Madras High Court
Mazdoor Welfare Trust vs The Southern Railway Mazdoor Union on 14 December, 2009
Bench: Prabha Sridevan, M.Sathyanarayanan
In the High Court of Judicature at Madras
Dated:- 14-12-2009
Coram:
The Honourable Mrs.Justice PRABHA SRIDEVAN
and
The Honourable Mr.Justice M.SATHYANARAYANAN
Original Side Appeal Nos.132 to 137, 153 to 155, 157 to 159, 167 to 172 of 2005
1 Mazdoor Welfare Trust, rep. by its
Managing Trustee N.V.Devi,
11-A/27 Aamelumangapuram,
2nd Street, Chennai - 600 004.
2 N.V.Devi, Managing Trustee,
Mazdoor Welfare Trust,
11-A/27 Aamelumangapuram,
2nd Street, Chennai - 600 004. ... Appellants
Vs
1. The Southern Railway Mazdoor Union
Rep. by its General Secretary N.Kanniah,
191-B, Railway Colony, Egmore, Chennai-600 008.
2. A.Rajah Sridhar,
No.35, Malleeswarar Koil Street,
Mylapore, Chennai-600 004.
3. P.Kumaersan,
116-B, Railway Colony,
Egmore, Chennai-600 008.
4. G.Vadivelu, Trustee,
Mazdoor Welfare Trust,
11-A/27 Aamelumangapuram,
2nd Street, Chennai - 600 004.
5. N.V.Usha, Trustee,
Mazdoor Welfare Trustm 227, Garudhwani,
Cochin House Road, Hemambika Nagar,
Palghat, Kerala State.
6. S.Tamilarasan, Trustee,
Mazdoor Welfare Trust,
No.2, Xavier Street, Thanjavur.
7. Anjalai Ammal Mahalingam Engineering
College, rep. by its Correspondent,
Kovilveni, Thiruvarur District, Tamil Nadu. ... Respondents
Original Side Appeals filed under Order XXXVI Rule 11 of Original Side Rules read with Clause 15 of the Letters Patent against the common order of the learned Judge dated 29.4.2005, made in O.A.Nos.29/2005, 83/2005, 153 to 155/2004 and A.Nos.206/2005, 211/2005 and 425/2005 in C.S.No.160 of 2004.
Mr.ARL.Sundaresan, Sr.Counsel .. For Appellants in OSA.132/2005 for M/s. AL.Gandhimathi to 137/2005.
Mr.M.V.Venkataseshan .. For Appellants in OSA.153/2005 to 155/2005.
Mr.Prabhakaran for
Mr.A.Muralikrishna-Anandan .. For Appellants in OSA.167/2005 to 172/2005.
Mr.R.Krishnamurthy, S.C.
and Mr.R.Muthukumarsamy,S.C.
for Mr.A.Jenasenan .. For Respondents 1 to 3.
Mrs. Chitra Sampath .. For 7th Respondent.
*****
COMMON JUDGMENT
(Judgment of the Court was made by PRABHA SRIDEVAN, J) All these appeals are heard together and common judgment was delivered since the subject matter of all the appeals relate to the same Trust viz., Mazdoor Welfare Trust, which was founded for a lofty ideals by one Mr.M.Namasivayam who was the Founder-Trustee.
2. The objects inter alia are not only to establish educational institutions but to help the poor, give medical relief to the poor and also to administer clinics or hospitals. It is clear from the Trust Deed that the Founder's main intention was to help the Railway Mazdoors. There were several amendments to the Trust Deed, which we are not concerned with. On 1.6.1995, the Mazdoor Welfare Trust started 7th Respondent College (in short AAMEC) at Koilvenni, Thiruvarur District. The two Trustees who were on the Trust Board initially viz., Govindarajan and Srinivasan resigned in 1996 and 1998 respectively. The Trust Deed provided that the Founder Trustee will be the Trustee for life, whereas the other trustees will have two year period of trusteeship. Thereafter the family members of the Founder Trustee viz., G.Vadivelu/son-in-law of the Founder Trustee, N.V.Devi and N.V.Usha daughters of the Founder Trustee were nominated.
