Rt.Rev.Aruldoss vs Moses Thambi Pillai on 28 February, 2011

[Cites 21, Cited by 0]

Madras High Court

Rt.Rev.Aruldoss vs Moses Thambi Pillai on 28 February, 2011

Equivalent citations: AIR 2011 MADRAS 201, (2011) WRITLR 565

The first respondent in the writ appeal has filed W.P.No.45886 of 2002 before a learned single Judge of this Court, praying for the issuance of a Writ of Mandamus directing the first and second respondents therein/the respondents 2 and 3 herein to take immediate follow up action to implement the findings contained in the results of the enquiry of the first respondent therein/the Inspector General of Registration dated 23.7.2002 communicated by the second respondent/District Registrar in letter No.1481/A3/02, dated 2.8.2002 and letter Ms.No.128, dated 8.11.2002 of the Secretary to Government, Commercial Taxes Department, Chennai-9 relating to Tamil Evangelical Lutheran Church, Trichi and forbear the third respondent therein/the appellant herein from functioning as President of the Tamil Evangelical Lutheran Church or discharge any functions in his capacity as President of the Church and direct the fourth respondent therein/the Treasurer of the Church to forthwith take action to recover all the amounts that have been paid to the President and officers of the Tamil Evangelical Lutheran Church from out of the funds of the Church from 19.12.1981 upto date. Since the learned single Judge has allowed the said writ petition, the third respondent therein has come forward to prefer the present writ appeal.

2. Pending the writ appeal, M.P.No.1 of 2010 has been filed by one Dr.B.Vijayan, a third party, praying to implead him as a party respondent to these proceedings stating that he is one of the members of the World Saviour Church, Pollachi, under the Tamil Evangelical Lutheran Church and because of the interim order passed in this appeal, the process of scrutiny of the bye-laws has been stalled and till date,the unapproved bye-laws are being applied by the persons in the management in power, since they suit them, even though it is against the provisions of the Tamil Nadu Societies Registration Act. In view of the fact that this impleadment application has not been opposed by any of the parties and further since the petitioner in the impleadment petition is also connected to the affairs of the Church, this Miscellaneous Petition is allowed.

3. The Tamil Evangelical Lutheran Church (hereinafter referred to as the Church) was established in the year 1919 as part of Christian Church. It was originally registered as a 'Society' under the Societies Registration Act, 1860 and pursuant to the coming into being of the Tamil Nadu Societies Registration Act, 1975 (hereinafter referred to as the Act), the said Church is deemed to have been a 'society' registered under the Act.

4. Expressing difficulties to comply with the provisions of the Act and the Rules framed thereunder, and submitting that such compliance will seriously affect the working of the institutional particularly regarding spiritual and religious matters, the Bishop and President of the Church has requested the Government to exempt the Church from all the provisions of the Act and the Rules made thereunder, retrospectively from 22.4.1978. But finding the said request of the Church not reasonable and in fact, undesirable, the Government has required the Church to specify the provisions of the Act from which it is seeking exemption. Pursuant thereto, the Church has requested the Government to exempt them from the provisions of Sections 14, 15(3), 15(4), 15(5), 25(3), 26(1), 26(4), 28(1)(2), 29(3) and 36 of the Act.

5. For better understanding the purpose for which the exemption has been sought for on the part of the Church, we shall now extract hereunder the above referred Sections of the Act.

"Section 14: Register of members -

(1) Every registered society shall maintain a register containing the names, addresses and occupations of its members.

(2) The register of members shall, during business hours, be open to the inspection of any member free of charge and any member may make extracts therefrom.

Section 15: Committee -

(1) Every registered society shall have a committee of not less than three members to manage its affairs. Every registered society shall file with the Registrar a copy of the register maintained by it under sub-section (1) of section 14 and from time to time, file with the Registrar notice of any change among the members of the committee.

(2) A copy of the register shall be filed either at the time of the registration of the society or within such period as may be prescribed from the appointment of the members of the first committee and the notice of any change among the members of the society or of the committee shall be filed within such period as may be prescribed from the date of such change.

(3) The members of the committee shall be appointed at a meeting of the society by a resolution of a majority of the members present and entitled to vote thereat.

(4) The term of office of the members of the committee shall not exceed three years from the date of their appointment.

(5) The members of the committee shall be eligible for re-appointment."

Section 25: Application of funds of a registered society -

(1) A registered society shall have power to spend out of its funds such sums as it thinks fit on purposes authorised by this Act or its bye-laws.

