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TMI Blog2007 (9) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... rted into Second Appeals in view of dictum rendered by Division Bench in Shivprasad Shankarlal Pardeshi since deceased by his heirs Shrikant Shivprasad and Ors v. Leelabai Badrinarayan Kalwar since deceased by her heirs and Ors. 1998 (1) Mh.L.J. 444. 2. The appellants in both these appeals are original opponent Nos.1,3,5,8,9,11,13 & 14. Respondent No. 2 - Mahadevappa is original applicant No. 1. Respondent Nos. 3 to 9 are original opponent Nos.2,4,6,7,10,12 & 15. 3. The appellants are members of group which was headed by appellant No. 1 - Mallikarjunappa Bidve. For sake convenience I may call this group as Group "B". Respondent Nos.3 to 9 are members of another group headed by respondent No. 5 (original opponent No. 6) Mr. Sambappa Girwalkar, Advocate. This group may be called as Group "G". Admittedly, these two groups were at logger heads. 4. Mahatma Basweshwar Shikshan Sanstha, Latur is registered public trust. There are various schools and colleges run by the said educational trust. An engineering college is also run by the educational trust in the name and style as "M.S. Bidve Engineering College, Latur". 5. The constitution of the trust provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Jt. Charity Commissioner. Out of them, only one charge was held as proved. The remaining charges pertaining to payment of less salary to the teaching staff non-teaching staff, purchasing of goods for higher prices, excessive expenditure shown towards construction work etc. were held as disproved. The only charge which was held as proved is thus: Whether it is proved that the opponent Nos. 1,3,8 and other opponents had collected donations from the students at the time of giving admission to the first year of Engineering College, Latur and at the time of change of faculty in the subsequent years from the period from 1989 to 1992-93 amounting to Rs.60,24,500/-, however, they did not deposit that amount in the account of trust, nor they had utilised that amount for carrying out aims and objects of the trust, nor they had accounted for the same, in the sense they did not show it in unaudited statement of account and thereby they committed act of malfeasance and misfeasance and thereby they can be sacked from the post of trusteeship The learned Jt. Charity Commissioner believed the evidence tendered by original applicants in support of the above charge. The learned Jt. Charity Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... managing trustees of Group "G" were exonerated from the charge of malfeasance or misfeasance and were further empowered to appoint other eight trustees. 11. The First Appellate Court held that without there being proof to spell out misfeasance of the trustees of Consenting Group (Group "G"), they cannot be held responsible for collection of illegal donations from students or for less payment of salaries to the employees of educational institutions. The First Appellate Court further held that the appellants committed misfeasance by making payments of less salaries to various employees of the educational institutions and embezzled such amounts. 12. Challenge in Second Appeal No. 44 of 2004 is to part of impugned judgment whereby the appellants are removed from trusteeship for the reason that charge of malfeasance or misfeasance is held as proved against them. They assert that the said charge is not proved against them and the findings of the Joint Charity Commissioner as well First Appellate Court are perverse and hence unsustainable. They seek exoneration from such charge and pray for setting aside the impugned judgment. 13. Challenge in Second Appeal No. 45 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... YES (ii) YES, partly (iii) YES, partly (iv) YES. The reasons are discussed hereinafter. 17. Before I proceed to consider rival submissions, it may be made clear that the Joint Charity Commissioner as well the First Appellate Court rendered concurrent findings of facts as regards other charges of malfeasance or misfeasance and the misconduct attributed to the appellants on various counts. The Jt. Charity Commissioner held that all the trustees were liable to be removed because they had explicitly or impliedly contributed to the illegal acts of the then President, Secretary and the Treasurer. The Jt. Charity Commissioner held that the trustees belonging to Group "G" did not take active steps to curb the nefarious activities of the then President, Secretary and the Treasurer. That was the reason which weighed with the Jt. Charity Commissioner for removal of the trustees belonging to Group "G" (Consenting Group). The said Group was termed as "Consenting Group" because they did not oppose application filed by the original applicants. It has come on record that the application was at the behest of original opponent No. 6 -Mr. Girwalkar, Advocate. The findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse. It is only for compelling reasons, that the donations or capitation fees is paid by the students. They are a needy class. The exploitation is made by those who can fleece the easy money. 20. Original applicant No. 1 had filed cross-objection against findings of the Jt. Charity Commissioner in respect of the several charges which were held as disproved. The First Appellate Court held that original applicant No. 1 cannot file any cross-objection because the relevant provisions under Code of Civil Procedure are not attracted. In this Court too cross-objection was filed by original applicant No. 1, but the same was not pressed into service. There is no need, therefore, to consider the contentions of original applicant No. 1 in respect of other charges which were held as not proved by the Jt. Charity Commissioner as well as by the First Appellate Court. 21. There is no denial to the fact that there are two groups of trustees. It appears that original applicants were prompted by members of Group "G" to file the application before the Jt. Charity Commissioner. The trustees of Group "B" filed an application (Exh.33) before the Jt. Charity Commissioner and praye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 therefor. 