3. On 22.6.1998, at the Annual General Body Meeting of the 1st Respondent Southern Railway Mazdoor Union (SRMU), it was resolved that the Mazdoor Welfare Trust is a separate Legal Entity and SRMU has no control over the same. It was reiterated by the members of the Union that it was the members of the Union who had contributed to the Trust. The Founder was also the former Chairman of the Union.
4. On 17.11.1998, at the meeting of the Board of Trustees it was resolved that the Trust would function from the premises of AAMEC. On 27.12.1998, the Founder resigned as Chairman and appointed his daughter Mrs.N.V.Devi as Chairman of the College. On 1.3.1999 he resigned as Managing Trustee and appointed his daughter Mrs.N.V.Devi as Managing Trustee on 5.11.2000.
5. In February 2001, the Founder went to Haridhwar and never returned home. A letter dated 17.2.2001 alleged to have been written by the Founder has been produced in which, the family members were directed to have cordial relationship with the President and General Secretary of the SRMU (Respondents 2 and 3) and in turn they should render all assistance to the College on the request of the Correspondent. The letter also indicated the Founder had an intuition about the trouble that would ensue after he left the scene and he seem to have expressed his wish that if there is dispute amongst his daughters and if it was not resolved, the Trust should hand over the College to the Ramakrishna Mutt, Mylapore, Chennai.
6. On 1.9.2003, the SRMU issued a notice to the Managing Trustee for the proposed induction of three members from the SRMU in the Board of Trustees of the Mazdoor Welfare Trust in the ratio 3:2 or to amend the Trust Deed so that 5 members of the SRMU could be in the Board of Trustees. A reply was sent stating therein that the Trust Deed did not provide for induction of members of the SRMU as trustees along with the present trustees and that the SRMU had acknowledged that the Trust is an independent entity and that the SRMU is neither the trustee nor the beneficiary of the Trust and has no locus standi to dictate such terms. Thereupon, the present suit in C.S.No.160 of 2004 was filed by the Respondents for the relief of removing the appellant and other Trustees and for framing a scheme. They also sought for a permanent injunction restraining the Managing Trustee from interfering with the administration of the Trust.
7. O.A.No.29/2005 was filed by the Trustee Mrs.N.V.Usha, for an injunction to restrain the SRMU and its General Secretary and President from illegally removing or in any way acting detrimental to the interest of the applicant/4th defendant as the qualified Trustee of the first defendant Trust. Application No.206 of 2005 was filed by the 4th defendant for a direction to the defendants 2 and 3 to return to the applicant/4th defendant the blank papers containing signature extracted from the 4th defendant on 1.5.2004 during the Trust Board Meeting on false representation. Then O.A.Nos.83/2005, 153 to 155/2004 and 425/2005 were filed by the plaintiffs. Application No.211 of 2005 was filed by a third party for impleading himself. All these, Application No.425 of 2005 is most important since it seeks for the appointment of an Administrator to administer the affairs of the 6th Respondent College.
8. By the impugned order dated 29.4.2005, the learned single Judge had appointed Mr.Justice A.Ramamurthy, Retired Judge of the Madras High Court to administer the trust. The second and third Respondents viz., the President and General Secretary of the SRMU shall be co-opted as trustees along with the three daughters of the Founder. The Hon'ble Administrator was at liberty to nominate a person of his choice to look into the day-to-day administration of the College and the emoluments payable etc., was also specified.
9. Now, in the appeal, several objections have been raised. The main ground of objection is that when the suit is for drafting of a scheme filed by the plaintiffs for co-opting them as Trustees, the the learned single Judge ought not to have inducted two members of the Plaintiff Union as Trustees and removed two existing Trustees by the interim order without deciding the merits of the suit, and that this would amount to granting the relief of mandatory injunction permanently even before trial.
