Paripoornan, J.
1. The Examiner of Local Fund Accounts (Audit) submitted a special report relating to the audit of special funds of the Travancore Devaswom Board, insofar as it pertained to the Sabarimala Improvement Fund, for the period from 17-11-1967 to 31-3-1976. This was done in response to the orders of this Court dated 4-1-1975 (Letter No. 33/CMP/75). In paragraph 20 of the report, the audit has dealt with printing of Jyothi (Deepadakshina) Tickets, in paragraph 21 distribution of Ayyappa Jyothi (Deepadakshina) Tickets and in paragraph 22, regarding the shortage noticed in the stock of unsold Sabarimala Improvement Fund and Jyothi (Deepadakshina) Tickets received back from individuals/committees etc., and in paragraph 23 regarding the collections made by issue of tickets and protures to individuals and committees.
2. When the matter came up finally before a Bench of this Court, the Division Bench, by order dated 27-3-1987, dealt with paras 20 to 23 of the Audit Report and passed the following order:
'Paragraphs 20 to 23 : All these relate to the sales of S.I.F. tickets and Ayyapa Jyothi tickets and :Deepa Dakshna tickets, S.I.F. tickets were got printed by the Board directly and the rest were printed by the Sabarimala Amenities Implementation Fund Committee. It appears that a sum of Rs. 7,25,830.47 is due from several persons to whom tickets were issued. By earlier orders dated 29-8-1979 and 19-12-1979, this Court directed the Board to submit further report as to the follow up action taken for recovery of the amount. It appears that the then Advocate General gave the opinion that legal action is barred by limitation. That is not an excuse so far as the Board is concerned. We are of the opinion that show cause notices should be issued to the members and Chairman of the Board as well as members of the Committee to show cause why the amount should not be sure charged against them. The Board will within a week furnish the names and addresses of such of those persons who are alive.'
3. Thereafter, this Court issued notices to the following eight persons:
1.Sri M.K.K. Nayar, Bindu, Hospital Road, Sasthamangalam, Trivandrum-20.
2. Swami Athuradas, Athurasramom, Kurichi, Via. Changanacherry.
3. Sri. Prakkulam Bhasi, (Ex-President, Travancore Devaswom Board), Puthayil House, Vedimara, North Parur.
4. Sri. V. Harihara Subramony, (Ex-Member, Travancore Devaswom Board), C/o. M. Subramonyam, House No. 8-25, P.T.P. Nagar, Trivendrum.
5. Sri. P. K. Chandranandan, (Ex-Member, Travancore Devaswom Board), Vadakkekara, South Gate, Ambalapuzha Temple, P. O. Ambalapuzha.
6. Sri. T.V.V. Pathy, 'Sudarsanam', Pounurangam Road, R. S. Puram, Coimbatore-2.
7. Sri. P.R. Rama Varma Raja, Alacode House, Alacode P.C., Via. Thaliparambu.
8. Sri. M. C. Menon, Prakash Kunnannur, Palghat.
They were directed to show cause why the amount involved in the distribution of 8322 pictures of Lord Ayyappa, and a sum of Rs. 7,25,830.47 which is due from persons to whom the S.I.F. tickets were issued, should not be surcharged from them. Out of the eight persons, to whom notices were issued, party No. 1 (Sri. M.K.K. Nayar) and party No. 8 (Sri. M. C. Menon) are now dead. Party No. 7 has not entered appearance; nor has filed any objection. Parties Nos. 3, 4 and 5 are the Ex-President and Members of the Travancore Devaswom Board. Parties Nos. 1, 2, 6, 7 and 8 are members of a committee formed in connection with the Sabarimala Improvement Fund. Party No. I (Sri. M.K.K. Nayar), Party No. 2 (Swami Athuradas) and Party No. 6 (Sri. T.V.V. Pathy) have filed detailed objections, dated June, 1987, 18th August, 1987 and 9th May, 1987 respectively. The President and Members of the Travancore Devaswom Board, at the relevant time (Parties Nos. 3, 4 and 5) have filed separate objections dated 15th October. 1979, 6th December, 1979 and 29th October, 1979 respectively.