(2) No part of the funds of a registered society (save those funds ear-marked specifically for the purpose of making provision for a dependent of a deceased or disabled member) shall be divided by way of bonus or dividend or otherwise among its members:

Provided that payment may be made from such ear-marked funds to a dependant of a deceased or disabled member of a registered society, subject to such limits, if any, prescribed by the bye-laws.

Explanation For the purpose of this sub-section -

(i) the expression "dependant" means any of the following relatives of a deceased or disabled member, namely, a wife, husband, parent, child, minor brother, unmarried sister and a deceased son's widow and child, and where no parent of the deceased or disabled member is alive, a paternal grandparent;

(ii) the expression "disable member" means a member who, on account of injury, disease, or congenital deformity is substantially handicapped in obtaining, or keeping employment, or in undertaking work on his own account, of a kind which apart from that injury, disease or deformity would be suited to his age, experience and qualifications and the expression "disease" in this clause shall be construed, as including a physical or mental condition arising from imperfect development of any organ.

(3) Save as provided in sub-section (2), no payment shall be made out of the funds of a registered society to the president or any other officer of the society by way of honorarium for any service rendered by him to the society."

Section 26: Annual General Meeting -

(1) At least one general meeting of the registered society shall be held in every financial year.

(2) Notice of every such general meeting shall be given by the registered society to its members within such period as may be prescribed before the day appointed for the meeting.

(3) The notice shall specify the day, hour and place and the object of the meeting and, in case any amendment of a bye-law or objects of association as contained in the memorandum is intended to be proposed, shall contain a copy of every such amendment.

(4) The Registrar may nominate an officer subordinate to him to be present at any such general meeting.

Section 28: Extraordinary general meeting -

(1) The Committee may at any time call an extraordinary general meeting of the registered society and shall call such a meeting within such period as may be prescribed after receipt of a requisition in writing from such number of members of proportion of the total number of member as may be specified in the bye-laws of the registered society.

(2) If an extraordinary general meeting is not called in accordance with such requisition, the requisitionists shall have power to call such meeting themselves.

(3) No extraordinary general meting shall be deemed to have been duly called if the members of the registered society have not been given such notice thereof as is required by sub-sections (2) and (3) of section 26.

Section 29: Minutes of proceedings of registered society's general meetings and of its committee -

(1) Every registered society shall cause minutes of all proceedings of its general meetings, and of its committee to be entered in books kept for the purpose.

(2) Any such minute, if purporting to be signed by the Chairman of the meeting at which the proceedings were held or by the chairman of the next succeeding meting, shall be evidence of the proceedings.

(3) The books containing the minutes aforesaid and the books of account of the registered society shall be kept at the registered office of the society and shall, during business hours be open to the inspection of any member free of charge.

Section 36: Power of Registrar to inquire into the affairs of registered society -

(1) The Registrar may, of his own motion or on the application of a majority of the members of the committee of a registered society or on the application of not less than one-third of the members of that registered society, or, if so moved by the District Collector hold or direct some person authorised by the Registrar by order in writing in this behalf to hold, an inquiry, into the constitution, working and financial condition of that registered society.

(2) An application to the Registrar under sub-section (2) shall be supported by such evidence as the Registrar may require for the purpose of showing that the applicants have good reason for applying for an inquiry.

(3) The Registrar may require the applicants under sub-section (1) to furnish such security as he thinks fit for the costs of the proposed inquiry, before the inquiry is held.

(4) All expenses of, and incidental or preliminary to, the inquiry shall, where such inquiry is held -

(a) on application, be defrayed by the applicants therefor or out of the assets of the registered society or by the members or officers of the registered society, in such proportions as the Registrar may, by order in writing, direct; and

(b) on the District Collector's or Registrars motion, be defrayed out of the assets of the registered society, and shall be recoverable as an arrear of land revenue.

(5) An order made under sub-section (4) shall, on application, be enforced by any Civil Court having local jurisdiction in the same manner as a decree of such court.

(6) A person holding an inquiry under this section shall at all reasonable times have free access to all the books, accounts and documents of the registered society, and shall have power to call upon, the registered society and the officers of society to produce such books, accounts and documents and furnish such statements and other information in relation to its business as he may direct.

(7) It shall be the duty of all persons who are or have been officers of the registered society to furnish the inquiring officer with all the books, accounts and documents in their custody or power relating to the registered society.

