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Judgment
S.S. Subramani, J.—Both these Revisions arise from the same suit, namely O.S. No. 6688 of 1998, on the file of the VTII Assistant Judge,
City Civil Court, Madras. Reference to parties herein will be according to their rank in the suit.
Plaintiff - J. Duraisingam filed the suit to declare that the post held by the first defendant is illegal and invalid and contrary to the provision of Rule
120-A of the Church Rules, for a permanent injunction restraining the first defendant from discharging his duty as Secretary of the Church Council,
Chairman of Education Board and Correspondent of ELM Fabricious Higher Secondary School, Purasawalkam, Chennai-7, and for a mandatory
injunction directing the second defendant to pass the Order in respect of the Appeals dated 10.7.98, 16.7.98 and 27.8.98 preferred by the plaintiff
in accordance with the provisions under Church Rules 182-A and 182-B and render justice.
The material averments in the plaint could be summarised thus:-
The plaintiff is a full-fledged member of the Tamil Evangelical Lutheran Church (for short, TELC) and elected to Synod Continuation Committee
(for short, SCC) from Sirkazhi Pastorate in the year 1995 and continued to hold office for a period of three years till 1998. TELC is a Society
registered under the Societies Registration Act and it is governed by the Church Rules. The TELC has many charitable. institutions under its control
all over Tamil Nadu for charitable purposes to render service to poor people. The TELC is governed by the elected executive members, i.e.,
Church Council. The first defendant is the Secretary of the Church Council, who has to look after the activities of the Church Council as per the
Church Rules framed. The second defendant is the Bishop of TELC, and he is the Head of the Church and Spiritual Father of the Pastors and
congregations. According to plaintiff, first defendant is holding the post of Correspondent, ELM Fabricious Higher Secondary School,
Purasawalkam (2) the post of Chairman, Education Board; and (3) the Secretary, Church Council. According to plaintiff, as per Rule 120-A of
the Church Rules, Ordinarily a member of the Church Council shall not be appointed or elected to more than one post of the Honorary Offices
which are subject to control of the Church Council. But, in regard to first defendant, there is a violation since he is holding the above three
honorary posts. It is also submitted by plaintiff that there is no extraordinary situation warranting the appointment of one individual to hold the three
important and sensitive honorary posts at a time. Since the first defendant is holding three important honorary same has resulted s, the same has
resulted in many financial irregularities. He is disqualified to hold any of the honorary posts, according to Rule 182-A and 182-B of the Church
Rules. First defendant has been working as an honorary Chairman of the Education Board and he was functioning in that Post right from 1992
onwards till 30.11.1993. During his tenure, he has committed various financial irregularities. It is also said that the first defendant is discharging his
duties as Correspondent of the ELM Fabricious Higher Secondary School, and in discharge of that duty also, he has committed many fraudulent
acts. It is said that the second defendant is actively supporting the first defendant in his unlawful activities,- which are causing injuries to the Church
and its members. Second defendant is also not taking any action in spite of many complaints against him and he is allowing the first defendant to
hold three honorary posts against the Church Rules. For the above reasons, plaintiff has filed the suit for the relief''s stated above. Along with the
suit, he also moved I.A. No. 15648 of 1998 for an interim injunction restraining the first defendant from holding the three Honorary posts, namely,
the Chairman, Education Board, The Secretary, Church Council, TELC and Correspondent of the ELM Fabricious Higher Secondary School.
A detailed counter affidavit was filed by the first defendant. In the counter affidavit, it is said that Civil Courts hiving jurisdiction over Trichy
alone are entitled to entertain suits of this nature and the City Civil Court at Madras has no jurisdiction. It is also contended that the suit is not
maintainable since necessary authorities have not been impleaded.