4. The facts, have been stated in great detail, in the affidavit filed by party No. (sic)Sri. M.K.K. Nayar) dated 25-6-1987. As many as 15 annextures are filed along with the affidavit. Similarly, the President of the then Devaswom Board (Party No. 3 -- Sri Prakkulam Bhasi) has filed a detailed affidavit dated 15-10-1979 and also a statement dated 7-1-1987. One of the members of the erstwhile Board (Party No. 4-- Sri. V. Harihara Subramony) has also filed explanation dated 6-12-1979 (along with 7 exhibits and dated 12-7-89). On his behalf, his counsel Sri K. S. Rajamony filed a Memo dated 16-3-1989. The other objections are by party No. 5 (Sri. P. K. Chandranandan) who has filed an affidavit dated 29th October, 1979. The affidavit filed by party No. 2 (Swami Athuradas) is dated 18th August, 1967 and the affidavit filed by party No. 6 (Sri. T.V.V. Pathy) is dated 9th May, 1987 along with 4 annexures. The Board has filed a statement
dated 26-3-1989.
5. The notice dated 27-3-1987 was issued by this Court, in exercise of the powers under Section 32 of the T. C. Hindu Religious Institutions Act, Section 32 of the Act is as follows:
'32. Audit:-- (1) The Board shall keep Regular accounts of all receipts and disbursements in respect of the institutions under its administration.
(2) The accounts of the Board shall be audited annually.
(3) The audit shall be made by auditors appointed by the High Court.
(4) Every auditor 'appointed under this Section shall be deemed to be public servant within the meaning of Section 15 of the Travancore Penal Code.
(5) After completing the audit for any yearor for any shorter period or for any transaction or series of transactions, as the case maybe, the auditor shall send a report to the HighCourt.
(6) The auditor shall specify in his report all cases of irregular, illegal or improper expenditure or of failure to recover moneys or other property due to the Board or to the institutions under their management or of loss or waste of money or other property thereof caused by neglect or misconduct.
(7) The auditor shall also report on any other matter relating to the accounts as may be prescribed or on which the High Court may require him to report.
(8) The High Court shall send to the Board a copy of every audit report and it shall be the duty of the Board to remedy any defects or irregularities pointed out by the auditor and report the same to the High Court.
(9) If, on a consideration of the report of the auditor or otherwise, the High court thinks that the Board or any member thereof was guilty of misappropriation or wilful waste of the funds of the institutions or of grossneglect resulting in a loss to the institutionsunder the management of the Board, the HighCourt may, after giving notice to the Board orthe member, as the case may be, to show causewhy an order of surcharge should not bepassed against the Board or the member, andafter considering the explanation, if any, passan order of surcharge against the Board or themember, as the case may be.
(10) The order of surcharge may be executed against the member or members concerned of the Board as if it were a personal decree passed against them by the High Court.
(11)An order of surcharge under this Section shall not bar a suit for accounts against the Board or the member concerned except in respect of the matter finally dealt with by such order.
(12) A copy of the audit report shall be supplied to any person who duly applies for the same.'
