Bangalore District Court
John Kennedy vs Young Mens Christian Association on 2 May, 2025
OS 2995/2023-Judgment
KABC010122302023
IN THE COURT OF THE XVI ADDL.CITY CIVIL AND SESSIONS
JUDGE (CCH 12), BENGALURU
DATED: 2nd DAY OF MAY, 2025
PRESENT
SMT. JYOTHSNA D.,LL.B., LL.M., D.F.A.,
XVI ADDL.CITY CIVIL AND SESSIONS JUDGE,(CCH12) BENGALURU
ORIGINAL SUIT No.2995/2023
PLAINTIFF JOHN KENNEDY,
Aged about 59 years,
S/o. Late Mr. V. Johnson,
Associate General Secretary,
Young Men's Christian Association,
Nrupathunga Road,
Bangalore 560 001.
Represented by Smt/Sri S.S.L., Advocate
-- vs --
DEFENDANTS 1) YOUNG MEN'S CHRISTIAN
ASSOCIATION
(A Society registered under the Karnataka
Societies Registration Act, 1960) having its
Office City YMCA, Nrupatunga Road,
1
OS 2995/2023-Judgment
Bangalore 560 001
(Duly represented by its General Secretary -
Danial Rathnakar J).
Defendant by G.S. Advocate
Date of Institution of suit 06.05.2023
Nature of suit DECLARATION AND
INJUNCTION SUIT
Date of commencement of evidence 14.10.2024
Date of Judgment 02.05.2025
Duration Year/s Month/s Day/s
01 11 28
(SMT. JYOTHSNA D.,)
XVI ADDL.CITY CIVIL AND SESSIONS JUDGE,
BENGALURU (CCH 12)
JUDGMENT
This suit is filed by the plaintiff for declaration and consequential relief of injunction and for such other relief as this Court deems fit under the facts and circumstances of the case.
2. In brief, the case of the plaintiff is that :- Plaintiff joined the YMCA National Council of the defendant on 20.11.1990 and worked as Secretary for 32 years in various parts of India such 2 OS 2995/2023-Judgment as Davanagere, Bellary, Hyderabad and joined the Bangalore YMCA, the defendant, in the year 1996 as a Secretary based on his seniority and working experience in the defendant organization.
3. It is further averred that defendant organization which is formed under the provisions of YMCA International and National Council of YMCAs of India for a plethora of roles such as engaging the youth leadership roles and programs for their empowerment ensuring gender justice sensitively and such other goals of the organization through various programs in the schools and institutions and for the implementation of these programs effectively the defendant had appointed the General Secretary and other Associate Secretaries on their roles as paid Secretaries rendering continuous service.
4. It is further averred that after being appointed as a Senior Secretary on the rolls of the defendant from 1996, the plaintiff has been actively involved in various projects and promotional activities towards achieving the goals of the YMCA and the plaintiff has been instrumental in setting up YMCA Public School at Kumbalagodu and is working extensively for getting the recognition of the Government of Karnataka and also plaintiff is instrumental in organizing health check up camps for the poor, 3 OS 2995/2023-Judgment skill training for the youth in computers, tailoring, cellular phone servicing etc.
5. It is further averred that since the plaintiff has been recognized and also appointed as a Senior Secretary for over 30 years, which is evidenced from the National Roster of YMCA Professional Secretaries in India as on November 2022, the plaintiff has been expressing his desire for the due promotion to the post of Asst.General Secretary since he had completed 25 years of service in the year 2016 and wrote to the General Secretary of the defendant on 16.12.2016 regarding his promotion. As a matter of practice and procedure in appointment of Asst.General Secretary to defendant, the Secretaries after completing 25 years of continuous service are promoted and the same is evident from the appointment of the current Secretary of the defendant and accordingly, plaintiff kept expressing his desire and opportunity for being promoted as a Asst.General Secretary on 17th June 2019, 3rd September 2020 and also on 23.06.2021, copies of which are produced along with the plaint.
6. It is further averred that as on 14th February 2023, the Plaintiff expressed his intention to be promoted and expressing his regret on the fact that a secretary who is junior in seniority and 4 OS 2995/2023-Judgment experience was promoted to the position of General Secretary superseding the plaintiff by the Office Bearers and few board members.
7. It is further averred that immediately upon issuance of the said email and bringing the said factum to the notice of the President regarding the manner in which the plaintiff was deprived of a deserving opportunity to the post of General Secretary, the defendant through the General Secretary got issued a letter dated 10.04.2023 with a heading "Office Memo" addressed to the plaintiff by calling upon an explanation within "24 hours" of the receipt of the Office Memo making false and bald allegations against the plaintiff, falsely accusing the plaintiff of not attending the office and reporting to duty and being idle and not attending programs without any dates or specificity and rendering an unreasonable time to reply for the same unjustifiably, copy of which is produced along with the plaint.
8. It is further averred that the plaintiff left with no other alternative, since the defendant was having a clear intention to illegally remove the plaintiff without following the due process as laid down under the personnel policy as also the Manual of Policies of the National Council of YMCA had rendered 24 hours 5 OS 2995/2023-Judgment and the plaintiff issued a reply on 11th April 2023 expressing the factum of not having to reply to the allegations in a short time of 24 hours being unreasonable which was duly acknowledged by the defendant, copy of which is produced along with the plaint.
9. It is further averred that though the plaintiff sought for a reasonable time to reply to the false and frivolous allegations of the defendant vide Office Memo dated 10.04.2023, the defendant issued one more letter with a heading "2nd Office Memo" as on 17th April 2023 just a few hours before the Board Meeting on 17.04.2023 and within a period of one week from the issuance of the first Office Memo, making presumption that plaintiff was not willing to offer any explanation and further the matter will be referred to the Board for further action, copy of which is produced along with the plaint. The plaintiff offered a detailed explanation to the 11 false allegations made in the Office Memo dated 10.04.2023, copy of which is produced along with the plaint.
10. It is averred that as per Personnel Policy of the YMCA Bangalore of the defendant under Section VII of the said document, the Secretary is only subject to dismissal or removal for various grounds as stated in the said policy such as defalcation or 6 OS 2995/2023-Judgment misappropriation of funds, immorality and moral turpitude, any conviction for an offence involving moral turpitude, continued inefficiency and continued insubordination of the employing body. Though the plaintiff was not guilty of any grounds for facing any action of dismissal and removal from the office, the defendant has issued a letter stating "Office Memo" without stating in clear terms of the allegations under the grounds of dismissal and not in the nature of a show cause notice to the plaintiff. In the very same Section VII of the Policy, no dismissal or removal from office can be made without rendering a fair and reasonable opportunity to the Secretary. As per YMCA, Bangalore, there is no provision for issuance of "Office Memo" as rendered by the defendant and further through there is no provisions for rendering any suspension orders as per the bye laws and policy of the defendant, the defendant has got issued the letter dated 25.04.2023, not only suspending the plaintiff from attending to his duties as the Associate General Secretary of the defendant, but has also issued an 'ORDER' stopping the plaintiff and his family members to come to the premises and using the facilities of YMCA as members of the organization which is without any legal sanctity and in complete derogation to the rules and bye laws of the defendant YMCA and hence, this suit is filed for declaration and 7 OS 2995/2023-Judgment consequential order of injunction as against the impugned suspension order dated 25.04.2023, which is null and void as not having any legal sanctity and illegal in letter and spirit.
11. It is further averred that the present General Secretary who is appointed in February 2023 after the death of predecessor has lesser experience which is evident from the Annual Report, which clearly spells out that the plaintiff is a Senior Secretary and the present General Secretary was under him in the seniority list. Further, according to the rules of retirement age, the present General Secretary has reached the age of 63 years and is under extension of age and he is not eligible for P.F., deductions and salary increment etc., and hence, his appointment to the position of General Secretary without considering the plea of the plaintiff being a genuine one is illegal and no est.
12. It is further averred that plaintiff has diligently served the YMCA at various places since the year of his appointment in the year 1990 and further worked extensively for the promotion of the goals and ideals of the YMCA and the defendant as a Secretary which is evident from various reports and records that are produced before the Court. The defendant with an intention of vested individuals and with an intention not to promote the 8 OS 2995/2023-Judgment plaintiff since they are duty bound to follow the customary promotion to the post of Asst.General Secretary after completion of 25 years of service when the plaintiff has completed over 30 years of service, the above modus has been adopted which has absolutely no legal sanctity and all allegations made therein are not tenable and although proper and detailed reply has been given by the plaintiff, the defendant has abruptly suspended the plaintiff so as to take harsh decision and create records against the plaintiff with a view to remove him from the organization under the letter dated 25.04.2023, which is illegal, void and without any legal sanctity.
13. It is averred that as per rules and bye laws under the constitution of the YMCA, Bangalore, election to the Board Members is ought to be conducted every year under the provision of Article 5 and 7 of the Constitution. As per the said Article, 1/3rd of the Board Directors is ought to retire every year and in order to maintain the quorum and the elections are to be conducted every year. There are suits pending and filed by the earlier Board Members in OS No.3105/2022 questioning the illegal sale of the properties of the YMCA Bangalore and their illegal removal from the Board without any rhyme or reason and hence, the Board had 9 OS 2995/2023-Judgment not conducted elections for the year 2021-22 and 2022-23 and also for 2023-24 and the copy of the online order sheet in the said suit is produced along with the present suit. In the absence of elections being conducted as per the bye laws and constitution of the YMCA Bangalore, the Board itself being an illegal body constituted without proper election process, the decisions thereof are not proper and hence, the order dated 25.04.2023 is not binding on the right of the plaintiff and copy of the constitution of YMCA is produced along with the plaint. Without the decision of the Board, the General Secretary has issued the said letter suspending the plaintiff from his duties on 25.04.2023 and hence, the said letter is void ab initio. Hence, this suit.
14. It is further averred that one Ravi R.A., the member of the YMCA had submitted a complaint before the Deputy Commissioner of Register of Co Operative Societies and District Registrar of Societies in Complaint No.DRB/4/ SOR/ Complaint/ 58 /2022-23 to initiate action against the General Secretary of the Association and the Governing Body complaining acts of illegal sale of properties, non-collection of rentals from the buildings owned by the association and arbitrary exercise of decisions without authority by the General Secretary for not renewing his 10 OS 2995/2023-Judgment membership though the defendant had collected the subscription amount. Several allegations were also made against the defendant as well as its General Secretary and the Registrar of Societies, considering the said allegations, which are grave in nature, prohibited by way of stay the General Secretary, Members of the Board and the YMCA from taking any financial, administrative and other decisions touching the matters of the Board and the copy of the said order is produced along with the plaint. Pursuant thereto, the defendant approached the Hon'ble High Court of Karnataka by filing WP No.21286/2022 and the matter was seized off and during the operation of the stay order, the defendant has indulged in taking various administrative and other decisions and also taken all steps to conduct elections to the Board for the Annual Year 2023-24 and the Hon'ble High Court of Karnataka dismissed the WP No.21286/2022 filed by the defendant, copy of the said order is filed along with the plaint. Despite that, the defendant is guilty of appointing the current Board Members by way of elections, take decision of suspending the plaintiff without any authority to do so, appoint the present General Secretary being the defendant herein, who is representing the defendant having lesser experience in age and also being in complete derogation to the personnel policy and 11 OS 2995/2023-Judgment norms of seniority of age and experience in appointment of the same. As there was a specific embargo upon taking any decisions pending departmental enquiry by the Registrar of Co-Operative Societies vide order dated 07.10.2022, which is in force. These actions of the defendant in appointing the current General Secretary vide letter of appointment dated 30.01.2023 who has been appointed without considering the request and also the experience of the plaintiff, is sought to be null and void and non est.
15. It is further contended that pursuant to the order passed by this Court on 9.6.2023, directing the defendant not to conduct any enquiry pending adjudication of the orders on the interlocutory application filed under IA No.3 and 4, the defendant has caused gross violation of the same and has issued a letter through its enquiry officer namely M. Nagendra who has self interest in the matter on 6.6.2023, 14.6.2023 and also on 21.06.2023 seeking for the personal presence of the plaintiff though there was a restraint order passed by this Court. The defendant has no regard for the orders passed by this Court and is acting in violation of the bye laws of the YMCA. 12
OS 2995/2023-Judgment
16. It is further averred that during the pendency of the suit, the defendant approached the Hon'ble Supreme Court and preferred Civil Appeal No.8448/2024 (SLP (Civil) No.2979/2024_ challenging the order of dismissal of MFA No.5141/2023, challenging the order passed by this Court granting an order of temporary injunction restraining the defendant from taking any actions and stopping the plaintiff to attend to his work in the position of Senior Associate Secretary and as per the directions issued by the Hon'ble Supreme court, the defendant was bound to pay subsistence allowance to the plaintiff and directions were also issued in regard to the above suit. During the pendency of the suit and pursuant to the specific directions issued by the Hon'ble Supreme Court of India, the defendant has resorted to pass a "unanimous resolution" by the board of directors on 30.10.2024 and issued a letter of "termination of the employment" of the plaintiff on 31.10.2024 and accordingly, committed a contempt of the directions issued by the Hon'ble Supreme Court of India. The actions of the defendant is non-est in law and not binding on the rights of the plaintiff, since all these actions are misconceived and taken in a harsh manner without following the rules and bye laws of the YMCA.
13
OS 2995/2023-Judgment
17. The cause of action for the suit arose on 25.04.2023 when the defendant has illegally ordered the suspension and illegal restraint of the plaintiff and his family members into the premises of YMCA without proper procedure and approval of the director of the defendant as envisaged under the bye laws, National Council of YMCAs manual and the Personnel Policy of the defendant within the jurisdiction of this Court and the plaintiff has paid proper court fee on the plaint and hence, prayed to decree the suit.
18. Subsequent to filing of the suit, there were several amendments to the plaint as well as written statement and all subsequent averments by both sides are covered in the pleadings of the parties.
19. In its elaborate written statement, the defendant has contended that the suit filed by the plaintiff is frivolous, vexatious and speculative in character and as such, the plaintiff is guilty of serious suppression of real and true facts to this Court apart from being not maintainable in law and as such, the suit filed by the plaintiff is liable to be dismissed in limine.
20. It is contended that the averments and allegations contained in para 3 to 6 are all irrelevant along with its copies and 14 OS 2995/2023-Judgment documents annexed as A to K are not required to be met by defendant since the same is self styled praising of himself besides it is concocted and created documents for the purpose of this case, which shows unnecessary volumes and pages, magazines and photos in order to prejudice this Court and therefore, the suit of the plaintiff is also bad in law and facts and deserves to be dismissed.
21. The defendant has got its own bye laws and has to function within the rules of bye laws and which is also registered with the Registrar of Societies under Societies Act, copies of which are enclosed to the written statement.
22. The defendant Association is an autonomous body by itself and the alleged national council does not have any say in the internal administration of the local YMCA and its board and as such, the plaintiff who has himself misconceived by not understanding the bye laws and the rules within power and policy vested with the board of directors of the defendant's association and question of forcibly seeking of the promotion of the General Secretary by his letter dated 14.02.2023 does not arise at all and as such, the plaintiff has not understood for the appointment of the earlier General Secretary which has fallen by vacancy due to the 15 OS 2995/2023-Judgment demise of General Secretary and accordingly, the YMCA Board which had met on 30.01.2023 and it has unanimously elected the present General Secretary of YMCA who is the senior most Assistant General Secretary for the post of General Secretary and the copy of the resolution is enclosed to the written statement.
