Central Administrative Tribunal - Delhi
Hafiz Mohd. Nasir vs Delhi Wakf Board on 4 March, 2010
Central Administrative Tribunal Principal Bench OA No.761/2009 New Delhi, this the 4th day of March, 2010 Honble Dr. Ramesh Chandra Panda, Member (A) Hafiz Mohd. Nasir S/o Maulana Abdul Waheed, R/o 2750, Baradari, Ballimaran, Chandni Chowk, Delhi. . Applicant. (By Advocate : Sh. B. U. Barqi) Versus 1. Delhi Wakf Board Through its Chief Executive Officer, 5028, Darya Ganj, New Delhi. 2. Hafiz Mahfooz Mohd. Care Taker of Mosques & Grave Yard, Delhi Wakf Board, 5028, Darya Ganj, New Delhi. . Respondents. (By Advocate : Shri Zafar Siddiqui) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Hafiz Mohd. Nasir, the Applicant herein, is a Hafiz, who recites Quran and he has been appointed as Imam who leads prayer 5 times a day in the Mosque owned, operated and maintained by the Respondent No.1 at Punchkuian Road, New Delhi with effect from 1987. He was transferred to Katra Neel, Chandni Chowk, Delhi on 11.2.2005. However, the Respondent No.1 posted him at the promoted post as an Officer of the Library situated at Fatehpuri, Delhi, which has been under the supervision and management of Respondent No.1 The Applicant requested Respondent No.1 on 27.01.2009 to pay his entire previous dues according to enhanced pay scale as prevalent. The Respondent No.1 avoided to make the payment on one pretext or the other. It is the Applicants case that his representation aroused anger of the Respondent No.2, who by misusing his position, transferred the Applicant on 2.2.2009 from Rithala Mosque to the Mosque at Kucha Chelan, Darya Ganj. Being aggrieved by such action the Applicant is before this Tribunal with following relief (s) :-
(a) pass appropriate order and/or direction quashing the impugned order/communication dated 2.2.2009 allegedly passed by the Chairperson of the Respondent No.1 i.e. Delhi Wakf Board on the grounds and the legal provisions as explained herein above.
pass appropriate order and/or direction, directing the Respondents to pay enhanced salary to the Applicant on the present post on the grounds and the legal provisions as explained herein above.
Pass appropriate order and/or direction prohibiting the Respondents from transferring the Applicant from his present posting on the grounds and the legal provisions as explained herein above.
Pass such other, further orders/relief(s) in the facts and circumstances of the case, as this Honble Tribunal may deem fit just and equitable in favour of the Applicant.
2. Notice was issued to the Respondents on 25.03.2009. The Respondents entered appearance on 06.04.2009. A preliminary objection was raised about the jurisdiction of the Tribunal to adjudicate the issues raised in the OA. The following order was passed on that date :-
Learned Counsel for the Applicant very strongly demands interim order. Learned Counsel for the Respondents contended that the matter is not within the jurisdiction of the Tribunal. Insofar as the Applicant is concerned, he claims that he is not agreed to perform duties at Mosque Gali Ambiya, Kucha Chelan, Darya Ganj and, therefore, does not attract the provisions of the Administrative Tribunals Act, 1985.
On the contrary Shri Barqi, drew my attention to the decision of Honble Supreme Court in All India Imam Organization v. Union of India and others in Writ Petition (C) No.715 of 1990 decided on 13.5.1993 (AIR 1993 SC 2086) where full time Imams, who are engaged under Wakf Board are entitled to emoluments even in absence of provisions under Wakf Board. Therefore, such persons are under the jurisdiction of the Administrative Tribunals Act.
Heard the rival contentions. I found that the issues need to be properly replied by the Respondents. Two weeks time is granted to file written statement and one weeks time is granted for filing rejoinder thereafter.
3. The Respondents filed their short affidavit on 04.05.2009. Consequently the Applicant filed his rejoinder on 08.05.2009. In the meantime, on 20.11.2009, the counsel for the Applicant sought permission to bring on record certain documents to show that the Board was only competent to transfer him and the request was allowed. Accordingly, the Applicant filed two additional documents vide the affidavit dated 08.02.2010.
