V. Balasubrahmanyan, J.
1. There is a Temple for Sree Veeraraghava Perumal in Tiruppur town. The Temple needed renovation. Some of the members of the public formed themselves into a Thiruppani Committee in 1953. They then proceeded to renovate the Temple with the aid of funds collected from the public. The renovation was completed and the Kumbabishekam was performed in 1969. In the following year, the Local Fund Audit Department audited the Tiruppani accounts and found several irregularities. Based on their report, departmental proceedings were started for surcharging the members of the Tiruppani Committee. The Deputy Commissioner of Hindu Religious and Charitable Endowments who conducted the surcharge proceedings ultimately passed an order surcharging two members of the Tiruppani Committee. One was the petitioner. He was a Trustee of the Temple. He occupied the office of Secretary of the Tiruppani Committee. The other was the convener of the Tiruppani Committee. The Deputy Commissioner surcharged both these persons with a joint and several liability for Rs. 63,764. The petitioner thereupon moved the Sub-Court under Section 90(4) of the Hindu Religious and Charitable Endowments Act, 1959 for relief against the order of surcharge. But the Sub-Court dismissed the petition and sustained the order of surcharge against the petitioner.
2. In this revision against the Sub-Court's order, Mr. N. Venkatarama Iyer, the petitioner's learned Counsel, urged that the entire surcharge proceedings were without jurisdiction. Learned Counsel pointed out that the petitioner was surcharged solely for the reason that he was the Secretary of the Tiruppani Committee, and not on the basis of any evidence against him of any turpitude. Learned Counsel submitted that the liability for surcharge does not comprehend any vicarious liability. Mr. Venkatarama Iyer raised another objection to the surcharge order against his client based on the position occupied by him in the Tiruppani Committee. He said that the petitioner was mistakenly treated as the ex officio Secretary of the Tiruppani Committee. Learned Counsel said that while the petitioner was a trustee of the Temple, a Temple trustee is not treated by the law as an ex officio Secretary of the Tiruppani Committee in all cases., Learned Counsel pointed out that the rule was that wherever a temple had an Executive Officer, he alone was the ex-officio Secretary of the Tiruppani Committee, and it is only in the case of the Temple which has no Executive Officer at all, or whether Executive Officer was absent, that the Temple Trustee becomes the ex-officio Secretary of the Committee. Learned Counsel pointed out that, at all material times, this Temple had an Executive Officer, and that meant the petitioner could not be regarded as a member of the Tiruppani Committee, much less its Secretary, merely by virtue of his being the Temple Trustee.
3. The learned Government Pleader, however, submitted that the petitioner in this case was the sole trustee of this Temple, and, under the relevant statutory rules, the sole trustee automatically becomes ex-officio Secretary of the Temple Tiruppani Committee also. On a study of the statutory rules, namely, The Management and Preservation of Properties of Religious Institutions Rules, 1952, I must accept Mr. Venkatarama Iyer's contentions and reject the Government Pleader's. Rule 54(3) of the Rules is as follows:
The Executive Officer of the temple, or in his absence, the Trustee of the Temple if there is only one trustee or the Chairman, Board of Trustees, as the case may be, shall be the secretary and treasurer and member of the Committee. In special cases, any other member of the Committee may be elected by the Committee as Treasurer, subject to the approval of the appropriate authority. The Treasurer shall attend to the correspondence and maintenance of accounts relating to the collection of donations, etc., and expenditure incurred out of them.
4. The rule does not post any problem of construction. The Executive Officer of the temple, or in his absence the trustee of the temple, will be the ex-officio Secretary of the Tiruppani Committee. The inquiry therefore, is whether there is an Executive Officer of the Temple, and whether he is present. For, in his presence, he alone shall be the Secretary and Treasurer and Member of the Committee. In his presence, the Temple Trustee cannot be ex-officio Secretary.
5. On the precise terms of this rule, the office of Secretary and Treasurer of the Tiruppani Committee can be thrust upon a sole trustee of a temple only in the absence of the Executive Officer of the temple and not otherwise. This Temple did have an Executive Officer at the time and hence, he, and not the petitioner, was the Tiruppani Committee's exofficio Secretary. It follows that the order of surcharge against the petitioner treating him as ex officio Secretary of the Tiruppani Committee is illegal. It is not suggested that the petitioner was otherwise coupted to the Committee.
6. There is another major illegality in the manner of constitution of the Tiruppani Committee as a whole. This illegality vitiates not only its existence but the surcharge proceedings as a whole. Indeed, both the Deputy Commission and the Sub-Court, in their orders, had adverted to this aspect and also clearly recorded their finding that the constitution of the Committee as a whole was ab initio void in so far as it was not in compliance with Rule 51(1) of the Rules, Where the Deputy Commissioner and the Sub-Court failed to follow up their finding was in omitting to consider the impact of this finding in the surcharge proceedings, As earlier mentioned, both of them passed orders of surcharge against the petitioner and the convener as members of the Tiruppani Committee. If the Committee itself had not been lawfully constituted and was ab initio void, how can there be any statutory proceedings for surcharging the members of such a body? The negative answer is self-evident but had obviously escaped both the Deputy Commissioner and the Sub-Court.
7. Rule 51(1) prescribes how a Tiruppani Committee can be constituted for a Temple. The rule is as follows:
The Tiruppani Committee shall consist of the trustees of the temple as ex officio members: and such others, as may be co-opted by the trustees. The formation of the committee and the names of its members shall be reported to the Assistant Commissioner in respect of the institution under his control and to the Deputy Commissioner in respect of other institutions then and there for approval.