In adjudicating whether the eight persons, mentioned in paragraph 3 supra, to whom notices have been issued by this Court to show cause why the amount specified in the notices should not be surcharged against them, we should bear in mind that what is sought to be enforced in these proceedings is a statutory liability. Unless this Court is able to find that all the said, eight persons or anyone of them have rendered themselves liable within the letter of the law, it is incompetent for this Court to surcharge them. Therefore, in proceeding to decide whether all the eight persons or anyone of them are liable, this Court should confine, to the terms, of the statute. In this perspective, we are considering the liability of the eight persons to whom notices have been issued. Section 32(9) of the Act makes it clear that this Court can pass an order of surcharge only against the Board or the member, as the case may be, on the grounds stated in the said sub-section. This order should find that the Board or any member thereof was guilty of misappropriation or wilful waste of the funds of the institutions or of gross neglect resulting in a loss to the institutions under the management of the Board. Stating this, party No. 1 (Sri. M.K.K. Navar), party No. 2 (Swami Athura- das) and party No. 6 (Sri. T. V. V. Pathy) have admitted that the proceedings initiated to surcharge the said parties are patently unsustainable, as they were not 'the Board' or any member thereof. On a bare reading of the said section, the said plea seems to be justified. In this view of the matter, proceedings initiated by this Court, under Section 32(9) of the Act, by notice dated 27-3-1987, cannot successfully be continued against parties Nos. 1,2,6,7 and 8, who were not members of the Devaswom Board, during the relevant time. The fact that they were members of the Sabarimala Improvement Fund Committee 'an ad hoc body' or that the funds collected by the committee were not accounted, cannot clothe this Court with jurisdiction to proceed against such persons, in exercise of the powers vested in it under Section 32(9) of the T.C. Hindu Religious Institution Act. Therefore, the proceedings against parties Nos. 1,2,6,7 and 8 are dropped.
6. We are more particularly concerned with parties Nos. 3, 4 and 5, who were the President and Members of the Travancore Devaswom Board, at the relevant time. Party No. 3 (Sri. Prakkulam Bhasi) Ex-President of the Devaswom Board, is reported to be bedridden and seriously sick. Similarly, party No. 4 (Sri. V. Harihara Subramony, Ex-Member, Travancore Devaswom Board) is stated to be keeping indifferent health and is reported to be residing at Ahmedabad along with his daughter. Party No. 5 (Sri. P. K. Chandranandan, Ex-Member, Travancore Devaswom Board) is also reported to be sick. On behalf of the President and Members of the Travancore Devaswom Board, their counsel Mr. Babu, Mr. K. Section Rajamony and Mr. Siri Jagan respectively submitted that it is not possible for the members to attend the Court and give evidence in support of the various matters, in view of their present state of health. Counsel also highlighted the fact that the various aspects, on which the proceedings have been initiated now, took place nearly 22 years ago and in view of the present health condition of the persons, the fading memory and the absence of many others who were active in the collection of funds, they are not even in a position to recall many matters and the records and events that took place, will go to show that they have acted only bona fide and in the best interests of the institution and they have not committed any act of misfeasance or malfeasance, or misappropriation or wilful waste of the funds or acted in gross neglect resulting in a loss to the Devaswom. It is asserted that, as stated in their various explanations, the Precident and the members, of the Board have acted, bona fide in the entire matter which have only contributed to the betterment and development of 'Sabarimala'.
7. Before dealing with the various aspects pointed out by the audit and the explanations offered by the President and members of the erstwhile Travandore Devaswom Board, we have to reckon with one reality the lapse of 22 years after the event. Due to the subsequent events and passage of time, the President and Members of the Board have become old, sick and fregile. The persons who worked intimately in the project some of them are leading public figures are now dead. They are not available to speak about the various facts stated in the explanations. There is a practical difficulty for the President and Members of the Board to explain the various lapses and omissions attributed to the Board. In order to have a satisfactory and effective adjudication, the examination of the President and Members as also the leading public figures who participated in the venture, would have been useful. That has been rendered practically impossible, in view of long lapse of time -- the delay that was caused in bringing up this matter into focus and for consideration by this Court. We are of the view that apart from disabling this Court in adjudicating the present matter more satisfactorily, this affords an eye-opener for all concerned to note, that it is in public interest that the audit report is made available to this Court immediately after the end of the year and the matter is also considered expeditiously and without delay, while the President and Members are still in office and/or their memory is fresh with regard to various aspects. So also the persons connected with the various transactions and events should be available. The situation that has emerged herein also indicates, how far the provisions of the Act are insufficient to saddle liability on various 'officers and other persons' (besides the Board and its members), who deal with the funds of the Board or on behalf of the Board. In spite of the fact that a great exercise is undertaken by the audit in the matter, the trouble taken and the time spent is rendered a meaningless ritual or an empty formality due to lack of sufficient provisions in the Act to deal with the matter effectively and meaningfully and to fasten liability on various officers and other persons, who are responsible for various acts of omissions or commissions and also on other persons who intermeddle with the affairs of the Devaswom Board or its funds. This is a matter about which the Government and other persons concerned should take notice to initiate steps to make appropriate statutory provisions. We leave it there.
