Madras High Court
Unknown vs Govt.Of T.N.((2001) 3 Scc 170) In ... on 16 May, 2012
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.05.2012 CORAM THE HON'BLE MR. JUSTICE R.SUBBIAH Applications No.184 of 2012 and A.No.1824 of 2012 in Civil Suit No. 163 of 2012 ORDER
Original Application No.184 of 2012 is filed by the applicant/ plaintiff to grant an order of interim injunction restraining the respondents/defendants from enforcing the order of suspension dated 28.02.2012 passed by the 1st respondent against the applicant.
2. Application No.1824 of 2012 is filed by the 1st defendant to vacate the order of interim injunction dated 15.03.2012 granted in O.A.No.184 of 2012.
3. The brief facts for disposal of both the applications are as follows:
The applicant in O.A.No.184 of 2012 is the plaintiff in the suit. The applicant is a member of National Missionary Society of India (in short NMSI"). The membership of the Society may be acquired by any individual or collective Christian individuals, congregations, institutions, organisations to further the objects and policy of the Society through prayer, publicity and contributions. NMSI is a Society registered under the Societies Registration Act, 1860 with the objects to undertake Evangelistic and Missionary work in India and other countries in consultation with the Churches concerned, stimulate the same and to undertake and coordinate with social, medical ameliorative educational and relief work for the public irrespective of caste, creed and religion. In furtherance to the above objects, the Constitution also provides for various spiritual and other works to be undertaken by the Society. NMSI shall have an All India Council which shall be the Supreme Governing Body of the Society. The Council consists of President, five Vice-Presidents, General Secretary, Associate General Secretaries, Treasurer, Organising Secretaries, Area Secretaries, Missionaries and Evangelists in charge of the fields. Further, NMSI shall have an Executive Committee elected by the Council which composes of Presidents, 5 Vice-Presidents, Associate General Secretaries, Treasurer, one representative from each zone as per Article VII, four additional members residing in or near the Headquarters so as to be taken into the Standing Committee, the General Secretary being the employee of the Society is an ex-officio member of the Executive Committee. In all, it has 37 members. The Executive Committee shall have the powers to frame by-laws and such other rules as may be necessary for better implementation of policy and programme of work of the Society. The General Secretary of NMSI shall be appointed either by deputation or by direct recruitment. The candidate shall be a graduate of any recognized University with a degree in theology and shall have put in not less than 5 years of service in the Church or Institution. The age of the candidate should not exceed 50 years. The General Secretary shall be appointed for a period not less than 3 years at a time. In the case of appointment on deputation, a person shall be from an established Church or Institution. In such a case a person whose lien will be retained by the Church or Institution for not less than 3 years will be considered for appointment. In the case of appointment of General Secretary by direct recruitment, the candidate shall be a graduate of any recognized University with a degree in theology and should have taken active part in evangelistic work for not less than 15 years. The age of the candidate should not exceed 60 years and he can be appointed for a period not exceeding 3 years at a time.