It is admitted by the first defendant that he is holding three posts namely (1) as the Chairman of the Education Board; (2) Secretary of the
Church Council; and (3) Correspondent of ELM Fabricious Higher Secondary school. So far as the first post is concerned, he has said that he is
not holding the post with effect from 2.9.1998 and the suit filed on 25.9.1998 is, therefore, not maintainable, when it alleges that he is continuing
the post as Chairman, Education Board. It is also contended by first defendant that the Church Council consists of 8 Members, 3 Clergyman and 5
laymen who are elected from and out of 550 members drawn from 99 Pastorates in TELC. The Synod consists of about 550 elected members
and about 120 Pastors by virtue of Office. First defendant was elected as a Member of the Church Council along with the seven members. The
Members of the Church Council amongst them have elected the first defendant as Secretary for the period 1998-2000. The post of Secretary is
elected from and out of the Members of the Church Council under Rule 120. Even to remove a Member of the Church Council, it is only the
Synod Continuation Committee (for short, SCC) which can ultimately take a decision upon reference by any Members, and Rule 119 of the
Church Rules provides for the same. It is also said that he has been appointed as the Correspondent of the ELM Fabricious Higher Secondary
School, Purasawalkam, Chennai, by the Church Council, in its Resolution No. 1056 dated 8.6.1998 in the meeting held at Triichy on 30.5.1998,
because of the extraordinary situation created by the previous Church Council. The Church Council is not made as a party in the suit, and the
Resolution of the Church Council is also not challenged. Therefore, the suit as well as the injunction application is not maintainable. It is also said
that the Members of the Church Council are also holding the post of Correspondent in respect of other Higher Secondary Schools, and this
practice is in vogue for more than several decades. It is further said that so far as the Higher Secondary Schools are concerned, they are not under
the direct control of the Church Council, but they are under the Control of the Chairman, Education Board and the District Educational Officer. He
further contends that the post- of Secretary, Church Council, Chairman, Education Board and Correspondent of ELM Fabricious'' Higher
Secondary School are not conferred with unfettered powers. The Secretary of the Church council is answerable to the Church and SCC and is
only a messenger representing the views of the Church Council. The secretary has no independent power of his own as per Rule 126. So far as the
post of Chairman, Educational Board is concerned, he is the Chairman of the entire Educational Institutions of the TELC, but subject to the control
and supervision of the Educational authorities. It is also said that the suit as framed is not maintainable since plaintiff has to follow Rules 186, 187
and 188 of the Church Rules. There is a procedure for filing an appeal and also a procedure for referring, the matter for arbitration. Without
making such appeals, more for arbitration, a civil suit of this kind is not maintainable. Various allegations regarding financial irregularities, mal-
administration, arbitrary exercise of power, etc. alleged in the plaint are all denied.
The trial Court, as per Order dated 24.12.1998, allowed the injunction petition holding that the prima facie case and balance of convenience are
in favour of petitioners/plaintiffs. First defendant was, therefore, restrained from holding the post of the Secretary of the Church Council and also
the post of Correspondent of ELM Fabricious Higher Secondary School till the disposal of the suit.
Aggrieved by the order, first defendant preferred C.M.A. No. 18 of 1999, on the file of II Additional Judge, City Civil Court, Madras:. The
Lower Court, though modified the order, also confirmed the view expressed by the trial Court that the first defendant is not entitled to hold more
than one honorary post, under the Church Council, and, therefore, he was allowed to continue as Secretary of the Church Council, but he was
prohibited from discharging his duties as Correspondent of the ELM Fabricious Higher Secondary School.
It is against the said decision, these Revisions are filed. C.R.P. No. 2640 of 1999 is filed by first defendant, and C.R.P. No. 3311 of 1999 is by
the plaintiff wherein he has prayed for restoration of the Order of the trial Court.
In C.R.P. No. 2640 of 1999, first defendant wants the dismissal of the injunction application.
Since the first respondent in C.R.P. No. 2640 of 1999 has entered appearance through Counsel, I heard both the Revisions for final disposal,
by consent of parties.
After hearing learned Senior Counsel on both sides, I find that the only point that requires consideration is, whether the Order passed by the
Courts below is liable to be interfered with u/s 115, C.P.C.
Learned Senior Counsel for petitioner in C.R.P. No. 2640 of 1999 also brought to my notice the proceedings of the meetings of the Synod
Continuation Committee held at Trichy on April 16-17, 1999 wherein certain decisions were taken in regard to Rule 120-A of the Church Rules. I
will refer to them in the course of this Order. An additional counter affidavit was also filed by first defendant in view of the proceedings of the
Synod Continuation Committee.