4. The case was finally heard on 02.03.2010 and with the assistance of the Counsels, I perused the pleadings as well. The Applicant restricted his relief only to quashing of his transfer order.
5. The preliminary objection raised by the counsel for the Respondents relates to jurisdiction of the Tribunal to determine the transfer case of Imams of the Delhi Wakf Board. The counsel for the Respondents submitted that Imams are not employees of the Wakf Board but they are appointed on honorary basis for doing specific religious functions and programmes in the Mosques. On the contrary, the counsel for Applicant Shri B.U. Barqi submits that the management of the Mosque from administrative angle comes within the purview of Wakf Board and the Imams may not be full time regular employees but their services have been utilized for which the Wakf Board pays them, controls them, so much so the Wakf Board has the power to transfer them from one mosque to another. Therefore, he submitted that the issues raised in the OA would be well within the jurisdiction of the Central Administrative Tribunal. In this regard, I find two components of the preliminary objection of jurisdiction raised by the Counsel for the Respondents. As regards the 1st component-whether Delhi Wakf Board is notified by the Government of India for the Tribunal to determine service related disputes. I refer to the Section 14 of the Administrative Tribunals Act, 1985, which deals with the jurisdiction, powers and authority of the Central Administrative Tribunal. As per the provisions under Section 14(2) of the Act ibid, the Central Government may by notification apply the provision of the Act to local or other authorities within the territory of India or under the control of the Govt. of India and to Corporations, Societies, owned or controlled by the Government. In the backdrop of this provision of the Act, it is noted that Government vide notification dated 01.12.2008 have notified that the service matters/disputes of Delhi Wakf Board comes within the jurisdiction and purview of this Tribunal at entry No.181. Thus, it is not in dispute that the service matters and the disputes with reference to Delhi Wakf Board can be adjudicated by this Tribunal. The 2nd component of the preliminary objection is as to whether the present dispute of transfer raised by the Applicant relating to Imams can be adjudicated by this Tribunal. In this regard, reliance was laid by the counsel for Applicant on the All India Imam Organisation case (supra) to say that Imams are engaged under Wakf Board and their service matters were looked after by the Wakf Board. Therefore, the service disputes arising and grievances of Imams can be considered by the Tribunal. In this context, it is apt for me to take the relevant extract of the judgment of the Honble Supreme Court of India in All India Imam Organisation case (supra). Honourable Supreme Court in the case between All India Imam Organisation and Others Versus Union of India and Others (AIR - 1993 - SC - 2086) dealing with issues under Wakf Act, 1954 [Sections 9; 15; 25; and 36]; Muslim Wakfs Act, 1954 [Sections 9]; and Art.21Constitution of India decided that the Board is vested not only with supervisory and administrative powers over the wakfs but even the financial power vests in it. Relief sought in the said case was to issue direction to Central and State Wakf Boards to treat the petitioners as employees of the Board and to pay them basic wages to enable them to survive, the basis of claim was glaring disparity between the nature of work and amount of remuneration and the claim was for higher pay scale for degree holders. Mosques are wakfs and are required to be registered under the Act over which the Board exercises control. Purpose of their creation is community worship. Namaz or Salat is the mandatory practice observed in every mosque. Having analysed the nature of the duties performed by the Imams, Honourable Supreme Court noted that "the mosque differs from a church or a temple in many respects. 'Ceremonies and service connected with marriages and birth are never performed in mosques. The rites that are important and integral functions of many churches such as confessions, penitences and confirmations do not exist in the mosques. Nor any offerings are made as is common in Hindu temples. 'In Muslim countries mosques are subsidised by the States, hence no collection of money from the community is permitted. The Ministry of Wakf (Endowments) appoints the servant, preachers and readers of the Koran. Mosques in non-muslim countries are subsidised by individuals. They are administered by their founder or by their special fund. A caretaker is appointed to keep the place clean. The Muazzin calls to prayer five times a day from the minaret. In our country in 1954 Wakf Act was passed by the Parliament for better administration and supervision of Wakfs."