4. It is the further case of the applicant/plaintiff that the Search and Selection Committee made advertisements in all church magazines and bulletins and notifications were sent to all Dioceses on 07.01.2009 calling for applications from prospective candidates for the post. The plaintiff applied for the post. Among the other participants, the applicant was selected in interview on 05.03.2009, held at Bangalore. The appointment of applicant as General Secretary was endorsed by the Executive Committee. The Executive Committee meeting shall ordinarily be convened once in a year. As in the previous Executive Committee some reservations were made with regard to issues relating to transfer of missionaries at the eleventh hour and for acceptance of budgetary proposal (as major changes cannot be made after the meeting), the applicant by his letter dated 19.11.2011 to the President suggested 24.01.2012 as the date to convene the Executive Committee meeting. Alternatively, the President suggested 25.01.2012 as the date to convene the Executive Committee meeting. Though this is not required, for the sake of convenience, this suggestion was made. But there was no response from the President, the 1st defendant herein. But once again the applicant sent a letter dated 07.12.2011 to the 1st respondent and requested his suggestions with regard to the fixing of dates for the Executive Committee meeting. The applicant has also annexed the agenda for the meeting with this letter. While so, on 24.12.2011, the applicant met the 1st respondent at the CSI Church in a NMSI mission field at Kaniyambadi, Vellore District in connection with the dedication service of the Church. When the applicant referred to his letters dated 19.11.2011 and 07.12.2011 to the 1st respondent requesting for suggestion of dates, the 1st respondent agreed for the date 24.01.2012 for convening Executive Committee meeting at the altar of the said Church. In furtherance of the same, notices dated 27.12.2011 were sent to the members of the Executive Committee, Personnel Committee and the Finance Committee informing them about the convening of the respective committee meetings on the following dates:
23.01.2012 : 09.30 AM 01.00 PM Personnel Committee 23.01.2012 : 02.00 PM - 05.00 PM Finance Committee 24.01.2012: 09.30 AM 03.00 PM Executive Committee A separate notice dated 27.12.2011 was also sent to the President, Vice Presidents, Honorary Associate General Secretaries and Treasurer of the Society informing them about the convening of the Executive Committee meeting on 24.01.2012.
5. It is the further case of the applicant that the agenda for the meetings was enclosed with the notices. Thereafter, on 31.12.2011 at around 12.00 Noon, the 1st respondent informed the applicant over phone, to postpone the meeting; but the applicant explained at length the need for convening the meeting as per schedule. But the 1st respondent insisted for postponement. Hence, the applicant sent a letter dated 02.01.2012 to the 1st respondent and explained in detail the importance of convening the meeting as scheduled and requested him to chair the meeting and informed that if it is difficult for him to chair the meeting, he may tell the Vice President to chair the meeting due to importance of convenient the meeting on time. But the 1st respondent by letter dated 04.01.2012 informed the applicant that the Executive Committee meeting is postponed to March, 2012. Hence, the applicant sent a letter dated 09.01.2012 to the 1st respondent with the same request vide his letter dated 02.01.2012. The applicant addressed another letter dated 10.01.2012 to the 1st respondent, but there was no positive response from the 1st and 2nd respondents and hence, he requested the 5th respondent who is the Co-Convenor of the Legal Matters Committee (a sub committee constituted to advice on legal issues) of the NMSI to advice accordingly. The 5th respondent, after consulting the members of the Legal Matters Committee, informed the applicant to convene the Legal Matters Committee. A meeting of the Legal Matters Committee was convened by the 5th respondent on 21.01.2012. The 2nd respondent, who is the Chairman of the Committee, expressed his inability to attend the meeting owning to the hospitalization of his wife. Therefore, the meeting was chaired by the Senior Advocate who is a senior member of the said Committee. The Committee unanimously recommended that Personnel/Finance/Executive Committee meetings cannot be postponed for the following matters which are related to the ministerial and financial year 2012-13.
(i) Transfer of Missionaries;
(ii) Recruitment of staff & missionaries;
(iii)Budget approval;
(iv) Approval of the audited statement;
(v) More important thing whether the term of the General Secretary is to be extended or not and if not extended, preparatory work for the process of selection to appoint a new General Secretary.
Therefore, the Committee recommended for the convening of the Personnel/Finance/Executive Committee meetings on the appointed days.