8. We will now advert to the proceedings that are before us. We are dealing with the matter only on broad facts. The matter arises is connection with the Audit Report of the Travancore Devaswom Board, for the year 1967-68. A perusal of the affidavits and explanations, filed by various parties, referred to hereinabove, highlight the following : The inflow of pilgrims to Sabarimala was increasing in the sixties. The Travancore Devaswom Board was keen to provide the necessary amenities for the increasing number of pilgrims to Sabarimala, both at Sabarimala and at Pampa. The Board held discussions with Ayyappa Seva Sangham and other organisations founded and dedicated to render service to the pilgrims. The informal discussions were held by the Board with Ayyappa Seva Sangham and other pilgrims in this State and outside the State. It was decided to constitute a Sabarimala Development Committee. The then Devaswom Board President and Members, the Devaswom Commissioner, the Maramath Engineer of the Board and 150 representatives from different parts of Kerala and outside, attended the meeting which took place at Sri Chitra Central Hindu Religious Library, Trivendrum, on 23-10-1967. It was known as 'Meeting of the Sabarimala Development Committee'. Sri. M.K.K. Nayar was the organising Chairman. It appears that one Sri. P. Sadasiven Pillai functioned as the Chairman of the Implementation Committee. The then President of the Travancore Devaswom Board (Sri. Prakulam Bhasi) and other members also participated in the various deliberations and took active interest. Subsequent meetings were held at various places on different dates 17-10-1968, 31-10-1968. 2-2-1969, 16-2-1969, 30-3-1969, 23-9-1969. 10-12-1969 etc. It is seen that Sri. M.K.K. Nayar presided over the meeting on many occasions. The President of the Board also addressed the gathering and participated in the meetings along with the members. An executive committee was formed. Sri. M.K.K. Nayar was its Chairman. The then President and members of the Travancore Devaswom Board were also members of the executive committee. Different committees were formed. The Secretary of the Board was the ex-officio Treasurer of the Committee. The collection was made by the Sabarimala Amenities Implementation Committee. Sri. P. Sadasiven Pillai was its Chairman. He appointed many organisers throughout the State and outside. Tickets were printed by the Board for collection of funds. The President and members of the Board as also its Secretary and the Maramath Engineer participated in the various deliberations from time to time, and they were fully aware of the developments and progress made then and there. The funds collected by the committee were entrusted to the Travancore Devaswom Board, so that the amount could be utilised for the developmental works at Sabarimala. It is staled that the accounts of the Sabarimala Improvement Committee were kept separately, They were not part of the Devaswom funds. It is in evidence that Sri. Prakulam Bhasi was the President of the Devaswom Board from February, 1967 to 2-9-1970, Sri. V. Harihara Subramony was a member from 2-9-1966 to 2-9-1970 and Sri. P. K. Chandranandan was a member from February, 1967 to 2-9-1970, though it is stated that be resigned one year before the expiry of the term. It was argued on behalf of the President and Members of the Board that the proceeding initiated under Section 32 of the Act is ill-conceived since the funds dealt with are not devaswom funds; nor funds belonging to the institution under the management of the Board, as envisaged by Section 25 of the Act. It was stated that the Committee for the Sabarimala Improvement Fund was not composed of the President and Members of the Board only. It was an ad hoc committee formed by the pilgrims and leading public figures and the amounts were collected and spent by the said committee. It was further stated that the mere fact that the President and Members of the Devaswom Board also participated in the matter in order to afford help and aid for the committee to perform its task efficiently, will not in any way render the funds or the collections as one belonging to the Devaswom Board or to the institution under the management of the Board. If there is any misapplication or misappropriation or non-accounting of the funds so collected by an ad hoc committee, the President and members of the Devaswom Board cannot be proceeded against under Section 32 of the Act. We are unable to accept the above plea.