Honourable Apex Court further observed that "the Board has no control over the mosque or Imam is not correct. Absence 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 employees. At the same time it cannot be disputed that due to change in social and economic set-up they too need sustenance. Nature of their job is such that they may be required to be present in the mosque nearly for the whole day. There may be some who may perform the duty as part of their religious observance. Still others may be ordained by the community to do so. But there are large number of such persons who have no other occupation or profession or service for their livelihood except doing duty as Imam. What should be their fate? Should they be paid any remuneration and if so how much and by whom? According to the Board they are appointed by the mutallis and, therefore, any payment by the board was out of question. Prima facie it is not correct as the letter of appointment issued in some states are from the Board. But assuming that they are appointed by the Mutawallis the Board cannot escape from its responsibility as the mutawallis too u/S. 36 of the Act are under the supervision and control of the Board. In series of decisions rendered by this Court it has been held that right to life enshrined in Article 21 means right to live with human dignity. It is too late in the day, therefore, to claim or urge that since Imams perform religious duties they are not entitled to any emoluments. Whatever may have been the ancient concept but it has undergone change and even in Muslim countries mosques are subsidised and the Imams are paid their remuneration. We are, therefore, not willing to accept the submission that in our set up or in absence of any statutory provision in the Wakf Act the imams who look after the religious activities of mosques are not entitled to any remuneration. Much was argued on behalf of Union and the Wakf Boards that their financial position was not such that they can meet the obligations of paying the Imams as they are being paid in the State of Punjab. It was also urged that the number of mosques is so large that it would entail heavy expenditure which the boards of different States would not be able to bear. We do not find any correlation between the two. Financial difficulties of the institution cannot be above fundamental right of a citizen. If the boards have been entrusted with the responsibility of supervising and administering the Wakf then it is their duty to harness resources to pay those persons who perform the most important duty namely of leading community prayer in a mosque the very purpose for which it is created."
While allowing the Writ Petition the Honourable Supreme Court issued the following directions :
"(i) The Union of India and the Central Wakf Board will prepare a scheme within a period of six months in respect of different types of mosques, some detail of which has been furnished in the counter affidavit filed by the Delhi Wakf Board.
(ii) Mosques which are under control of the Government shall not be governed by this order. But if their Imams are not paid any remuneration and they have no independent income. The Government may fix their emoluments on the basis as the Central Wakf Board may do for other mosques in pursuance of our order.
(iii) For other mosques, except those which are not registered with the Board of their respective States or which are not manned by members of Islamic faith the scheme shall provide for payment of remuneration to such Imams taking guidance from the scale of pay prevalent in the State of Punjab and Haryana.
(iv) The State Boards shall ascertain income of each mosque the number and nature of Imams required by it namely full time or part time.
(v) For the full time Punjab Wakf Board may be treated as a guideline. That shall also furnish guideline for payment to part time Imam.
(vi) In all those mosques where full time Imams are working they shall be paid the remuneration determined in pursuance of this order.
(vii) Part time and honorary Imam shall be paid such remuneration and allowance as is determined under the scheme.
(viii) The scheme shall also take into account those mosques which are small or are in the rural area or are such as mentioned in the affidavit of Pondicherry Board and have no source of income and find out ways and means to raise its income.
(ix) The exercise should be completed and the scheme be enforced within six months.
(x) Our order for payment to Imams shall come into operation from 1st Dec., 1993. In case the scheme is not prepared within the time allowed then it shall operate retrospectively from 1st December, 1993.
(xi) The scheme framed by the Central Wakf Board shall be implemented by every State Board."
6. In view of the above decision of the Honble Apex Court, it is evident that service matters of the Imams appointed even on honorarium, controlled and managed by the Delhi Wakf Board are settled by the Board. Hence such matters would come within the purview of the Tribunals powers. As such, I am taking up the issues raised in this OA for determination.
7. Shri B.U. Barqi, counsel for Applicant contended that it was a simple case of transfer of the Applicant by an incompetent authority. The Applicant has joined the post under protest to which he was transferred. He submitted that as per Wakf Board Act, 1995, the Chairman has only limited role to play, namely, he would preside over the Wakf Board meetings. The powers relating to the service matters of people working in the Wakf Board are vested with the Board. Therefore, the transfer order issued by the Chairman of the Delhi Wakf Board was not in consonance with the provisions of the Act. Further, he submitted that two other transfer orders issued earlier to the Applicant was issued as per the decision of the Board. Therefore, the impugned order issued by Chairman of the Board was not as per the provisions of the Act and, hence this should be treated as illegal transfer order which should be quashed and set-aside .