6. As scheduled, the meetings of the Personnel/Finance/Executive Committees were held on the appointed days. At the start of the Executive Committee upon roll call, it was found that out of the total members of 37, 14 members were present. Out of 14 members present, 7 are members (non-office bearers), 5 Honorary Associate General Secretaries, one Treasurer and 1 Ex-Officio member, i.e.the General Secretary. The quorum for the Executive Committee meeting shall be ten, of whom at least four shall be non-office bearers. As there was quorum, business was transacted. The minutes of the Executive Committee held on 24.01.2012 was despatched to members of the All India Council by registered post with acknowledgment due commencing from 30.01.2012 to far of places throughout the country and the despatch was completed on 03.02.2012. As per the Constitution of NMSI, if more than 15 members of the All India Council object in writing within 15 days to any action taken by the Executive Committee, the matter shall be considered again by the Executive Committee and if not, the Council is deemed to have given assent. Since there were no objections from the members of the All India Triennial Council 2010, after the receipt of the minutes, the All India Triennial Council 2010 (supreme body of NMSI) in accordance with Article XVI has assented unanimously the actions of the Executive Committee as per the Minutes of Executive Committee meeting held on 24.01.2012 and as such, all actions are binding on the NMSI. In the said situation, the 1st respondent sent a letter dated 04.02.2012 to the applicant stating that any meeting held in his absence is not binding on the NMSI and is actionable. But, it is the case of the applicant that nowhere in the Constitution of the NMSI, it is stated that the presence of the 1st respondent is a must to validate an Executive Committee meeting. But, the 1st respondent has sent a letter to the applicant dated 28.02.2012 that the applicant had no authority to call for the meeting without his approval and in the meeting there was no proper quorum and the extension of his tenure in the said meeting is illegal and the same constitutes misconduct and therefore, his service is suspended and hence called for an explanation within 15 days to the Commission constituted by the 1st respondent. The applicant had also sent a reply dated 07.03.2012 stating that the 1st respondent cannot suspend the General Secretary from service as he has no independent authority on his own and without the sanction of the Executive Committee he cannot take disciplinary action against the General Secretary since the appointing authority is the Executive Committee and the Executive Committee transacted business and approved his conduct of convening the meeting which was later ratified by the apex body All India Council. Therefore, the plaintiff filed the suit for mandatory injunction to declare the order of suspension dated 28.02.2012 passed by the 1st respondent suspending the services of the applicant as without authority, mala fide, null and void and non est. Pending suit, the present application is filed for temporary injunction restraining the respondents from enforcing the order of suspension dated 28.02.2012 passed by the 1st respondent.
7. This Court, by order, dated 15.03.2012, granted an order of ad-interim injunction until further orders. On appearance, the 1st respondent filed an application in A.No.1824 of 2012 to vacate the said order of interim injunction.
8. It has been averred in the application filed by the 1st respondent/1st defendant inter alia, that Rule 7-A(i) and (ii) of Service Rules pertains to the appointment on deputation and by direct recruitment respectively for the post of General Secretary. 7-A(1)(c) reads that when the services of such person is required by the Society for periods beyond three years, he could be continued for further periods not exceeding three years at a time with the consent of the lending body. This pre-supposes two factors, namely, Society should require the service beyond the original period contemplated and the lending body should accord consent for the same. In the absence of either, the services cannot be continued. 19 of the said Rules speaks about the disciplinary authority in relation to the employees of the Society. 19(3) says in respect of the General Secretary, the disciplinary authority shall be the President and Appellate authority will be the Executive Committee. Therefore, the issue involved in this case has to be analysed in the background of 7 and 19 of the Service Rules. As per the Constitution of NMSI, the applicant is only an employee of the Society and the 1st defendant is the disciplinary authority for the said post. An appeal lies to the Executive Committee from any orders passed by the President, the 1st respondent herein. Therefore, the Rules provide machinery which cannot be bypassed and hence the suit filed by the applicant is not maintainable. Moreover, the applicant was suspended pending enquiry by an independent commission to be appointed by the President. The applicant put his explanation before the said Committee. It is only after giving the applicant adequate opportunity, the Committee will submit its finding and recommendation to the President and thereafter, if any action is necessitated, the President can pass orders. The principles of natural justice would be followed scrupulously. If the applicant is aggrieved by any finding, he can always approach the Appellate Authority for redressal of his grievance. Therefore, the suit is premature and is liable to be rejected.
