IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.515 OF 2006 IN NOTICE OF MOTION NO.1466 OF 2006 IN SUIT NO.1578 OF 2006 WITH CIVIL APPLICATION NO.51 OF 2007 1.Methodist Church in India, a Society, registered under the Indian Societies Act, 1860, having its office at inter alia Methodist Centre, 21 YMCA Road, Mumbai - 400 008. 2.Bishop Nimrod Christian, Delhi Episcopal Area, Bishop’s House, 12 Belvered Road, Near Tis Hazari, Delhi - 110 054. 3.Bishop Taranath S.Sagar, Hyderabad Episcopal Area, Bishop’s House No.5-8-336 Chapel Road, Hyderabad - 400 001. 4.Bishop Samuel Singh, President, COB Bareily Episcopal Area, Bishop’s House, Claraswain Hospital Compound, Civil Lines, Bareily-1. 5.Bishop S.V.Sampath Kumar, Bangalore Episcopal Area, Baldwin Methodist Educational Centre, 13 Convent Road, Museum Road, Bangalore - 600 025. 6.Bishop Dr.S.R.Thomas, Lucknow Episcopal Area, Bishop’s House, 37 Cantonment ...Appellants/ Road, Lucknow - 226 001 (U.P.). Defendants : 2 : Versus Bishop Dr.Dinesh K.Agarwal, Bishop’s House, 22 YMCA Road, ...Respondent/ Mumbai - 400 008. Plaintiff ...... Mr.M.P.Vashi i/b M/s.M.P.Vashi & Associates for Appellants. Mr.R.V.Govilkar with Mr.V.A.Gangal and Mr.D.D.Belosay for Respondent. ....... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. FEBRUARY 26, 2007. FEBRUARY 26, 2007. FEBRUARY 26, 2007. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This Appeal from Order takes exception to the Judgment and Order dated 30th June 2006 under Notice of Motion No.1466 of 2006. The Respondent No.1/original Plaintiff was Bishop of the Bombay Episcopal area which comprises of Maharashtra and Gujarat. On account of certain complaints against the Respondent No.1/Plaintiff, Council of Bishops suspended the Respondent No.1 from acting as Bishop. This decision was not challenged by the Respondent No.1/Plaintiff himself, but by one : 3 : M.C.I.Gideonbhai B.Christian before the City Civil Court at Ahmedabad. Against the order passed by the City Civil Court, Ahmedabad, matter was carried before the Gujarat High Court in Appeal from Order No.393 of 2004. In the said proceedings, the Respondent No.1 was represented by Advocate. From the order passed by the Gujarat High Court dated 30th March 2005, it is seen that oral order was passed by the Court on the basis of "consensus" between the parties. The order reads thus: "1. Heard the learned counsel for the respective parties. As a result of the hearing, there is a consensus between the parties on the basis of which the following arrangement will continue till the disposal of the suit or till the inquiry against the defendant no.5 will be over, whichever is earlier: "(1) The respondent no.1-Council of Bishops will suggest five names for being appointed as an Inquiry Officer. Such names will be suggested within three weeks from today. Out of the said names, the respondent no.5 will select a name within a week from the date of receipt of such names." (2) Upon selection of the name Inquiry Officer will be appointed immediately and he will conduct and finish the inquiry within a period of four months on condition that respondent no.5 will : 4 : cooperate in the inquiry. In short, the entire proceedings of inquiry, including suggestion and selection of names will be completed within a period of five months. (3) During this period, the suspension order will be revoked on the following conditions: (a) The respondent no.5 will be permitted to continue day-to-day spiritual activities. (b) Administrative decisions will be taken after taking prior concurrence of the President of the Council of Bishop and Bishop Mr.Samuel S.Singh. The decisions which will be taken by respondent no.5 will be reviewed by the aforesaid two persons and final decision will be taken by them with regard to implementation or revocation of such decisions. It is clarified that the decision will not be implemented unless the concurrence is received as stated hereinabove. (c) If the Regional Conference is not already called, the same will not be called by either side till the inquiry is over, and if it is already called, the same will be postponed till the inquiry is over. (d) Respondent no.5 will not chair in any meeting or conference. (e) Respondent no.5 will not visit places which are referred in the inquiry report/chargesheet. (4) This arrangement will continue till inquiry is over. However, it is clarified that if respondent no.5 is not cooperating with the inquiry, the present order will not operate after five months. But if the inquiry is delayed because of respondent no.1 or the Inquiry Officer beyond the : 5 : period of one year, the restrictions mentioned above vide clause (3) will not operate. (5) It is clarified that this arrangement is made without prejudice to the rights and contentions of both the sides and accepted at the suggestion of the Court. 