10. The wife of the Founder Trustee viz., Mrs.Suseela (Appellant in O.S.A.No.167 of 2005) had come in the place of the son-in-law, who had been removed from the Board of Trustees. It was submitted that though she stands on the same footing as her daughters and there are no specific allegations of misfeasance or malfeasance against her she has been removed without being heard. When the SRMU by its resolution dated 22.6.1998 admitted that the Trust is a separate Legal Entity, there was no reason for the learned Judge to come to the conclusion that the office bearers of the Union should be co-opted as Trustees, there was no prima facie material for the same. It was also submitted that some of the expenditures incurred after the Administrator took charge of the Trust are excessive, e.g. the expenditure of further 10.00 lakhs for the Balamurugan Blood Donation Movement. It was also submitted by the learned counsel for the appellant in O.S.A.No.167 of 2005 that she had mistakenly filed an SLP, but it was dismissed inlimine. He relied on AIR 2000 SC 2587- Kunhayammed v. State of Kerala to justify that even if SLP is dismissed in limine, this appeal was maintainable as there was no merger.
11. On the side of the Respondents it was submitted that though the SRMU had declared that the Trust had an existence of its own, the objects of the Trust and the Trust itself was for the welfare of the Railway Mazdoors and in that sense one cannot be separated from the other. It was also submitted that in the Trust Deed apart from the Founder Trustee who himself was General Secretary of the Union the other two original Trustees viz., Govindarajan and Srinivasan were also Railway Mazdoors. Therefore, even at the time of formation of the Trust, the intention of the Founder Trustee to involve the Union Members was clear.
12. As regards the alleged excessive expenditure for the Blood Donation Movement, it was submitted that the only son of the Founder Managing Trustee Thiru.Balamurugan died in tragic circumstances in 1997 and the said incident was a rude shock to the Founder Trustee and consequently, he kept himself away from all public activities and virtually, in 1998, he resigned from the office of the Chairman of the College and in the year 2000 he resigned from the office of the Managing Trustee of the Trust. In February 2001, he went to Haridhwar and did not return. In order to honour the memory of his son, he had started the Balamurugan Blood Donation Movement. Letters were produced by the learned senior counsel appearing for the Respondents, which were alleged to have been written by the Founder Trustee where he has item wise listed the expenditure and had indicated that a minimum of 15.00 Lakhs per year would be required for continuing the Blood Donation Movement. The learned senior counsel also submitted that this movement fully sponsors a ward in Children Hospital Egmore Chennai, and the child patients who may be suffering from terminal diseases or where blood transplantation is required due to kidney failure had the benefit of such benevolence. It appears that ever since the movement started, the supporters of the movement who are mainly the members of SRMU including the General Secretary and President of the SRM Union have been able to get nearly 10 volunteers per day, every year. The learned senior counsel submitted that apart from that, there are two permanent staff attached to the Blood Donation Movement for the Blood Donation Movement. It does not have any capital of its own and depends entirely on support. According to them, the office bearers of the Union have given their total support to the movement and thereby the children of the Egmore Children Hospital are benefited.
13. The learned senior counsel also read out the reports filed from time to time by the learned Administrator which would indicate the total non-co-operation on the part of one of the Trustees. They also produced materials to show that a criminal case has been filed against Mrs.N.V.Devi-2nd defendant, who is first Accused in that case. It appears that it is only after getting directions from this Court, the office room was vacated by this trustee so that the Administrator can discharge his duty. However, the learned senior counsel also submitted on behalf of the Respondents 1 and 2 that without prejudice to their rights in the suit, they were willing to extend their fullest co-operation for better administration of the trust and the College even if the present appeals were allowed.
14. We have considered the rival submissions of the learned counsel. Where Trusts are concerned, Court does not look at the matter as if it is between two adversaries. Court is the guardian with regard to the interests of minor and trusts. It is our bounden duty to give such direction as will secure the interests of the trust. It is not necessary for us to accept all the objections.
