Sunday, 4 March 2018

Whether resolution taken by general body of trust will not be effective till it is approved by charity commissioner?

 Learned Advocate Shri Sunil Manohar then placed reliance on reported judgment in Chembur Trombay Education v. D.K. Marathe reported in MANU/MH/0863/2001 : 2002(3)BomCR161 . In paragraph 11 of this judgment the learned Single Judge has observed as under:

... A priori, any amendment or change brought about in accordance with law would come into effect from the date of resolution of the Society to bring about such a change. This proposition is fortified from the plain language of Section 22 of the Bombay Public Trusts Act. The said section requires that where any change occurs in any of the entries recorded in the register kept under Section 17, the trustee shall, within 90 days from the date of occurrence of such change, report such change to the Deputy or Assistant Charity Commissioner, as the case may be. The dictionary meaning of expression "occur" as observed in the Black's Law Dictionary is:

To happy; to meet one's eyes; to be found or met with; to present itself; to appear; hence, to befall in due course; to take place; to arise.
Giving the natural meaning to this word in Section 22 of the Act, coupled with the principle enunciated by the Apex Court that when the Act does not require that registration of any change is a condition precedent to come into effect, I have no hesitation in taking the view that the amendment to the constitution as well as subsequent elections of the President and members of the Governing Council, therefore, came into effect from the date of the respective resolutions of the general body. The enquiry postulated under Section 22 is only to ascertain the factum as to whether the change has occurred or not. In the event, the competent authority is satisfied that the change has not occurred in accordance with law, only then that change will have to be undone and status quo ante will have to be restored. A fortiori, resolution of the general body of the Society is sufficient to ignite the change of amendment in the constitution as well as of electing new general body for administering the affairs of the Society. The fact that the change report is pending consideration before the Charity Commissioner, would be of no avail....

9. Learned Advocate Dr. Anjan De fairly conceded that the judgment of learned Single Judge of this Court in Chembur Trombay Education v. D.K. Marathe reported at MANU/MH/0863/2001: 2002(3)BomCR161 does not support his contentions.

10. We find that any of the provisions contained in Bombay Public Trusts Act or the Rules thereunder do not mandate that amendment to the bye-laws or the rules of constitution of society passed by the society or trust shall not operate unless and until said amendment gets approval of Charity Commissioner/ Assistant Charity Commissioner etc.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 2672 of 2007

Decided On: 26.07.2007

 Ganesh S/o. Mahadeorao Thawre Vs. Central Hindu Military Education Society 

Hon'ble Judges/Coram:
A.H. Joshi and R.C. Chavan, JJ.


Citation: 2007 (6) MHLJ589




1. Rule. Rule is made returnable forthwith and is heard by consent of the parties.

2. Petitioner, Head Master of Bhonsla Military School, Nagpur, has challenged decision of respondent management to conduct an enquiry into his misconduct through a Committee consisting of Sarvashree Kumar Kale and Yashwant Kharpate on the ground that the Enquiry Committee is not constituted as required under Rule 36(2)(b) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 (for short "MEPS Rules").

3. Respondent No. 2 has filed written submissions which have been countered by rejoinder by the petitioner. Respondent No. 2 has also filed further additional submissions. Though the parties have thus furnished elaborate pleadings, on facts there is hardly any dispute between the parties. The petitioner is, undisputedly, Head Master of the School at Nagpur. Respondent No. 1 runs another school at Nasik. Memorandum and Articles of Association of respondent No. 1 have been amended by decentralizing control and creating branch managing committees. It cannot be seriously disputed that Shri Kumar Kale is Chairman of the Branch Managing Committee.