23. The appointment of current General Secretary from 30.01.2023 is the unanimous decision of YMCA Bengaluru Board and the plaintiff cannot question the same and the plaintiff has got a habit of writing letters to the President unnecessarily and questioning the Board and its President. The plaintiff being an employee appointed by the defendant, he has to work under the General Secretary and he cannot question his own Boss. The plaintiff was not carrying out any of the instructions of the General Secretary nor he was reporting and he was only crumbling that he was not considered for promotion to the post of General Secretary due to which, he has completely neglected the work and accordingly, the defendant was constrained to issue two notices dated 10.04.2023 and 17.04.2023, for which he had written blatant reply on 18.04.2023 for one of the letters, copies of notices and reply are enclosed to the written statement.
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OS 2995/2023-Judgment
24. As per the bye laws of the written constitution, Article 5, the management shall be vested with the Board of Directors of the YMCA, who are in 15 members under Article 6 of Section 1 and
2. The President, Vice President, Treasurer, General Secretary namely the defendant and the Office Bearer under Article 6 the General Secretary is also the member of Ex-Officio of the Board of Directors and it is also the CEO in respect of the Association. And as per Article 15, the YMCA Board of Directors are the authoritarian to deal with functioning of Bengaluru YMCA and their decision is final and therefore, the plaintiff cannot question the selection of the General Secretary and selecting the defendant namely Danial Rathnakar J., as the General Secretary of the Bengaluru YMCA by its resolution dated 10.01.2023 and therefore, the plaintiff cannot adopt non working method as he was not considered for the post of General Secretary and therefore, the plaintiff herein continues to disrespect the General Secretary the defendants and its boards and he was not reporting or carrying out any of the assignments entrusted to him and including the office bearers who had advised to mend his way and he had humiliated and insulted the officers bears of the board and as such, on 17.04.2023, the YMCA Board which had met, instructed the General Secretary of YMCA Bengaluru to deal with as per law 17 OS 2995/2023-Judgment by its Board meeting dated 17.04.2023 and accordingly, the General Secretary who had issued notices as stated above dated 10.04.2023 and 17.04.2023 and further he was constrained to keep the plaintiff under suspension pending enquiry and the suspension order is enclosed to the written statement.
25. It is contended that the defendant who is General Secretary of YMCA Bengaluru, is the CEO and he is the Disciplinary Authority in respect of all the employees of YMCA Bengaluru and is competent to deal with the matters pertaining to disciplinary actions of the employees working under him and accordingly, he rightly issued the aforesaid letters before suspending him by according all the natural justice by following the due process of law in keeping the plaintiff under suspension, pending enquiry and therefore, there is no illegality in keeping the plaintiff under suspension and hence the present suit is premature one.
26. It is contended that the plaintiff who is served with suspension notice, tried to enter forcefully into the Bengaluru YMCA premises by threatening and coercion that he will lodge a police complaint and forcefully opened the chamber without the permission of General Secretary, claiming that the chamber belongs to him and it is his private one etc. Hence, the defendant 18 OS 2995/2023-Judgment was constrained to file Police complaint against the plaintiff, copy of which is produced along with the written statement. The plaintiff having got provoked by the above Police complaint, started writing anonymous letters and circulating and casting aspersions on the office bearers of the Board and Legal Advisor of the YMCA by alleging false and frivolous allegation of selling the alleged land and as of now, there is no alleged sale agreement entered for a sale even by the deceased president and the deceased general secretary. As both are no more, the plaintiff cannot unnecessarily drag them by making unfounded allegations. Everyone knows that plaintiff is behind writing such anonymous letters with unfounded allegations. Such letters self designed by plaintiff shows his character and conduct. Since the plaintiff did not carryout the work assigned to him and for his non- cooperation, he is kept under suspension and the organization cannot pay for the idle employees and it is nowhere non working persons get the salary.
27. It is contended that the plaintiff has not worked in YMCA Association on free of cost. He has been paid salary and other required perks and therefore, the plaintiff cannot claim as pride of his number of years who had put into service, however 19 OS 2995/2023-Judgment the above said conduct, indiscipline will demonstrate how the plaintiff was working in the organization and in fact, he colluded with other terminated and expelled YMCA members to initiate cases against the YMCA and he had furnished all the confidential copies of the Bengaluru YMCA in order to file a case by instigating them and accordingly, one Mr. D. Samuel Issmer and the expelled member of the YMCA and Mr.Ravi who has not been reappointed to the Board to file a case against YMCA which means the plaintiff who is continued acting detrimental to the interest of the Bengaluru YMCA by bringing the bad name besides tarnishing the fair name of the defendant, which has got history of 130 years of its establishment and it is a service oriented organization and plaintiff who has got a history in colluding with the other members in embellishment of the funds at their different level besides the plaintiff who is greedy, averishes and to have a wrongful gain without working and besides he got a habit of making allegations and bringing a bad name to the reputed board members who are working and striving for betterment of defendant and the work for honorarium and the plaintiff who is gainfully employed was drawing handsome salary apart from other perks, the plaintiff has no right to point finger on the Board of Members nor the officials of the defendant, since the plaintiff was drawing salary without 20 OS 2995/2023-Judgment working. Hence, the defendant has denied the averments in paragraphs 15 to 18 of the plaint. It is contended that in fact, the plaintiff was asking for a change of job with one of the office bearers and on refusal, he used to make allegations against him also for not obliging for his request and he had applied for job in the organization of the Treasurer of the defendant and the defendant has got reliable information that plaintiff is also running a parallel association and drawing handsome salary without the permission of the defendant.
28. It is contended that as documents produced as per Annexure, the suit in OS No.3105/2022 has been filled earlier at the instigation of the plaintiff indirectly and therefore, the present suit filed by the plaintiff is also required to be stayed under Section 10 of CPC.
29. It is contended that the suit of the plaintiff is premature and the relief sought in the prayer and IA 2 and 3 are one and the same with the main prayer of the suit and therefore, the suit of plaintiff of this nature is not maintainable under the law or the facts.
30. It is contended that the plaintiff who has been already kept under suspension has not yet complied as on this date in 21 OS 2995/2023-Judgment forwarding his address and submitting non working certificate and therefore, the plaintiff has committed disobedience and hence, the suit is required to be dismissed on this ground also.
31. It is contended that averments in para 15(d), 15(d) and prayer (f) is totally misconceived and the Hon'ble Supreme Court of India by its order dated 5.8.2024 in SLP (Civil) 2979/2024, set aside the order passed in MFA No.5141/2023 dated 17.07.2023 and as such, the suit of the plaintiff has already become infructuous and does not survive and mere granting six months time to dispose the suit which was originally filed challenging the suspension order dated 25.04.2023 which the Apex Court has already held that entertaining of suit itself erroneous, without any cause of action and the suit itself does not sustain and do not warrant further proceeding and as such, by amendment of the plaint, the plaintiff has committed serious guilt of suppression of real and true facts as the plaintiff was terminated with due process of law .
32. It is contended that defendant is an autonomous body by itself, the termination of any staff is purely discretion of the Board and in fact, the plaintiff was also given an opportunity with an independent domestic enquiry, which he had failed and 22 OS 2995/2023-Judgment neglected apart from the above, the Board also conducted a personal enquiry and therefore, there is no impediment in terminating the plaintiff, after he was suspended under due process of law. Mere filing of suit does not take away all the rights of the defendant and the defendant has dealt with in accordance with law and termination dated 30.10.2024 cannot be questioned or agitated in the above said suit since the plaint itself does not sustain in view of the order passed by the Hon'ble Supreme Court of India dated 5.8.2024 and hence, entire averments in para 15(f) of the plaint are denied as false. By seeking amendment to the plaint, the plaintiff is trying to circumvent the law and the order passed by the Hon'ble Supreme Court in the above SLP, which he cannot directly succeed and indirectly trying to circumvent the law and dragging this Court into controversy and having filed a Memo stating that plaintiff filed the revision petition before the Hon'ble Supreme Court and accordingly he had filed a Memo before this Court and taken two weeks time adjournment on the said pretext and now he is coming with the fresh amendment, which is not sustainable in the above case.
33. It is contended that the plaintiff who is colossal ignorant, without understanding the terms of the order passed by 23 OS 2995/2023-Judgment the Apex Court of the land, he cannot pick and choose the readings of the Apex Court Judgment and he has to read as a whole and therefore, the averments made in para 15(f) are totally misconceived and the order of termination of the plaintiff is in conformity with of the bye-laws of the defendant.
34. It is contended that the plaintiff who was an employee of the defendant, which is regulated by the rules and regulations framed by the defendant's bye laws by the society and accordingly the power vested with the Board and therefore, the alleged allegation of the plaintiff in para 15(d) and 15(f) are totally not amenable and the order of suspension followed by termination of the plaintiff by assigning valid reasons with disciplinary enquiry by following all the principles of natural justice are all correct and legal under the statutory authority of the rules by the defendant.
35. It is contended that the plaintiff failed to understand the concept of suspension order is not a punishment and during the course of suspension, the plaintiff is prevented from entering the premises which is lawful and legal and therefore, the question of restraining the defendant as alleged and stated does not arise and therefore, the prayer which is molded for declaration and mandatory injunction does not arise. The plaintiff has not correctly 24 OS 2995/2023-Judgment identified the schedule and therefore, the prayer and the schedule is ambiguous and thus, the suit itself is barred in law.
36. It is contended that the suit of the plaintiff is not maintainable and therefore, the suit is required to be dismissed under Order 7 Rule 11 of CPC.;
37. It is contended that the plaintiff cannot maintain the suit under Section 9 of CPC as the suit itself is premature one and the plaintiff cannot approach this Court without exhausting the remedies available under the bye-laws which the plaintiff is also relying on the same and it is well settled.
38. It is contended that suspension is an internal disciplinary proceedings until it is concluded the allegation against the plaintiff. If any order of restraining until the conclusion of the disciplinary proceedings, it will have a danger and miscarriage of justice and therefore, order of suspension by the defendant is lawful, legal and the defendant has got right to do so.
39. It is contended that the order of suspension of the plaintiff dated 25.04.2023 was reported to the Board of YMCA, which approved and ratified the same in its meeting held on 26.5.2023 and appointment of Mr.Nagendra as Independent 25 OS 2995/2023-Judgment Enquiry Officer is also approved and ratified by the Board of YMCA and the relevant extract of the minutes of the meeting are produced along with the written statement. The plaintiff having committed serious irregularities, disobedience and having worked with another organization as full time secretary, he deserved to be terminated from the service of defendant and hence, the termination of the plaintiff is as per law and by following the principles of natural justice. Therefore, the plaintiff is not entitled to any relief claimed in the suit.
40. It is contended that the plaintiff has no legal rights and remedy to file the present suit and proceed against the defendants. The suit in the present form is not maintainable. The plaintiff has no cause of action against the defendant. The entire suit of the plaintiff is without any bonafide. The court fee paid by the plaintiff is insufficient and the suit is properly valued under the Karnataka Court Fees and Suits Valuation Act.
41. It is contended that the averments and the allegations which are not specifically traversed are denied as false and in view of the foregoing, the defendant has prayed to dismiss the suit with costs.
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OS 2995/2023-Judgment
42. Based on the above pleadings of the parties, the following issues and additional issues are framed:-
Issue No 1 : Whether the plaintiff proves that he joined for service in defendant Institution on 20.11.1990 and further he joined the Bengaluru YMCA as a Secretary in the year 1996 on the basis of his seniority and working experience in the defendant institution as pleaded in the plaint?
Issue No 2 : Whether the plaintiff further proves that the defendant institution suspended him without following due procedure and issued letter and suspension order dated 25.04.2023 by violation of rules and regulations in the bye- law of the defendant institution?
Issue No 3 : Whether the plaintiff further proves that the
Letter and Suspension Order dated
25.04.2023 issued by the defendant
institution is null and void and not binding on the rights of the plaintiff?
Issue No 4 : Whether the plaintiff proves that he is entitled to the reliefs of mandatory injunction as prayed in prayer No.(b), (c) and (e)?
Issue No 5 : Whether the plaintiff proves that the appointment of Mr. Daniel Rathnakar as 27 OS 2995/2023-Judgment General Secretary vide appointment letter dated 30.01.2023 is null and void?
Issue No 6 : Whether the defendant proves that the suit is barred by law?
Issue No 7 : Whether the defendant proves that there is no cause of action to this suit?
Issue No 8 : Whether the defendant proves that the Court fee paid is insufficient?
Issue No 9 : Whether the plaintiff is entitled to the relief as sought for?
Issue No.10: What order or decree?
Addl.Issue No.1:- Whether the plaintiff proves that the
termination letter dated 31-10-2024 issued by defendant is illegal, non-est and null and void and not binding on the plaintiff?
Addl.Issue No.2:- Whether the defendant proves that the suit is not maintainable under Specific Relief Act 1963?
43. To prove his case, the plaintiff himself entered into witness box and got examined by oath as PW 1 and filed sworn affidavit and additional examination in chief under which all the plaint averments are reiterated. He has produced number of 28 OS 2995/2023-Judgment documents to substantiate his case which are marked as Ex.P 1 to 32 in his further chief examination, Ex.P 33 to 37 and Ex.P 12(a) are got marked through confrontation DW 1 in his cross examination. The learned counsel for defendant cross examined him.
44. PW 2 and PW 3 entered in to witness box as witnesses from plaintiff's side in further evidence of plaintiff by filing sworn affidavits and learned counsel for defendant cross examined them.
45. To disprove the case of the plaintiff and to defend his side, General Secretary Sri Danial Rathnakar entered into witness box and got examined by oath as DW 1 and filed sworn affidavit of examination in chief under which all the contentions of the written statement are reiterated. He has produced certain documents which are marked as Ex. D 1 to Ex. D 57 and Ex.D 3(a) to 5(a), 10(a) to 12(a), 36(a), 37(a). This witness is cross examined by learned counsel for plaintiff.
46. In support of his case, the learned counsel for the plaintiff has placed reliance on the following:-
1) Judgment in RFA No.1778/2017 dated 4.7.2013 between K.M.Josesh Vs Indiranagara Club.
2) (2024) 7 SCC 183 ( State of Kerala Vs Union of India) 29 OS 2995/2023-Judgment
3) (1976) 2 SCC 58 ( Executive Committee of Vaish Degree College, Shamli and others Vs Lakshmi Narain and others)
4) 2024 SCC OnLine J&K 934 (Kaka Ram and other Vs Mangat Ram)
5) AIR 1967 SC 436 ( Vemareddy Ramaragava Reddy and others Vs Konduru Seshu Reddy and others)
6) AIR 1942 CAL 325 (Noor Jehan Begum Vs Eugene Tiscenko)
7) (2002 ) 9 SCC 652 (Som Vihar Apartment Owners Hosing Maintenance Society Ltd Vs Workmen C/o. Indian Engg and Genl Mazdoor.
