Bombay High Court
Santoshkumar vs Vinaykumar on 17 October, 2012
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.360 of 2012
1. Santoshkumar s/o Nandkishor Pande,
Aged about Major,
Occupation - Business,
Resident of Bajajward, Gondia.
2. Mitrasen s/o Durgadas Lakhanpal,
Aged about 66 years,
Occupation - Business,
Resident of Civil Lines,
Gondia.
3. Rochiram s/o Gopaldas Thakrani,
Aged about 60 years,
Occupation - Business,
Resident of Laxmibai Ward,
Gondia.
4. Ashokkumar s/o Champalal Agrawal,
Aged about 56 years,
Occupation - Business,
Resident of Laxmibai Ward,
Gondia.
5. Deepakbhan s/o Kantibhai Patel,
Aged about 55 years,
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Occupation - Business,
Resident of Railtoli, Gondia.
6. Smt. Sumanbai wife of
Chandanlal Fule,
Aged about 60 years,
Occupation - Household,
Resident of near Sai Mandir,
Bhandara.
7. Rameshkumar Sampatrao Kuthe,
Aged about 61 years,
Occupation 61 years,
Occupation - Business,
Resident of Bajaj Ward,
Gondia.
8. Nandkishor s/o Hariram Agrawal,
Aged about 57 years,
Occupation - Business,
Resident of Balaghat Road,
Gondia.
9. Vinodkumar s/o Kasturchand Jaiswal,
Aged about 60 years,
Occupation - Business,
Resident of Bajajward,
Gondia.
10.Ramavtar s/o Madanlal Agrawal,
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Aged about 50 years,
Occupation - Business,
Resident of Gandhi Statute,
Gondia.
11.Ashokumar Keshorao Ingale,
Aged about 63 years,
Occupation - Business,
Resident of Civil Lines,
Gondia. ...Appellants
Versus
1. Vinaykumar s/o Sattyanarayan Mishra,
Aged about 54 years,
Occupation - Nil,
Resident of Govindpura,
Gondia.
2. The Joint Charity Commissioner,
Nagpur. ... Respondents
Shri Sunil Manohar, Senior Advocate, assisted by Shri S.D.
Abhyankar, Advocate for Appellant.
Shri R.S. Parsodkar, Advocate for Respondents.
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Coram : R.K. Deshpande, J.
th
Dated : 17 October, 2012
Oral Judgment :
1. This second appeal challenges the judgment and order
dated 6-3-2012 passed by the learned Joint Charity
Commissioner, Nagpur, thereby partly allowing Application
No.42 of 2005 filed by the respondent No.1 and his
deceased-father under Section 41D of the Bombay Public Trusts
Act, 1950 for removal of the appellants as Trustees of Om Shri
Sainath Baba Sewa Sanstha, Civil Lines, Gondia, a Public Trust
bearing P.T.R. No.F-2689(B).
2. On 19-3-2009, seven charges were framed against the
appellants in the proceedings under Section 41D of the Bombay
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Public Trusts Act as under :
"1. That you the non-applicants made persistent
default in the submission of accounts/report on return.
2. That you the non-applicants continuously
neglecting your duties thereby committed breach of
trust.
3.
That you the non-applicants committed
malfeasance and misfeasance.
4. That you the non-applicants have
misappropriated the trust fund.
5. That you the non-applicants dealt improperly
with the properties of the trust.
6. That you the non-applicants violated the
provisions of Rules and Regulations of trust thereby
committed breach of trust.
7. That you the non-applicants failed to submit
change reports under section 22 of the B.P.T. Act from
time to time thereby violated the provisions of Section 22
of the B.P.T. Act."
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By the impugned judgment and order, the learned Joint Charity
Commissioner has held that the charges at serial Nos.1, 2 and 5
have been proved. The finding is also recorded that the charges
at serial Nos.3, 4, 6 and 7 have not been established. On the basis
of the aforesaid charges, an order of dismissal has been passed.
