SAURASHTRAGANDHIJI GRAMODHAR TRUST Vs. DAMYANTIBEN JADHAVJIBHAI MODI

JUDGEMENT

(1.) ON 18th January 2011, after hearing the learned advocate for the petitioners the Court passed the following order:

(2.) THE Court is of the opinion that making any observation against an officer like the learned Joint Charity Commissioner, it will be adversely affecting the image of the institution in the eye of public. THE Court deemed it proper to give this opportunity to the learned Joint Charity Commissioner to enable him to offer an explanation/ comments on the subject matter of the observations made by this Court, in its order dated 18th January 2011. Perusal of the judgement and order, which is under challenge before this Court shows that there is, 'sheer non application of mind' on the part of the learned Joint Charity Commissioner. Besides, the Court is also of the opinion that but for the extraneous consideration the learned Joint Charity Commissioner would not have passed such order. Besides, once High Court draws his attention to such glaring mistakes he would have accepted the same and would have submitted that, 'the order may be quashed' and the matter be remanded asking him to decide the same afresh. Instead of that he is trying to defend undefendable order. THE observations made by the learned Joint Charity Commissioner about the learned advocate, in his judgment and order are very specific, which are reiterated - Intentionally, learned advocate Mr.Kothari for opponent has not produced the copy of the Trust Deed by which, the Trust was formed. .. .. It is recorded in the earlier order of this Court that Exh.12 was produced before the Joint Charity Commissioner and along with that at Item No.43, a copy of the trust deed dated 11th May 1948 was produced. THEreafter, an application, exh.15 was filed on 16th February 2010, wherein it was stated that, 'the institution in question is established under the trust deed and under section 2(7A) the trust deed is an instrument of trust and therefore, implementation of the provisions of the trust deed are necessary'. It is further stated in that application, exh.15 that, 'in light of the clear provisions in the trust deed, internal disputes among the trustees are required to be resolved by an arbitrator and therefore, the forum (the learned Joint Charity Commissioner) will have no jurisdiction'. THEreafter, it is stated in that application that, 'as decided by Sindh High Court, Where reliefs sought do not fall within the purview of the S.92 (here in this case S.50 of the BPT Act, 1950) the subject matter of the suit can validly referred to the arbitration Gurumukh Singh Vs. Lalu Singh, A.I.R. 1947 Sind 74 Lastly, it was prayed in that application Exh.15 that, ' in the aforesaid circumstances the applicant (before the learned Joint Charity Commissioner) be directed to seek relief through an arbitration/ arbitrator, and the proceeding be closed. Today, an affidavit is filed by Shri A.M. Upadhyaya, learned Joint Charity Commissioner, Rajkot. Learned advocate Mr.Upadhyaya for the learned Joint Charity Commissioner invited attention of the Court to the contents of para 3 of that affidavit. In the affidavit a very calculated attempt is made by the learned Joint Charity Commissioner to misdirect this Court. THE contents of para 3 are relevant for the purpose, which are as under: .. .. In the context to the aforesaid it is quintessential to go through the complete contents of paragraph no.5 at page 106. .. .. This sentence is suggestive of the fact that, 'this Court has passed an order without going through the complete contents of para 5'. This in itself is contemptuous. Para 3 of the above affidavit further reads that, .. .. It is to be noted that the pleadings were completed and the main application, exh.1 was kept for hearing and for orders on 16.2.2010. Subsequent thereto the advocate for the applicant filed an application on the same day i.e. exhibit-15, more particularly when the matter was finally heard and concluded and kept for orders, at that stage the said application raising a preliminary issue to the effect that the matter under the provisions of section 50 should be referred to Arbitration and the same relied on the trust deed as well as a judgement reported at AIR 1947 Sind p.74. It is submitted that since the matter was heard finally and was kept for orders the learned Joint Charity Commissioner tagged the said application along with the hearing of Exh.1 and therefore, while passing the impugned order which is the final order, had to deal with the said application Exh.15. While dealing with the said application exh.15, which is contemplated at paragraph 5 in the impugned order at page 106, the Joint Charity Commissioner has stated the reasons as to why the said application Exh.15 was tagged with the final order and application and that is the reason why it has been mentioned that the copy of the trust deed has not been produced. (emphasis supplied) This Court, despite its best efforts is not able to understand the explanation tendered by the learned Joint Charity Commissioner. Giving him benefit of doubt that he might have failed to frame the explanation in appropriate language it being in 'English'. THE Court gave an opportunity to the learned advocate appearing for him, to explain the same in vernacular, Gujarati. Learned advocate Mr.Upadhyaya submitted that what is mentioned in para 3 is the only explanation the learned Joint Charity Commissioner has to tender. It was inquired from the learned advocate in presence of the officer, who is present in the Court as to when, that is along with which exhibit copy of the trust deed is produced before the learned Joint Charity Commissioner, the learned Joint Charity Commissioner and the learned advocate appearing for him admitted that the trust deed was produced before the learned Joint Charity Commissioner by list at exh.12. It was then inquired as to whether exh.12 precedes exh.15, the learned advocate on instructions from the learned Joint Charity Commissioner submitted that, 'yes', exh.12 precedes exh.15. It was then inquired that when the entire matter was heard, as stated by the learned Joint Charity Commissioner in the affidavit, did he notice that the trust deed was produced along with exh.12. THE officer has nothing to submit. He was then asked as to what is the relevance of this exh.15 with the statement made in the order impugned to the effect that, 'the trust deed is intentionally not produced'. THE learned advocate for the learned Joint Charity Commissioner, who is present in the Court has no explanation whatsoever. In the aforesaid facts the only inference which can be drawn is that this statement is made by the learned Joint Charity Commissioner 'for extraneous reasons only'. This discloses his dishonesty in the matter of discharge of his judicial duties.

(3.) THIS Court deems it proper to put on record that, 'the officer was full of arrogance, showing no respect to the Court, showing no repentance for his conduct about which the Court was required to make the observations in its earlier order and also on reading this affidavit. THIS is for the consumption of the appointing/ disciplinary authority of this officer. The officer of this rank, who is dealing with the public in discharge of his duty everyday is conveying an impression about 'the judicial system' in the State. Therefore, this Court is of the opinion that such an officer is not fit to be continued in office. THIS Court deems it necessary to direct the Registry to send a copy of the (i) impugned order, a copy of (ii) Exhibit 12, which is the list of documents produced with that, a copy of (iii) document at serial no.43 (trust deed dated 11th May 1948), a copy of (iv) the order of this Court dated 18th January 2011, (v) this order, to the disciplinary authority/ appointing authority of the officer for taking appropriate note of the same and to initiate departmental proceedings, if deemed fit. It is expected that the disciplinary authority will consider whether such an officer is required to be continued in office or is required to be kept out of office by passing an appropriate order of suspending him with immediate effect, so that he does not damage the image of the judiciary, any further.