as Executive Officer of Daspalla Debottar by the order of the Commissioner of Endowments under Section 52 (a) of the Act to manage the affairs of the institutions. Under Section 56 (2) the Executive Officer appointed under Section 52 is deemed to be a trustee for the purpose o! Section 32, Section 32 provides for punishment of office-holders and servants attached to a religious institution or in receipt of any emolument or perquisite from the institution. The question for consideration is whether a Debottar Manager comes within the category of officeholders and servants, as contemplated under Section 32 (1) of the Act.
7. Petitioner who is the Tahsildar of Daspalla Tahasil has been functioning as the Executive Officer of Daspalla Debottar. Due to his multiferious duties he could not afford adequate attention to the Debottar matters. So the Commissioner of Endowments moved the Government of Orissa in the Law Department for creation of, a post of Debottar Manager for Daspalla Dabottar and by Government order dated 23-8-1969 the post of a wholetime Debottar Manager was created--vide Annex. J. to the counter-affidavit filed by O. P. No. 1 on 6-8-1983. After the post was created, the Commissioner of Endowments by his order No. 786 dated 9-5-1978 appointed O. P. No. 3 as Debottar Manager of Daspalla on a monthly pay of Rs. 160/- plus the dearness allowance and the additional dearness allowance as admissible to the post prior to 1-4-1974--vide Annexure A to the counter affidavit filed by O. P. No. 1 on 4-12-1981. The Deputy Commissioner of Endowments, Orissa by his order No. 7513/3/80 dated 27-6-1980 (Annexure B) assigned the following duties to the Debottar Manager :
'(A) The Debottar Manager, is to remain in charge of the Debottar office and store including all files etc. and general supervision of daily nities and festivals including checking of daily account and put up suggestion for better management before the E. O.
(B) He is also to visit the mafasil institutions and to put up proposals for their better management and he should be liable for all the collections of the revenue of the institution. The cash and paddy to be kept in the double lock system under the custody of Debottar Manager and Debottar Assistant.
(C) The Debottar Manager is also to disburse the pay of Debottar Assistant and other staff of the Debottar Office and to grant C. L. to menial staff.'
ft. It is evident that the Debottar Manager has been kept in charge of the Debottar office for general supervision of the affairs of the religious institutions under the direct control of the State Government. He is to supervise the management of the affairs of the Institutions on behalf of the Commissioner of Endowments.
9. In the case of religious institutions other than math and specific endowments, the office-holders and servants are appointed by the trustee of the institution under Section 31 of the Act and the trustee has been vested with powers to remove such officeholders and servants under Section 32 of the Act. The Executive Officer by virtue of his powers under Section 32 read with Section 56(2) of the Act can exercise disciplinary control over such office-holders and servants as are appointed under Section 31 of the Act.
10. The Debottar Manager is neither attached to any religious institution nor is he in receipt of any emoluments or perquisites from any institution. He has been appointed by the Commissioner of Endowments against a post sanctioned by the State Government. The religious institutions at Daspalla being under the direct control of the State Government it was their responsibility to manage the affairs of the institutions through their officers. The Debottar Manager is to assist the Commissioner of Endowments for proper management of the institutions. His pay and allowances are not paid from the funds of any particular institution but from the general establishment funds of the Debottar office which also includes Government subsidy, as stated by the Commissioner of Endowments in para 18 of his counter affidavit dated 4-12-1981. The petitioner has filed a copy of the budget estimate submitted by Hum to the Commissioner of Endowments for the year 1981-82 vide Annex. 14 to the rejoinder filed by the petitioner on 15-12-1981. In the budget estimate a distinction has been made between the temple staff and the staff of the Debottar office. The staff of the religious institutions and the staff of the Debottar office have been separately shown in the Annexures to the budget estimate. The staff of the religious institutions have been appointed on fixed salaries and no dearness allowance and additional dearness allowance are paid to them. But the staff of the Debottar office are paid dearness allowances and additional dearness allowances as admissible to the staff: of the office of the Commissioner of Endowments.
11. The Commissioner being the appointing authority of the Debottar Manager he is the competent authority to take disciplinary action against him. A power to make any appointment includes the power to suspend or dismiss. The power to suspend or dismiss flows naturally and as a necessary sequence from the power to appoint.
12. Under Section 54 the Executive Officer is to exercise such powers and discharge such duties as may be assigned to him by the Commissioner of Endowments. The Commissioner has specifically stared in his counter affidavit that no power has been assigned by him to the Executive Officer. It was averred in para 10 of the, writ petition that the Commissioner of Endowments bad instructed the petitioner over telephone to exercise jurisdiction against O. P. no. 3 under Section 32 of the Act. The Commissioner does not admit the correctness of this averment and states that Section 32 of the Act is not applicable to the Debottar Manager.
13. In the premises aforesaid, we hold that Section 32 of the Act is not applicable to the Debottar Manager. The orders of suspension and removal from service passed by the petitioner are without jurisdiction.
The writ application is dismissed and the order of the Commissioner of Endowments as per Annexure 13 is confirmed. We direct the parties to bear their own costs.
14. The oral prayer of the petitioner for leave to appeal to the Supreme Court is refused.
G.B. Patnaik, J.
15. I agree.