9. Section 25 of the T. C. Hindu Religious Institutions Act reads as follows :
'25. The Devaswom funds:- (a) The Devaswom Fund constituted for the Devaswoms mentioned in Schedule I shall consist of
(1) the sum of fifty one lakhs of rupees mentioned in Article 238(10)(ii) of the Constitution of India as payable to the Devaswom Fund;
(2) the moneys realised from time to time by the sale of movable properties belonging to the said Devaswoms;
(3) all voluntary contributions and offerings made by devotees;
(4) profits and interest received from investments of funds belonging to the said Devaswoms; and
(5) all other moneys belonging to or other income received by the said Devaswoms.
(b) Out of the sum of fifty-one lakhs of rupees mentioned in Clause (1) of the preceding sub-section, an annual contribution of six lakhs of rupees shall be made by the Board towards the expenditure in the Sreepadma-nabhaswami Temple.'
The Travancore Cochin Hindu Religious Institutions Act, 1950 (Act XV of 1950) contains the following preamble :
'WHEREAS it is necessary to make provision for the administration, supervision and control of incorporated and unincorporated Devaswom and of other Hindu Religious Endowments and Funds.'
The President and members of the Board are in the position of trustees.
10. We are of the view that all the collections made in any manner, in connection with or for the purposes of an institution under the management of the Board, including all offerings, contributions etc., will form part of 'Devaswom funds'. The said collections made, by a purely outside agency, even without the junction of either the President or the members of the Board or any of its officers, whatsoever, in connection with or for the purposes of an institution under the management of the Board will also be 'Devaswom funds', but the liability of the Board or its members or officers will depend upon the facts and circumstances of each case keeping in view the provisions of Section 32 of the Act. Even in cases where the collections are made by an outside agency, they are liable to account to the members of the public as also to the Board. A distinct and separate action that has to be brought therefor. The Board has a duty to oversee such collections and take appropriate steps to see that the funds are properly utilised and accounted for. But, the junction or participation of the President and members of the Board or officers of the Board, makes the position different. It gives a different complexion to the entire set up. The Board and its members have held out that the collections are made in connection with or for the purposes of an institution under the management of the Board. The Board and its members cannot plead that they are not liable to be proceeded against under Section 32(9) of the Act. The President and members of the Board and also its various officers have a duty to protect the Devaswom funds. If to their knowledge or information contributions are made or collections are made for an institution, under the management of the Board, or in connection with an institution under the management of the Board, the Board, its members and officers have got a duty to see that the said collections or offerings or donations are properly and legally utilised for the purpose and are accounted. It is not open to the President or members of the Devaswom Board to shirk their responsibility and plead that the funds were collected by an outside agency. The fact that the President and members of the Board were members in the committee, which collected the funds, is sufficient to make them accountable and responsible and to fasten the liability on the President and members of the Board, since the collections are made in connection with or for the purposes of an institution under the management of the Board. The plea to the contrary is untenable and unsustainable.