23. In the context of present appeals, the acts of the appellants are allegedly that of malfeasance or misfeasance or breach of the trust within the meaning of Sub-clause (c) of Clause (1) of Section 41D or may be to some extent within Sub-clause (d). The proceedings under Section 41-D cannot be regarded as adversary trial in stricto sensu. For, the Charity Commissioner may take appropriate action in any of the following ways: i) On application of a trustee which would disclose prima facie substance in respect of any of the act enumerated under the Sub-clauses (a) to (f); ii) On application of any person interested in trust, who may be a stranger but has some interest in the functioning of the trust and answers description of interested person within meaning of Section 2(10) of the BPT Act; iii) On receiving a report under Section 41B from the competent authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . P.M. Shah, learned Sr. Advocate would submit that the Jt. Charity Commissioner committed patent error while rejecting the application filed by the appellants for allowing them to lead evidence. He would submit that the impugned judgment is lop sided. He contended that the First Appellate Court applied different yardstick while assessing evidence on record and rendered perverse finding about alleged malfeasance and misfeasance of the appellants. He contended that in absence of any documentary evidence regarding collection of donations from students, the findings of the First Appellate Court are unsustainable. He further submitted that the First Appellate Court failed to see that receipts were executed by respondent Nos.6-Mr.Girwalkar, Advocate about the amounts received by him from alleged account No. 2. He argued that the admissions of P.W. Vijaykumar are ignored by the First Appellate Court. He further contended that the First Appellate Court wrongly drew adverse inference against the appellants due to their remaining away from the witness box but the same yardstick was not applied to the trustees of consenting group though they too did not enter the witness box. He argued that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the evidence on record, it is true that P.W.1 Vijayswami and P.W.6 Guruling bore animus against appellants. As to the testimony of these witnesses, their antipathy towards the appellants, particularly, appellant No. 1 Mallikarjunappa, is no secret. Mr. Vijayswami was not pulling on well with the trustees of Group "B" (appellants). He was humiliated as a result of disciplinary action taken against him for illegal purchases made from shop standing in name of his wife and on other charges of misconduct. It is explicit from cross-examination of Mr. Vijayswami that a Show Cause Notice was served on him and he was made to face charges of misconduct. He was suspended and later-on removed from service. He admits that findings in the disciplinary enquiry were confirmed by the University Tribunal on an appeal preferred by him. 31. Though P.W. Vijayswami and P.W. Guruling have some reasons to depose against the appellants, yet, it does not mean that their evidence is worthless. It may be said that their evidence needs to be approached with circumspection. Both of them were actively concerned with the day-to-day functioning of the affairs of the trust. P.W. Vijayswami was Prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ured ignorance regarding signature and handwriting of the then Secretary Mr.Shivsharnappa Chitkote (opponent No. 10). 33. The evidence of P.W.4 Aju Jecob and P.W.5 Kamal Prabhudayal Tahreja gives material information regarding the manner in which donations used to be collected from engineering students. Their evidence reveals that Mr. Dharane used to demand the donation. Both of them have stated that they paid donations in cash to Mr. Dharane. Thereafter, Mr. Dharane handed over a chit for its presentation to the Principal. On the basis of such chit, they were admitted to the engineering college. It is pointed out that P.W. Aju Jecob filed two contrary affidavits (Exh.259 & Exh.260). 34. Mr. Shah contended that P.W. Aju Jecob has no regard for truth. His evidence is criticised on the ground that it is without corroboration of any chit or document like receipt in respect of the payment. It is admitted by P.W. Aju Jecob that he could not remember exact date and day of his first visit to Latur. There is some discrepancy in his evidence regarding withdrawal of the amount of Rs.35,000/-which is said to be parted with by him towards donation. He admits that he filed the affidavit (Exh. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were also collected from teachers. He confronted this information to the president i.e. the appellant No. 1. Thereupon, he was informed that since beginning it was practice to collect donations and maintain account. Though various mal-practices and charges of misfeasance are levelled by P.W. Mahadeo Khanapure in his examination-in-chief, yet, it is difficult to place implicit reliance on his version. He admits, unequivocally, that whatever he stated in examination-in-chief is based on his hearsay knowledge. He further admitted that Mr. Girwalkar, Advocate, Ramrao Kavthale and Vijaykumar Shete gave instructions to him as per their respective grievances. In another words, they provided him material to file the application. He is a dummy witness, prima facie, put forth by the members of the consenting group i.e. Group "G". His version reveals that his brother-in-law by name Vaijnath Halkunche was appointed as a teacher in a school of the trust on basis of a bogus caste certificate. 38. The version of P.W. Somnath reveals that he was working as peon but later-on was promoted as a clerk. He deposed that he used to collect fees from students and also used to distribute salar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Court held that the said trustees must be exonerated from the charges because they were not involved in collection of the illegal donations or payment of less salaries to the employees. The First Appellate Court did not apply the same yardstick to those appellants of Group "B" who are not directly involved in such acts of malfeasance. It bears out from record that only appellant No. 1 and the appellant No. 4 i.e. the President and the Treasurer were involved in collection of the donations from the students. Though appellant No. 2 was working as Secretary at the relevant time, yet, there is no material on record to show his complicity. He and other appellants cannot be lightly roped-in only because they did not oppose misdeeds of appellant No. 1 Mallikarjunappa and appellant No. 4 Nagnathappa Revadkar. The evidence on record is rather insufficient to reach conclusion that appellant No. 2 Nagnathappa Kerale, appellant No. 3 Vishwanathappa Hurne and appellant Nos.5 to 8 were involved in the act of alleged misfeasance. It cannot be said that they were concerned with admissions of students to the Engineering College. It also cannot be said on the basis of material p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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