8. On the contrary, Shri Zafar Siddiqui, counsel for Respondents submits that the Applicant is not an employee of the Delhi Wakf Board. He is an Imam and, he leads prayer for 5 times in the Mosque and his transfer was ordered earlier by the Respondent No.1 to Library at Fatehpuri Delhi. He submits that Delhi Wakf Board engages the services of persons well conversant to perform religious programmes to lead 5 times prayer in any of the Mosques and such persons are Imams. They are paid honorarium in token of their rendering religious services. In the case of the Applicant, he was engaged as Imam in 1987 and is paid honorarium for his service. It is submitted by the counsel for the Respondents that the Applicant had never been posted as an officer of the Library. In Fatehpuri Library, he was directed to perform certain office work between 2.00 p.m. to 6.00 p.m. under the Library Incharge of the Masjid, Fatehpuri Library. He submitted that since the Mosque at Gali Ambia, Daryaganj did not have any Imam to lead 5 times prayer, the Applicant was transferred from the Mosque at Village Rithala. He contended that the Respondent No.1 and 2 have powers to transfer Imam from one Mosque to another Mosque and the consent of the Board was not required to transfer an Imam.
9. During hearing, the rival parties were requested to inform about any specific provisions of the Act, or Rule or instructions issued by the Wakf Board, whereby the powers of the Board had been delegated to the Chairman of the Wakf Board. To the above query the counsel for the parties responded that there had been no such delegation of powers. Nor any provision exists in the Act nor there is any Rule to that effect. In the absence of clear provision as to who was empowered to transfer Imams from one Mosque to another Mosque, it would be appropriate for me to refer the Wakf Act of 1995. The said Act does not prescribe any executive function to the Chairman. The Act ibid provides the Chief Executive Officer to exercise the powers and functions, as stipulated in the Act or as may be delegated to him by the Board of the Wakf Board. Under Section 17 of the Act, the Chairman has the power to preside over the meetings of the Board and Under Section 27, the Board by a general or special order in writing delegate to the Chairperson, any other member, the secretary or any other officer or servant of the Board or any area committee, subject to such conditions and limitations as may be specified in the said order. Respondents could not confirm about the delegation of power with respect to the transfers of Imam. I also find no such power is vested with the Chairman. On the other hand I find that the Section 25 provides duties and powers of the Chief Executive Officer, who provides the executive backup to the Board of Wakf Board to exercise powers under Section 32 of the Act. The Section 32(2)(c) empowers the Board to give directions for the administration of Wakfs and Sub Section (o) of Section 32 (2) provides that generally the Board would direct to do all such acts as may be necessary for the control, maintenance and administration of wakfs. The Act, therefore, provides authority only to the Board to take decisions in the matters of transfers of Imams. In the present case, undisputedly, the impugned order has been passed transferring the Applicant from Mosque at Village Rithala to another Mosque Kucha Chelan, Darya Ganj, Delhi and was passed by an order of Chairman of Delhi Wakf Board. The said order has not yet been confirmed or ratified by the Wakf Board. Therefore, I am of the considered opinion that the order of the Chairman dated 02.02.2009 is not as per the extant law in the subject. He is not competent to pass such an order. The Authority competent to transfer Imam from one Mosque to another vests with the Board. It is not in dispute that 2 previous transfers relating to the Applicant was ordered by the Board. Without even an order issued by the Board or confirmed by the Board any order issued by other Authorities subordinate to the Board would not, therefore, be valid in the eyes of law.
10. Resultantly, the Original Application has merits with regard to the incompetent Authority having passed the transfer order and I, therefore, quash and set aside the impugned order dated 02.02.2009 with a direction to the Respondents to restore the Applicant back to his original place of posting from which he was transferred, within a period of one week from the date of receipt of this order.
11. In terms of the above directions only, the Original Application is allowed. No costs.
( Dr. Ramesh Chandra Panda ) Member (A) /rk/