The relevant consideration by the learned Joint Charity
Commissioner is contained in para 15 of the said judgment and
order, which is reproduced below :
"15. In view my evidence on point No.1, 2 and 5 the
non-applicants have committed persistent default in
submission of audit reports neglected their duties and
not properly dealt with the property of trust the
punishment of dismissal of non-applicants. Accordingly,
I record my findings. ..."
3. Shri Sunil Manohar, the learned Senior Advocate,
assisted by Shri S.D. Abhyankar, Advocate, for the appellants,
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has urged that the learned Joint Charity Commissioner has failed
to apply his mind to the aspect of proportionality of punishment.
He submits that the provision of Section 41D(1) of the Bombay
Public Trusts Act deals with suspension, removal and dismissal
of the Trustee/Trustees. However, while imposing any one of the
three punishments, the Charity Commissioner has to see that the
punishment proposed to be imposed is proportional to the gravity
of charges held to be proved.
4. The matter was heard on several occasions and it was
adjourned for exploring the possibility of settlement. The order
impugned dated 26-6-2012 passed in Misc. Judicial Case No.20
of 2012 by the Principal District Judge, Gondia, was stayed by
this Court on 26-7-2012. Since the settlement was not possible,
the learned counsels for the parties have argued the matter.
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5. Hence, the second appeal is Admitted and heard on the
substantial question of law framed as under :
Whether the learned Joint Charity Commissioner was
under obligation to apply his mind to the aspect of
proportionality of punishment on the basis of the charges
held to be proved ?
6. Section 41D(1) of the Bombay Public Trusts Act confers
a power upon the Charity Commissioner to suspend, remove or
dismiss any Trustee/Trustees of the Public Trust if he/they are
found guilty of the act/acts, which is/are mentioned in any of the
Clauses (a) to (f) therein. In order to consider the question as to
whether the Trustee or the Trustees, who is or are found guilty of
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any of the charges mentioned in Clauses (a) to (f) to sub-section
(1) of Section 41D of the said Act, should be suspended, removed
or dismissed, there has to be an application of mind to the aspect
of proportionality of punishment on the basis of the charges held
to be proved. The punishment of either suspension, removal or
dismissal, as the case may be, has to be proportionate to the
gravity of the charge/charges held to be proved. It is not the
every lapse or every act of misconduct, which invites the
punishment of dismissal. The Charity Commissioner is,
therefore, bound to record reasons for imposing a particular
punishment. The substantial question of law is, therefore,
answered accordingly.
7. Perusal of the judgment and order impugned in this
second appeal shows that except the discussion in para 15
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thereof, reproduced above, there is neither any consideration of
the aspect of proportionality of punishment proposed to be
imposed nor there are reasons recorded to impose the punishment
of dismissal. The judgment and order passed by the learned Joint
Charity Commissioner to the extent it imposes the punishment of
dismissal of the appellants as Trustees cannot, therefore, be
sustained and the same will have to be quashed and set aside.
8. In the result, the second appeal is allowed. The judgment
and order dated 6-3-2012 passed by the learned Joint Charity
Commissioner, Nagpur, in Application No.42 of 2005 is hereby
quashed and set aside only to the extent of imposing punishment
of dismissal of the appellants from the posts of Trustees, without
touching to the other findings recorded by the learned Joint
Charity Commissioner. The matter is remanded back to the
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learned Joint Charity Commissioner to consider only the aspect
of proportionality of punishment on the basis of the charges held
to be proved, after hearing all the parties concerned, and the other
points concluded shall not be re-opened. The learned Joint
Charity Commissioner shall decide the said aspect and pass
appropriate order within a period of six months from the date of
first appearance of the parties before him. The parties to appear
before the learned Joint Charity Commissioner, Nagpur, on
20-11-2012. No order as to costs.
Judge
pdl