11. We should remember, that under Section 25 of the Act, amongst others, 'all voluntary contributions and offerings made by devotees', for the purposes of or in connection with an institution under the management of the Board, will constitute the Devaswom Fund. The President, the members of the Devaswom Board or its officers are really trustees, who are responsible to account for the said funds. It is not open to the President and members of the Devaswom Board to shirk their responsibility by pleading that an outside agency collected the funds. If an outside agency collected such funds, the Devaswom Board has got a duty to enquire about it and require them to account. The President, members of the Devaswom Board, the officers of the Board and the members of the outside agency, are liable to account for the collections made in connection with or for the purposes of an institution under the management of the Board. In this perspective, we hold that it is not open to the President and members of the Board to plead that they are not accountable or cannot be proceeded against for misappropriation or wilful waste of the funds or for gross neglect which resulted in a loss, if any, resulted to the Sabarimala Improvement Fund. Prima facie, the President and members of the Devaswom Board are liable for all the collections made even by an outside agency, if the President or members of the Devaswom Board or its officers, either directly or indirectly, participated in such outside commmittee or in their activities. We make this position clear. We hold that with regard to the Sabarimala Improvement fund, the then President and members of the Travancore Devaswom Board are liable to be proceeded against under Section 32(9) of the Act, for acts of omission or commissions specified by Section 32(9) of the Act. We repel the plea to the contrary.
12. Now, on the facts of this case, as disclosed from the various explanations, we have to consider how for the President and members of the Board are liable to be proceeded against under Section 32(9) of the Act. As stated earlier, what is sought to be done is to fix the statutory liability of the President and members of the Devaswom Board. We have to confine our attention to the strict terms of the statute in this regard. We should remember that at the time when the President and members of the Devaswom Board, who are sought to be proceeded against, ceased to be members (in 1970), the audit report for the year 1967-68 has not engaged the attention of this Court. The matter was not taken up for scrutiny. For the first time, the matter came to the surface only when objections were raised in September, 1979. The President and members had stated their explanations to the audit report in 1979. A show cause notice was issued by this Court to the then President and members of the Devaswom Board on 27-3-1987, under Section 32(9) of the Act. The President and members have submitted their replies thereto, which we have stated earlier. The various activities and collections in connection with the Sabarimala Improvement Fund took place nearly 20 to 22 years ago. The President and members of the Board ceased to hold the office nearly 19 years ago. For the first time, the liability is sought to be fastened on the President and members of the Board, nearly 20 years after the events. Active steps were taken only in 1987. The delay of nearly 20 years in the matter is rather a matter of serious concern. The President and members of the Board are well fortified in their submission that due to the long lapse of time and their old age, they are not able to remember minute particulars, that the persons who were actively associated with the venture are no more alive, and it is not possible for them to lead the best evidence on many aspects to show that they have not committed any act of omission or commission rendering them liable under Section 32(9) of the Act. It is further stated that the entire steps were taken by a committee, composed of outstanding public men in the State and outside the State with the sole intention and object to improve the facilities for the pilgrims at Sabarimala and Pampa and that there was no personal gain or motive. It is highlighted that all the steps were taken bona fide, with the avowed object to develop the projects and make improvements, to cater to the various pilgrims at Sabarimala and Pampa and there was no dishonesty in any one of the moves or in the disbursements or collections made. Indeed, the funds collected were utilised for the developments and projects envisaged by the committee and the later events amply demonstrate that the work done in that behalf paid rich dividends, improved the facilities of the pilgrims at Sabarimala and Pampa and has also in a great measure augmented the recurring income of this great temple.