47. In support of the case of the defendant, the learned counsel for the defendant has placed reliance on the following:-
1) (2015) 11 Supreme Court Cases 669 ( National Institute of Technology and another Vs Pannalal Choudhury and another)
2) Judgment in MFA No.510 of 1991 dated 30.03.1993 (K.T.Shivaiah Vs G. Puttaswamy Gowda)
3) AIRONLINE 2020 KER 405 ( Kochurani Jose Vs. The Joint Registrar of Co Operative Socieites
4) 2001 0 Supreme (All) 1180 (Ramesh Chandra and others Vs Vice Chancellor, University of Allahabad and others
5) ILR 1993 KAR 2313 ( Sadashivanagar Club Vs Nataraj)
6) (1999) 3 Supreme Court Cases 679 ( Capt M. Paul Anthony Vs Bharat Gold Mines Ltd., and another) 30 OS 2995/2023-Judgment
7) 1999 SCC Online AP 298 ( M. Satyanarayana Vs A.P. State Trading Corporation Ltd.)
8) 2006 0 Supreme (Chh) 450m 2006 (2) CGJG 406 ( Ravi Narayan Sahu Vs State of C.G. and others
9) 1998 1 CTC 458, 1998 2 LW 241 ( K. Ponnaiah Vs M/s. Golden Hills Estates Pvt Ltd.)
10) (2013) 16 Supreme Court Cases 147 ( Union of India Vs Ashok Kumar Aggarwal)
11) 1963 AIR 1144 = 1964 SCR (1) 1 = AIR 1963 SUPREME COUR1144 (T.P.Daver Vs Lodge Victoria)
12) Judgment in RFA No.1778/2012 ( K.M.Joseph Vs Indiranagara Club)
13) Judgment in OS 8382/2010 (K.M.Joseph Vs Indiranagar Club)
14) Judgment in MFA No.3455/2010 dated 27.09.2010 (K.M. Joseph Vs N. Nagendra and others)
48. Heard both the sides, perused materials placed on record and gone through the principles laiddown in the above judgments and accordingly this Court answers above Issues and Addl. Issues as under;
Issue No.1 : In the affirmative,
Issue No.2 : In the affirmative,
Issue No.3 : In the affirmative,
Issue No.4 : Partly in the affirmative,
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Issue No.5 : In the negative,
Issue No.6 : In the negative,
Issue No.7 : In the negative,
Issue No.8 : In the affirmative,
Issue No.9 : Partly in the affirmative,
Addl.Issue No.1 : Partly in the affirmative,
Addl.Issue No.2 : In the negative,
Issue No.10 : As per final Order.
For the following;
REASONS
49. Issue Nos.6 to 8 and Addl.Issue No.2 :- These 4 Issues are connected to maintainability of suit which is invoked under Order VII Rule 11 of CPC and if these Issues survive, then discussion on other Issues will not arise, hence, they are taken up earlier together to avoid repeated discussions too.
50. First of all, employment of plaintiff with defendant institution is undisputed fact and the suit claim is about his suspension and termination as original prayers and subsequent inserted prayers and to avoid ambiguity, the prayer portion in the plaint is reproduced here under;
"a) Declaration that the Letter and Suspension Order dated 25-04- 2023 issued by the Defendant Organization is null and void and not binding on the rights of the Plaintiff; and 32 OS 2995/2023-Judgment
b) Consequently, grant a Decree of Mandatory Injunction Directing the Defendant, their officers, agents and others representing under them from restraining and restricting the Plaintiff from attending to his office work in the schedule premises of the Defendant; and
c) Consequently, grant a Decree of Mandatory In-
junction restraining the Defendant, their officers, agents and other under them from restricting and restraining the Plaintiff and his family members from entering the sched- ule premises of the YMCA Bangalore and using the facili- ties of the Defendant organization;
d) Grant such other relief(s) as this Hon'ble Court may deem fit in the above case in the interest of justice and equity.
Amendment order dated: 25.09.2024
(d) Declaration that the appointment of the General Secretary namely Daniel Rathnakar vide appointment let- ter dated 30-01-2023 is null and void;
(e) "Mandatory Injunction directing the Defendant to appoint the Plaintiff in the position of General Secretary in YMCA Bangalore."
Amendment order dated: 13.11.2024
(f) "Declare that the Letter of Termination dated 31- 10-2024 is illegal non-Est and null and void and not bind- ing on the Plaintiff".
51. As the employment of the plaintiff is undisputed fact and suspension and subsequent termination of the plaintiff is the 33 OS 2995/2023-Judgment alleged cause of action to this suit, which shows that there is cause of action to this suit.
52. Now the question is whether the suit is barred by law and not maintainable under Specific Relief Act 1963 and about court fee, as contended by the defendant.
53. On perusal of materials on record, the plaintiff has inserted additional prayers for declaration and mandatory injunction which are reiterated supra. But, he has not paid additional court fee and the amended plaints are not enclosed with fresh valuation slip with payment of additional court fees on additional prayers which show that the court fee paid by the plaintiff is insufficient as the valuation slip dated 05-04-2023 shows that he has paid court fee of Rs.75/- by invoking Section 24(d) and 26(c) of KCF and SV Act. But, only on the reason of insufficient court fee, a suit shall not be dismissed as an opportunity with prescribed time to be given to him for payment of deficit court fee as per proviso to Order VII Rule 11 of CPC. Hence, the judgment in this case will get effect only subject to payment of sufficient court fee.
54. It is also undisputed fact that the defendant institution is registered under the Karnataka Societies Act and the suit claim is connected to working and employment of plaintiff in defendant 34 OS 2995/2023-Judgment institution, then on perusal of Karnataka Employments Act, there is no bar to civil court to entertain the suit for declaration, injunction and there is no specific bar to entertain suit by civil court in respect of affairs of employment of institution/association registered under this Act which has nature of relief of declaration, permanent injunction and mandatory injunction in connection to specific relief under Specific Relief Act.
55. In this regard, the learned counsel for the plaintiff relied upon judgment of the Hon'ble High Court of Karnataka in RFA No.1778/2012 (Chev K.M.Joseph vs Indiranagar Club) in which in a similar case, the Hon'ble High Court upheld the jurisdiction of civil court as;
"22. Clause (vi) of Rule 20-A provides that 'an order of the managing committee removing a member from membership shall be open to review by the general body as provided under Rule 30(1). None of these rules provide as to what a member should do if his membership is terminated except stating he has to make a request for review at the annual general meeting and has to wait till the ensuing meeting. There is no rule cited by the learned counsel to show that a member whose membership has been terminated has been provided with any independent right of appeal to the supreme body. No rule is cited which ousts the jurisdiction of Civil Court to adjudicate whether the committee has followed 35 OS 2995/2023-Judgment the procedure prescribed to conduct enquiry or impose punishment.
23. Had the rules contained any right of appeal/revision providing for expeditious/efficacious remedy, a view could have been taken that the rules are self-contained. In the absence of it, the aggrieved person can only have recourse to civil law for redressal of his grievance. In the resultant position, it could easily be held that against the order of the managing committee, rules do not provide for any independent right of appeal or review except that the general body has been empowered to review such decision and that too, in its ensuing annual general meeting and till then the member has to wait. In this fact situation, it cannot be said that the jurisdiction of the civil court is barred".
56. Further, in this citation, it is held that if dispute does not fall in Section 9 of CPC, then it cannot be said that civil court has no jurisdiction as in paragraph 14 as;
"14. Keeping this in mind, I have examined the case laws cited by Si Sukumaran, learned counsel for the respondent. In the case of T.ADEVAR 19, LORD VICTORIA &OTHERS and others (AIR 1949 AC 313) rendered by the Bench presided over by Hon'ble Mr. Justice Nittoor Sreenivasa Rau and Hon'ble Mr.Justice Hegde, the view taken is that when a dispute relates ne the working of a private association except insofar as the 36 OS 2995/2023-Judgment dispute falls within the scope of Section 9, CPC, it will be within the exclusive domestic jurisdiction of the institution concerned.
As long as this jurisdiction is exercised bona fide and in conformity with the rules and in accordance with the principles of natural justice, civil courts will have no jurisdiction to examine the merits of the case The function of the civil court is mainly to ascertain as to whether the proceedings before the domestic Tribunal is a bona fide one and whether the Tribunal acted in substantial compliance with the Rules by which it is governed and whether it has conformed to the requirement of natural justice."
57. Here in this case there is no specific bar either under Karnataka Societies Act and defendant has not invoked any specific bar under any other law, hence, this court has jurisdiction to entertain this case and this suit is maintainable under Specific Relief Act. Important point to be noted here is at the initial stage of filing of written statement, such ground of maintainability is not invoked by the defendant and after the judgment in the above narrated SLP, this ground of maintainability is invoked and if this suit is not maintainable, then, definitely Hon'ble Apex Court would have enlightened us there itself.
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OS 2995/2023-Judgment
58. Further, the learned counsel for the defendant argued that the cause title of the plaint is not correct as DW 1 is wrongly arrayed, but in this regard, this Court gone through Section 15 of Karnataka Societies Registration Act which gives provision as;
"15. Suits by and against society.- Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary or the trustees as shall be determined by the rules and regulations of the society, and, in default, of such determination, in the name of such person as shall be appointed by the governing body for the occasion: Provided that, it shall be competent for any person having a claim or demand against the society, to sue the president or chairman, or principal secretary or the trustees thereof, if, on application to the governing body, some other officer or person be not nominated to be the defendant."
59. Here in this case, the defendant Association named and styled as YOUNG MEN'S CHRISTIAN ASSOCIATION, but it is registered under this Act, then it is treated as "Society" and in the cause title, it is described as "SOCIETY". Now, as per definition portion in Ex.D.55, the "General Secretary" defined in (d) as, "General Secretary" shall mean the person for the time being exercising the functions of the Chief Secretary of the Association". Then, at present the arraying him as representative of defendant 38 OS 2995/2023-Judgment association is correct as per Section 15. Further, in prayer (d) in the plaint shows that presently the said Daniel Rathnakar is acting as General Secretary and the work of Danial Rathnakar as General Secretary is an undisputed fact.
60. As these Issues clearly involve question of law than fact, hence, there is no necessity to go through evidence of the witnesses and documents because as discussed supra, the employment of the plaintiff in defendant association is an admitted fact. As the dispute is about his suspension and termination, which has to be decided which shows cause of action. Accordingly, Issue Nos.6 and 7 and Additional Issue No.2 are answered in the Negative and Issue No 8 in the Affirmative.
61. Issue Nos.1 to 3 and Addl.Issue No 1 : These four Issues are inter-connected to each other and to avoid repeated discussions on same set of facts and law, they are taken up together here under;
This suit is mainly based on the rule, policies and bye-laws of defendant Association. Both the plaintiff and the General Secretary who is representative of defendant Association are bound by duty towards the rules, regulations and principles governed under the concerned rules, regulations, policies and bye-laws. Here the question is whether the rules, regulations, 39 OS 2995/2023-Judgment policies and bye-laws of YMCA Bangalore or the National YMCA Delhi, to be followed, is highly argued by both the sides.
62. Actually, in this case, the order of this court on IA No.2 and IA No.5 is challenged by the defendant before the Hon'ble High Court of Karnataka, which came to be confirmed, but aggrieved by the said order, the defendant challenged it before the Hon'ble Supreme Court of India by filing Civil Appeal No.8448/2024 @ SLP (C) No 2979/2024. The Hon'ble Apex Court dismissed the said Appeal and directed the appellant/defendant herein to pay the subsistence allowance forthwith to the respondent/plaintiff in accordance with law.
63. In that order, the Hon'ble Apex Court by setting aside the order of temporary injunction, in paragraph 10, opined that the order of suspension dated 25-04-2023 is continuing and the orders of injunction have not yet been implemented for one reason or the other and the respondent has not joined duty and under that circumstances, set aside the order of temporary injunction and gave direction to this Court to dispose this suit within five weeks from the date of said order.
64. With due respect, this court endeavored to conclude within prescribed period, but as the stage of evidence was yet to commence on the date of said order and after that, several IAs 40 OS 2995/2023-Judgment were filed by both the sides, which were disposed as early as possible and since trail of the case and arguments consumed much time in view of principles of natural justice of AUDI ALTEREM PARTEM.
65. Firstly, we have to look into what are the documents filed by both the sides in respect of rules, regulation, policies and bye- laws under which administration of defendant Association is governed.
66. In the documentary evidence of PW1, the "Memorandum and Rules and Regulations" of Bangalore YMCA that is defendant association is produced and marked as Ex.P.5 and the same is produced by DW 1 which is marked as Ex.D.55. The personal policy of Bangalore YMCA is produced by DW 1 which is marked as Ex.D.54.
67. Now, on perusal of Ex.D.55, page No.5 regarding policy of training, it is clearly stated that the recruited candidates shall be deputed to the training school as and when it is feasible, but not later than three years from the date of recruitment. During the training period, the candidate shall be under the direction of the National Council of YMCAs. That means once the training period is completed, then they are governed under rules, regulations, policies and bye-laws of respective local/ zonal YMCAs such as the 41 OS 2995/2023-Judgment persons/candidates who appointed from YMCA Bangalore are governed under rules, regulations, policies, principles and bye- laws of Bangalore YMCA.
68. In the evidence of PW 1, Exs.P.1 to Ex.P.4, Ex.P.6 to Ex.P.11, Ex.P 18 to Ex.P 32 are the documents which are the documents of suspension, termination and communication between plaintiff and defendant.
69. On the other hand, in the evidence of DW1, Exs.D 1 to D 37, Ex.D 3(a) to 5(a), 11(a), 12(a), Ex.D 46 are the documents of proceedings of suspension and termination of PW 1 and documents of communications with him which are connected above P' series documents.
70. Again, in the evidence of PW 1 and DW1, Ex.P 5 and Ex.D 55 are the same set of "Memorandum and Rules & Regulations" of Bangalore YMCA and Ex.D 54 are the "Personnel Policy" of Bangalore YMCA which shall be followed for the administration and management of Bangalore YMCA as required under Section 5 of Karnataka Societies Registration Act which is reproduced here under;
"5. Mode of forming societies.- Any seven or more persons, above the age of eighteen years associated for any purpose specified in section 3 may, by subscribing their names 42 OS 2995/2023-Judgment to a memorandum of association and otherwise complying with the requirements of this Act and the rules made thereunder, in respect of registration, form themselves into a society under this Act. 6. Requirements with respect to memorandum.-
(1) The memorandum of association of every society shall state,--
(a) the name of the society;
(b) the objects of the society;
(c) the names, addresses and occupations of the members of the governing body to whom, by the rules of the society, the management of its affairs is entrusted; (d) the place at which the registered office of the society is to be situate.
(2) There shall be registered with the memorandum of association, the rules and regulations of the society, which shall contain provisions relating to admission of members, general meetings, proceedings at such meetings including voting by members, the governing body and proceedings of meetings of the governing body: Provided that save as otherwise provided in this Act, no rule or regulation of a society shall exclude any member from being entitled to vote.
