1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 125 OF 2010 1. Mohd.Abdul Rasheed Mohd. Abdul Razzak Age : 76 years, Occ : Retired Executed Engineer, R/o Gujari Bazar, Mominpura, Parbhani, Tq. & Dist.Parbhani. 2. Mohd.Osman Mohd. Hanif Age : 68 years, Occ : Business, R/o Gujari Bazar, Mominpura, Parbhani, Tq. & Dist.Parbhnai. ..Petitioners -VERSUS- 1. The Deputy Charity Commissioner, office of the Charity Commissioner, Aurangabad. 2. The Joint Charity Commissioner, office of the Charity Commissioner, Aurangabad. 3. Gulam Ahmeed Qureshi Gulam Mohammad Age : years, Occ : Service, R/o Parbhani. ..Respondents ......... Mr.P.R. Katneshwarkar, advocate for the petitioners. Mr.M.M. Joshi holding for Mr.Sameer D.Kamlakar, advocate for the respondent no.3. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 30th June, 2010. ORAL JUDGMENT : 1. By this petition, the petitioners challenge the order 2 dated 11.10.2006 rendered by the learned Principal District Judge, Parbhani in Misc.Civil Appeal no.51/2005 as well as judgment and order in Enquiry No.19/2005 rendered by the Joint Charity Commissioner, Aurangabad on 16.11.2005. The petitioners are the trustees of Parbhani Education Society, Parbhani. They were suspended by the Charity Commissioner under Section 41D of the Bombay Public Trust Act, 1950. The enquiry report was called from the Deputy Charity Commissioner. It appears that the enquiry report dated 08.11.2005 indicated that seven trustees had committed lapses and mis-management. It was further reported that those trustees did not perform their obligations and were guilty of misappropriation of funds of the trust. On the basis of such report, the Joint Charity Commissioner by his order dated 16.11.2005 initiated suo motu enquiry under Section 41D of the Bombay Public Trust Act, 1950. 2. It is not necessary to elaborately set out nature of the charges levelled against the petitioners. It would suffice to state that before framing of charges, both the petitioners were placed under suspension in exercise of powers available under Section 41D of the Bombay Public Trust Act, 1950. 3. The question involved in the Petition is, whether such 3 suspension of the trustees can be ordered before framing of the charges against them ? 4. Heard learned counsel for the parties. 5. The Section 41D (1) reads as follows : "41D (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) willfully 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 mal-feasance 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 4 turpitude. (1) 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 thereof." 6. Sub section (3) of Section 41D reads as follows : "41D(3): Pending disposal of the charges framed against a trustee the Charity Commissioner may place the trustee under suspension." 7. Perusal of Section 41D(1)(f) and sub section (3), conjointly, would make it amply clear that the powers of suspension can be utilised only after the charges are framed. Framing of charges in an enquiry is not an empty formality. The charges can be framed only when there is some tangible material, which would assist the Charity Commissioner in properly articulating the misconduct of trustee, which may fall within sub clause (a) to (f) of 5 sub section (1) of Section 41D. It is clear that legal safeguard is provided before a trustee is suspended during the course of enquiry. In other words, a trustee can not be suspended as per the whims of the Charity Commissioner. For the purpose of suspension, the Charity Commissioner must come to the conclusion that there is prima facie material, which would be sufficient to frame the charges against the trustee for the acts of omission or commission, which may fall within any of sub-causes (a) to (f) of Section 41D(1) of the Bombay Public Trust Act, 1950. The petitioners were suspended before framing of the charges and as such, the impugned order is contrary to the principles enumerated in Section 41D. The drastic action of suspension can not be upheld unless it is taken by the Charity Commissioner after following due procedure. 8. For the reasons aforestated, I find that the impugned order is unsustainable. The suspension of the petitioners is illegal and must be interfered with. Hence, the Petition is allowed. The impugned order is set aside. Since the charges are already framed, the Charity Commissioner shall complete the enquiry and decide the matter on merits within a period of six months as far as possible. The Charity Commissioner may denovo consider the requirement to pass order of suspension against the petitioners, if 6 he would come across sufficient material to infer strong prima facie case of misconduct/mal-feasance, which may fall ambit of sub clause (a) to (f) of Section 41D(1) of the Bombay Public Trust Act, 1950. Rule made absolute accordingly. Petition is disposed of. No costs. (V.R.KINGAONKAR) JUDGE gas/wp125.10