Central Administrative Tribunal - Delhi
Also As Secretary vs Delhi Wakf Board on 1 June, 2009
Central Administrative Tribunal Principal Bench O.A.No.476/2009 New Delhi, this the 1st day of June 2009 Honble Shri Shanker Raju, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) Hafiz Mohd. Khalid Imam Madina Masjid Near DPS, Mathura Road, New Delhi Also as Secretary Managing Committee Madina Masjid Near DPS, Mathura Road New Delhi ..Applicant (By Advocate: Shri K M M Khan) Versus Delhi Wakf Board Through its Chief Executive Officer Bachhon Ka Ghar Daryaganj, New Delhi ..Respondent (By Advocate: Shri Zafar Sadique and Shri Vivekanand Rana) O R D E R
Shri Shanker Raju:
Applicant, an Imam in Madina Masjid under Delhi Wakf Board, challenges the suspension order dated 12.8.2004 and further seeks reinstatement in service with all consequential benefits, including continuity in service and seniority.
2. Before we proceed to highlight the brief factual matrix, the brief background of Wakf has to be made clear.
3. Wakf means the permanent dedication by a person professing Islam of any movable or immovable for any purpose recognized by the Muslim law as pious, religious or charitable. In 1954, to provide for the better administration and supervision, Wakf Act was introduced. However, after hectic discussions with leaders of Muslim community, as several deficiencies have come in actual working of Wakf Act, 1995 with an object to create Wakf Board for the State and Union Territory of Delhi with distribution of powers between Wakf Board and Wakf Commission as Chief Executive Officer and his appointment and financial upkeep, Wakf Act, 1995 was promulgated on 22.11.1995. As per Section 4 of Wakf Act, 1995, State Government may, by notification in the Official Gazette, appoint for the State a Survey Commissioner of Wakfs and also Central Wakf Council under Section 9 of the Act. Under Rule 12 of the Act, Central Government is empowered to make rules to carry out the purposes of the Act. A Wakf comprises of the Board. The Board has an assistance of Chief Executive Officer, who has all methodologies to be appointed and removed. Section 36 of the Act talks of registration of Wakf.
4. Delhi Wakf Board Rules have come into being on 23.9.1963 where the Board, as per definition in 2 (ii) Board means the Delhi Wakf Board and as per Section 2 (vi) Secretary means the Secretary of the Board appointed under Section 21 of the Act.
5. Delhi Wakf Board Regulations 1966 as per Section 24 of the Wakf Act have been promulgated, which are in vogue as the new Regulations are in the process of being finalized, as stated by learned counsel for respondent. As per Regulation 17, the Board shall appoint Committees, including Masajid and Qabristan Committee, which, in turn, under Regulation 37, all Imams, Moazzans and other servants of the Board connected with the mosques are performing their duties efficiently and punctually. Terms and conditions of service of the officers and servants of the Board are provided under Regulation 41 of the Regulations where post carrying a minimum salary below Rs.60/-, it is Class III, when it is more than Rs.60/- but less than Rs.200/-, it is Class II and when the minimum is salary Rs.200/- or more, the post is Class I. Qualification for appointment is given under Regulation 42 and the appointing authority for Class II is the Chairman, for Class II it is the Secretary with the approval of the Chairman and for Class III, it is Secretary. Under Regulation 44, all appointments are made by the Chairman on the recommendations of the Selection Committee and all orders of postings and transfers of Class II employees shall be made by the Chairman and that of Class II and Class III posts by the Secretary.
6. From the above backdrop, the applicant was appointed as Imam of Medina Mosque on honorary basis with a condition that it is temporary and he can be terminated or transferred at any time from the post of Imam. On account of his involvement in case FIR No.448/2004 under Section 376 IPC, on a complaint of one Shahida Khatoon, who was working at the residence of the applicant that he had committed rape with her without any consent, a criminal prosecution was lodged under Sessions Case No.136/2004.
7. Applicant pursuant upon the criminal case was placed under suspension from the post of Imam on 12.8.2004. However, in the session trial by a judgment dated 21.1.2006, as the prosecutrix was found to be a consenting party, with the following observations, applicant was acquitted by giving benefit of doubt:-
The conduct of the accused as Imam of the mosque to have illicit relations even with the consent of the prosecutrix is deplorable. However, for that, he cant be held liable for the commission of offence punishable U/s. 376 IPC simply because on certain stage, he opted to withdraw from the society of the prosecutrix.
I view of my above discussion, I am of the view that the prosecution has miserably failed to prove if the accused ever committed rape within the meaning of section 375 IPC with the prosecutrix. It stands proved that throughout the prosecutrix, who was major, was a consenting party. Hence, benefit of doubt is given to the accused and he is acquitted in this case.
8. Thereafter, applicant applied for reinstatement as Imam. Applicant was issued a show cause notice on 13.3.2006 proposing rejection of his request for reinstatement and reengagement and on reply, in the Board meeting held on 3.4.2006, as the applicant was acquitted on benefit of doubt and moral turpitude was involved, he was found unfit to hold the position of Imam and his request for reappointment was turned down. Meanwhile, the prosecutrix against the acquittal filed Revision Petition, being Crl. R.No.521/2006, before the High Court of Delhi, which is sub judice.