(3) The memorandum and rules and regulations of the society shall be printed or typewritten, be divided into paragraphs numbered consecutively and be signed by each subscriber to the memorandum of association (who shall add his address, description, age and occupation, if any) in the presence of at least one witness who shall attest the signature and shall likewise add his address, description and occupation."43
OS 2995/2023-Judgment
71. Next to that, PW 1 has produced the Directory of Association of Secretaries of YMCA of the year 2012, the School Diary of YMCA Public School Kumbalgodu, the Annual Report of YMCA Bangalore-2019-2020, 2010-2011, 2017-18, 2018-19, 2021-22 which are marked as Ex.P 12 to 17 and Ex.P 36 respectively. The National Roaster of the National Council of YMCAs of India is got marked through confrontation to DW 1. These documents are produced to substantiate his side to prove the alleged suspension and termination of PW 1, as unlawful.
72. On the other hand, DW 1 has produced judgment in MFA No.5141/2023(CPC) dated 20-01-2024, the certified copy of its Order Sheet, Order on IA No.1/24 in the said MFA, the judgment in SLP No 2979/2024, Reply to RTI Application by Registration and stamps department of Chittoor, the Memorandum of association of "Society for Community Action Net Work - India - Chittoor", the extracts of attendance register of YMCA Bangalore, Endorsement dated 23-01-2025 issued by Halasuru Police station to defend his side and to disprove the case of the plaintiff which are marked as Ex.D 41 to 44, Ex.D 49, Ex.D 56 and Ex.D 52 respectively.
73. Originally, this suit is filed for declaration of letter and suspension order dated 25-04-2023 issued by defendant 44 OS 2995/2023-Judgment organization as null and void and not binding on the rights of plaintiff and for consequential relief of mandatory injunction as supra, but later, after the Order in SLP No.2975/2024, the plaint came to be amended with additional prayers and inserting of facts of subsequent events and accordingly written statement also came to be amended and additional written statement was also filed.
74. Ex.P.1 is the letter of suspension/suspension order dated 25-04-2023 in which in paragraph 1 it is intimated to PW 1 as;
"(1) With reference to the above, you had failed to offer your Explanation to the above referred Memos and Show Cause notice as referred to above besides in you belated Explanation dated 18/04/2023 you have not addressed to the undersigned as required under the rules and Bye Laws of the YMCA, Bangalore and your self styled claiming that, you are suo-moto carrying out the alleged program without being authorized or assigned to you by the undersigned who being your General Secretary and you have failed to report to him since 01/02/2023 even after official memo issued to you."
75. Here, what is the "alleged program without being authorised" is mentioned. If YMCA is working under required rules and bye Laws of the YMCA as mentioned here, then for suspension and termination of employee, the same provisions shall be 45 OS 2995/2023-Judgment followed as per the law of natural justice as mentioned by bye- laws as "law of the land".
76. Further in page No 2 noted as, "Therefore, the YMCA Board in its meeting held on 17"h April 2023 directed me to initiate action against you as. it may be warranted against you and after due deliberation felt that, your entire conduct which had caused detrimental to the interest of the YMCA Organization and its reputation besides causing wrongful loss, in a gross mismanagement willful abuse of power, acting against the rules of the YMCA and not working and keeping your Self-fully idle in contrary to the rules by suppressing the material facts of the documents for your personal gains etc., and your presence during the enquiry which may harm further disciplinary proceedings which you likelihood of tampering the evidence against you and further influencing the witness and accordingly by considering the entire materials and facts on records, as stated above and the undersigned thought fit as a CEO and General Secretary of the YMCA Bangalore in passing the order against you herein." The ORDER is runs like as under;
"Therefore it has been decided to suspend you from the post of Associate General Secretary of the YMCA Bangalore w.e.f 25h April 2023 pending Departmental enquiry against you and During the period of suspension you, your spouse or your dependents shall not be eligible to enter the YMCA even as a guest to the YMCA premises for any purpose whatsoever., 46 OS 2995/2023-Judgment and further you will furnish your residential address with your mail ID and Phone numbers and you will not leave the Ben- galuru city, without the prior permission and you will be avail- able as and when you have been called by the undersigned and your suspension allowance will be paid as per rules and on submitting non-working certificate to the undersigned as and when falls due and you will be initiated name of enquiry officer and you also you will be provided Charge sheet."
77. Surprising point in this order is the "General Secretary" of defendant association without seal and signature of YMCA Board and quorum issued such order as, "you will furnish your residential address with your mail ID and phone numbers and you will not leave the Bengaluru city, without the prior permission and you will be avail- able as and when you have been called by the undersigned and your suspension allowance will be paid as per rules". One cannot take the law of the land into his hand by curtailing one's fundamental right without intervention of concerned "public authority" or "judiciary" as a general secretary cannot say "you will not leave Bengaluru city without his prior permission and you will be available as and when called by the undersigned". The "undersigned" is the "Gen- eral Secretary Daniel Rathnakar J., who is none other than DW 1. In simple words, without any authority, this DW 1 issued this order as like order of a Court in conditional order of bail. If the plaintiff 47 OS 2995/2023-Judgment has committed such an unlawful act, then he shall report before the whole body of Board of YMCA and take action before jurisdic- tional police and he cannot take the law of the land in his hand to curtail fundamental rights of plaintiff which is against law of land which is noted in page No 3 of Ex.D 54 which is reproduced here under;
"Duties and Responsibilities of Personnel Committee:
a) Implementation of Personnel Policy
b) Creation and filling of posts
c) Fixing salary, allowances and scales
d) Preparation of job commissions
e) Evaluation of work
f) Arranging refresher courses
g) Certification of Secretaries
h) Transfers
i) Extension, retirement, termination of services
j) Any other decisions made by the Board from time in accordance with the law of the land shall be imple-
mented."
78. Here the word "termination of service" is specifically men- tioned and such decision of the Board shall be "in accordance with law of the land".
79. The annual reports and registers produced by the plaintiff and the admissions in the evidence shows that plaintiff has joined YMCA as Secretary in the year 1996.
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80. Further, this order is made by the General Secretary only and Section 1 of Ex.D 54 shows that who are the Board of Direc- tors. There is clear mention as to the Board of Directors shall be the authority to take decisions and nowhere in Ex.D 54 and Ex.D 55, gave provision to pass such an order by General Secretary only. Though the enquiry and report of enquiry against a staff/em- ployee may be conducted under the surveillance of General Secre- tary through Board resolution. but on the basis of his report the Board of Directors shall issue such order and the connected provi- sions are reproduced here under for better understanding;
"SECTION 1 "The Board of Directors The President, the Vice President, the General Secre- tary and the Hon Treasurer are the Office Bearer of the YMCA Bangalore. The YMCA functions directly under the supervisory control of the Board as the Board is the supreme policy/decision making body.
In all matters pertaining to the Personnel Policy of the Bangalore YMCA, the Board of Directors shall be the authority to take decisions."
81. Then, Ex.P 1 shall be under seal and sign of the Board of Directors.
Next to that, 49 OS 2995/2023-Judgment "Definition of a YMCA Secretary :
A YMCA Secretary is one who meets with established criteria for recruitment, is employed on a full-time basis to carryout the policy program and administration of the YMCA and who receives regular remuneration for the ser- vices he/she renders."
82. Then, it shows that plaintiff is duty bound to carryout the policy program and administration of the YMCA. He is treated as an employee as his work is full time with regular remuneration.
83. In page No 5, Section 2 of Ex.D.54 the duty of the General Secretary is provided as;
"The General Secretary in consultation with the Personnel Committee shall assign the duties of all Secretaries from time to time to cover the commission by the Board of directors to the General for the total work of the Association.
As far as possible, the General Secretary will arrange work schedules so that a Secretary will work for 8 hours in a day with a permissible lunch break as per rules. The General Secretary give a written work assignment to each Secretary.
The annual evaluation of each Secretary will be done by the General Secretary and the report of their participatory eval- uation will be furnished to the Personnel Committee for ap- proval and the same will be forwarded by the President of the Board of Directors with his comments to the Personnel Commit- tee of the Council of YMCAs. The General Secretary will be kept 50 OS 2995/2023-Judgment informed of this evaluation in order to guide him in his profes- sional training and growth.
84. Then, here no power is given to General Secretary to suspend or terminate a Secretary or staff. His nature of work is explained in this portion.
85. Next to that, in Section 4 in page Nos.7 and 8, which is confronted to DW1 and marked as Ex.P 35 which is the policy about appointment of staff as:-
"All the Office Staff in the YMCA Office in all the branches/Projects of the YMCA shall be appointed by the Board on recommendation by the General Secretary through the Per- sonnel Committee.
However, in case of emergency, the Personnel Committee in consultation with the General Secretary may appoint tempo- rary staff from the outsourcing agencies, which shall be re- ported to the Board of Directors at it next meeting. The Board of Directors will have the right to ratify the appointment or oth- erwise.
The maintenance staff in the YMCA office shall be ap- ponted by the Board and temporary appointments may be made by the General Secretary which shall be reported at its next meeting for ratification or otherwise. All the branches/de- partments/projects come under these appointments."51
OS 2995/2023-Judgment
86. Importantly, Section 8 in page No 11 and 12 of Ex.D 54 gives provision for Resignation-Removal-Retirement as;
""Section 8 Resignation-Removal-Retirement
1. When a Secretary resigns or is relieved, he/she will receive benefits accrued allowance for the period of his/her service.
2. Secretary/Staff may be dismissed or removed from office or reduced in rank for any of the following reasons.
i) Defalcation or misappropriation of funds
ii) Immorality or moral turpitude
iii) Any conviction for an offence and moral turpitude
iv) In consistency e. Insubordination and defiance of the employer/body f. Any criminal conviction pending against the YMCA Staff Provided that no Secretary shall be dismissed or removed from office or reduced in rank until he/she has been given a reasonable opportunity to defend himself/herself in accor-
dance with the natural course of justice, against the action proposed to be taken against him/her.
All proceedings of dismissal or removal or reducing in the ranks shall be carried out by the Board as per the law of the land."
87. Finally as per Section 11 in page No.13 it is clearly stated as the decision of the Board shall be final in respect of implemen- 52
OS 2995/2023-Judgment tation of personnel Policy. This will come into force with effect from 1st January 2007". Then, the policy which shall be followed by the defendant Association, the decision of Board is the concerned authority for passing an order of suspension and termination. Now, on perusal of Ex.P.1, DW1 clearly stated as on 17-04-2023, the YMCA Board directed him to initiate action against PW 1. Then, if we compare it with above rules and policies, DW 1 has authority to conduct enquiry and other proceedings as per direction of the Board but, the order of suspension and termination shall be passed by the Board of YMCA, not under the General Secretary. It is true that the defendant has produced the documents pertaining to proceedings of suspension and termination and minutes of Board meeting. But the suspension order (Ex.P 1) and the termina- tion order dated 31-10-2024 (Ex.P 28) are contain only the signa- ture of General Secretary.
88. Though, there is minutes of Board meetings, but there is no single document produced to establish that the said Board meetings are held in full-quorum which is required to pass an or- der for suspension and termination. In page No 7 of Ex.P 55, Schedule I, Article 5 and Section 1 clearly says that:-
"Sec.1. The ultimate management government of this as- sociation shall be vested with the Board of Directors who are 53 OS 2995/2023-Judgment not more than fifteen members elected by and from among the full members of this Association. Five members shall con- stitute a qorum for a meeting of the Board of Directors, of whom at least one member shall be other than an office bearer."
89. Hence, there is no document produced to establish that the said meetings in which suspension and termination of plaintiff is decided is conducted with full quorum ie., at least with five (5) members present and passed the resolution. In paragraph 13 of page No.38 of cross examination of DW 1 stated as "ದಿನಾಂಕ 26-5-2023 ರಂದು ವೈಎಂಸಿಎ ಬೋರ್ಡ್ ನ ಎಲ್ಲಾ ಸದಸ್ಯರು ಬೋರ್ಡ್ ಮಿಾಟಿಂಗ್ ನಲ್ಲಿ ಹಾಜರಿದ್ದು ನನ್ನನ್ನು ಯುನಾನಿಮಸ್ ಆಗಿ ಜನರಲ್ ಸೆಕ್ರೆಟರಿಯಾಗಿ ಆಯ್ಕೆ ಮಾಡಿದರು ಎಂದರೆ ಹೌದು. 2023 ರಲ್ಲಿ ವೈಎಂಸಿಎ ಬೋರ್ಡ್ ನಲ್ಲಿ ಒಟ್ಟು 15 ಸದಸ್ಯರು ಇದ್ದರು. ದಿನಾಂಕ 26-5-2023 ರ ಸಭೆಯಲ್ಲಿ ಎಷ್ಟು ಜನ ಬೋರ್ಡ್ ಸದಸ್ಯರು ಹಾಜರಿದ್ದರು ಎಂದು ನನಗೆ ನೆನಪಿಲ್ಲ. ಆ ಮಿಾಟಿಂಗ್ ನಲ್ಲಿ ರೆಸಲ್ಯೂ ಷನ್ ಪಾಸ್ಮಾಡುವ ಸಂದರ್ಭದಲ್ಲಿ ಎಲ್ಲಾ ಸದಸ್ಯರು ಹಾಜರಿರಲಿಲ್ಲ ಎಂದರೆ ಸಾಕ್ಷಿಯು ನಾನು ಆ ದಿವಸ ಅಲ್ಲಿ ಇರಲಿಲ್ಲ ಎನ್ನು ತ್ತಾ ರೆ. ನಾನು ನನ್ನ ಮುಖ್ಯ ವಿಚಾರಣೆಯ ಪ್ರಮಾಣ ಪತ್ರದ 10 ನೇ ಪ್ಯಾ ರಾದಲ್ಲಿ ದಿನಾಂಕ 26-5-2023 ರ ರೆಸಲ್ಯೂ ಷನ್ ನ್ನು ಫುಲ್ ಬೋರ್ಡ್ ರೆಸಲ್ಯೂ ಷನ್ ಎಂದು ಹೇಳಿೆದ್ದೇನೆ ಎಂದರೆ ನನಗೆ ಬೋರ್ಡ್ ನ ಅಧ್ಯಕ್ಷರು ಆ ರೀತಿ ಹೇಳಿದರು ಎನ್ನು ತ್ತಾ ರೆ. ದಿನಾಂಕ 26-5-2023 ರಂದು ವೈಎಂಸಿಎ ಬೋರ್ಡ್ ನ ಸಭೆಯಲ್ಲಿ ಎಲ್ಲಾ ಸದಸ್ಯರು ಹಾಜರಿರಲಿಲ್ಲ ಕೆಲವೇ ಸದಸ್ಯರ ಸಮ್ಮು ಖದಲ್ಲಿ ಬೋರ್ಡ್ ರೆಸಲೂಷನ್ ಮಾಡಲಾಯಿತು ಹಾಗಿದ್ದಾ ಗಿಯೂ ನಾನು ಇಲ್ಲಿ ಸುಳ್ಳು ಹೇಳುತ್ತಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನನ್ನನ್ನು ಜನರಲ್ ಸೆಕ್ರೆಟರಿಯಾಗಿ ಯುನಾನಿಮಸ್ ಆಗಿ ಆಯ್ಕೆ ಮಾಡಿದ ರೆಸಲ್ಯೂ ಷನ್ ಮಿಾಟಿಂಗ್ ನಲ್ಲಿ ಹಾಜರಿದ್ದ ಕೆಲವೇ ಸದಸ್ಯರಿಂದ ಮಾಡಲಾಯಿತು ಆ ರೆಸಲ್ಯೂ ಷನ್ ಗೆ ಎಲ್ಲಾ ಸದಸ್ಯರು ಇರಲ್ಲಿ ಎಂದರೆ ಸರಿಯಲ್ಲ"
54
OS 2995/2023-Judgment
90. Further in paragraph 18 and 19 in page No 44 of cross examination of DW 1 he has stated as "ನಿಡಿ 6 ರ 2ನೇ ಪುಟದಲ್ಲಿ ಹೇಳಿರುವ ಮೊದಲನೇ ಪ್ಯಾ ರಾದ ಪ್ರಕಾರ ದಿನಾಂಕ 17-4- 2023 ರಂದು ವಾದಿಯನ್ನು ಬೋರ್ಡ್ಮಿಾಟಿಂಗ್ಮೂಲಕ ಸಸ್ಪೆನ್ಪೆನ್ಮಾಡಲು ರೆಸಲ್ಯೂ ಷನ್ ತೆಗೆದುಕೊಳ್ಳಲಾಯಿತೇ ಎಂದರೆ ಸಾಕ್ಷಿಯು disciplinary action ತೆಗೆದುಕೊಳ್ಳಲು ಹೇಳಲಾಯಿತು. ದಿನಾಂಕ 17-4-2023 ರ ಬೋರ್ಡ್ ಮಿಾಟಿಂಗ್ ನಲ್ಲಿ ಎಷ್ಟು ಜನ ಸದಸ್ಯರು ಹಾಜರಿದ್ದರು ಎಂದು ನನಗೆ ನೆನಪಿಲ್ಲ. ನಾನು ಸದರಿ ಮಿಾಟಿಂಗ್ನಲ್ಲಿ ಹಾಜರಿದ್ದೆ.