9. It is the further case of the 1st respondent, the entire case of the applicant will be based on presumption as if he is the sole authority to call for any meeting and once the meeting is called, the President cannot postpone the same. Even if such a postponement is sought for, he can still proceed to conduct the meeting in the absence of the President and the Vice-President by voting any other person to chair the meeting. But as per the Constitution, the President shall preside the meeting of the Council of the Executive and Standing Committee and in the absence of the President, one of the Vice-Presidents residing in the headquarters shall take the chair in the meeting. But, in the instant case, the meeting was chaired neither by President nor by the Vice-Presidents. Therefore, the holding of the meeting is not in accordance with the Rules and therefore, the meeting held by the applicant is contrary to the provisions of the Constitution. It is the further case of the 1st respondent that he had informed the applicant to postpone the meeting to March, 2012 and further called upon him to meet him in person in February 2012 for obtaining the date and for settling the agenda. The same was followed by the 2nd respondents letter to have the meeting in March, 2012. But despite the direction given by the President and the Vice-president, the applicant did not adhere to the same. An employee of the Society cannot override the directions/requests issued by the President and Vice-President in relation to a matter pertaining to the conduct of the affairs of the society. Further it is incorrect to state that even if a postponement is sought for by the President, the applicant could still proceed to conduct the meeting by voting any other person to chair the meeting. It is, no doubt, the Executive Committee meeting shall ordinarily be convened once in year. The decisions to be taken by the Executive Committee pertaining to various matters will not be affected by a delay of one month. Hence, the meeting held on 24.01.2012 in the absence of President and all the Vice-Presidents is contrary to the provisions of the constitution of NMSI. The total number of members in the Executive Committee Meeting is 37. It is also admitted by the 1st respondent that 14 members were present. Out of this, 5 were Honorary Associate General Secretaries, 1 Treasurer, 1 Ex-Officio Member and 7 are Members, who are not office bearers. The Ex-Officio member is the applicant himself. Article 16 of the Constitution speaks about the Executive Committee and its function. Sub- (ii) of the said Article states that the President of the Council shall be the President of the Committee. z In his absence, any one of the Vice-Presidents present may be voted to the chair. As found earlier, admittedly neither the President nor any of the Vice-President was present, the meeting conducted by voting a third person to Chair itself is invalid. The resolutions passed in the said meeting which is truncated by the absence of majority of the members and in the absence of a valid Chairperson is binding on the society, is unsustainable.
10. The applicants tenure is going to expire on 31.05.2012. The agenda of the Executive Committee meeting dated 24.01.2012 does not contain transacting the business of re-appointing the applicant as the General Secretary for a further term; however, this has been indirectly under heading 7.51 that his term shall stand extended for a period of three years from 01.06.2012. The resolution further reads that Dr.Devasagayam, the CSI Bishop in Madras to lend the services of the applicant as General Secretary for a further term. The entire meeting has been called for surreptitiously only to extend the period of the applicant for a further term of three years. Only in order to achieve this object, the meeting was conducted under the guise of transacting urgent business of the Society. The meeting itself is a colourable exercise intended to further the tenure of the applicant. The contention of the applicant that no objection raised as required under the provisions of the Constitution to the minutes of the meeting sent by the Executive Committee to All India Council would show that the minutes of the meeting was approved by the All India Council is not sustainable since the meeting itself is not a valid meeting. Therefore, the approval of the minutes by not raising any objection by All India Council does not arise in this case. Under 19 of the Service Rules, the 1st respondent is the disciplinary authority to initiate action against the applicant and hence, the said powers cannot be bypassed by the applicant in initiating the suit. Thus, the 1st respondent prayed for vacating the order of injunction.
11. Heard the learned counsel for the parties and perused the materials available on record.
12. Though several contentions were raised on either side, to decide the issue as to whether the order of interim injunction granted by this Court could be sustained or not, the following questions have to be decided;
(1) Whether the applicant is the sole authority to call for any meeting and whether he can still continue to conduct the meeting in the absence of President or Vice President by voting a third person to Chair the meeting ?
(2) Whether the 1st respondent had authority to initiate action against the applicant for his insubordination?