9. Shri K M M Khan, learned counsel appearing for the applicant contends that the applicant has been victimized, as he has filed several petitions to prevent encroachers, who were grabbing the Wakf property and in such an event, even without holding an inquiry and serving a charge sheet, applicants dispensation of service is not in accordance with law.
10. On the other hand, Shri Zafar Sadique, learned counsel for respondent vehemently opposed the contentions and at the outset, states that the letter appointing the applicant mischievously and with a fraud has not been translated in its true content and as the post of Imam under the Delhi Wakf Board or Rules and Regulations does not exist and not being an employee of the respondent, applicant has been engaged on honorary basis to lead five time prayer in a mosque. Imams are model for the people and for Namazis who offer prayer under him and the slight deviation from the norm and morality shown by the Imam creates shock, outrage and disbelief among the Namazis inasmuch Imam is required to exhibit exemplary conduct in private and public life. Any person indulging in immorality and activities pertaining to moral turpitude cannot perform the duty of Imam of mosque and the people will not offer prayer behind him. As such, he was not found to be a fit person to be continued as Imam.
11. As the applicant was appointed on honorary basis as Imam, he was not paid any honorarium. It is in this backdrop stated that the criminal case against him is yet to be finalized, as revision petition filed by the prosecutrix is still sub judice.
12. We have carefully considered the rival contentions of the parties and perused the material on record.
13. In All India Imam Organization & others v. Union of India & others, AIR 1993 SC 2086 while considering the emoluments to the Imams, who are stated to be the Incharge of religious activities of the mosque, the Imams are stated to have been appointed by the Mutwallis and Wakf Board has nothing to do with their appointments and working. As they offer voluntarily service, there is no question of emoluments being paid to them.
14. In the above view of the matter, the Apex Court ruled that Mosques are wakfs are required to be registered under the Act and the Board is vested not only with supervisory and administrative powers over the wakfs but even the financial power vests in it. The Apex Court has further ruled that To say, therefore, that the Board has no control over the mosque or Imam is not correct. Absences of any provision in the Act or the rules providing for appointment of Imam or laying down condition of their service is probably because they are not considered as employee. But insofar as the remuneration is concerned, in the backdrop of Article 21 of the Constitution of India, where right to live with human dignity has been held to be paramount, directions have been issued to the Unions and Central Wakf Board to prepare a scheme to set out remuneration, which when not paid by the wakf shall be fixed by the Government.
15. The above leaves no doubt in our mind that despite the voluntary service and the question whether Imams are the servants of the Board or not, he is entitled for the services to the emoluments, as set out in the scheme. However, the contention that Imam is a servant of the Board, as in the present case from the Regulations, what is important here is that one should be appointed to a post after his selection by the Selection Committee and the post should carry a salary. If these two conditions are fulfilled, then the Imam can be said to have been appointed to a post carrying pay scale and in such an event, he has to be deemed as servant of the Board. However, the appointment of the applicant was azazi, i.e., on honorary basis, which has been considered by the Madhya Pradesh High Court in Ramesh Chandra v. G.N. Tandon, AIR 1974 MP (1) 6. Moreover, as per K.J. Aiyars Judicial Dictionary 11th Edition 1997, the word honorary means working without profit, fee or reward and in consideration of honour conferred thereby. Where no salary or fees is affixed to the office, it is supposed to be accepted merely for the public good. It also excludes the idea that the public office held honorarily must have continuance. It can make no difference whether there be one act or a series of acts to be done, whether the office expires as soon as one act is done or is to be held for years or during good behaviour. The word honorary as applied to office and other position of responsibility or trust means either that the office or title is bestowed upon the incumbent as a mark of honour or compliment without intending to charge him with the active discharge of the place or else that he has to receive no salary or other compensation in money.
16. Having regard to the above, merely because the applicant has been placed under suspension would not be construed that he is a servant of the Wakf Board. On being appointed by Mutwalli, applicant cannot seek reinstatement, as neither he was appointed against a post, nor the post carried any fixed salary. In such an event, the applicant cannot be treated as an employee of the Delhi Wakf Board.
17. As regards the revocation of suspension and payment of emoluments, etc., as the acquittal of the applicant was with a stigma and on benefit of doubt, against which prosecutrix have preferred a revision petition before the High Court, till the criminal case attains finality, the suspension cannot be revoked or decided for the purposes of pay and allowances.
18. However, another aspect of the matter is that once the Apex Court about 16 years back directed the Union of India and Central Wakf Board to prepare a scheme to pay a reasonable remuneration to the Imams, it is an admitted case of the respondent that on being appointed on honorary basis, no honorarium is paid to the applicant as it goes against the dicta of the Apex Court where the Imams are to be paid emoluments w.e.f. 1.12.1993
19. In these circumstances, in the event, applicant makes a representation to the respondent for emoluments for the period he worked, keeping in light the decision of Apex Court in All India Imam Organizations case (supra), law shall take its own course. OA, being bereft of merit, is dismissed. No costs.
( Dr. Ramesh Chandra Panda) ( Shanker Raju )
Member (A) Member (J)
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