19. ನಿಡಿ5 ರಲ್ಲಿ ದಿನಾಂಕ 17-4-2023 ರಂದು ನಡೆದ ಬೋರ್ಡ್ ಮಿಾಟಿಂಗ್ ನಲ್ಲಿ ಚರ್ಚಿಸಲ್ಪಟ್ಟ ಎಲ್ಲಾ ವಿಷಯಗಳನ್ನು ಬರೆಯಲಾಗಿದೆ ಎಂದರೆ ಹೌದು. ಸದರಿ ದಾಖಲೆಯ ಪ್ರಕಾರ ಆ ದಿನ ಬೋರ್ಡ್ ಮಿಾಟಿಂಗ್ ನಲ್ಲಿ ನನಗೆ ವಾದಿಯ ವಿಷಯದಲ್ಲಿ ವೈಎಂಸಿಎ ಯ ಲೀಗಲ್ ಕೌನ್ಸಿಲರನ್ನು ಸಂಪರ್ಕಿಸಲು ಹೇಳಲಾಗಿತ್ತು ಎಂದರೆ ಸರಿಯಲ್ಲ. ನನಗೆ ಆತನ ಮೇಲೆ ಶಿಸ್ತು ಕ್ರಮ ಜರುಗಿಸಲು ಹೇಳಲಾಗಿತ್ತು . ದಿನಾಂಕ 17-4-2023 ರಂದು ವಾದಿಯನ್ನು ಅಮಾನತುಗೊಳಿಸುವ ಆದೇಶ ಮಾಡಲು ಯಾವುದೇ ರಸೆಲ್ಯೂ ಷನ್ ಇಲ್ಲ ಎಂದರೆ ಸಾಕ್ಷಿಯು ಅಮಾನತು ಎನ್ನು ವುದು ಶಿಸ್ತು ಕ್ರಮದ ಒಂದು ಭಾಗ ಎನ್ನು ತ್ತಾ ರೆ. ಸದರಿ ಮಿಾಟಿಂಗ್ ನಲ್ಲಿ ವಾದಿಯ ಅಮಾನತಿಗೆ ಯಾವುದೇ ರೀತಿಯ ನಿರ್ಣಯಗಳು ಆಗಿಲ್ಲ ಆತನ ವಿಚಾರವಾಗಿ ಲೀಗಲ್ ಕೌನ್ಸಿಲ್ಅವರನ್ನು ಭೇಟಿಯಾಗಲು ಮಾತ್ರ ನಿರ್ಣಯವಾಗಿತ್ತು ಎಂದರೆ ಸರಿಯಲ್ಲ."
91. Then, it is treated as part of action, but not as resolution, then there finds requirement of enquiry under due process of law by following the law of land.
92. Further, as per Ex.D 45, it finds that upto the date of or- der in the said SLP, the subsistence allowance has not been paid to 55 OS 2995/2023-Judgment plaintiff which shows the defendant has not complied his order in Ex.P 1 in which it is stated as "your suspension allowance will be paid as per rules. There is no documents of such payment to plain- tiff is produced.
93. Further, in ORDER portion of Ex.P.1/Ex.D.6, it is ordered as "during the period of suspension you, your spouse or your de- pendents shall not be eligible to enter the YMCA. While going through the cross examination of DW 1, in paragraph 19 of page No.45, it is admitted by him as:-
"ದಿನಾಂಕ 17-04-2023 ರ ಸಭೆಯಲ್ಲಿ ವಾದಿಯ ಪತ್ನಿ ಹಾಗೂ ಕುಟುಂಬಸ್ಧರನ್ನೂ ಸಹ ವೈಎಂಸಿಎ ಬೆಂಗಳೂರು ಕಟ್ಟಡಕ್ಕೆ ಬರದಂತೆ ತಡೆಯಲು ನನಗೆ ಅಧಿಕಾರವನ್ನು ಕೊಟ್ಟಿಲ್ಲ ಎಂದರೆ ಅದು ಮಿಾ ಟಿಂಗ್ ನ ಚರ್ಚೆಯ ವಿಷಯವಾಗಿರಲಿಲ್ಲ.
ದಿನಾಂಕ 17-4-2023 ರ ಸಭೆಯಲ್ಲಿ ವೈಎಂಸಿಎ ಬೋರ್ಡ್ ವಾದಿಯನ್ನು ಬೆಂಗಳೂರು ವ್ಯಾ ಪ್ತಿಯಿಂದ ಹೋರಹೋಗದಂತೆ ತಡೆಯುವ ಅಧಿಕಾರವನ್ನು ನನಗೆ ಕೊಟ್ಟಿಲ್ಲ ಎಂದರೆ ಹೌದು. ಸದರಿ ಮಿಾಟಿಂಗ್ನಲ್ಲಿ ವಾದಿಗೆ ಸಸ್ಪೆನ್ಷನ್ಅಲೋಯನ್ಸ್ಕೊಡುವ ಬಗ್ಗೆ ವಿಚಾರ ವಿನಿಮಯ ಆಗಿಲ್ಲ."
94. Further in paragraph 20 of page No 46 the DW 1 clearly admitted that:-
"ನಾನು ನಿಡಿ 6 ನ್ನು ವೈಎಂಸಿಎ ಯ ಪರ್ಸನಲ್ ಪಾಲಿಸಿ ಹಾಗೂ ಬೈಲಾಗಳ ನೀತಿ ನಿಯಮಗಳಿಗೆ ಅನುಸಾರವಾಗಿ ಕೊಟ್ಟಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಿಪಿ5 ರ ಯಾವ ಭಾಗದಲ್ಲಿ ಅಸೋಯೇಟ್ಜನರಲ್ಸೆಕ್ರೆಟರಿಯನ್ನು ಬೋರ್ಡಿನ ರೆಸಲ್ಯೂ ಷನ್ಇಲ್ಲದೆಯೇ ಅಮಾನತು ಮಾಡಬಹುದು ಎಂದು ನಿಯಮ ಇದೆ ಎಂದರೆ ಸಾಕ್ಷಿಯು ಸೆಕ್ಷನ್ 6 ರಲ್ಲಿ ಇದೆ ಎನ್ನು ತ್ತಾ ರೆ. ನಿಪಿ5 ರಲ್ಲಿ ಎಲ್ಲಿಯೂ ಸಹಾ ಅಸೋಸಿಯೇಟ್ ಜನರಲ್ ಸೆಕ್ರೆಟರಿಯನ್ನು ಬೋರ್ಡ್ 56 OS 2995/2023-Judgment ರೆಸಲ್ಯೂ ಷನ್ ಇಲ್ಲದೆಯೇ ಅಮಾನತು ಮಾಡಬಹುದು ಎಂದು ಇಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಿಡಿ6 ಆದೇಶ ಆದ ದಿನದಿಂದಲೇ ವಾದಿಗೆ ಸಸ್ಪೆನ್ಷನ್ ಅಲೋಯನ್ಸ್ ಕೊಡಲು ಪ್ರಾ ರಂಭಿಸಿದ್ದೀರಾ ಎಂದರೆ ಇಲ್ಲ."
95. Moreover, in paragraph 25 of page No 49 of cross exami- nation of DW 1 he admitted as:-
"ನಾನು ಈ ನ್ಯಾ ಯಾಲಯದ ಆದೇಶದ ಜಾರಿಯಲ್ಲಿ ಇದ್ದಾ ಗಿಯೂ ಸಹ ವಾದಿಯು ಕಛೇರಿಗೆ ಹಾಜರಾಗುತ್ತಿದ್ದರೂ ಸಹ ಹಾಜರಿ ಪುಸ್ತಕದಲ್ಲಿ ಆತ ಅಮಾನತುಗೊಂಡಿದ್ದಾ ನೆ ಎಂದು ಬರೆದಿದ್ದೇನೆ ಎಂದರೆ ಹೌದು. ನಾನು ವಾದಿಯನ್ನು ಕೆಲಸದಿಂದ ತೆಗೆದುಹಾಕುವ ಉದ್ದೇಶವನ್ನು ಹೊಂದಿದ್ದು ದರಿಂದ ಹಾಜರಿ ಪುಸ್ತಕದಲ್ಲಿ ಆ ರೀತಿಯಾಗಿ ಬರೆದಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ."
Further, in paragraph 26 in page No 49, DW 1 stated as "ನಿಡಿ 22ನ್ನು ದಿನಾಂಕ 6-6-2023 ರಂದು ಕೊಡಲಾಗಿದೆ ಎಂದರೆ ಹೌದು. ತನಿಖೆ ನಡೆಯುವಾಗ ಬೋರ್ಡ್ ನ ಸದಸ್ಯರು ಹಾಜರಿರಲಿಲ್ಲ. ನಾಗೇಂದ್ರ ಅವರನ್ನು ಹೊರತುಪಡಿಸಿ, ವೈಎಂಸಿಎ ಗೆ ಸಂಬಂಧ ಪಡದೇ ಇರುವ ಬೇರೆ ಯಾವುದೇ ವ್ಯಕ್ತಿಯೂ ಹಾಜರಿರಲಿಲ್ಲ. ನಿಡಿ22ನ್ನು ನ್ಯಾ ಯಾಲಯದ ಆದೇಶದ ಹೊರತಾಗಿಯೂ ನಾನು ಸೃಷ್ಟಿ ಮಾಡದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಿಡಿ22 ನ್ನು ದಿನಾಂಕ 6-6-2023 ಕ್ಕೆ ಹೊರಡಿಸಿದ್ದು ಅದರಲ್ಲಿ ದಿನಾಂಕ 8-11- 2023 ಮತ್ತು 22-11-2023 ರಲ್ಲಿ ನಡೆಯುವ ವಿಷಯವನ್ನು ಹೇಗೆ ಬರೆದಿರಿ ಎಂದರೆ ಅದು ಟೈಪಿಂಗ್ ಎರರ್ ಎನ್ನು ತ್ತಾ ರೆ. ದಿನಾಂಕ 6-6-2023 ರಂದು ತನಿಖಾ ಕ್ರಮ ಕೈಗೊಳ್ಳು ವ ಮೊದಲು ವೈಎಂಸಿಎ ಬೋರ್ಡ್ನ ಆದೇಶವನ್ನು ಪಡೆದಿದ್ದೀರಾ ಎಂದರೆ ಹೌದು. ನಿಡಿ22 ರಲ್ಲಿ ನಮೂದಾಗಿರುವುದು ಟೈಪೋಗ್ರಾ ಫಿಕಲ್ಎರರ್ ಅಲ್ಲ ವಾದಿಯನ್ನು ಕಾನೂನಿಗೆ ವಿರುದ್ಧವಾಗಿ ವೈಎಂಸಿಎ ಯಿಂದ ಅಮಾನತು ಮಾಡಲು ಸೃಷ್ಟಿ ಮಾಡಿರುವ ದಾಖಲೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಿಡಿ22 ರಲ್ಲಿ ತನಿಖೆಯನ್ನು ಯಾವ ಸ್ದಳದಲ್ಲಿ ಮಾಡಲಾಯಿತು ಎಂದು ಬರೆದಿಲ್ಲ ಎಂದರೆ ಹೌದು. "
57
OS 2995/2023-Judgment Further, in paragraph 28 of page No 52 the DW 1 stated as "ವಾದಿಯು ವೈಎಂಸಿಎ ಯಲ್ಲಿ ಅವಾಚ್ಯ ಶಬ್ದಗಳನ್ನು ಬಳಸುತ್ತಿದ್ದರು ಹಾಗುಾ ದುರ್ನಡತೆಯನ್ನು ತೋರಿಸುತ್ತಿದ್ದರು ಎಂದು ತೋರಿಸುವ ದಾಖಲೆಗಳನ್ನು ನ್ಯಾ ಯಾಲಯಕ್ಕೆ ಹಾಜರುಪಡಿಸಿಲ್ಲ ಎಂದರೆ ಅವುಗಳನ್ನು ನಾವು ರೆಕಾರ್ಡ್ಮಾಡಿಲ್ಲ ಎನ್ನು ತ್ತಾ ರೆ.
96. Moreover. In paragraph 32 in page No 55 of his cross ex- amination DW 1 has stated as:-
"ನಿಡಿ 37 ರ ಆದೇಶವನ್ನು ಮಾಡುವ ಮೊದಲು ಈ ನ್ಯಾ ಯಾಲಯ ಮತ್ತು ಮಾನ್ಯ ಸರ್ವೋಚ್ಚ ನ್ಯಾ ಯಾಲಯದ ಅನುಮತಿಯನ್ನು ಪಡೆದಿದ್ದೀರಾ ಎಂದರೆ ಇಲ್ಲ. ಈ ನ್ಯಾ ಯಾಲಯದ ಮಧ್ಯಂತರ ಆದೇಶ ಹಾಗೂ ಮಾನ್ಯ ಉಚ್ಛ ನ್ಯಾ ಯಾಲಯ ಮತ್ತು ಮಾನ್ಯ ಸರ್ವೋಚ್ಚ ನ್ಯಾ ಯಾಲಯದ ಆದೇಶಗಳು ಜಾರಿ ಇರುವಾಗಲೇ ನಾನು ವಾದಿಯ ವಿರುದ್ಧ ತನಿಖಾ ಕ್ರಮ ನಡೆಸಲು ಬರುವುದಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ದಿನಾಂಕ 20-09-2024 ರ ಸಭೆಯನ್ನು ಕರೆಯುವ ಮೊದಲು ಈ ನ್ಯಾ ಯಾಲಯ ಮತ್ತು ಮಾನ್ಯ ಸರ್ವೋಚ್ಚ ನ್ಯಾ ಯಾಲಯದ ಅನುಮತಿಯನ್ನು ಪಡೆದಿಲ್ಲ ಎಂದರೆ ಹೌದು."