4. Dr. Anjan De, learned Advocate for the petitioner, submitted that the petitioner has been appointed as Head Master of the Nagpur school by the General Secretary of respondent No. 1 on 24.06.1999. The Branch Managing Committee is a subsequent development. Since the petitioner is head of the institution, as per Rule 36(2)(b) of the MEPS Rules the President of the management is required to be a member of the enquiry committee. The President of respondent No. 1 is Shri Ghatate and not Shri Kale. Therefore, the committee is not constituted as per provisions of Rule 36(2)(b) of the MEPS Rules. According to the petitioner, the Branch Managing Committee is not management as defined in Section 2(12) of the Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977 (for short "MEPS Act") and therefore, Shri Kumar Kale cannot at all be a member of the enquiry committee. He also submitted that the amended bye-laws cannot apply since the change is not yet been shown to have been approved by the Charity Commissioner.

5. Clause 12 of Section (2) of MEPS Act defined "Management", and Sub-clause (c) thereof, which would apply to the respondent, reads as under:

(12) "Management" in relation to a school, means

(a) ...

(b) ...

(c) in any other case, the person or body of persons, whether incorporated or not and by whatever name called, administering such school ;

The contention of Dr. De, learned Advocate for the petitioner that the management would mean only respondent No. 1 does not necessarily follow from a reading of this Sub-clause (c). The management can be a person or a body of persons whether incorporated or not and by whatever name called, so long as it is administering the school under appropriate authority, which can be passed on to it by the society or trust which owns the school. Therefore, if the Memorandum and Articles of Association of the Trust in question empower the Branch Managing Committee to manage the affairs of the school, such Branch Managing Committee would become management for the purpose of Clause 12 of Section 2 of the MEPS Act.

6. Learned Advocate Dr. De submitted that the authority has not been passed on to the Branch Managing Committee since the changes in the bye-laws have not yet been recorded by the Charity Commissioner. He submitted that the change is required to be inquired into as per Section 22 of the Bombay Public Trusts Act, 1950 and only after such change is entered in the register of public trusts, it becomes effective. Learned Advocate Dr. Anjan De further refers to provisions of Section 22A of the Bombay Public Trusts Act. In our view, Section 22A is not attracted, since the said provisions would apply if, after making entries in the register, any particular relating to an enquiry under Section 9 or Section 22(3) or Section 28 of the Bombay Public Trusts Act has remained to be enquired into, the Charity Commissioner may make further enquiry in the prescribed manner. It is not shown that after making any entries any further enquiry remained to be done. Rather it is said that the change in the bye-laws has itself not been entered in the registers of public trusts.

7. Learned Advocate Shri Sunil Manohar for respondent No. 2 submitted that the bye-laws of respondent No. 1 have been duly amended and have been acted upon. He pointed out that under the new bye laws elections were held in the year 2003 and the petitioner himself was a part of the election process as may be seen from Annexure R-2(d). We are, afraid that Annexure R-2(d) does not take us anywhere. Whether the petitioner was a part of the election process or not would not decide the question whether bye-laws are in force or not.

8. Learned Advocate Shri Sunil Manohar then placed reliance on reported judgment in Chembur Trombay Education v. D.K. Marathe reported in MANU/MH/0863/2001 : 2002(3)BomCR161 . In paragraph 11 of this judgment the learned Single Judge has observed as under:

... A priori, any amendment or change brought about in accordance with law would come into effect from the date of resolution of the Society to bring about such a change. This proposition is fortified from the plain language of Section 22 of the Bombay Public Trusts Act. The said section requires that where any change occurs in any of the entries recorded in the register kept under Section 17, the trustee shall, within 90 days from the date of occurrence of such change, report such change to the Deputy or Assistant Charity Commissioner, as the case may be. The dictionary meaning of expression "occur" as observed in the Black's Law Dictionary is:

To happy; to meet one's eyes; to be found or met with; to present itself; to appear; hence, to befall in due course; to take place; to arise.
Giving the natural meaning to this word in Section 22 of the Act, coupled with the principle enunciated by the Apex Court that when the Act does not require that registration of any change is a condition precedent to come into effect, I have no hesitation in taking the view that the amendment to the constitution as well as subsequent elections of the President and members of the Governing Council, therefore, came into effect from the date of the respective resolutions of the general body. The enquiry postulated under Section 22 is only to ascertain the factum as to whether the change has occurred or not. In the event, the competent authority is satisfied that the change has not occurred in accordance with law, only then that change will have to be undone and status quo ante will have to be restored. A fortiori, resolution of the general body of the Society is sufficient to ignite the change of amendment in the constitution as well as of electing new general body for administering the affairs of the Society. The fact that the change report is pending consideration before the Charity Commissioner, would be of no avail....