13. It is the main contention of the applicant that as per the Constitution of NMSI, the Executive Committee meeting has to be ordinarily convened once in a year. The Executive Committee composes of President, 5 Vice-Presidents, Associate General Secretaries, Treasurer, one representative from each zone as per Article VII, four additional members residing in or near the headquarters so as to be taken into the Standing Committee. The General Secretary being the employee of the Society is an ex-officio member of the Executive Committee and he has authority to convene the meeting and he has to inform about the date of the meeting with the President, the 1st respondent and he shall not oblige to postpone the meeting. Per contra, it is the submission of the learned counsel for the 1st respondent that the applicant can call for the meeting of the Standing Committee, Executive Committee and All India Council and prepare the agenda only in consultation with the President of the Society. He has no authority to fix the date; on the other hand, he has prepared the agenda and when the President made a request to postpone the date, he cannot say that he is not obliged to postpone the date. Moreover, in the instant case, the meeting of the Executive Committee was convened only for the sole object to extend the tenure of the applicant for a further period of three years. But as per the service rules 7(a)(1) sub- e, two conditions have to be satisfied for extension,. Once society must require the service of incumbent on he leaning authority must consent. But in the instant case, the incumbent himself had extended the period by holding the executive committee meeting for his own tenure. Since the meeting held is not a valid meeting, the decision taken in the said meeting has no binding effect on MNSI.
14. To appreciate the submissions made by the learned counsel on either side, it would be appropriate to extract the relevant Clauses from the Constitution. Article XVI deals about the Executive Committee and its functions as under:
16(I) The Executive Committee shall be elected by the Council and shall be composed of:-
(a) President.
(b) 5 Vice Presidents
(c) Associate General Secretaries
(d) Treasurer
(e) One representative from each zone as per Article VII.
(f) Four additional members residing in or near the Headquarters so as to be taken into the Standing Committee.
(g) The General Secretary being the employee of the Committee. In his absence, any one of the Vice Presidents present may be voted to the Chair.
(II) The President of the Council shall be President of the Committee, In his absence, any one of the Vice-Presidents present may be voted to the Chair. (III) The Executive Committee shall have power to:-
a. Direct, control and supervise the affairs of the Society.
b. Appoint the General Secretary and the Treasurer and to appoint the General Secretary and the Treasurer in case of vacancies during the triennium.
c. To appoint, transfer and dismiss any worker of the Society.
d. To delegate powers to the Standing Committee and to review and ratify its actions.
e. To receive the Auditors Report and to approve the budget.
f. To fill in vacancies during the triennium.
g. To frame bye-laws.
(IV) The Executive Committee shall ordinarily meet once a year with at least three weeks notice.
(V) The quorum of the meeting shall be ten, of whom at least four shall be non-office bearers.
(VI) The Minutes of the Executive shall be circulated to all the members of the Council and if more than15 members object in writing within15 days to any action taken by the Executive, the matter shall be considered again by the Executive. The decision of the Executive with 2/3rd majority after such consideration shall be received as the assent of the Council. All such actions shall be reported at the next meeting of the Council.
15. Section XXIII deals with the functions and duties of Office Bearers and it reads as follows:
a. President:-
The President shall preside at the meeting of the Council and of the Executive and Standing Committee and shall guide and direct the general policy of the Society. b. One of the Vice Presidents residing at the Headquarters shall take the chair at the meeting of the Standing Committee in the absence of the President. He shall have the general over sight of the work at the headquarters. He will guide and direct the general policy of the Society in the absence of the President. c. The Vice-Presidents shall have the general oversight of the work of the Society in their respective areas. d. The General Secretary or in his absence one of the Associate General Secretaries shall conduct the affairs of the Society under the direction of the Executive Committee. The General Secretary shall have immediate control over the fields, missionaries and other workers of the Society. He shall call for the monthly reports of affiliated bodies and present a consolidated report of the same to the Executive Committee and the all India Council. He shall check the monthly pay-bills, travel bills and other expenses incurred by the workers of the Society and pass them on to the Treasurer for payment. He shall call for meetings of the Standing Committee, Executive Committee and the All India Council and prepare the Agenda in consultation with the President of the Society. .............