(8) A person holding an inquiry under this section may summon any person who, he has reason to believe, has knowledge of any of the affairs of the registered society and may examine such person on oath and may summon any person to produce any books, accounts or documents belonging to him or in his custody if the person holding the inquiry has reason to believe that such books, accounts or documents contain any entries relating to transactions of the registered society.

(9) The result of the inquiry shall be communicated to the registered society and to the applicants, if any, and if the Registrar is satisfied that the result of the inquiry does not warrant action under section 37, he may issue such direction to the registered society, or any member of the registered society, as the Registrar may deem fit."

6. Though the Church has requested for exemption of the above mentioned provisions of the Act, numbering 11, the Government, by its order in G.O.Ms.No.1708, Industries Department, dated 18.12.1981, has granted exemption only with respect to Sections 15(4), 25(3) and 29(3) of the Act. Since the terms of the above said Government Order are interpreted in different manners by the rival parties, for ready reference, we shall now extract hereunder para Nos.3 and 4 of the said G.O.:

"3. The Government have carefully examined the request of the Secretary, Church Council, Tamil Evangelical Lutheran Church campus, Mayuram in consultation with the Inspector General of Registration and they have decided to exempt the Tamil Evangelical Lutheran Church, Tiruchirapalli from certain provisions of Sections 15(4), 25(3) and 29(3) of the Tamil Nadu Societies Registration Act, 1975 with retrospective effect from 22.4.1978 as indicated in para 4 below.

4. Accordingly, in exercise of powers conferred by section 54 of the Tamil Nadu Societies Registration Act, 1975 (Tamil Nadu Act 27 of 1975) the Governor of Tamil Nadu hereby exempts with retrospective effect from 2.4.1978.

(1) The President or Bishop of the Tamil Evangelical Lutheran Church alone from the provision of sub-section (4) of Section 15 of the Tamil Nadu Societies Registration Act, 1975 regarding the period of his term that it should not exceed more than three years; this exemption will not aply to the other members of the church council.

(2). also exempts the church from the provision of sub-section (3) of section 25 of the Tamil Nadu Societies Registration Act, 1975 so as to ratify the action of the church in having paid the salary from out of its fund to the President or full time workers of the Church who come under the classification of "Officers" within the meaning of clause (g) of section 2 of the said Act.

(3). and also exempts the church from the provision of sub-section (3) of section 29 of the Tamil Nadu Societies Registration Act, 1975 subject to the condition that necessary provisions are embodied in the bye-laws of the society for the supply of copies of minutes of the society's meeting and financial statements to the members at specified intervals, free of charge."

7. Not satisfied with such an order of exemption and ratification passed by the Government, the Church, represented by its Secretary, has filed W.P.No.523 of 1982 before this Court, praying to issue a Writ of Declaration, declaring that the provisions of the Tamilnadu Societies Registration Act (Act 27/75) and the Tamilnadu Societies Registration Rules 1978 made thereunder as unconstitutional and void and inapplicable to their Church. A learned single Judge of this Court, by the order dated 20.11.1990, while dismissing the writ petition as premature and not on merits, has given liberty to the Church to file a representation before the Government on or before 31.12.1990, pleading for grant of exemption from such provisions of the Act as the Church may desire.

8. There is nothing on record to indicate as to what had happened thereafter, pursuant to this direction of the learned single Judge. It is seen from the records that the appellant was elected as Bishop on 12.12.1998 by the synod/the general body by a process of election and as per the terms of Rule 120 of the Church Rules, he became the President of the Church, since being an 'elected Bishop as per the procedure contemplated under Rule 161 of the Rules'.

9. Thereafter, disputes arose between the writ petitioner/the first respondent herein and the first appellant, which led to the filing of a complaint by the first respondent along with ten others with the Inspector General of Registration, requesting to cancel the G.O.Ms.No.1708 Industries Department, dated 18.12.1981, alleging irregularities on the part of the first appellant under the cover of the said G.O. On the said complaint of the first respondent along with ten others, dated 3.8.2001 and 28.6.2002, the Inspector General of Registration conducted an enquiry and observed that the G.O., dated 18.12.1981 has only ratified the earlier payments made by the Church and it has not been exempted from the future actions. Based on the said enquiry report and findings, the District Registry directed the Church to recover the wages paid to the officers. In the meantime, the first respondent herein filed W.P.No.32494 of 2002, praying to direct the Secretary to Government, Commercial Tax and Societies Registration to consider and dispose of his representation dated 3.8.2001 and to cancel G.O.Ms.No.1708, Industries, dated 18.11.1981 with immediate effect and to give appropriate directions to the Inspector General of Registration to ensure that TELC (the first appellant herein) complies with all the provisions of the Act and the Rules framed thereunder. A learned single Judge of this Court, by the order dated 7.8.2002, has directed the Government dispose of the representation dated 3.8.2001 of the petitioner therein/the first respondent herein and pass orders on merits and in accordance with law. It is the contention of the first appellant herein that the said W.P.No.32494 of 2002 itself was filed by the present writ petitioner viz. A.Moses Thambi Pillai without impleading the Church as a party. Since only a direction has been given by the learned single Judge to dispose of the representation of the petitioner therein in accordance with law and the said order passed by the learned single Judge also was not challenged by the first appellant herein, in the manner known to law, we do not want to attach much importance to this argument advanced on the part of the first appellant.

