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Misfeasance as used in Sec.41D is more than mere negligence of trustee to perform his duty–HC Bombay


SHRI EKNATH TUKARAMJI PISE AND ORS V. SHRI RAMA KAWADUJI BENDE AND ORS. F.A.No.182 OF 2014

CORAM: ANIL S.KILOR, J.

Decided On: 17thSeptember, 2020

The Shri Eknath Tukaramji Pise (appellant no. 1) is the President of the Shubham Bahuuddeshiya Shikshan Sanshta, Waddhamana, Nagpur and Sau. Hemlata Eknath Pise (appellant no. 2) is the headmistress of the Swami Vivekanand School, Waddhamana, Nagpur, she was the ex-officio secretary of the School Committee of the said school. The respondents had filed an application before the Learned Joint Charity Commissioner, Nagpur, claiming themselves to be the trustees of the trust and for the removal of the appellants from the posts of President, Secretary and Trustees of the Trust, under Section 41-D of the Bombay Public Trust Act, 1950. The charges on the appellants were misappropriation of the grants and fees of the students, procurement of hand loan without the prior permission of the managing Committee and malfeasance. The charges were partly proved against the appellants and hence were removed from the posts of President, Secretary; vide judgment and order dated 3rd April, 2012. The appellants then have filed an application before the District Judge-II, Nagpur, under section 41-D (5) of the Bombay Public Trust Act, 1950. The appeal was dismissed by the judge, upholding the removal of the appellants from the posts of President, Secretary and trustees of the trust. The present appeal is made to the High Court of Judicature at Bombay Nagpur Bench, Nagpur.

The Issue before the court was:

Whether an ex-secretary or employee comes under the purview of section 41D? And Whether the imputation reflecting on the integrity of the trustees have to be fortified by proof of high degree which will have to be higher than the standard of proof required in the civil proceedings under section 41-D of the Bombay Public Trust Act, 1950?

The learned counsel for appellant submits that the appellant No.2 is the ex-secretary of the school committee and not the secretary of the Trust. He contended that under section 41D, there is no power to remove an employee of the school or the secretary of the school committee which is constituted under the provisions of Maharashtra Employees of Private School (Regulations) Act, 1977.

The respondent Advocate has fairly admitted that the appellant No.2 is not the secretary of the trust and hence the application which is made under section 41D of the Bombay Public Trust Act, 1950 is not maintainable against her.

The appellants have been charged for the commission of malfeasance under section 41D clause (c), which was partly proved before the both the courts and basing on that, the appellants were removed from their posts. The main argument by the Appellant’s Advocate is that the charge of malfeasance and misfeasance attracts criminal liability and therefore, it is mandatory to make specific pleadings to that effect with supporting evidence to prove such charge beyond reasonable doubt. He further contended that the said charges have not been proved by the respondent Nos.1 to 7 beyond reasonable doubt and therefore the removal of the appellants from their posts is contrary to the well settled provision of law.

In Mukund Waman Thatte v. Sudhir Parshuram chitale and ors.[1], it has been stated that the expression “misfeasance” as used in the clause (c) of Section 41D is more than mere negligence of the trustee to perform his duty.

It is thus clear that expression “misfeasance” as used in Clause (c) of Section 41D is more than mere negligence of the trustee to perform his duty. “Misfeasance” includes breach of duty by the trustee which would result into loss to the trust or would cause unlawful gain to such a trustee, charged with act of Misfeasance. (PARA 25)

Section 36A (3) of the Bombay Public Trust Act, 1950 provides that no trustee shall borrow money (whether by way of mortgage or otherwise) for the purpose of or on behalf of the trust of which he is a trustee, except with previous sanction of the Charity Commissioner and subject to such conditions and limitations as may be imposed by him in the interest of protection of the trust.

The Learned Joint Charity Commissioner, Nagpur has stated that taking of loan from other members of the trust without prior permission, amounts to the commission of Act of Malfeasance and Misfeasance. District Judge-II, Nagpur in the judgment has stated that failure to obtain the previous sanction of the Charity Commissioner for borrowing the loan amounts to malfeasance which is a ground to remove the trustee.

The High Court Judge has allowed the appeal by keeping aside the judgment and order dated 3rdApril,2012 passed by the Joint Charity Commissioner, Nagpur and the judgment and order dated 30thJanuary, 2014 passed by the District Judge-II, Nagpur.

The Learned Judge of the High Court has remanded back the case to the Joint Charity Commissioner to decide the matter afresh on the appellant no. 1 only, after considering the law laid down by this court in Mukund Waman Thatte v. Sudhir Parshuram chitale and ors (supra), and after hearing both the sides.

The appeal was disposed of accordingly.

- Aanchal Tawry


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F.A.No.182 OF 2014
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