16. Article XIX reads as follows:
19. DISCIPLINARYAUTHORITY.
i) The General Secretary shall be the disciplinary authority in respect of all the employees of the Society.
ii) The appellate authority shall be the Personnel Committee.
iii) In respect of the General Secretary, the Disciplinary authority shall be the President and Appellate authority will be the Executive Committee.
17. Article XXI deals with RETIREMENT AND RESIGNATION and it reads as follows:
i) Except the General Secretary on deputation, every employee drawing salary on time scale shall retire on attaining the age of 60 years, Missiionaries Shall retire on attaining the age of 65.
ii) Any employee who wants to resign shall tender his written resignation at least one month in advance of the date from which he intends his resignation to take effect failing which he shall surrender one months salary.
iii) The Society may dispense with the services of any employee by giving one months notice or one months salary in lieu of notice together with other retirement benefits.
18. On a reading of the above, it is clear that none of the provisions in the Constitution empowers the applicant to hold the meeting and had given the authority to fix the date for Executive Committee meeting. On the other hand, a reading of section XXIII would show that the applicant shall call for the meetings of the Standing Committee, Executive Committee and the All India Council and prepare the agenda in consultation with the President of the Society. Therefore, it is clear that only with the consultation of the President, the applicant can fix the date. In the instant case, when the 1st respondent made a suggestion, seeking postponement of the meeting by one month, the same was not heard by the applicant. On the other hand, the applicant requested the 5th respondent, the Co-Convener of the Legal Matters Committee of the NMSI to convene a meeting and the 5th respondent, after consulting the Legal Matters Committee, convened the same. The evidence on record would show that the 5th respondent is the Co-Convener of the Sub Committee of NMSI, namely, Legal Matters Committee. Similarly, the 4th respondent also not a member of the Executive Committee. Therefore, I find some force in the arguments advanced by the learned counsel for the 1st respondent that the methodology adopted by the 5th respondent to convene the meeting by bypassing the 1st respondent is tainted with ulterior motive and it is total insubordination on his part. Further, XXIII of the Constitution says that the President shall preside the meeting of the Council and in his absence, one of the Vice-Presidents shall take the chair at the meeting of the Standing Committee. But in the instant case, the meeting was not chaired either by the President or by the Vice-President. Under such circumstances, as contended by the learned counsel for the 1st respondent, the meeting held by the applicant on 24.01.2012 is invalid and the resolutions passed in the meeting are not binding on the 1st respondent.
19. It is to be noted that Article XVI (I)(g) of the Constitution says that the General Secretary is an ex-officio member of the Executive Committee. Rule 19(iii) says that in respect of the General Secretary, the disciplinary authority shall be the President i.e. the 1st respondent herein and the appellate authority will be the executive authority. When that being the position, I do not find any infirmity in the impugned notice dated 28.02.2012 issued by the 1st respondent suspending the services of the applicant on the ground of insubordination. When the meeting itself is not a valid one, the question of giving assent by All India Council does not arise in this case. Therefore, the submission made by the learned counsel for the applicant in this regard does not merit acceptance. The learned counsel for the applicant relied on the judgment reported in L & T McNeil Ltd., .vs. Govt.of T.N.((2001) 3 SCC 170) in support of his contention. But on going through the same, the said decision has been delivered in Labour Law. Therefore, the same cannot be made applicable to the facts of the case on hand. Another judgment has been relied on by the applicant reported in Election Commission of India .vs. Dr.Subramaniam Swamy ((1996) 4 SCC 104 in support of his contention that the act of the majority cannot be made applicable considering the facts and circumstances of the case. Moreover, the said judgment was delivered in the matter related to the Election Commission of India and this also cannot be made applicable to the case on hand. In view of the above discussion, I do not find any merit in the submissions made by the applicant and I am of the view that the applicant has not made out any valid ground to sustain the interim injunction. Hence, the interim injunction is liable to be vacated.
For the reasons stated above, A,No.1824 of 2012 is allowed and O.A.No.184 of 2012 is dismissed and the order of interim injunction granted on 15.03.2012 is vacated.
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