15. The main prayer in the suit is for inclusion of the plaintiffs in the Board of Trustees . In 2004(4) CTC 712- Metro Marins and another vs. Bonus Watch Co. Pvt., Ltd. And others, the Supreme Court had held that an interim mandatory injunction directing the licensee to deliver possession of the suit property would tantamount to decreeing the suit itself and that only in extreme cases such relief can be granted. In this case, we do feel that without the evidence both oral and documentary, it was not necessary to co-opt the President and General Secretary of SRMU as trustees. However, they shall render the fullest co-operation and assistance to the Administrator for the better administration of the trust in the event of the Administrator requires their assistance. We do note the objects of the Trust, and the fact that in the original Trust deed, 2 members of the Union were trustees along with the Founder. But they may have a good case on merits, but for the purpose of safeguarding the Trust their co-operation with the Administration will be sufficient, their co-operation may not be justified. The objections of the wife of the Founder Trustee that without even being made her as a party and without hearing her, she had been removed. We hold that she does not stand on a different footing from the three daughters and she also acted as a trustee prior to this order and she shall continue to do so.
16. As regards the family members of the Founder Trustee who are on the Board of Trustees viz., wife and the three daughters, they shall render full co-operation to the trust and the Administrator and at this juncture, we have to express our strong disapproval of the conduct of the second defendant-Mrs.N.V.Devi, as she has refused to hand over the documents, she has not attended the meetings and she has made discharge of duty by the Administrator as difficulty as possible. We have indicated to the learned senior counsel who has appeared for this defendant that if the Administrator indicates any difficulty because her conduct, she will be removed from the Board of Trustees and from the post of Trustee pending disposal of the suit. She will not have any say in the matter unless she takes a co-operative attitude. The former Judge of this Court deserves all respect and he has been requested by this Court to take charge of the College as an Administrator and if the parties do not understand that the learned Judge deserves respect then we will have no hesitation to remove such a person from the Board of Trusteeship.
17. As regards the decisions to be taken for the administration of Trust including the conduct of any litigation it is only the Administrator's decision which is final. The Trustees have no majority voice to over rule the Administrator's decision. They can only express their views to the Administrator who will then decide whether they deserve any consideration. All official transactions including signing of cheques can only be done by the Administrator.
18. In the result apart from the directions made above, all these appeals are disposed of on the following lines:-
The orders under challenge are modified as follows:-
(i) The co-option of Mr.Kannaiah and Mr.Raja Sridhar as Trustees, is set aside. The wife of Thiru.Namasivayam viz., Mrs.Susila and the three daughters of the Founder Trustee Namasivayam viz., Ms.N.V.Devi, N.V.Usha and N.V.Rani shall be on the Board of Trustees of the Mazdoor pending decision in the scheme suit. The scheme will decide who shall be the Trustees.
(ii) In all other respects, the directions given by the learned single Judge are confirmed. In addition, Mr.Kannaiah and Mr.Raja Sridhar shall render assistance to the Administrator and the Administrator may also take the assistance and also consult the family members/Trustees as indicated in para (i).
(iii) The Administrator's decision is final and the alleged views of the majority of the Board of Trusteeship is of no avail if the Administrator's decision overrules them.
(iv) The Administrator alone shall decide and take decisions regarding conduct and affairs of the College and also any litigation filed by or against the College.
(v) All official transactions and admission pertaining to the College, shall be decided by the Administrator. If the Administrator finds any difficulty it is open to him to move the Court, and so also, other parties.
(vi) The second defendant viz., Ms.N.V.Devi, shall strictly abide by the instructions given by this Court, failing which, she will be removed from the Board of Trusteeship and from the post of Trustee.
(vii)The Registry is directed to list the suit for final disposal in June 2010.
The observations made herein are only to ensure the smooth conduct of the Trust pending the suit; they are not intended to be findings against any of the parties.
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