Anantrao Hagruji Bhure & Ors. vs Dnyaneshwar Krushnaji Pohane & Anr.

. Heard Mr. Vijaykumar Paliwal, learned Counsel for Appellants in First Appeal No. 371/2019 and for Respondent Nos.1 to 5 in First Appeal No. 200/2022, Mr. S. D. Abhayankar, learned Counsel for Respondent No.1 in First Appeal No. 371/2019 and for Appellant in First Appeal No. 200/2022 and Mr. H. D. Futane, AGP for Respondent/State in both the Appeals.

Both the Appeals are arising out of the same order dated 28/6/2017 passed by the learned Joint Charity Commissioner, Nagpur in Application No. 17/2004 filed under Section 41-D of the Maharashtra Public Trusts Act, 1950 (for short, ‘the Act of 1950’), whereby Respondent No.1 – Dnyaneshwar Krushnaji Pohane was suspended from trusteeship of the Public Trust registered in the name and style as “Sai Education Society, Nagpur” (hereinafter be referred to as ‘the Trust’) under Section 41-D(4) of the Act of 1950 for the period of three years by continuing his membership of the Trust and liberty to contest the election after expiry of suspension period.

In First Appeal No. 371/2019 the Appellants are original Applicants, who had filed Application under Section 41-D of the Act of 1950 against the Respondent No.1 and in First Appeal No.200/2022, the Appellant is original Non-applicant, against whom the order of suspension from trusteeship is passed vide impugned order.

The challenge in First Appeal No. 371/2019 is to the extent that impugned order dated 28/6/2017 be modified by imposing punishment of dismissal instead of suspension of the Respondent No.1. Whereas, in First Appeal No.200/2022, the prayer is made to quash and set aside the order of suspension imposed upon the Appellant vide impugned order dated 28/6/2017.

For the sake of brevity, the parties are referred as per their original status in the Application before the Charity Commissioner, Nagpur.

The brief facts of the matter are as under :

The Trust namely, “Sai Education Society, Nagpur” is duly registered under the Provisions of the Act of 1950. The Applicant No.1 along with others have filed application under Section 41-D of the Act of 1950 for dismissal of Non-applicant from trusteeship. The allegations raised against the Non-applicant are that he has not submitted the budget as per Section 31A of the Act of 1950; not maintained proper accounts as per Section 32 of the Act; and did not get the accounts audited regularly. They further alleged that Non-applicant played fraud with other trustees and trust properties. The bank account of the Trust was not properly maintained by the Non-applicant and did not call regular meetings of the executive committee of the Society. On the basis of these allegations, the Joint Charity Commissioner by order dated 19/6/2008 framed charges against the Non-applicant, which reads thus :

After framing charges against the Non-applicant, evidence was recorded before the Joint Charity Commissioner. The Applicants, in support of their allegations, had entered into the witness-box through complainant namely, Anantrao Hagruji Bhure, who was the Ex-President of the Trust and Non-applicant examined himself and denied all the charges levelled against him.

On the basis of evidence and the documents made available by the parties, learned Joint Charity Commissioner proceeded to decide the application under Section 41-D of the Act of 1950. According to the Joint Charity Commissioner, the only charge proved against the Non-applicant is that he has violated directions issued by the Joint Charity Commissioner in Application No. 1/2004 decided on 22/3/2004 and thereby imposed punishment of suspension for the period of three years from the date of passing of order i.e. 28/6/2017.

The Applicants have preferred the First Appeal No. 371/2019 alleging therein that the learned Joint Charity Commissioner failed to consider the documents and evidence placed on record and thereby wrongly recorded findings in negative. Hence, they sought modification of the order to the extent that instead of suspension of the Non-applicant he should be dismissed as trustee of the Trust.

The Non-applicant in his Appeal No. 200/2022 stated that considering the evidence available on record no charge is proved against him. According to him, the finding recorded by the learned Joint Charity Commissioner is a perverse finding and same needs to be quashed and set aside. Therefore, he challenged the order dated 28/6/2017 passed by the Joint Charity Commissioner.

I have heard learned Counsel for both sides at length and perused the record and the case laws cited by the Non-applicant.

Before deciding the issue involved in the First Appeal No. 371/2019, firstly, it will be necessary to refer the Judgment of this Court, wherein the scope of Section 41-D of the Act of 1950 is thoroughly discussed. This Court, in the case of Mallikarjuanappa Sidramappa Bidve and Ors. V/s Joint Charity Commissioner and Ors.^{11.2008(1) Mh.L.J.148} has observed in paragraph No.18 as under :

So also this Court, in the case of Vajubhai Patel and another V/s The Charity Commissioner, Maharashtra State and others^{22.1999 SCC OnLine Bom 94} has observed in paragraph No.72 as under :

From the abovesaid Judgments, the legal position is very much clear that though the proceeding under Section 41-D is not criminal proceeding, proof required to sustain the charges is of high standard. For removal of trustee, lapse proved against him must be established beyond doubt that he actuated by dishonesty and having corrupt motives or shown an utter lack of competence to administer the trust property.

I have gone through the material available on record. In the present Appeal, as per the finding recorded by the Joint Charity Commissioner that Non-applicant failed to follow the directions issued by the Joint Charity Commissioner in Application No.1/2004 decided on 22/3/2004, therefore, I have perused the order passed by the Joint Charity Commissioner. Bare perusal of the order dated 22/3/2004 demonstrate the fact that present Non-applicant was directed to call a meeting of the executive body members within one month from the date of order and take a decision by majority for deciding the date of election. As such, the whole intention of issuing directions by the Joint Charity Commissioner was that there should be election of the executive committee at an earliest.