13. It is submitted that the substance of paragraphs 20 to 23 of the audit report would only go to show that a sum of Rs. 7,25,830,47 is due from several persons, to whom tickets were issued and no steps were taken to collect the amounts. It is pointed out that tickets were entrusted to the members of the Implementation Committee to collect funds and the entire amount now sought to be surcharged is only the amounts due by way of proceeds of the various tickets, so entrusted to the organisers. It is stated that a few of the organisers did not return the ticket books; nor did they furnish details. It is true that there are some irregularities or lapses in the matter of entrustment of the ticket books and the delay in taking steps to obtain either the proceeds of the tickets or the return of the unsold tickets. The amount due on account of the unsold tickets by way of sale proceeds due from various individuals/organisers is now sought to be surcharged in the sum of Rs. 7,25,830,47. The persons who were having an overall supervision for distribution of tickets and for collection, were public men of stature, who had absolutely no dishonest motive or design. We have no material; nor can we assume that such public men of stature who volunteered to collect funds with a philanthropic motive, for the development of projects to cater to the large number of Sabarimala pilgrims would do it dishonestly or with an ulterior motive. The committee for the Sabarimala Improvement Fund was formed on 23-10-1967. The Implementation Committee was formed on 26-10-1967. The State level Committee consisted of 20 members, of which three were the President and members of the Devaswom Board. The Secretary of the Devaswom Board was the ex officio Secretary and the Treasurer. Tickets of different denominations were printed by the Board. It is after a period of 12 years, for the first time, objection was voiced that the committee or the Devaswom Board has not accounted for the collections made and for the amounts due by way of unsold tickets not returned. The delay of nearly 10 years in bringing home this matter and a further period of 10 years for the proceedings under Section 32(9) of the Act have really placed the President and members of the Board in a disadvantageous position. Their old age, sickness, passing away of the important figures, who actively served in the committee --- all these have disabled them to substantiate their pleas with cogent material and to prove their bona fides in the entire matter. The learned Government Pleader argued that the President and members of the Board, who are in the position of trustees, should have from time to time verified the collections, how the tickets have been distributed, and whether the unsold tickets were returned etc. It cannot be denied that the President and members of the Board are holding the position of trustees and should have verified or checked up these matters from time to time. They should have acted with care, as reasonable men. Mere delay in the lodging of the proceedings by itself cannot wipe out the legal consequences of inaction or negligence or want of care on the part of the President and members of the Devaswom Board. As trustees, the President and members of the Board are bound to carry on the administration of the Devaswom Board with fidelity and reasonable diligence and should conduct its affairs akin to the 'ordinary prudent man of business'. As stated in Underbill's 'Law of Trusts and Trustees' 13th Edn., page 702, the obligation of the defaulting trustee is one of effecting a restitution to the estate. The decisions discussed -- Caffrey v. Darby, Re Dawson, Clough v. Bond at page 702 of the book are illuminating, (see also pp. 703-705). Even so, on the facts of this case, especially in the background that persons of stature were associated with the venture, that they are no more, that the purposes for which the collections were made, were laudable and seems to have yielded result, the circumstances under which collections were made, the beneficial results that accrued as a result thereof and the long delay that was caused in the matter in initiating or completing the proceedings, the age and infirmity of the members of the Board are factors which should be borne in mind in evaluating, as to whether the President and members of the Board are in any way culpable and have acted deliberately or wilfully in the matter or whether they have acted bona fide, though not with care and caution, as required by law, in the whole affair. Is it possible for us, on the basis of materials before us, and at this distance of time, to find either contumacious conduct on the part of the Board or its members or any wilful or designed or gross act of omission or commission
14. We bestowed our anxious consideration to the entire matter. The proceedings of the Sabarimala Implementation Committee held on 2-2-1969 (Annexure-VI), the proceedings of the Committee dated 10-12-1969 (Annexure-(X), the communication dated 15-1-1979 (Annexure-XIII) by Sri. M.K.K. Nayar to the Secretary, Travancore Devaswom Board, show that the Committee as well as Mr. M.K.K. Nayar and others were really voicing their concern, in some members not rendering final or detailed accounts or in not remitting the amounts that could have been collected and in not returning the unsold tickets etc. It is not as if the persons concerned were unmindful of their obligations. It is evident that there were attempts to trace the persons who failed to render final accounts or to return the unsold tickets. But, what became of the matter thereafter, especially after 1979? Was there any