10. Thereafter, the Government issued the impugned letter dated 8.11.2002, stating that exemption from Section 25(3) of the Act was granted for ratifying the action of the Church in having paid the salary from out of its funds to the President or full time worker of the Church from 29.4.1978 till the date of G.O., i.e. 18.12.1981 and thereafter the Society was not exempted from the above provisions for the future. The first respondent herein filed the present writ proceedings, with the prayer mentioned above, which was allowed by the learned single Judge, resulting in filing of this writ appeal by the appellants.

11. On the part of the appellants, it has been strenuously argued that the Church has been completely exempted from the provisions of Section 25(3) of the Act, as could be seen from para No.3 of the G.O., extracted above and therefore, the observations made contra by the Inspector General of Registration in his enquiry report and in the order of the learned single Judge are liable to be interfered with by this appellate forum.

12. On a thorough and careful reading of the wordings of the G.O., extracted above, it is very clear that the Government has only ratified the earlier action of the society in having paid the salary from out of its funds to the President or full time workers of the Church, who come under the classification of 'Officers" within the meaning of clause (g) of Section 2 of the Act and no blanket exemption has been granted in favour of the Church by the Government, as has been tried to be impressed on the part of the appellants. But, leaving the wordings in Para No.4, which are the directions, the first appellant has placed much reliance on the wordings in Para No.3 of the G.O., which are nothing but an extract of the request of the Church. Further, had it been the intention of the Government to exempt the Church from the provisions of Section 25(3) completely, the wordings would have been different in the G.O., to say, the church has been completely exempted from the provisions of Section 25(3) while ratifying the earlier action of the Church, which is not the case herein. Therefore, the contention of the first appellant that the Church has been completely exempted from the provision of Section 25(3) cannot be accepted.

13. On the part of the first appellant, it has been contended that the Pastors are professionally qualified, trained, religious clergy, who are on contract of full time employment with the Church society under an order of employment for remuneration, subject to several conditions of employment, including an action for removal from service and hence, they are entitled to receive remuneration in the capacity of full time employees on religious duties in the Church. It has further been argued on the part of the first appellant that the Bishop and other Pastors are full time servants of God and Church society and conduct all religious prayers/services in the Church and other religious duties relating to the functions of the Church and hence, payment of remuneration to the Bishop and Pastors for their full time religious service to the Church shall not fall within the mischief of Section 25(3) of the Act, since it deals with only persons in their capacity as 'members of the Society' and not the persons who render service full time as Pastors of the Church. In support of such arguments, the learned senior counsel appearing for the appellants, would submit before us the meaning for the words 'salary' and 'honorarium' defined in various dictionaries.

14. Admittedly, the Government has granted exemption to the church in respect of certain provisions and ratified some of the actions of the Church. In that case, we are of the considered view that it is the Government and Government alone which can give clarification to this aspect in view of the wordings in the G.O., ratifying only the earlier action of the Church and not expressly granting any blanket exemption/permission to the Church to its future course of action regarding the provision of Section 25(3) of the Act. We have also been informed by the learned senior counsel on either side that the Church has already submitted revised Bye-laws for the approval of the Registrar and it is still pending with the Registrar. From this, a legal presumption would arise that the Church itself has felt that the existing bye-laws are inconsistent with the Tamil Nadu Societies Registration Act and Rules as has been observed by the Inspector General of Registration in his enquiry report, which prompted them to revise the bye-laws and submit it for verification and approval of the Registrar. Since it has been stated before us that the said bye-laws are still pending consideration with the Registrar, the Registrar is directed to immediately verify the amended bye-laws as to whether they are in conformity with the provisions of the Tamil Nadu Societies Registration Act and pass necessary consequential orders without any further delay, not later than eight weeks from the date of receipt of a copy of this judgment.