97. Now, Ex.P.1/Ex.D.6 is the suspension order dated 25-04- 2023 which is the main root cause for this case. This suit is filed on 06-05-2023. During the pendency of the suit and after the date of order in SLP, the defendant issued an order of termination of the plaintiff on 31-10-2024. The said order is also issued by DW 1 only without seal and signature of Board of Directors and YMCA. Im- portantly, in paragraph 8 of page No 32 of his cross examination DW 1 has stated as, 58 OS 2995/2023-Judgment "ನಿಪಿ5 ರಲ್ಲಿ ವೈಎಂಸಿಎ ಯ ಸೆಕ್ರೆಟರಿಗಳಿಗೆ ಸಂಬಂಧಿಸಿದ ನಿಯಮ ನಿಬಂಧನೆಗಳು ಇವೆ ಆದರೆ ಯಾವ ಆರ್ಟಿಕಲ್ ನಲ್ಲಿ ಇವೆ ಎಂದು ನನಗೆ ನೆನಪಿಲ್ಲ. ನಿಪಿ5 ರಲ್ಲಿ ಸೆಕ್ರೆಟರಿಗಳನ್ನು ವಜಾ ಮಾಡುವ ನಿಯಮಗಳು ಇವೆ. ನಿಪಿ5 ನ್ನು ನೋಡಿ ಸಾಕ್ಷಿಯು ಇದರಲ್ಲಿ ಆ ನಿಯಮಗಳು ಇಲ್ಲ ಅವುಗಳು ವೈಎಂಸಿಯ ಪರ್ಸನಲ್ ಪಾಲಿಸಿಯಲ್ಲಿ ಇವೆ ಎನ್ನು ತ್ತಾ ರೆ. ನಿಡಿ 54 ನ್ನು ವೈಎಂಸಿಎಯ ನ್ಯಾ ಷನಲ್ ಕೌನ್ಸಿಲ್ ನ ಅನುಮೋದನೆಯೊಂದಿಗೆ ನ್ಯಾ ಷನಲ್ ಕೌನ್ಸಿಲ್ ನ ಅಡಿಯಲ್ಲಿ ಮಾಡಲಾಗಿದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ವೈಎಂಸಿಎಯ ಸೆಕ್ರೆಟರಿಗಳನ್ನು ಹುದ್ದೆಯಿಂದ ವಜಾ ಮಾಡುವ ಅಧಿಕಾರ ಬೋರ್ಡ್ಗೆ ಮಾತ್ರ ಇರುವುದು ಎಂದರೆ ಸಾಕ್ಷಿಯು ಜನರಲ್ ಸೆಕ್ರೆಟರಿಯು ವೈಎಂಸಿಎಯ ಬೋರ್ಡ್ ನ ಒಂದು ಅಂಗ ಎನ್ನು ತ್ತಾ ರೆ. ನಿಡಿ54 ರ ಕಲಂ 8 ರಲ್ಲಿ ಜನರಲ್ ಸೆಕ್ರೆಟರಿಯವರು ಇತರ ಸೆಕ್ರೆಟರಿಗಳನ್ನು ಹುದ್ದೆಯಿಂದ ವಜಾ ಮಾಡುವ ಬಗ್ಗೆ ಇಲ್ಲವೇ ಅವರ ರಾಜೀನಾಮೆ ವಿಷಯವಾಗಿ ಹೇಳಲಾಗಿದೆಯೇ ಎಂದರೆ ಇಲ್ಲ ವೈಎಂಸಿಎ ಬೋರ್ಡ್ಅ ವಿಚಾರವನ್ನು ತೆಗೆದುಕೊಳ್ಳತ್ತದೆ ಎನ್ನು ತ್ತಾ ರೆ."
98. Then, the Board is only the absolute authority regarding appointment, promotion, suspension and termination of the sec- retaries and other employees of YMCA Bengaluru. The General Secretary is working under the Board and making arrangements for enquiry and place it before the Board and the Board with spe- cific Quorum will pass the order after the meeting in its resolution and it shall be ordered by Board only and not by the General Sec- retary. As the General Secretary cannot make the order of his own promotion like that he cannot pass independent order of suspen- sion and termination of any Secretary or employee of YMCA though Board passes the resolution. Nowhere in Ex.P 54 and 55 such authority is given to YMCA. Then, if it so, then the order passed by DW1 as for as suspension and termination of plaintiff is 59 OS 2995/2023-Judgment arbitrarily, though he has produced minutes of the meeting of the Board, but there is no document about the quorum and decorum of said meetings.
99. The Exs.D 6 and Ex.P 1, the suspension order shows that, memo and show cause notice was given to Plaintiff on 10-04-2023, the reminder memo shows that cause notice was given on 17-04- 2023. It is mentioned as the plaintiff given reply on 18-04-2023 "belatedly". DW 1 has not stated about how the reply was given on the immediate next day of show cause notice as "belated" one. The suspension order was passed on 25-04-2023. Ex.D 8 and 9 are the copies of complaints dated 25-04-2023 and 26-04-2023 lodged by DW 1 before the jurisdictional police and the Commissioner of Po- lice respectively, alleging that the plaintiff is trying to interfere into YMCA premises though he was under suspension.
100. Surprising point is DW 1 has not produced any docu- ment to show that the enquiry was conducted to suspend plaintiff under Ex.P 1 and Ex.D 6. He has produced Ex. D.10 which shows the admission that Ex.D 10 was issued after issuance of suit sum- mons and it contains recitals as:-
"Mr. John Kennedy's Matter :- Chairman reported that af- ter brief discussion, the Board authorised General Secretary to take suitable action against Mr.John Kennedy, Associate Gen-60
OS 2995/2023-Judgment eral Secretarty, YMCA, Bangalore after consulting with YMCA Legal Advisor Dr. G.Sukumaran. According to legal opinion General Secretary suspended Mr. John Kennedy, Associate Gen- eral Secretary, YMCA Bangalore on 25th April 2023. Before sus- pension Mr. John Kennedy has sent caveat to YMCA and General Secretary on 24th April 2023 and after his suspension, he has sent Court Summons to General Secretary on 12th May 2023. The hearing and argument is under process.
YMCAB/260523/17: The Board ratified the suitable action taken by General Secretary in suspension of Mr. John Kennedy, Associate General Secretary, YMCA Bangalore on 25th April 2023 and Board directed General Secretary to consult YMCA legal Ad- visor, Dr. G.Sukumaran for further legal procedure and also it is reported that Mr. M. Nagendra has been appointed as En- quiry Officer and the Enquiry Procedure will be followed."
101. That means after filing of this suit only the Board of Di- rectors of YMCA ratified the suspension order of plaintiff which shows that the defendant association has not followed "due process of law" as required under Ex.D 54 and 55 as discussed supra.
102. Another surprising point in Ex.D 11 which is the extract of minutes of Board meeting dated 06-07-2023 in which it is admit- ted that " After consulting Dr. S Sukumaran, YMCA Legal Advisor, as per his advice General Secretary suspended Mr.John Kennady 61 OS 2995/2023-Judgment on 25th April 2023 in order to protect the interest of the YMCA and safeguard the organisation. But, nowhere in the above discussed rules, regulation, policies and bye-laws, there is such provision to suspend the employee by the General Secretary as per advice of legal adviser. If the legal adviser gives such advice then it is the duty of General Secretary to place it before the Board and Board shall pass the order of suspension after giving opportunity to the person against whom such order will be passed to give cause why he cannot be suspended, then only it will become valid as per law as Section 9 in page No 6 of Ex.D 55 and Section 8 in page No 11 and 12 of Ex.D 54.
Section 8 in Ex.D 54 runs like:-
"Section 8 Resignation-Removal-Retirement
1. When a Secretary resigns or is relieved, he/she will receive benefits accrued allowance for the period of his/her service.
2. Secretary/Staff may be dismissed or removed from office or reduced in rank for any of the following reasons.
i) Defalcation or misappropriation of funds
ii) Immorality or moral turpitude
iii) Any conviction for an offence and moral turpitude
iv) In consistency e. Insubordination and defiance of the employer/body 62 OS 2995/2023-Judgment f. Any criminal conviction pending against the YMCA Staff Provided that no Secretary shall be dismissed or removed from office or reduced in rank until he/she has been given a reasonable opportunity to defend himself/herself in accor-
dance with the natural course of justice, against the action proposed to be taken against him/her.
All proceedings of dismissal or removal or reducing in the ranks shall be carried out by the Board as per the law of the land."
103. Then, as per above recital in Ex.D11 shows that there is no such opportunity under law of the land given to plaintiff prior to his suspension and DW1 blindly violated the rules of natural jus- tice and law of YMCA itself and overridden the Board of Directors without any intimation to them and later after suspension, the Board of Directors shall not take steps as stated in Ex.D 11 as it is purely against the rules of natural justice "AUDI ALTEREM PARTEM" and Borad of Directors are like the custodian of constitu- tion of YMCA and they shall not act like mouth of DW 1 as such cir- cumstances will adversely effects on the association which is es- tablished under Societies Act.
104. In Ex.D 12 also, all the details of this case is stated and similar resolution is passed, but regarding suspension and termi- 63
OS 2995/2023-Judgment nation, the Board shall heard the plaintiff as there is no document which are required under Section 8 (i) to (iv), (e) and (f) are pro- duced before the court.
105. The defendant has produced the documents pertaining to service of plaintiff at "Society of Community Action Network In- dia Chittor" which are marked as Ex.D 49, 56 and 57. Ex.D 49 clearly shows that the defendant applied for furnishing of Ex.D 56 and 57 only after suspension of plaintiff as in Ex.D 49 in reference, it is noted as Sri K. Madan Kumar, S/o. K. Narayanaswamy Banga- lore applied under RTI on 07-12-2024 which was deceived by them on 11-12-2024 under which sought to produce the Memorandum of Association and Articles of Association of that institution. First of all, who is this K. Madan Kumar is not disclosed by the defendant. What is his personal interest is also not disclosed. Then, it clearly shows that either Board or DW1 or Enquiry Officer without going through these documents passed the order of suspension which makes clear that while suspending the plaintiff, the law of the land, due process of law and rules regulations under Ex.D 54 and 55 have not been followed. Then, as per above findings, it is clear that, the letter of suspension order dated 25-04-2023 is passed in violation of rules and regulations of the bye-laws of the defendant institution. Further, when the suspension order itself is violative as 64 OS 2995/2023-Judgment above, then, the termination of plaintiff on the basis of said sus- pension order shall be violative and it shall be reconsidered by the Board of Directors with due process of law.
106. On the other hand, in the cross examination of PW 1 he has stated in paragraph 8 of page No 19 that:-
"8. ನಾನು ಈಗಿನ ಜನರಲ್ ಸೆಕ್ರೆಟರಿಯವರು ಆಯ್ಕೆಯಾದ ನಂತರ ಅವರ ಎದುರು ಡ್ಯೂ ಟಿ ರಿಪೋರ್ಟ್ ಮಾಡಿದ್ದೇನಾ ಎಂದರೆ ನನಗೆ ಮಾಹಿತಿ ಇಲ್ಲ. ನನಗೆ ಬೇರೆಯವರಿಂದ ಈಗಿನ ಜನರಲ್ಸೆಕ್ರೆಟರಿ ಆಯ್ಕೆಯಾದ ಬಗ್ಗೆ ಮಾಹಿತಿ ತಿಳಿದ ನಂತರ ನನ್ನ ಮುಖ್ಯ ವಿಚಾರಣೆಯ ಪ್ರಮಾಣ ಪತ್ರದ 7ನೇ ಪ್ಯಾ ರಾದಲ್ಲಿ ಹೇಳಿರುವ ಪತ್ರಗಳನ್ನು ಪ್ರತಿವಾದಿ ಸಂಸ್ಧೆಯ ಅಧ್ಯಕ್ಷರಿಗೆ ಬರೆದಿರುತ್ತೇನೆ. ನಾನು ನನ್ನ ಅಫಿಡೆವಿಟ್ ನಲ್ಲಿ ನನಗೆ ಮಾಹಿತಿ ನೀಡಿದ ವ್ಯಕ್ತಿಗಳ ವಿವರಗಳನ್ನು ತಿಳಿಸಿಲ್ಲ ಎಂದರೆ ಹೌದು. ಹೊಸ ಜನರಲ್ ಸೆಕ್ರೆಟರಿ ಆಯ್ಕೆಯಾದ ನಂತರ ನಾನು ನನ್ನ ಡ್ಯೂ ಟಿಗೆ ಹಾಜರಿಯನ್ನು ಹಾಕಿಲ್ಲ ಎಂದರೆ ಸಾಕ್ಷಿಯು ಹಾಜರಾಗಿದ್ದೇನೆ ಆದರೆ ನನಗೆ ಹಾಜರಿಯನ್ನು ಒದಗಿಸಿಲ್ಲ ಎನ್ನು ತ್ತಾ ರೆ. ಬೆಂಗಳೂರಿನಲ್ಲಿ ಕಾರ್ಯ ನಿರ್ವಹಿಸುವ ಎಲ್ಲಾ ಸೆಕ್ರೆಟರಿಗಳು ಜನರಲ್ ಸೆಕ್ರೆಟರಿಯವರ ಕಛೇರಿಗೆ ಹೋಗಿ ಪ್ರತಿ ದಿನ ಹಾಜರಿಯನ್ನು ಹಾಕಬೇಕು ಆದರೆ ನಾನು ಹಾಕಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಬೆಂಗಳೂರು ವೈಎಂಸಿಎ ಯಲ್ಲಿ ನೋಟೀಸ್ ಬೋರ್ಡ್ ಇದ್ದು ಅದರಲ್ಲಿ ಸೆಕ್ರೆಟರಿಗಳು ಜನರಲ್ ಸೆಕ್ರೆಟರಿಯ ಕಛೇರಿಗೆ ಹೋಗಿ ಹಾಜರಿ ಹಾಕಬೇಕು ಎನ್ನು ವ ನೋಟೀಸ್ ಇರುತ್ತದೆ ಎಂದರೆ ಸಾಕ್ಷಿಯು ಆ ರೀತಿಯ ನೋಟೀಸನ್ನು ನಾನು ನೋಡಿಲ್ಲ ಎನ್ನು ತ್ತಾ ರೆ ಹಾಗೂ ಆ ರೀತಿಯ ಪ್ರಾ ಕ್ಟಿಸ್ ಇಲ್ಲ ಎನ್ನು ತ್ತಾ ರೆ. ಅಲ್ಲಿ ಆ ರೀತಿಯ ನೋಟಿಸ್ಬೋರ್ಡ್ಇದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ.
ಪ್ರಶ್ನೆ - ದಿನಾಂಕ 1-2-2023 ರಿಂದ ನಿಮ್ಮ ಅಮಾನತು ಆಗುವ ದಿನಾಂಕದವರೆಗೆ ನೀವು ವೈಎಂಸಿಎ ಕಛೇರಿಗೆ ಕೆಲಸಕ್ಕೆ ಹಾಜರಾಗಿಲ್ಲ ಅಲ್ಲವೇ?