2. The appeal and cross-objections are disposed of in terms of the "above directions." The parties are directed to abide by the conditions stated hereinabove. 3. The appeal and cross-objections are disposed of in terms of the above order. No order as to costs. Liberty to apply in case of difficulty. D. S. permitted today." (emphasis supplied) 2. After the said order, Enquiry Officer was appointed. The Respondent No.1 was served with seven charges, for which Respondent No.1 was required to face the proposed action. The charges read thus: CHARGE NO.1 (Violation of Para 1261(3) Imprudent and unministerial conduct. Bishop Dinesh K.Agarwal being a Presiding Officer of the General Conference, Executive Board/Executive Council para 377(11) himself was opposing meeting of Executive Council of 04.01.2003. His imprudent and unministerial conduct was : 6 : evident by 1) refusing to sign the roll call at the commencement of meeting 2) intimidating to cancel the meeting without signing the roll call. 3) Signed the roll call after much deliberation. 4) Not complying with the provision of Para 510 Art.IX(3) viz a) Deliberate and inordinate delay in certifying the list of elected delegates of the Regional Conference to the General Conference and submission to the General Secretary Office. b) Refusal to comply with Para 1109 Art.V in sending Regional c) Conference apportionment towards the expenses of the General Conference. d) Conduct and attitude in the said meeting evidencing his premeditated plans for stalling the General Conference along with other members who are identified as the person against holding of the General Conference. CHARGE NO.2 Violation of Para 1261(1), (3) & (5) Bishop Dinesh K.Agarwal brought disrepute to the office he holds and to the temporal authority of the office of the Bishop by his conduct in instigating members of Methodist Church to institute cases before Court of Law to stall the General Conference Meeting scheduled to be held in Jabalpur in the State of Madhya Pradesh from 10.02.2003 to 16.02.2003. By his conduct he has lowered the prestige and honour of the office of the Bishop in the : 7 : eyes of the follower of Methodist Church and brought disrepute to the movement of Methodist Church. Thus Bishop Agarwal’s conduct and action are in violation of the provisions contained in para 1261(1), (3) & (5). CHARGE NO.3 Violation of para 1261(1), (3) & (5) Bishop Agarwal brought disrepute to the office of Bishop in his subsequent conduct in scuttling the enquiry process initiated by the Council of Bishops to know the truth in the allegation regarding his involvement in filing cases before courts of law to stall the General Conference Meeting. Her has tried to influence the witnesses not only to speak falsehood before the Enquiry Committee which was enquiring to find out a prima facie case on the allegations made against Bishop Agarwal, but also influenced them to abstain from attending the Enquiry Committee by offering illegal gratification. The above action is in violation of the provisions contained in Para 1261(1), (3) & (5). CHARGE NO.4 Violation of Para 1261(1), (3) & (5) Bishop Agarwal tried to interfere with the process of justice by seeking to influence the witnesses to speak falsehood. A spiritual head is expected to preach and adhere to the truth and justice. As thousands of Christians look upon the Bishop as their spiritual head. Such conduct is unbecoming of a person holding such a spiritual office and violates para 1261(1), (3) & (5). CHARGE NO.5 Violation of Para 1261 (5) & (7) Bishop Dinesh Agarwal has violated code of : 8 : conduct and discipline by creating dissension in holding parallel worship of MCI Day. He has created dissension within the Church showing favouritism to certain clergies and lay people, therefore the Church witnesses groupism, harassment and intimidation that resulted in the exit of several ministers either by force resignation and or by termination. CHARGE NO.6 Violation of Para 1261 (7) Bishop D.K.Aggarwal has violated Para 1261(7) of the Book of Discipline. He appointed to District Superintendents viz., Rev. N.L.Karkare and Rev.Chandrakanth Jadhav even though they do not possess qualifications prescribed under Para 379(1) Art.XVI of the Book of Discipline. Rev.Karkare does not fulfil the requirement of 4 years experience as Pastor In charge and Rev. C.Jadhav does not fulfil the requirement of 6 years in full connection. Bishop Agarwal was aware of the facts that the aforesaid persons were not qualified still he appointed them in violation of Book of Discipline. CHARGE NO.7 Violation of Para 1261(7) Bishop Agarwal failed to perform the duties assigned to him under Article 377 (13) as Bishop Sampath Kumar had to perform confirmation of 283 children above 12 years as