8. It is common ground that the Tiruppani Committee for this temple was not constituted in the manner enjoined by this rule. It would seem that some members of the public conferred among themselves, named a few among them who were favoured as members of the Tiruppani Committee. It is clear to see that this was a self-styled, ad hoc, non-statutory combination of men going by the name of the Tiruppani Committee. Even this self-constituted body had not had the approval of the Assistant Commissioner or the Deputy Commissioner. Hence, the so-called Tiruppani Committee is no Tiruppani Committee at all. And yet they functioned as such and they also renovated the Temple. But those things do not make them a valid or lawfully constituted Tiruppani Committee.
9. No one can be in doubt about what the consequence is where a so-called Tiruppani Committee is found to be a body ab initio illegally constituted. The whole set of statutory rules relating to audit, surcharge and the like depend for their applicability, on a validity, constituted Tiruppani Committee. If the committee is not a valid body, proceedings against its members under the statutory rules cannot be taken at all. For, the surcharge rules are meant only for validly created Tiruppani Committees. It might be true to say that ad hoc bodies and self-styled renovation Committees cannot be wholly outside the reaches of the law. But, then, the substantive provisions to bring them to book would be different; the forum would be different; and the procedure would be different. The members of the Committee cannot be proceeded against under the Management and Preservation of Properties of Religious Institutions Rules, 1964. Even the Local Audit Fund Report in this case was a waste, for, Rules 53 to 60, which provide for the audit, contemplate only a validly constituted Tiruppani Committee and its accounts. I am satisfied that the so-called Tiruppani Committee in this case is only a pretended Committee. And because its existence is pseudo, the surcharge proceedings against this body were wholly misdirected, when the rules were invoked and followed for the purpose.
10. It remains to examine the last contention of Mr. Venkatarama Iyer, which raises the point of vicarious liability. As I earlier mentioned, the petitioner was rendered liable to make good Rs. 63,764 solely on the score that he was the Secretary of the Committee and was liable to surcharge even if he were innocent of the irregularities in the functioning of the Committee. Learned Counsel said that liability for surcharge under the statute does not include vicarious liability. This contention bears examination on a construction of Section 90(2) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. The section reads as under:
If on a consideration of the audit report and the report of the trustee and after such inquiry as may be necessary, the Commissioner, Deputy Commissioner, or Assistant Commissioner, as the case may be, thinks that the trustee or any other person was guilty of irregular, illegal or improper expenditure, or of loss or waste of money or other property thereof caused by failure to recover moneys due or other property belonging to the religious institution or by neglect or misconduct or misappropriation or collusion or fraudulent transactions or breach of trust, the Commissioner, Deputy Commissioner or Assistant Commissioner, as the case may be, may after giving notice to the trustee or such person to show cause why an order of surcharge should not be passed against him and after considering his explanation, if any, by order certify the amount so spent or the amount or value of the property so lost or wasted, and direct the trustee or such person to pay within a specified time such amount or value personally. (Proviso omitted.)
11. Mr. Venkatarama Iyer's point was that the liability imposed on a trustee or other person by way of an order of surcharge was in the nature of a penalty, and the award of such penalty and the charging of such liability must be on the ground that the trustee or other person proceeded against, was 'guilty' of the acts or omissions set out in the provision. Learned Counsel submitted that the very nature of the acts or omissions which formed the basis of surcharge and the very nature of surcharge itself as a form of penalty, clearly showed that the trustee or other person proceeded against must be, found to have been directly involved in the kind of act or omission dealt with by the Legislature as a fit subject for surcharge proceedings. In short, the argument was that the liability for surcharge under the section had to be made out and established with reference to the acts or omissions of the trustee himself, and it did not include vicarious liability.
12. It must agree with these submissions. I have no doubt whatever that Section 90(2) is a penal provision. The proceedings which the section contemplates are in the nature of criminal proceedings or quasi-criminal proceedings. I am not impressed merely by the presence, in the section, of the expression 'guilty'. Any trustee, in order to be found guilty, must be found to have incurred irregular, illegal, or improper expenditure or caused waste of money, or other property, arising by failure to recover the money due by neglect or misconduct or misapplication or collusion or fraudulent transactions or breach of trust. The very array of epithets in the section shows that they relate to criminal or quasi-criminal matters. The burden of making good the charge is also quite clearly on the Deputy Commissioner or the Assistant Commissioner, as the case may be. The quantification of the surcharge under Section 90(2) also gives a further indication that the surcharge is in the nature of a penalty. It is quite possible that a surcharge can also be a measure of recompense, but the additional attribute does not alter its essential character as a penalty or fine.
13. Section 90(2) no doubt, refers to a trustee by name, as one of those who can be proceeded against, but the section, as I read it, insists that the trustee must himself he guilty of the irregularities described in the provision as actionable, against him. There is nothing, either express or implicit, in the section which would enable the Deputy Commissioner or the Assistant Commissioner to impose a penalty by way of surcharge on a trustee or other person on the basis of vicarious liability. It might well be that a trustee might be answerable for the tortuous acts of his employees or agents through whom, be discharges his functions as trustee. But on the language of Section 90(2), I am satisfied that a trustee cannot be surcharged by way of vicarious liability. There must be direct proof of guilt against him.
14. In this case, the Sub-Court accepted the admission of Palaniappa Chettiar, who was the convener and treasurer of the Truppani Committee that he alone had been keeping the Tiruppani Accounts and no other member of the committee, including the petitioner, had been doing the collections and expenses at all material times. No direct evidence implicating the petitioner was brought on record against him, and the surcharge was based purely on the theory of vicarious liability.
15. The result is, the orders of the Sub-Court and the Deputy Commissioner are set aside and the civil revision petition is allowed with costs.