The Tamil Evangelical Lutheran Church has framed its own Rules, and it is admitted by both sides that it is registered under the Societies
Registration Act. As per the Rules, the administration of the Church is divided into Districts, Pastorates and congregations. The Pastorates which
may consist of one or more Congregations are administered by the Pastorate Conferences, and Pastorate Committees. The Districts are
administered by the District Conferences and the District Executives. The Pastorate Conferences, the Pastorate Committees, the District
Conferences, and the District Executives shall function under the control and veto of the higher bodies as laid down in the Church Rules. The
TELC, as a whole, is administered by the Synod, the Synod Continuation Committee (SCC) and the Church Council. Subject to the control of the
Synod (which is the Sovereign body of the Church) and the SCC, the Church Council shall be the supreme administrative and executive body of
the Church. In this case, we are concerned only with the composition of the Church Council, of which the first defendant is the Secretary. As per
the composition of the Church Council, it shall consist of the President (The Bishop) and eight other members. Of the eight members, three shall be
clergyman and 5 laymen. If there is a vacancy in the Church Council, it shall be filled in by co-option, which shall be valid until the next meeting of
the SCC or the Synod (whichever is held earlier) which shall fill in the vacancy by election as per Rules. Rule 120 provides for Church Council,
Office-bearers. It says that (1) The President shall be the Bishop elected according to Rule No. 161; (2) The Secretary shall ordinarily be elected
from among the lay members for the triennium, but the Church Council, by a decision of the majority, shall have the right to elect another as
Secretary, when necessity for a change arises; (3) The Treasurer shall be appointed by the Church Council from within or outside the Church
Council; and (4) The Church Council shall appoint as Vice-President one of the ordained members to exercise such of the President''s functions as
the President may delegate to him. Ordinarily a member of the Church Council shall not be appointed or elected to more than one of any of the
offices of the Vice-President, the Secretary, Church Council and the Treasurer TELC. Rule 120-A is the most important Rule and it relates to the
matter in issue in this case. It says that ordinarily a member of the Church Council shall not be appointed or elected to more than one of the
Honorary Offices which are subject to the control of the CC.
Learned Senior Counsel for first defendant submitted that the post of Secretary of the Church Council is not to be taken into consideration
while considering the honorary post. According to, him, the Secretary is part of the Church Council, and he can hold one more honorary post
other than the post of Secretary, i.e., he can hold the office of Secretary and also hold one more honorary office, which is subject to the control of
the Church Council.
As against the said contention, learned Senior Counsel for respondent submitted that the words that are used in Rule 120-A are, ''Ordinarily a
member of the Church Council shall not be appointed or elected to more than one of the Honorary offices which are subject to the control of the
CC. According to learned Senior Counsel, the Secretary of Church Council is also an honorary office under the control of the Church Council and
is within the disciplinary control of the Church Council. If the Secretary also comes under the control of the Church Council, then he can hold only
one honorary post. There is no extraordinary circumstance in this case permitting the first defendant to hold the post of Secretary as well as the
Correspondent of the Higher Secondary School.
After hearing learned Senior Counsel on both sides, I find that the submission of learned Senior Counsel for respondent has to be accepted in
this regard. On going by Rule 126 which deals with ''Duties and Responsibilities of the Secretary CC, it is seen that the Secretary has to discharge
such duties as are assigned to him from time to time by the Church Council by resolution. The Church Council is one of the Supreme Bodies, and
the Secretary is only discharging the duties assigned to him by the Church Council. The argument of learned senior Counsel for first defendant that
the Secretary is also a part of the Church Council is not correct. It is true that the Church Council consists of various office-bearers, of whom one
is the Secretary. But the Church Council is a permanent body and these office-bearers discharge the duties as assigned to them under the Rules.
Their term of office is also fixed by the Rules, whereas the Church Council, is a permanent body. In this connection, the counter-affidavit of first
defendant is also of some importance. In paragraph 12 of the counter affidavit, first defendant has stated thus:-
The averment in para 6 is incorrect and misleading. The post of Secretary, Church Council, Chairman, Education Board and Correspondent,
BLM Fabricious Higher Secondary School are not conferred with unfettered powers. The said averment is made to cause prejudice in the minds
of this Hon''ble Court and with ulterior motive. So far as the Secretary, Church Council is concerned, it is elected post and is answerable to the
Church and SCC and he is only a messenger representing the views of the Church Council. The Secretary has no independent power of his own
as per ""Rule 126. So far as the post of Chairman, Education Board is concerned, he is the (Chairman of the entire Educational Institutions of the
T.E.L.C. but subject to the control and supervision of the Educational Authorities. The Chairman is a nominal head and approves the various views
of the respective school committee and is not empowered to take any independent decision in respect of the administration of the schools. So far
as the (Correspondent, ELM Fabricious Higher Secondary School is concerned, he is only a representative on behalf of the Educational Agency,
TELC and corresponds with the educational authorities in discharging the duties of the school. Therefore, hone of the 3 posts have been given any
unfettered powers and as such the allegations arc imaginary and illusive-one. In this context, it is to be stated that the petitioner who is well-versed
with the Church Rules has deliberately made the accusations against the respondent in order to settle his personal scores and with ulterior motive.
From the own admission of first defendant, it is clear that he is only acting as Honorary Secretary under the control of the Church Council.