full members, which has been long overdue. Bishop Agarwal had violated Para 218 of Art.VI of the Book of Discipline declining to grant full membership to preparatory candidates without justifiable reasons. He also violated the provisions contained in Article 217(V)(3) as he refused to confirm children between 12-16 years of age as full members of Vernon Memorial Methodist Marathi Church, Kalyan and the Oldham : 9 : Methodist English Church. This is in violation of Article 1261(3) and ministerial conduct. The members of Oldham Methodist English Church complained by a Partition dated 25.01.2003 that Bishop showed disrespect towards the Holy Sacraments by not following the Church’s established doctrinal standards of worship and rituals (Para 2001)." 3. The Enquiry Officer was appointed as per the choice exercised by the Respondent No.1 himself. The Enquiry Officer, after giving opportunity to the Respondent No.1 and on the basis of materials on record, proceeded to record finding of guilt against the Respondent No.1 in respect of charge Nos.2, 5, 6 and 7 respectively. The Enquiry Officer submitted her report dated 14th February 2006, which was placed before the Executive Council in the meeting held on 25th March 2006. The Respondent No.1 was given notice to appear to show-cause as to why the proposed action should not be taken against him. Respondent No.1 participated in the said meeting of the Executive Council when after deliberations, considered view was expressed by the Executive Council to terminate his appointment/service by accepting the Enquiry Officer’s report. The Respondent No.1 was informed : 10 : about the possible decision and was called upon to consider whether he would prefer to take voluntary retirement. Before passing final orders, the Executive Council thought it appropriate to give some opportunity to the respondent No.1 to consider the offer given by the Executive Council for which purpose, meeting was deferred till 29th March 2006. On 29th March 2006, however, the Respondent No.1 did not attend the meeting of the Executive Council and instead, informed that he was advised rest being unwell. As the Executive Council did not get response from the Respondent No.1 about the offer to take voluntary retirement - instead of the proposed action of termination, had no option but to proceed in the matter. Accordingly, the Executive Council decided to terminate the assignment/service of the Respondent No.1. Formal order came to be passed on the basis of the said decision on 30th March 2006 which was communicated to the Respondent No.1 and served on him on 3rd April 2006. The Executive Council in its meeting on 29th March 2006 also took decision to appoint two separate persons as Bishops for Maharashtra and Gujarat areas respectively. As a result of that : 11 : decision, the said persons came to be appointed as Bishop of Maharashtra and Gujarat area respectively as the service of Respondent No.1 stood terminated in view of the order dated 30th March 2006. The said two persons, it is stated took over the charge of their respective offices. Only thereafter, the Respondent No.1 filed suit in the Bombay City Civil Court challenging the action of the Executive Council praying for following reliefs: "a) That this Hon’ble Court be pleased to declare that the resolution passed by the Defendants in the meeting held on 25th March, 2006 and also by the Executive Council of the Methodist Church of India (M.C.I.) at the Special Meeting held on 29th March, 2006 is illegal, ultravires, bad in law and void ab-initio and liable to be quashed and set-aside. b) That this Hon’ble Court be pleased to issue a permanent order and injunction restraining the Defendants by themselves, their servants, agents and/or representatives from implementing and/or taking any steps and/or interfering with and/or preventing the Plaintiff from acting as a Bishop for the territory of Episcopal area of Maharashtra and Gujarat in pursuance to the said resolution dated 29th March, 2006, c) ad-interim relief in terms of prayer (b) above; d) That the costs of the suit be provided : 12 : for e) for such other and further reliefs as this Hon’ble Court deems fit and proper in the nature and circumstances of the case may require." 4. The Suit was filed on 10th April 2006. In this Suit, the Respondent No.1 took out Notice of Motion No.1466 of 2006, praying for following reliefs during the pendency of the Suit: "a) That pending the hearing and final disposal of the suit, this Hon’ble Court be pleased to issue a temporary order and injunction restraining the Defendants by themselves, their servants, agents and/or representatives from implementing and/or taking any steps and/or preventing the Plaintiff from acting as a Bishop for the territory of Episcopal area in pursuance to the said resolution dated 29th March, 2006, b) ad-interim relief in terms of prayer (a) above; c) That the costs of the suit be provided for d) for such other and further reliefs as this Hon’ble Court deems fit and proper in the nature and circumstances of the case may require." 