As per my view, the order of Joint Charity Commissioner dated 22/3/2004 was passed only to direct the Non-applicant to conduct the elections and to hold the elections in a fair and proper manner and the Joint Charity Commissioner has directed to appoint the independent Election Officer to carry out entire election programme. The Non-applicant admittedly conducted the election by appointing the Election Officer. The said elections were held and Change Reports are also filed by the respective parties.

From the record and particularly the evidence recorded before the Joint Charity Commissioner, it is clear that in the cross-examination of Anantrao Bhure, who was the Ex-President of the Trust, has categorically admitted in his cross-examination that the election was conducted as per the order dated 22/3/2004 passed by the Joint Charity Commissioner. He further admitted that after completion of the election, Change Report was filed bearing Change Report No.556/2004. Therefore, it is proved beyond doubt that Applicant in pursuance of direction of Joint Charity Commissioner conducted election of the Trust. Therefore, holding him responsible for such charge is certainly illegal.

In my opinion, non-conducting election in proper manner is the subject-matter of challenge by filing independent Appeal. Accordingly, the same was already challenged. And now on the basis of the findings rendered in the said Appeal, which was admittedly subsequent to filing of application under Section 41-D, cannot be a reason to hold that Non-applicant has committed misconduct in the matter.

In addition to above, as per the charges framed by the Joint Charity Commissioner, Nagpur vide order dated 19/6/2008, no specific charge has been framed against the Non-applicant, about which, directions issued by the Joint Charity Commissioner vide order dated 22/3/2004 was not followed by him. Hence, in absence of specific charge, no punishment can be imposed. Therefore, impugned order of suspension of Non-applicant is bad in law.

Insofar as the other charges, main contention of the Applicants is that there was persistent default on the part of Non-applicant in submission of audited accounts/audit report of the Trust. To substantiate this fact, the Applicants have relied upon the extract of Audit Book maintained under the format of Appendix-10 of the Trust. They have pointed out that there is only entry of audit done in the year 1984 to 1987. Hence, according to them, this is the best evidence available on record which was not considered by the Joint Charity Commissioner, and therefore, the Joint Charity Commissioner has committed error by holding that this charge is not proved against the Non-applicant.

Per contra, the learned Counsel for Non-applicant has relied upon the evidence which was recorded before the Joint Charity Commissioner. He has pointed out from the evidence of Mr. Anantrao Bhure, who was President of the Trust. In his cross-examination, the copy of constitution of the Trust was produced on record which was marked as Exhibit-79. As per the clause – 11(A) of the constitution of the Trust, it is one of the duty of President to look after the financial transactions (nsok.k&Äsok.k) of the Trust. Therefore, it is stated that if the Non-applicant is held to be responsible for this charge, then in the same manner the President of the Trust was required to be held responsible for the said charge. But no action of any kind was initiated against the Ex-President of the Trust.

It is also pointed out from the cross-examination of Mr. Anantrao Bhure that one Mrs. Shraddhatai Amar Mahashabde was a Treasurer of the Trust as per Schedule-I. She is also one of the complainant in the matter. The said witness has also admitted in her cross-examination that as per the constitution of the Trust, work of maintaining account of the Trust is assigned to the Treasurer. The work of writing accounts is also assigned to the Treasurer. Hence, according to the Non-applicant, it is the Treasurer, who is responsible for not maintaining the audit of the Trust. But again no action of any kind was taken against the Treasurer of the Trust.

The Non-applicant further pointed out that the present Applicants did not produce original documents on record under the pretext that same are in the custody of Non-applicant. Accordingly, it is stated by the Non-applicant that no case is made out against the Non-applicant to prove the said charge.

Insofar as the Annexure-10 (Exhibit-78), which is relied upon by the Applicants is concerned, it is stated that this document is not maintained upto the year 2004. However, the complainants never asked about it to the Treasurer or the President, who were assigned to maintain the accounts of the Trust. Therefore, this document cannot be considered as a conclusive proof to hold that audit of the Trust is not done in the matter.

As regards the charge No.3 about malfeasance and misfeasance, nothing has been placed on record nor same was proved before the Joint Charity Commissioner. As such, the learned Joint Charity Commissioner, considering the fact that no documentary evidence has been placed on record about negligence of duty by the Non-applicant, this charge is not proved against him. The Applicants in the present Appeal also failed to point out any documentary evidence to demonstrate that there is malfeasance or misfeasance on the part of Non-applicant.

In the light of abovesaid factual position and the law laid down by this Court, it is clear that charges levelled against the Non-applicant are not proved beyond reasonable doubt.

In the proceeding under Section 41-D the intention of the Non-applicant is required to be looked into whether same was with dishonest intention or to disrepute the Trust, but in the entire application filed by the Applicants, no such allegations or averments made against the Non-applicant. Therefore, in absence of this dishonest intention, merely because there was some procedural lapse while conducting the elections, cannot be a reason to take drastic action under Section 41-D of the Act of 1950.

Insofar as the other charge, which is raised during the course of argument regarding not maintaining accounts is concerned, I have already recorded, after analysing the evidence of Mr. Anantrao Bhure, that the President and Treasurer are equally responsible to maintain the accounts of the Trust. But, here is the case that the persons who are responsible to maintain the accounts, no action is taken against them, on the contrary, the said persons filed a complaint against the Non-applicant. Hence, it is clear that only out of political vendetta the action was initiated against the Non-applicant.

For the reasons stated above, I am of the considered opinion that punishment of suspension of three years from trusteeship imposed upon the Non-applicant is not justified. Resultantly, I proceed to pass following order.