ಉತ್ತರ - ನಾನು ಹಾಜರಾಗಿರುತ್ತೇನೆ. "
107. But, the extract of attendance register produced by the defendantin Ex.P 51 shows his absence.
108. Next to that in paragraph 9, he has stated as:- 65
OS 2995/2023-Judgment "ನಾನು ಸೆಕ್ರೆಟರಿಯಾಗಿ ಆಯ್ಕೆಯಾದ ನಂತರ ಸದರಿ ಕೆಲಸದ ಬಗ್ಗೆ ನಿರ್ಲಕ್ಷವನ್ನು ತೋರಿಸಿ ಜನರಲ್ ಸೆಕ್ರೆಟರಿಯವರ ಎದುರು ಹಾಜರಾಗಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ದಿನಾಂಕ 10-3- 2023 ರಂದು ಜನರಲ್ ಸೆಕ್ರೆಟರಿಯವರು ನನಗೆ ಮೆ ಮೋ ಕೊಟ್ಟಿದ್ದಾ ರೆ ಎಂದರೆ ಹೌದು. ನಾನು ಜನರಲ್ ಸೆಕ್ರೆಟರಿಯವರಿಂದ ದಿನಾಂಕ 10-4-2023 ರಂದು ಮೆ ಮೋ ಹಾಗೂ 17-4-2023 ರಂದು ಶೋಕಾಸ್ ನೋಟಿಸ್ ಹಾಗೂ ದಿನಾಂಕ 25-4-2023 ರಂದು ಅಮಾನತು ಪತ್ರವನ್ನು ಪಡೆದಿದ್ದೇನೆ ಎಂದರೆ ಹೌದು. ನಾನು ಅಮಾನತು ಕಾಲದಲ್ಲಿ ಜನರಲ್ ಸೆಕ್ರೆಟರಿ ಅಥವಾ ಬೋರ್ಡ್ ಗೆ ಸಸ್ಪೆನ್ಷನ್ ಆರ್ಡರ್ ನ ರಿವೋಕೇಶನ್ಗೆ ಕೇಳಿದ್ದೇನಾ ಎಂದರೆ ಇಲ್ಲ. ನನ್ನ ಅಮಾನತು ಆದೇಶ ಆದ ನಂತರ ಸದರಿ ಆದೇಶದಲ್ಲಿ ಹೇಳಿರುವ ನಿಯಮಗಳನ್ನು ಪಾಲಿಸಿದ್ದೇನೆಯೇ ಎಂದರೆ ಇಲ್ಲ. ನನಗೆ ಅಂತಹ ನಿರ್ದೇಶನ ಇರಲಿಲ್ಲ ಎನ್ನು ತ್ತಾ ರೆ. ನಾನು ಸದರಿ ಆದೇಶದಲ್ಲಿ ಹೇಳಿರುವ ವಿಚಾರವನ್ನು ಪಾಲಿಸದೇ ಇರುವುದರಿಂದ ಪುನಃ ಮತ್ತೊ ಮ್ಮೆ ವೈಎಂಸಿಎ ಯು ಆದೇಶ ಮಾಡಿತು ಎಂದರೆ ಸರಿಯಲ್ಲ."
109. Regarding his alleged service in Chittoor, he has stated in paragraph 9 of page No 22 as,:-
"ನಾನು ಚಿತ್ತೂ ರು ಸಂಸ್ಧೆಗೆ ಬೆಂಗಳೂರು ವೆಎಂಸಿಎ ಯಲ್ಲಿ ಸೆಕ್ರೆಟರಿ ಯಾಗಿ ಕಾರ್ಯ ನಿರ್ವಹಿಸುತ್ತಿರುವ ಬಗ್ಗೆ ಮಾಹಿತಿಯನ್ನು ನೀಡಿದ್ದೇನೆ ಹಾಗೂ ಅವರಿಗೆ ಆ ಬಗ್ಗೆ ತಿಳಿದಿತ್ತು ಎನುತ್ತಾ ರೆ. ನಾನು ಸದರಿ ಎರಡೂ ಸಂಸ್ದೆಗಳಲ್ಲಿ ಕಾರ್ಯ ನಿರ್ವಹಿಸುವ ಬಗ್ಗೆ ಆ ಸಂಸ್ದೆಗಳಲ್ಲಿ ಕೆಲಸ ನಿರ್ವಹಿಸುವ ವಿಚಾರವಾಗಿ ಗೌಪ್ಯತೆ ಕಾಪಾಡಿಕೊಂಡಿದ್ದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ."
110. As per documentary evidence of DW1, it shows that it has obtained documents from Chittoor after filing of this suit in the name of some other person, not under the head of defendant institution which shows that the DW1 has not conducted enquiry of plaintiff with due process of law.
111. Further in paragraph 14 of page No 28 the PW 1 has stated as:-
66
OS 2995/2023-Judgment '14. ನಿಪಿ 1 ವೈಎಂಸಿಎ ಬೆಂಗಳೂರು ಬೋರ್ಡ್ ನ ಮಿಾಟಿಂಗ್ ರೆಸಲ್ಯೂ ಷನ್ ನ ಪ್ರಕಾರ ವೈಎಂಸಿಎ ಬೋರ್ಡ್ ಜನರಲ್ ಸೆಕ್ರೆಟರಿ ಬೋರ್ಡ್ ನೀಡಿದ ಅಧಿಕಾರದ ಪ್ರಕಾರ ದಿನಾಂಕ 25-04-2023 ರಂದು ನನಗೆ ಅಮಾನತು ಆದೇಶ ನೀಡಿತ್ತು ಎಂದರೆ ನನಗೆ ಮಾಹಿತಿ ಇಲ್ಲ. ಸಾಕ್ಷಿಯು ಮುಂದುವರೆದು ಅಮಾನತು ಆದೇಶವು ದಿನಾಂಕ 25-04-2023 ರಂದು ನನಗೆ ಸಿಕ್ಕಿರುವುದು ಹೌದುಆದರೆ ರೆಸಲ್ಯೂ ಷನ್ಬಗ್ಗೆ ಮಾಹಿತಿ ಇಲ್ಲ ಎನುತ್ತಾ ರೆ."
Next to that, he has admitted in paragraph 15 as:-
"15. ನಾನು ನಿಪಿ1 ನ್ನು ಪಡೆದ ನಂತರ ನಿಪಿ4 ಪತ್ರವನ್ನು ಬರೆದಿದ್ದೇನೆ ಎಂದರೆ ಹೌದು. ನಿಪಿ1ನ್ನು ನಾನು ಪಡೆದ ನಂತರ ವೈಎಂಸಿಎ ಯ ಬೋರ್ಡ್ ಗಾಗಲೀ ಅಥವಾ ವೈಎಂಸಿಎ ಯ ಜನರಲ್ ಸೆಕ್ರೆಟರಿ ಗಾಗಲೀ ಯಾವುದೇ ಪತ್ರವನ್ನು ಬರೆದಿಲ್ಲ ನೇರ ಈ ದಾವೆಯನ್ನು ಸಲ್ಲಿಸಿದ್ದೇನೆ."
and again stated as "ನಿಪಿ 2 ರಿಂದ 4 ನಾನು ಹಿಂದಿನ ಜನರಲ್ ಸೆಕ್ರೆಟರಿಗಳಿಗೆ ಬರೆದ ಪತ್ರ ಎಂದರೆ ಹೌದು. ನಿಪಿ2 ರಿಂದ 4ನ್ನು ಜನರಲ್ ಸೆಕ್ರೆಟರಿಗಳಿಗೆ ಕಳುಹಿಸಿದ ನಂತರ ಆ ಬಗ್ಗೆ ಅಕ್ನಾ ಲೆಜ್ಮೆಂಟ್ಇಲ್ಲ ಎಂದರೆ ಹೌದು. ನಿಪಿ2 ರಿಂದ 4 ನಾನು ವೈಎಂಸಿಎ ಯ ಲೆಟರ್ ಹೆಡ್ ನ್ನು ಮಿಸ್ಯೂಸ್ ಮಾಡಿ ತಯಾರಿಸಿರುವುದು ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಾನು ನಿಪಿ2 ರಿಂದ 4 ರಲ್ಲಿ ವೈಎಂಸಿಎ ಯ ಸೀನಿಯರ್ ಸೆಕ್ರೆಟರಿ ಯಾಗಿ ಸಹಿ ಮಾಡಿದ್ದೇನೆ ಎಂದರೆ ಹೌದು."
112. Then, definitely, it requires intervention of Board of Di- rectors with full quorum.
Most importantly, in paragraph 18 of page No 32 he has stated as:-
"18. ನನ್ನ ಮುಖ್ಯ ವಿಚಾರಣೆಯ ಪ್ರಮಾಣ ಪತ್ರದ ಪ್ಯಾ ರಾ 11 ರಲ್ಲಿ ಬೆಂಗಳೂರು ವೈಎಂಸಿಎ ಗೆ ನನ್ನನ್ನು ಅಮಾನತು ಮಾಡುವ ಅಧಿಕಾರ ಇಲ್ಲ. ಅಮಾನತು ಮಾಡದೇ ನೇರ ಡಿಸ್ಮಿಸ್ ಮಾಡಬಹುದು ಎಂದು ಹೇಳಿದ್ದೇನೆ ಎಂದರೆ ಹೌದು. ವೈಎಂಸಿಎ ಯು ನಿಪಿ1 ನ್ನು ನನಗೆ ಜಾರಿ ಮಾಡುವ ಮೊದಲು 67 OS 2995/2023-Judgment ಪ್ರಿನ್ಸಿಪಲ್ ಆಫ್ ನ್ಯಾ ಚುರಲ್ ಜಸ್ಟೀಸ್ ಪ್ರಕಾರ ನನಗೆ ಅವಕಾಶ ಕೊಟ್ಟಿದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಈ ದಾವೆಯನ್ನು ಸಲ್ಲಿಸುವ ಮೊದಲು ವೈಎಂಸಿಎಯ ಬೈಲಾ ಹಾಗೂ ಪರ್ಸನಲ್ ಪಾಲಿಸಿ ಪ್ರಕಾರ ನಾನು ವೈಎಂಸಿಎ ಯನ್ನು ಮೊದಲಿಗೆ ಅಪ್ರೋಚ್ ಮಾಡಬೇಕಾಗಿದ್ದು ನಾನು ಅಪ್ರೋಚ್ ಆಗಿಲ್ಲ ಎಂದರೆ ನನಗೆ ಅವಕಾಶ ಕೊಟ್ಟಿಲ್ಲ."
Next to that in paragraph 24 of page No.38, PW 1 has stated as:-
"24. ನನಗೆ ದಿನಾಂಕ 25-4-2023 ರ ಸಸ್ಪೆನ್ಷನ್ಆರ್ಡರ್ ಗೆ ಮೊದಲು ಎನ್ಕ್ವಯರಿ ನೋಟೀಸ್ ಬಂದಿದೆ ಎಂದರೆ ಹೌದು. ಸಾಕ್ಷಿಯು ಮುಂದುವರೆದು ನನಗೆ ಕೇಸು ದಾಖಲಿಸುವ ಮೊದಲು ಎನ್ಕ್ವಯರಿ ನೋಟೀಸ್ ಸಿಕ್ಕಿದೆ ಎಂದರೆ ಹೌದು. ಅದು ಡೊಮೆ ಸ್ಟಿಕ್ ಎನ್ಕ್ವಯರಿ ನೋಟೀಸ್ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಾನು ನನಗೆ ಬೆಂಗಳೂರು ವೈಎಂಸಿಎ ಯಿಂದ ಡೊಮೆ ಸ್ಟಿಕ್ ಎನ್ಕ್ವಯರಿ ನೋಟೀಸ್ ಬಂದ್ದಿರೂ ಸಹ ನಾನು ತನಿಖೆಗೆ ಹಾಜರಾಗಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ."
113. In paragraph 26 of page No.40, he has stated about the ratification of resolution under Ex.D 10, then, again it shows that defendant has not followed due process of law.
114. When the circumstances as extracted above clearly and specifically show that such minute important procedures are not followed by defendant, then definitely Ex.D.22 has not been conducted in a proper way as it shows its date 22-11-2023 which is prior to order in MFA.
115. Regarding his employment in Chittoor is concerned, PW 1 in paragraph 30 of page No.49 has stated as:-
68
OS 2995/2023-Judgment "30. ಬೆಂಗಳೂರು ವೈಎಂಸಿಎ ನಾನ್ಪ್ರಾ ಫಿಟಬಲ್ಇನ್ಸ್ಟಿಟ್ಯೂ ಟನ್ಎಂದರೆ ಹೌದು. ಸಾಕ್ಷಿಯು ಅದು ಜಿ ಎಸ್ ಟಿಯನ್ನು ಒಳಗೊಂಡಿದೆ ಎನ್ನು ತ್ತಾ ರೆ. ನಿಡಿ 49 ರ ಪ್ರಕಾರ ಚಿತ್ತೂ ರಿನ ಸಂಸ್ಧೆಯು ನಾನ್ ಪ್ರಾ ಫಿಟಬಲ್ ಇನ್ಸ್ಟಿಟ್ಯೂ ಟನ್ ಆಗಿದ್ದರೂ ಸಹ ಅದರಲ್ಲುಾ ಸಹ ಪೇಡ್ ಸೇಲರಿ ಸಂಸ್ಧೆ ಎಂದರೆ ಹೌದು.
ನಾನು ಚಿತ್ತೂ ರಿನ ಸಂಸ್ಧೆಯಲ್ಲಿ ಜನರಲ್ಸೆಕ್ರೆಟರಿ ಎಂದು ಸಹಿ ಮಾಡಿದ್ದೇನೆ ಹಾಗೂ ಅದಕ್ಕೆ ಸಂಬಂಧಿಸಿದ ದಾಖಲೆಗಳನುನ ಕೊಟ್ಟಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಿಪಿ 56 ರ ಪ್ರಕಾರ ನಾನು ಸೋಶಿಯಲ್ ವರ್ಕರ್, ಸೆಕ್ರೆಟರಿ, ವಿಶ್ವೇಶ್ವರ ಕಾಲೋನಿ, ಚಿತ್ತೂ ರು ಎಂದು ನನ್ನ ಬಗ್ಗೆ ವಿವರ ನೀಡಿದ್ದೇನೆ ಎಂದರೆ ಹೌದು. ಸದರಿ ದಾಖಲೆಯಲ್ಲಿ ಆ ಸಂಸ್ಧೆಗೆ ಸಂಬಂಧಿಸಿದ ವ್ಯಕ್ತಿಗಳ ಹುದ್ಧೆ, ಸಹಿಗಳನ್ನು ಬರೆಯಲಾಗಿದೆ ಎಂದರೆ ಹೌದು. ನಿಡಿ 57 ರಲ್ಲಿ ಹೇಳಿರುವ ವಿಷಯಗಳು ಹೌದು ಏಕೆಂದರೆ ಅದು ಆ ಸಂಸ್ಧೆಯ ಬೈಲಾ. ಅದರ ಕಲಂ 14 ರಲ್ಲಿ ಸೆಕ್ರೆಟರಿ ಪೋರ್ಟ್ಪೋಲಿಯೋಗಳ ಬಗ್ಗೆ ಇದ್ದು ಅದರಲ್ಲಿ ನನ್ನ ಸಹಿ ಇದೆ ಎಂದರೆ ಹೌದು. ನಿಡಿ 57 ರ ಪ್ರಕಾರ ನಾನು ಬೆಂಗಳೂರು ವೈಎಂಸಿಎಯಲ್ಲಿ ಕೆಲಸ ಮಾಡುತ್ತಿರುವ ಸಮಯದಲ್ಲಿಯೇ ಚಿತ್ತೂ ರ್ ನ ಸಂಸ್ಧೆಗುಾ ಕೆಲಸ ಮಾಡಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ."