5. In the present Appeal from Order, the : 13 : Judgment and Order passed by the City Civil Court, Bombay on the said Notice of Motion is put in issue. It is unnecessary to advert to the other details of the proceedings such as passing of ad-interim order by the Trial Court and which decision was set-aside by this Court in Appeal from Order No.280 of 2006 decided on April 27 of 2006. The Trial Court by the impugned Judgment and Order has made the Notice of Motion filed by the Respondent No.1 absolute in terms of prayer clause (a) by answering all the three issues, namely, prima facie case, balance of convenience and irreparable harm and injury, in favour of the Plaintiff / Respondent No.1. The Appellants / Defendants had contended that the nature of relief claimed by the Respondent No.1 in the fact situation of the present case would result in granting mandatory order. That objection has also been negatived by the Trial Court by holding that the Respondent No.1/Plaintiff has made out prima facie case. That issue is discussed by the Trial Court in Paragraphs 37 and 38 of the impugned Judgment. Issue regarding balance of convenience is discussed in Para 39, whereas issue regarding : 14 : irreparable harm and injury is considered in Para 40 of the impugned Judgment. 6. Insofar as issue of prima facie case is concerned, the Trial Court has taken the view that the Defendants did not follow Paras 1267 and 1270 of the Book of Discipline. It is further found that the Defendants took decision to terminate the Plaintiff behind the back of the Plaintiff when he could not attend the meeting on 29th March 2006 due to illness and medical ground. The Trial Court has then observed that the decision of the Defendant to appoint Defendant Nos.2 and 5 in place of the Plaintiff was taken in undue haste. It has then observed that the Enquiry Officer’s report was under challenge before the Judicial Council, for which reason, the Executive Council ought not to have precipitated the matter. The principal finding on the basis of which the Trial Court proceeds to grant relief in favour of the Plaintiff is that it is only the General Conference who had appointed the Plaintiff as Bishop, could have terminated him. According to the Trial Court, in fact, there was no provision in the Book of : 15 : Discipline to terminate the Bishop. It has then found that the termination of the Plaintiff by the Executive Council was without authority of law. At the end, the Trial Court records that the whole idea behind the action against the Plaintiff was to enable the Defendants to take control of the Institution to siphon of the funds and to misappropriate the property of the Church, which cannot be ruled out. 7. Although the Trial Court has separately answered the issue of balance of convenience, more or less, has adverted to the same reasons which weighed with it to answer the issue of prima face case made out by the Plaintiff-such as there is no provision in the Book of Discipline and Rule to remove the Bishop; that no opportunity was given to the Plaintiff to give his apology and the like. While answering the issue of irreparable loss and injury, once again matters which were relevant for considering the issue of prima facie case have been adverted to for answering the same. The Trial Court has observed that Defendants have not produced any evidence that the Defendant Nos.2 and : 16 : 5 have been appointed in consonance with the provisions of the Book of Discipline. That no minutes of the meeting held by the Executive Council were produced before the Court to establish that due process of law has been followed. It then proceeded to observe that the decision on the Suit may take several years, on account of which grave harm and irreparable loss will be caused to the Plaintiff, for which reason, he was entitled for interim relief. As mentioned earlier, the Trial Court proceeded to reject the objection of the Appellants/Defendants that the interim relief as prayed for by the Plaintiff if granted, would result in passing mandatory order at the interlocutory stage. 