1 wp-6870.09 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6870 OF 2009 L.P. Jagdale & Others. .. Petitioners Vs Bhanudas Raghunath Jadhav & Others. .. Respondents -- Sheri N.V. Walawalkar, Senior Counsel i/by Shri Rahul S. Kate for the Petitioners. Shri R.S. Apte, Senior Counsel i/by Shri N.R. Bubna for Respondent No.1. Shri S.H. Joshi for Respondent No.2. Shri R.M. Patne, AGP for Respondent No.6. Shri G.S. Godbole i/by Shri V.N. Bolinjkar for Respondent No.7. -- CORAM : A.S.OKA, J. DATE : 22ND OCTOBER, 2010 P.C: . This Writ Petition is taken up for final disposal at the admission stage. The challenge in this Writ Petition under Article 227 of the Constitution of India is to the judgment and order dated 13th July, 2009 passed by the learned Joint Charity Commissioner, Mumbai. The said judgment and order has been passed in an application made by the 1st Respondent under Section 41D of the Bombay Public Trusts Act, 1950 ( hereinafter referred to as “the said Act” ). The 1st Respondent is a member of the Public Charitable Trust – Sevashram Shikshan Sanstha 2 wp-6870.09 which has been duly registered under the said Act. The prayer in the said application made by the 1st Respondent is for removal of the trustees. Pending final disposal of the application, a prayer was made for suspension of the trustees. The said application was contested by the trustees. The impugned order is in two parts. By the first part of the impugned judgment and order, the charges have been framed against the Trustees. The second part of the impugned judgment and order is of suspension of the trustees in exercise of powers under Sub-section (3) of Section 41D of the said Act. Under the said order, the learned Joint Charity Commissioner appointed the 7th Respondent –S.G. Wangikar, 1st Respondent – Bhanudas Jadhav and the Education Officer, Zilla Parishad, Thane, as the fit and proper persons to administer the affairs of the Trust with a rider that they will not take major financial decisions without the prior approval of the Authority. 2. The learned Senior Counsel appearing for the Petitioners submitted that by the impugned order, the charges have been framed though there is no prima facie material to frame charges. He submitted that after framing the charges, without recording any reasons, the learned Joint Charity Commissioner has proceeded to suspend the Petitioners who are the Trustees. He submitted that such drastic order of suspension of the trustees could not have been passed in such a manner without recording any reasons. He submitted that the Petitioners had demonstrated that most of the charges have absolute no foundation and in any case there is no 3 wp-6870.09 warrant for passing an order of suspension of the Trustees. He pointed out that in any event, Respondent No.7 could not have been appointed as a fit person as he is also a person interested in removing the Petitioners. The learned Senior Counsel submitted that there is a total non-application of mind. 3. The learned Senior Counsel appearing for the 1st Respondent supported the impugned judgment and order. He submitted that perusal of the impugned order shows that detailed reasons have been assigned on the basis of which the order of suspension has been passed. He submitted that in a given case, order of suspension could not have been passed even without hearing the Trustees. He placed reliance on a decision of this Court in the case of Vijay K. Mehta & Others v. Charu K. Mehta & Others ( 2009(2) Bom.C.R. 542 ). He submitted that while passing the impugned order, for framing the charges, adequate reasons have been recorded which itself warrant suspension of the Trustees. He submitted that the 7th Respondent is a retired Head Master and there is nothing against him which prevents him from acting as a fit person. I have also heard learned counsel appearing for Respondent No.2 and the learned counsel appearing for Respondent No.7. I have also heard the learned AGP appearing for the 6th Respondent. 4. Section 41D of the said Act reads thus:- 4 wp-6870.09 “41D. Suspension, removal and dismissal of trustees.- (1) The Charity Commissioner may, either on application of a trustee or any person interested in the trust, or on receipt of a report under section 41B or suo motu may suspend, remove or dismiss any trustee of a public trust, if he, - (a) makes persistent default in the submission of accounts report or return; (b) wilfully disobeys any lawful orders issued by the Charity Commissioner under the provisions of this Act or rules made thereunder by the State Government; (c) continuously neglects his duty or commits any malfeasance or misfeasance, or breach of trust in respect of the trust; (d) misappropriates or deals improperly with the properties of the trust of which he is a trustee; or (e) accepts any position in relation to the trust which is inconsistent with his position as a trustee; (f) if convicted of an offence involving moral turpitude. (2) When the Charity Commissioner proposes to take action under sub-section (1), he shall frame charges against the trustee or the person against whom action is proposed to be taken and give him an opportunity of meeting such charges, of testing the evidence adduced against him, and of adducing evidence in his favour. The order of suspension, removal or dismissal shall state the charges framed against the trustee, his explanation and the finding on each charge, with the reasons therefore. (3) Pending disposal of the charges framed against a trustee the Charity Commissioner may place the trustee under suspension. (4) Where the Charity Commissioner has made an order suspending, removing or dismissing any 5 wp-6870.09 trustee and such trustee is the sole trustee or where there are more than one trustee and the remaining trustees, according to the instrument of trust, cannot function or administer the trust without the vacancy being filled, then in that case the Charity Commissioner shall appoint a fit person to discharge the duties and perform the function of the trust, and such person shall hold office only until a trustee is duly appointed according to the provisions of the instrument of trust. (5) A trustee, aggrieved by an order made under sub-section (1), may, within ninety days from the date of communication of the order of suspension, removal or dismissal, apply to the Court against such order. (6) An appeal shall lie to the High Court against the decision of the Court under sub-section (5) as if such decision was a decree from which an appeal ordinarily lies. (7) The order of the Charity Commissioner shall, subject to any order of the Court or in appeal, be final.” 