116. The evidence of DW 1 shows that the documents to- wards this was obtained after filing of this suit.
117. PW 3, in page No 4 of his cross examination stated as:-
"ಈ ಮುಖ್ಯ ವಿಚಾರಣೆಯ ಪ್ರಮಾಣಪತ್ರವನ್ನು ಜಾನ್ ಕೆನಡಿಯವರು ತಯಾರಿಸಿದ್ದಾ ರೆ. ಜಾನ್ಕೆನಡಿ ಮತ್ತು ನಾನು ಸ್ನೇಹಿತರು. ಹಾಗಾಗಿ ನಾನು ನ್ಯಾ ಯಾಲಯದಿಂದ ವಿಟ್ನೆಸ್ಸಮನ್ಸ್ ಬಾರದೇ ಇದ್ದರೂ ಸಹ ಸಾಕ್ಷಿ ಹೇಳಲು ಬಂದಿದ್ದೇನೆ. ನನಗೆ ವೈಎಂಸಿಎಯ ಕಾನ್ಸಿಟಿಟ್ಯೂ ಷನ್ ಬಗ್ಗೆ ಗೊತ್ತಿಲ್ಲ. ನನ್ನ ಪ್ರಮಾಣ ಪತ್ರದ 5ನೇ ಪ್ಯಾ ರಾದಲ್ಲಿರುವ ದಿನಾಂಕ ಹಾಗೂ ವಿಚಾರಗಳ ಬಗ್ಗೆ ಜಾನ್ಕೆನಡಿಯವರು ಹೇಳಿರುತ್ತಾ ರೆ. ಜಾನ್ಕೆನಡಿಯವರು ಪ್ಯಾ ರಾ 5 ರ ವಿಚಾರವಾಗಿ ಯಾವುದೇ ದಾಖಲೆಗಳನ್ನು ಹೊಂದಿಲ್ಲ ಎನ್ನು ವ ವಿಚಾರ ನನಗೆ ಗೊತ್ತಿಲ್ಲ."
118. Therefore, as per the facts and circumstances of the case and above discussions, the findings of this Court is that the plaintiff has proved that he joined the services of defendant insti- 69
OS 2995/2023-Judgment tution on 20-11-1990 and further he joined the Bengaluru YMCA as a secretary in the year 1996 on the basis of his seniority and work- ing experience in the defendant institution as pleaded by him. He further proved that, the defendant institution suspended him without following due procedure and issued letter and suspended him on 25-04-2023 by violation of rules and regulations of the bye- law of the defendant institution. The plaintiff proved that the letter and suspension order dated 25-04-2023 issued by the defendant institution is without following due process of law, rules, regula- tions, importantly without considering the law of the land and ac- cordingly it requires intervention of YMCA Board as per law with full quorum. Further, it finds that the termination order passed by DW 1 at the pendency of suit without proper intervention of Board and only on the advice of legal adviser without placing the same before the Board meeting and after passing of the order, it is rati- fied which is not tenable under law. But, here the plaintiff has not made the Board of Directors and the Inquiry Officer as parties here and accordingly, the matter shall be placed before the Board of Directors and the Board of Directors are duty bound to conduct enquiry afresh without any bias and under due process of law. Ac- cordingly, this Court answered Issue Nos.1 to 3 in the Affirmative and Addl.Issue No 1 partly in the Affirmative. 70
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119. Issue Nos.4, 5 and 9: These three Issues are inter-con- nected to each other, hence, to avoid repeated discussions, they are taken up together here under:-
On perusal of materials on record, as per Ex.P.2 , Ex.P.3 and Ex.P.4, the plaintiff made representation to the General Secretary of YMCA on 16-12-2016, 07-06-2019 and 03-09-2020 respectively regarding his seniority and eligibility for promotion as General Secretary, but there is no document produced by DW 1 that he had placed the said representation before the Board of Directors.
As per the above discussions and the admission of both plaintiff and defendant in their oral evidence and documentary evidence that the Board of directors are the final authority to take decision, hence, though about seniority and promotion there is evidence in length, but it will become premature as plaintiff did not place it be-
fore Board of Directors and after giving representation to General Secretory, he directly approached the Court, which shows the prayer No.(d) and (e) are premature. Hence, the plaintiff has liberty to place the same before the Board of Directors and accordingly, the plaintiff is entitled to get relief on prayer No (b) and (c) with modification as in order portion. Hence, Issue No.5 is answered in Negative as premature and Issue Nos. 4 and 9 are answered partly in the Affirmative.71
OS 2995/2023-Judgment
120. Issue No.10 : For the foregoing reasons and as per an- swers to above Issues, this Court is of the opinion that the suit of the plaintiff deserves to be decreed partly and accordingly, this Court proceeds to pass the following:-
ORDER Suit of the plaintiff is decreed partly.
The plaintiff is directed to approach the Board of Directors of YMCA Bangalore, for fresh consideration regarding his suspension and termination.
In the result, the order of termination of plaintiff dated 31-10-2024 is kept in abeyance till disposal the said matter by full quorum of Board of Directors, in accordance with law.
The payment of subsistence allowance by defendant Association to the plaintiff shall be continued till fresh disposal of matter by the full quorum of the Board.
The prayer No.(d) and (e) is dismissed as premature.
Accordingly, the relief of mandatory injunction is granted with modification in prayer as the defendant, their officers, agents and others representing under them are hereby restrained from restricting the plaintiff from entering the premises of defendant to place the matter before the Board of Directors as directed above.72
OS 2995/2023-Judgment No order as to costs.
Draw decree accordingly.
(Dictated to the Senior Sheristedar on Computer, typed and print out thereof is taken by him, after correction, signed and pronounced by me in Open Court on 02.05.2025) (SMT. JYOTHSNA D.,) XVI ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH12), BENGALURU SCHEDULE YOUNG MEN'S CHRISTIAN ASSOCIATION AND OFFICE OF THE ASSOCIATE SECRETARY AND PREMISES AND ASSOCIATION SITUATED AT NRUPATUNGA ROAD, BANGALORE 560 001.
ANNEXURE List of witnesses examined for the plaintiff.
PW 1 - John Kennedy PW 2 - Christopher S. Ireland PW 3 - Ullas Kumar J., List of witnesses examined for the defendants. DW 1 - Dr. Daniel Rethnakar J., List of documents marked for the plaintiff. Ex.P.1 Original order of Suspension dated 25.04.2023 Ex.P.2 to Letters dated 16.12.2016, 17.06.2019 and 03.09.2020 written by 4 plaintiff to the General Secretary of defendant Ex.P.5 Memorandum and Rules and Regulations of Defendant institution Ex.P.6 Office copy of legal notice dated 10.02.204 73 OS 2995/2023-Judgment Ex.P.7 3 Postal Receipts Ex.P.8 Legal Notice dated 24.06.2023 sent by defendant to the plaintiff Ex.P.9 Postal Cover sent by counsel for defendant to plaintiff Ex.P.10 Letter dated 04.11.2023 sent by Enquiry Officer of the defendant to plaintiff Ex.P.11 Postal Cover of Ex.P.10 Ex.P.12 Original Book of Directory of Secretaries for 2012 of the defendant Ex.P.13 School Diary for 2013-14 of the school belong to defendant Ex.P.14 to Annual Report of defendant for the years 2013-14, 2019-20, 2010- 17 11, 2017-18 and 2018-19.
Ex.P.18 Original Certificate dated 10.04.2024 issued by Community Action Network India Society Ex.P.19 Original Letter dated 17.04.2023 written by defendant to plaintiff Ex.P.20 Another Original Letter dated 20.04.2023 written by defendant to plaintiff Ex.P.21 Original Letter dated 18.04.2023 written by defendant to plaintiff Ex.P.22 Office copy of notice dated 11.04.2023 sent by plaintiff to defendant Ex.P.23 2 Postal Receipts pertaining to Ex.P.22 and 24 Ex.P.25 Letter dated 7.6.2023 sent by plaintiff to M. Nagendra, Enquiry 74 OS 2995/2023-Judgment Officer Ex.P.26 Postal Receipt pertaining to Ex.P.25 Ex.P.27 Order Sheet in MFA no.5142/2023 and order on IA No.1/2024 Ex.P.28 Termination Letter dated 31.10.2024 Ex.P.29 RPAD Cover Ex.P.30 Complaint dated 12.11.2024 given by plaintiff to Ulsoor Gate Police Station Ex.P.31 Letter dated 11.11.2024 written by defendant Ex.P.32 RPAD Cover Ex.P.33 Rooster Document of YMCA Ex.P.34 Chronology of Secretaries as per Secretarial Rules in Ex.D.54 Page 6 Ex.P.35 Office Staff Recruitment Rules in Ex.D.54, Section 4 Ex.P.36 Annual Report for 2021-22 Ex.P.37 Letter written by plaintiff seeking extension of time to reply List of documents marked for the defendant.
Ex.D.1 Board Meeting Extract dated 30.01.2023 regarding power given to DW1 to represent defendant Ex.D.2 Appointment Letter dated 1.2.2023 issued by defendant to DW 1 75 OS 2995/2023-Judgment Ex.D.3 and 4 Office Memo dated 10.04.2023 and 17.04.2023 Ex.D.5 and Minutes of Meeting dated 17.04.2023 of the Board, on 5(a) comparing with the same in the Lodger Book, the relevant portion is marked as Ex.D.5(a) Ex.D.6 Suspension Order dated 25.04.2023 of plaintiff Ex.D.7 Postal Receipt Ex.D.8 Copy of Complaint dated 25.04.2023 lodged to Ulsoor Gate Police Station Ex.D.9 Copy of Complaint dated 26.04.2023 lodged to Police Commissioner Ex.D.10 and Minutes of Meeting dated 26.05.2023 of the Board, on 10(a) comparing with the same in the Lodger Book, the relevant portion is marked as Ex.D.10(a) Ex.D.11 and Minutes of Meeting dated 06.07.2023 of the Board, on 11(a) comparing with the same in the Lodger Book, the relevant portion is marked as Ex.D.11(a) Ex.D.12 and Minutes of Meeting dated 22.08.2023 of the Board, on 12(a) comparing with the same in the Lodger Book, the relevant portion is marked as Ex.D.12(a) Ex.D.13 Letter dated 27.05.2023 written to Nagendra appointing him as Enquiry Officer Ex.D.14 Letter dated 27.05.2023 written to plaintiff informing him regarding appointment of Enquiry Officer Ex.D.15 Postal Receipt Ex.D.16 Postal Acknolwedgement 76 OS 2995/2023-Judgment Ex.D.17 Letter dated 3.6.2023 written by Enquiry Officer to Plaintiff to appear for enquiry Ex.D.18 and Postal Receipt and Acknowledgement 19 Ex.D.20 Enquiry Report dated 6.6.2023 marked subject to objection by counsel for plaintiff Ex.D.21 Charges dated 22.11.2023 marked subject to objection by counsel for plaintiff Ex.D.22 Enquiry Proceedings dated 6.6.2023 marked subject to objection by counsel for plaintiff Ex.D.23 Letter dated 7.6.2023 written by plaintiff to the Enquiry Officer Ex.D.24 Letter dated 15.6.2023 written by Enquiry Officer to plaintiff, marked subject to objection by the counsel for plaintiff Ex.D.25 Enquiry Report dated 15.6.2023 marked subject to objection by counsel for plaintiff Ex.D.26 Letter dated 21.06.2023 written by Enquiry Officer to DW1 Ex.D.27 Letter dated 04.11.2023 written by Enquiry Officer to plaintiff, marked subject to objection by the counsel for plaintiff Ex.D.28 & 29 Postal Receipt and Acknowledgement Ex.D.30 Enquiry Report dated 08.11.2023 marked subject to objection by counsel for plaintiff Ex.D.31 Final Notice dated 17.11.2023 marked subject to objection by 77 OS 2995/2023-Judgment counsel for plaintiff Ex.D.32 Postal Receipt Ex.D.33 Enquiry Report dated 22.11.2023 (The Counsel for plaintiff raised objection that the report is written on the original book after leaving blank a page and hence, the same is marked subject to objection by counsel for plaintiff) Ex.D.34 Complaint regarding non receipt of postal receipt by postal office Ex.D.35 Typed Copy of Enquiry Report dated 30.11.2023 marked subject to objection by counsel for plaintiff Ex.D.36 and Minutes of Meeting dated 20.09.2024 of the Board, on 36(a) comparing with the same in the Lodger Book, the relevant portion is marked as Ex.D.36(a) Ex.D.37 and Minutes of Meeting dated 30.10.2024 of the Board, on 37(a) comparing with the same in the Lodger Book, the relevant portion is marked as Ex.D.37(a) Ex.D.38 Termination Letter of plaintiff dated 31.10.2024 Ex.D.39 Postal Receipt Ex.D.40 Postal Track Consignment Ex.D.41 Certified copy of Order in MFA No.5141/2023 (CPC) dated 20.01.2024 Ex.D.42 Certified copy of Order Sheet in MFA No.5141/2023 (CPC) Ex.D.43 Certified copy of Order on IA No.1/2024 in MFA No.5141/2023 (CPC) 78 OS 2995/2023-Judgment Ex.D.44 Certified copy of the order in SLP No.2979/2024 Ex.D.45 Certified copy of Order in Civil Appeal No.08448/2024 with SCP© No.2979/2024 Ex.D.46 Letter dated 21.06.2024 written by Enquiry Officer to plaintiff marked subject to objection by counsel for plaintiff Ex.D.47 and Postal Receipt and Acknolwedgment 48 Ex.D.49 Letter written by the District Registrar and PIO Chittor to Madan Kumar K., Ex.D.50 Postal Cover in respect of Ex.D.49 Ex.D.51 Attendance Extract of defendant for the period April 2023 to October 2024 marked subject to objection by counsel for plaintiff Ex.D.52 Endorsement dated 23.01.2025 issued by Ulsoor Gate Police Station Ex.D.53 Postal Cover in respect of Ex.D.52 Ex.D.54 Personnel Policy Book of YMCA Benglauru Ex.D.55 Memorandum and Rules and Regulation of YMCA Benglauru Ex.D.3(a) Delivery Book Extract pertaining to Ex.D.3 marked subject to objection by counsel for plaintiff as Ex.D.3(a) Ex.D.4(a) Delivery Book Extract pertaining to Ex.D.4 marked subject to objection by counsel for plaintiff as Ex.D.4(a) Ex.D.56 Certified copy of the Memorandum of Association of Society 79 OS 2995/2023-Judgment for Community Action Network India Chittoor Ex.D.57 Certified copy of Articles of Associations Society for Community Action Network India Chittoor (SMT. JYOTHSNA D.,) XVI ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH12), BENGALURU 80 OS 2995/2023-Judgment 81