8. The Appellants/Defendants have questioned the correctness of the view taken by the Trial Court. According to the Appellants, the decision of the Trial Court cannot be sustained either on facts or in law. On the other hand, according to the Respondent No.1/Plaintiff, there is no error in the conclusion reached by the Trial Court and no interference is warranted with the interim order : 17 : passed by the Trial Court which will operate between the parties only during the pendency of the Suit. Mr.Govilkar for Respondent No.1 has supported the finding recorded by the Trial Court and has mainly urged three points before this Court to justify the view taken by the Trial Court. According to him, even on close scrutiny of the provisions contained in the Book of Discipline, it is not possible to assume that Bishop can be removed from service, much less, by the Executive Council. According to him, if at all, such power is to be exercised, it will only have to be exercised by the General Conference, who is the appointing Authority of the Bishop. It is next contended that the Plaintiff had questioned the correctness of the Enquiry Officer’s report before the Judicial Council and which challenge was still pending before the said body. Until the said representation was to be finally disposed of by the Judicial Council, the question of removal of the Plaintiff by the Executive Council would not arise. It is lastly contended on behalf of Plaintiff that the action of the Executive Council is colourable exercise of power. According to Mr.Govilkar, there : 18 : was no written complaint against the Plaintiff on the basis of which the disciplinary action could have been initiated or pursued. Secondly, no show-cause notice was issued against the Plaintiff before passing the final order which was mandatory. Lastly, no attempt was made by the Executive Council to settle the matter which is the spirit of the rules provided in the Book of Discipline. 9. The question that arises for my consideration is: whether the view taken by the Trial Court can be sustained in fact or in law? To examine this position, I shall straight away consider the correctness of the argument advanced on behalf of the Plaintiff that there is no provision in the Book of Discipline to remove Bishop as such. Indeed, the provision regarding appointment of Bishop is traceable to Para 13.Art.III. Clause 12 thereof empowers the General Conference to elect and appoint Bishops. There is another provision which re-inforces the position that appointment of Bishop is by election, to be done by the General Conference, being Para 366.Art.III. It is the power and duty of the : 19 : General Conference to elect and appoint Bishops in such manner and in such number as shall be determined therein. The General Conference is empowered to fix their (Bishops) qualification, powers, duties, responsibilities, privileges, limitations, grounds of service, provident fund and/or any other emoluments or expenses which go with their office and shall appoint their assigns. The Respondent No.1 was elected by the General Conference in December 1994 and when the action in question has been taken against him, he was catering to the areas of Maharashtra and Gujarat. 10. This Court is called upon to consider the question: whether Bishop can be removed from his Office or his Office is a tenure appointment. According to the Plaintiff, there is no provision in the Book of Discipline which provides for removal of Bishop. To test this submission, let us turn to the relevant provisions concerning Bishop. The same are found in Chapter XVI titled as the Episcopacy. As mentioned earlier, Para 366.Art.III provides that the General Conference shall elect Bishops in such numbers and on such terms as shall : 20 : be determined by the General Conference from time to time. Para 367.Art.IV in the said Chapter deals with the requirements or eligibility for election to the office of the Bishop. Para 369.Art.VI provides that in the case of brief illness or disability or absence of the Bishop from his area or for any other valid reason for four consecutive months, the Executive Committee of the Council of Bishops, upon request of the Area Bishop concerned, may arrange for supervision of that area by one from among the active Bishops for this period. Para 370.Art.VII makes provision to deal with the situation of prolonged illness and disability of the concerned Bishop beyond period of four months, in which case, the Executive Committee of the Council of Bishops may appoint one of the retired Bishops to that episcopal area or divide that area among the active Bishops until the Bishop on leave resumes his duties. Para 371.Art.VIII under the same Chapter deals with the vacancy created on account of death or resignation of the Bishop. Chapter XVIII titled ‘Resignation and Retirement of Bishops’ stipulates mechanism for that purpose. Para 386.Art.I deals with voluntary resignation of : 21 : a Bishop from the episcopacy. Plaintiff, however, relies on Para 387.Art.II which provides for retirement of a Bishop on his 65th birthday. It further provides that in the event of his 65th birthday falling any time within the quadrennium, he shall be continued in the office till the end of the quadrennium. Para 389.Art.IV relates to