attempt to pursue the matter, is not evident. Sri. M.K.K. Nayar, who was the moving spirit behind the entire venture, died couple of years ago. So also nothing is heard of Sri. Pillai, who was the moving spirit of the Implementation committee. No notice is sent to him, by this Court. If these proceedings were effectively pursued during his lifetime (Mr. M.K.K. Nayar), he could have furnished more details or particulars. The background in which the Sabarimala Improvement Committee was formed, the manner and method in which it worked, the purpose for which it was formed, the resultant achievements, the persons concerned with it, all indicate or point out that there could not have been any intention for any personal gain or to divert the funds collected or use the collections for purposes or projects other than the development of Sabarimala and the amenities for the pilgrims. There is no material before us to show, viewed in the context of the various facts disclosed in the various explanations, that the President and members of the Board wilfully shut their eyes to any act of misappropriation or misfeasance or committed 'gross neglect' or 'wilful waste' resulting in loss. To repeat, this Court is only enforcing a statutory duty or liability under Section 32(9) of the Act. While it is true that the President and members of the Devaswom Board, who are in the position of trustees, should and ought to have taken care to inform themselves from time to time about the collections, whether the proceeds of all the tickets were received, whether there were unsold tickets and also should have exercised greater vigil to protect the interests of the Devaswom fund, we are unable, as at present advised, and in the light of the materials before us, to hold that the President and members of the Board committee any wilful or gross neglect or guilty of misappropriation or committed any other contumacious conduct to attract the consequences provided in Section 32(9) of the Act. The language used in Section 32(9) is significant. The members should be 'guilty' of misappropriation or wilful waste of funds of the institutions or of gross neglect, resulting in a loss. The act or omission complained of, should be intentional and not accidental. It should be by design. It should have been done knowingly and of stubborn purposes and not accidentally. Mere error of judgment or mere lack of care, without anything more, may not be ordinarily sufficient. We do express our discomfort or displeasure that responsible persons occupying the position of trustees (Board members) have not acted with vigil and care, in dealing with Devaswom funds and we do hope that such acts will not be repeated by responsible persons occupying the position of the members of the Board. But, we are unable to hold them liable for any wilful or gross default or negligence or for loss, as envisaged by Section 32(9) of the Act, in this case.
15. We hold that the President and members of the Devaswom Board cannot be surcharged on account of lapses or acts or omissions pointed out in the audit report, specified in paragraphs 20 to 23.
16. Before concluding, we should record our appreciation of the invaluable services rendered by the audit in bringing to light the way in which the Board had functioned during the relevant time. But, for the untiring efforts of the audit, the entire matter would have escaped attention. We take this opportunity to remind the President and members of the Board, about their public accountability. It is true that there is delay in the submission of the audit report and the consideration of the matter by this Court. In the meanwhile, the term of the President and/ or members of the Board may ordinarily expire. These have contributed to the impression that the President and members of the Board or the officers will not be answerable for the lapses or acts or omissions, when the matter is finally adjudicated after some time or delay occurs in considering the matter.Impression seems to have gathered ground in recent times that the members of the Board or the officers can easily ward off their liability or responsibility by putting forth filmsy excuses. This is a matter which cannot be countenanced in public interest. It is for all persons concerned to see that greater vigil is exercised by the President and members of the Board in the overall administration of the Board and in the collection and disbursement of funds. It is also necessary for all concerned to see that every year the audit is completed, at the quickest possible time, and the matter is considered by this Court, when the President and members of the Board, who are responsible for it, are in a position to have their defences adjudicated effectively. It is also in public interest to see that adequate and proper provisions are made, to make the officers and other outsiders, liable and responsible for all acts of omissions or commissions and for unauthorised collections and for accounting the funds which really belong to the Devaswom. Public accountability should be emphasized and effectuated in larger public interest and appropriate legislation, to suit the needs of the time and situation, in the light of past experience, should be enacted, so that the public will continue to have confidence in such institutions.
17. The special audit objection of the Travancore Devaswom Board, regarding Sabarimala Improvement Fund, in paras 20 to 23 of the audit report, are hereby dropped.A copy of this order shall be sent to the Chief Secretary to the Government and also to the Secretary, Travancore and Cochin Devaswom Board, for appropriate follow up action.