Learned Senior Counsel for respondent also brought to my notice Tamil Evangelical Lutheran Church Agents Rules. Even though as per the
introduction to that Rules, it says that any member who is employed in the Institutions under the Management of the TELC also called as
AGENT"".....By Rule 11, the same is made applicable to Honorary workers also. Rule 11 says that ''Elected/Nominated officers of the Church
shall be called Honorary workers and are bound by these rules relating to Disciplinary Proceedings'', and the Church Council is the competent
authority to take disciplinary action against any honorary workers. From this Provision, it is clear that the Secretary is also liable to be proceeded
for indiscipline and the Church Council is competent to take disciplinary action against him. In view of Rule 120-A, the Secretary being subject to
the control of the Church Council is not to be appointed or elected to more than one post ordinarily.
It is not disputed that the post of Correspondent of the Higher Secondary School is also subject to the control of the Church Council. Even
though the first defendant has contended in his counter affidavit that the Higher Secondary Schools are not under the direct control of the Church
Council and are under the control of the Chairman, Education Department and the District Educational Officer, I do not think that the said
contention could be accepted. As correspondent, he may have to take directions from the Chairman of the Education Board and also from the
District Educational Officer. But the question is, whether he is eligible to be appointed as a Correspondent when that is an Honorary post under the
Church Council. It is the initial disqualification that has to be considered while a person is appointed as Correspondent.
If I am to decide the case only under the Interpretation to Rule 120-A as on the date of filing the suit, the view expressed by the lower
Appellate Court will have to be confirmed. But a change has been effected as per the proceedings of the meeting of the Special Synod
Continuation Committee held on 16-17, April, 1999 at Trichy. On the basis of the said meeting, a clarification has been issued by the General
Body of the Church which reads thus:-.
The Honorary elected or appointed post referred to above shall not include post within the Church'' Council, i.e., the Honorary elected or
appointed post shall mean the officials who are functioning under the Church Council like District Committee, District Executive, Pastorate
Committee, Pastorate Conference, Boards, Correspondents of Colleges, Schools and Institutions, etc.
Learned Senior Counsel for the first defendant also brought to my notice a true copy of the proceedings of the meeting of the Special Synod
Continuation Committee held on that date. It could be seen that the clarification to Rule 120-A was also discussed and the Rules were also
amended. In view of the subsequent clarification, the disqualification, if any, on the first defendant has ceased to exist, and the first defendant is
entitled to hold the honorary post both as Secretary as well as Correspondent of the Higher Secondary School.
Learned Senior Counsel for the respondent submitted that the matter was not discussed by the Synod Continuation Committee and the same
should not be taken note of by this Court.
I do not think that the submission of the learned Senior Counsel could be accepted in view of the provisions of the Church Rules. Rule 200 of
the Church Rules says thus:-
In consonance with the scheme and spirit of the Rules of the Church, the above rules shall be binding in the members as a domestic forum, and
shall not be called into question in any Court of law, nor shall these proceedings of the Synod / SCC be restrained on grounds of such defect or
invalidation of election or irregularity or technicality of a like nature.
It may also be said that under Rules 193 and 196 of the Rules, all clauses mentioned as ''Note'' under the Rules shall have the same validity and
force as the main clauses and any alteration or addition to these rules shall also be made by the SCC or the Synod. It also provides that the
interpretation of the Rules by the Church by resolution shall be final.
In view of the binding nature of the Rules, even if there is any defect in the procedure, the same is not liable to be questioned and the remedy of
the aggrieved person is only to move the domestic forum as provided under the Rule itself.
Learned Senior Counsel for petitioner also submitted that the Church Council is a necessary party to the suit. First defendant has become the
correspondent of the Higher Secondary School only on the basis of the resolution passed by the Church Council and not on his own. Even if there
is any irregularity or illegality in the resolution, first defendant cannot be disqualified so long as the Resolution stands. But, without questioning the
resolution and without making the Church Council as a party, the suit cannot be maintained. I find force in the said contention. In the plaint, the
question is regarding the resolution passed by the Church Council. As per the Rules, first defendant is bound to discharge his duties as decided by
the Church Council. He is a Correspondent only because of the Resolution passed by it. In view of my finding that the Church Council is necessary
party and the resolution is not challenged, and also in view of the subsequent proceedings of the Synod Continuation Committee, I hold that the
orders passed by the Courts below are liable to be reversed. I.A. 15648 of 1998 in O.S. 6688 of 1998, on the file of VIII Assistant Judge, City
Civil Court, Madras is dismissed, and the interim orders passed thereon are vacated. Consequently, C.R.P. No. 2640 of 1999 is allowed, and
C.R.P. No. 3311 of 1999 is dismissed.
There will be no order as to costs. Connected C.M.P., namely, C.M.P. No. 15145 of 1999 in C.R.P. No. 2640 of 1999 is closed.