15. It is also seen that the first appellant has also applied to the Government on 25.11.2002 claiming complete exemption from the provisions of Section 25(3) of the Act with retrospective and prospective coverage and the same is also pending with the Government. Even this fact would indicate that the first appellant, completely knowing the fact that the earlier G.O.Ms.No.1708, Industries Department, dated 18.12.1981 has not granted complete exemption, but only ratification of the earlier acts of the Church, has applied to the Government on 25.11.2002 claiming exemption.

16. Repeatedly it has been argued before us that the very conduct of the enquiry by the IG is in complete derogation of the principles of natural justice as no opportunity has been afforded to the first appellant before submitting his report, against the Church. But, on the part of the official respondents it has been maintained that a notice dated 22.2.2002 has been issued to the Church but the Church has not responded to the same and this plea has been taken now only to get over the present legal proceedings and to prolong the issue. From the counter affidavit filed by the third respondent, we are able to se that a notice dated 22.2.2002 has been served on the Assistant Treasurer on behalf of the President of the Church by the Registrar, but, the Church has not given due attention thereto, leading to passing of adverse orders against them by the Enquiry Officer on 22.3.2002. The Inspector General of Registration has communicated the result of the enquiry to the Church with certain directions to be observed by them. If it is the case that no notice of whatsoever has ever been issued to the first appellant by the authorities, there would not have been any hesitation for us to hold that there is complete violation of principles of natural justice. But, in the case on hand, since the first appellant kept mum, in spite of knowledge of the notice issued by the authorities, we are unable to appreciate the arguments advanced on the part of the first appellant to the effect that the notice dated 20.2.2002 does not refer to the complaint dated 6.8.2001 (lodged by the first respondent/writ petitioner) nor was it annexed along with Notice dated 20.2.2002 nor did the averments of the complaint made known to the appellant. When it is the admission of the first appellant himself that a notice has been served on them by the authorities, that too in the aftermath of the disputes between the members, particularly from the first respondent/writ petitioner, the first appellant ought to have responded to the notice issued by the authorities and should have participated in the enquiry proceedings. Having left the matter without pursuing, now, the first appellant cannot be permitted to take shelter under the celestial principles of natural justice.

17. As per the scheme of the bye-laws, presented before us, no doubt, the Bishop is the ex-officio President of the Church Council and his duties and responsibilities are contained in Rule 128 of the Tamil Evangelical Lutheran Church Rules, 1991. Both these functions, as the Bishop and the President of the Church society are inter-connected and mingled with each other. But, though this scheme of the bye-laws recognises the Bishop as the ex-officio President, since the G.O., which has been issued on 18.12.1981 did not grant any exemption to the provisions of Section 15(3) of the Act, it follows that the members of the Committee shall be appointed at a meeting of the society by a resolution of a majority of the members present and entitled to vote thereat'. Therefore, it is but imperative that for the post of President, in view of non-exemption of Section 15(3) of the Act by the Government, there shall be an election, as has been observed by the respondents in the impugned communications. But, in case the Bishop fail to get elected as the President, for lack of majority support of the members of the Committee, there is possibility of a piquant situation to arise, since the scheme of the bye-laws recognises only the Bishop as the ex-officio President and none else and no other independent President has been contemplated in the scheme of things.

18. Further, while as per Rule 120 of the Rules, the President shall be the Bishop, and thereby proceeds to mean that no separate election is needed for the Bishop to assume the office of the President, in view of non-exemption of Section 15(3) of the Act, the Bishop so elected need to be elected to the post of President also. As has already been observed by us supra, these are some of the inconsistent rules framed and followed by the Church which are in direct conflict with the provisions of the Act and only because of these inconsistencies, the official respondents have observed in the impugned communications that the bye-laws of the Church are inconsistent with the provisions of the Act. Probably, realising this, the Church has now presented fresh bye-laws for the approval of the Registration. Therefore, while considering and approving the amended bye-laws of the Church and considering the exemption application submitted by the Church, the Government is required to weigh the pros and cons and arrive at a judicious conclusion and see that no incongruity persist between the provisions of the Act and the bye-laws of the Church.

The writ appeal is, accordingly, dismissed. No costs.

Rao To

1.The Inspector General of Registration, Santhome High Road, Chennai-600028.

2.The District Registrar, Registrar's Office, Trichy 620001

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