9. Learned Advocate Dr. Anjan De fairly conceded that the judgment of learned Single Judge of this Court in Chembur Trombay Education v. D.K. Marathe reported at MANU/MH/0863/2001: 2002(3)BomCR161 does not support his contentions.

10. We find that any of the provisions contained in Bombay Public Trusts Act or the Rules thereunder do not mandate that amendment to the bye-laws or the rules of constitution of society passed by the society or trust shall not operate unless and until said amendment gets approval of Charity Commissioner/ Assistant Charity Commissioner etc.

We therefore, see no reason to take a different view than one taken by the learned Single Judge who has drawn these conclusion on the basis of discussion in the judgment in Managing Committee, Khalsa Middle School v. Mohinder Kaur reported at MANU/SC/0760/1993 : 1993(3)SCALE465 .

11. Learned Advocate Dr. De, for the petitioner, next submitted that the Branch Managing Committee really does not have powers to manage and, therefore, cannot become "management". He pointed out that Annexure R-1, which contains a document at page 53 of the petition, shows that the Branches have not been given complete freedom. His learned adversary pointed out that the very next document "Karmachari Niyamavali" would show that as per new constitution the management of each centre would be independent and the employees would be employees of that centre. The branch managing committee is thus the "Management". The question as to whether the Branch Managing Committee is properly constituted or not because it does not contain teacher member need not vex us, because, as rightly pointed by the learned Advocate for respondent No. 2, a person can become teacher member only after ten years of service and and any one from Nagpur branch including the petitioner who was appointed in 1999, he is yet to qualify.

12. Rule 36(2)(b) of the MEPS Rules undoubtedly requires that in case of an enquiry into misconduct of head, one of the members of the committee shall be the President of the Management. The word "management" has defined in Clause 12(c) of Section 2 of the MEPS Act which does not necessarily require "management" to be the incorporated society. It can be a body of persons administering such school within such incorporated entity. How the school is to be administered is prescribed by the bye-laws of the society and since such bye-laws empower the Branch Managing Committees to control the affairs of the school, chairman of such Branch Managing Committee would be the President of "management" for the purpose of Rule 36(2)(b) of MEPS Rules.

13. The learned Advocate Shri Anjan De then placed reliance on judgment in National Education Society v. Mahendra reported in 2007(3) Mh.L.J. 202. This is a judgment of full bench of this Court rendered in reference case. The reference pertained to manner in which the situation should be dealt with when the Head Master would himself to be Chief Executive Officer, is a delinquent to be chargesheeted. This judgment does not, in any manner, help the petitioner's arguments that no one except President of the society would answer the description of the management and therefore, the President of the Branch of the society cannot take part in the disciplinary proceedings.

14. Such inference also pragmatically follows, if one were to consider the plight of the President of a society running hundreds of schools. If by interpreting the provisions of Section 2(12) of the MEPS Act and Rule 36(2)(b) of MEPS Rules, such a president was required to participate at all enquiries against the heads of his schools, he would have nothing else to do.

15. We further observe that the entire emphasis or the mandatory part of Rule 36 is on the point of manner of service of chargsheet. This rule is totally silent on the point of delegation. It does not deal a situation as to whether in the given facts of the case compelled due to circumstances would it be wholly impermissible even if the constitution or bye-laws of the trust do not prohibit for delegation of power of President in relation to the matter of employment, discipline etc. being prohibited. We, therefore, see that in absence of prohibition to delegate found in the said rules, why as in present case the Branch President cannot be the "Management".

16. In view of this, we find no merit in the petition and hence, it is dismissed. Rule discharged.




Print Page

No comments:

Post a comment