4. The grounds on which the Trustees can be suspended have been set out under Sub-section (1) of Section 41D of the said Act. Where the Charity Commissioner proposes to take action of removal of the Trustees under Sub-section (2), he has to frame charges against the Trustees or a person against whom action is proposed and thereafter give him an opportunity of adducing evidence. Pending the disposal of the charges framed against the Trustees, the Charity Commissioner can place the Trustees under suspension. In the present case, the order impugned has been passed under Sub-section (3) of Section 41D of the said Act. 6 wp-6870.09 5. I have perused the impugned order. Perusal of the impugned order shows that upto paragraph 12, the learned Joint Charity Commissioner has referred to the facts of the case and the pleadings. In Paragraph 13, the learned Joint Charity Commissioner has discussed the locus of the 1st Respondent. In Paragraph 14, he has dealt with the powers under Section 41D of the said Act. In Paragraph 15, the learned Joint Charity Commissioner has referred to a letter issued by the Education Department informing the Trustees that the transfers effected were likely to attract the contempt jurisdiction of this Court. In Paragraph 16, the learned Joint Charity Commissioner has referred to a letter issued by the Deputy Director of Education in which it was observed that the school premises were not kept clean. The said paragraph makes a reference to the allegation of misappropriation which is specifically made against one Mrs. Vandana Raut, Headmistress of one of the schools. There is a reference to the allegation that the Trustees had locked a school. There is a vague reference to the allegation of committing forgery of the signature of one Umesh Dhodi. Thereafter, in Paragraph 17, the learned Joint Charity Commissioner has framed the charges. In Paragraph 18, the learned Joint Charity Commissioner has stated that the Audited Accounts of the Trust have not been filed by the Trust since 1964. On the face of it, the Petitioners cannot be held responsible for not auditing the Accounts of the Trust from the year 1964. The other aspects mentioned in the said paragraph are as regards the action of the Deputy Director of Education of issuing show cause notice of de-recognition of a school, omission to take 7 wp-6870.09 action against Mrs. Raut, illegally locking of the premises of the school and vague allegation regarding forgery of the signature. However, there is no specific reference to any document on record in the said paragraph. In Paragraph 19, the learned Joint Charity Commissioner has simply observed that the Trustees are not maintaining the transparency in their conduct as expected of Trustees of a Public Trust and has straightaway proceeded to pass an order of suspension of the Trustees. 6. On the basis of the allegations made in the application filed by the 1st Respondent, the charges have been framed by the learned Joint Charity Commissioner. As the allegations have been made, the charges will have to be gone into after the parties adduce their evidence. But only on the ground that charges have been framed, the order of suspension cannot be mechanically passed. The order of suspension has a very drastic consequence of removing the persons acting as the Trustees, though temporarily, till the conclusion of the inquiry. The Trust is running certain schools and educational institutions. Reasoning adopted by the learned Joint Charity Commissioner in Paragraphs 18 and 19 is far from being satisfactory and even taking the reasoning as correct, the order of suspension could not have been passed. In the circumstances, though the order of framing charges cannot be disturbed, that part of the impugned order by which the Trustees were suspended will have to be set aside by directing the learned Joint Charity Commissioner to re-consider the prayer for suspension. 8 wp-6870.09 7. There is a controversy as to whether the fit persons appointed under the impugned order have taken charge. As stated earlier, the charges have been framed against the Petitioners. The order impugned is operating from 13th July, 2009 though the Petition was filed on 5th August, 2009. It will be in the interests of everybody that till the prayer for suspension is reconsidered and decided, the affairs of the Trust would be managed by independent persons. Under the impugned order, the Education Officer ( Secondary ), Zilla Parishad, Thane, has been already appointed as one of the Administrators. On a query made by this Court, the learned AGP has suggested the name of another officer Shri A.G. Shinde, who is a Public Relation Officer-cum-Deputy Education Officer (Secondary), Zilla Parishad, Thane. The learned AGP also suggested the name of the Principal of a School at Boisar. 8. Considering the controversy involved, it will be appropriate if the Education Officer (Secondary), Zillah Parishad, Thane, and Sheri A.G. Shinde, Deputy Education Officer (Secondary), Zillah Parishad, Thane, are appointed as the fit persons to look after day to day affairs/management of the Trust including the Schools. Hence, the Petition is disposed of by passing the following order:- (a) The first part of the impugned order dated 13th July, 9 wp-6870.09 2009 by which the charges have been framed is hereby confirmed. (b) The other part of the impugned order relating to suspension of the Trustees is set aside. ( c) The parties are directed to appear before the learned Joint Charity Commissioner on 29th November, 2010 at 11.00 a.m. (d) The learned Joint Charity Commissioner will have to re-consider the prayer for suspension of the Trustees pending enquiry on the charges. After giving an opportunity of being heard to the parties, the learned Joint Charity Commissioner will pass an appropriate order in accordance with law as expeditiously as possible and in any event on or before the 28th February, 2011. (e) Till the appropriate order is passed by the learned Joint Charity Commissioner in terms of this order, the Education Officer (Secondary), Zillah Parishad, Thane, and Sheri A.G. Shinde, Deputy Education Officer (Secondary), Zillah Parishad, Thane, are hereby 10 wp-6870.09 appointed as the fit persons to administer the day to day affairs of the Trust including the Schools and Institutions of the Trust. The fit persons shall not take any major policy decision without prior approval of the learned Joint Charity Commissioner. (f) All contentions of the parties on the prayer for suspension of the Trustees are kept open. (g) The Writ Petition is disposed of on above terms. (h) The learned Joint Charity Commissioner and the fit persons appointed under this order to act upon an authenticated copy of this order. (A.S.OKA, J)