The Honourable Mr.Justice S.VAIDYANATHAN and The Honourable Mr.Justice N.ANAND VENKATESH1.Tirunelveli Diocese orderAll the Writ Appeals and Writ Petitions are disposed
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on
09.02.2020 Delivered on
25.02.2020
CORAM
The Honourable Mr.Justice S.VAIDYANATHAN
and
The Honourable Mr.Justice N.ANAND VENKATESH
Writ Appeal (MD).Nos.878,1073,1160 to 1189, 879 & 927 of 2019 & W.P.(MD).Nos.21201,21206,21209,21217,21219,22071,25432 & 25451 of 2019
and
CMP(MD).Nos.10177,10180,7761,7763 & 8323 of 2019 & WMP(MD).Nos.17840,17841,17847,17848,17856,17857,17865,17866, 17867,17870,17871,17873,18839,18841,18842,20155,20158,21993, 21994,21996 & 22104 of 2019
WA(MD).No.878 of 2019
1.Tirunelveli Diocese Trust Association,
Old No.18, New No.19,
North-High Ground Road,
Palayamkottai,
Tirunelveli-627002.
2.D.Vedhanayagam
3.R.Devadoss Gnanaraj … Appellants
in W.A(MD)No.878 of 2019
.v.
1.R.Jayakumar Thomas Jayaraj @
R.Jeyakumar Jayaraj,
Son of G.J.Rathinasamy,
Finance Administrator (SI),
Tirunelveli Diocese,
Thiruvelveli.
2.The Deputy Inspector General of Police,
St.Thomas Road, Maharaja Nagar,
Tirunelveli 627011.
3.The Commissioner of Police,
Tirunelveli City,
Tirunelveli.
4.The Superintendent of Police,
South-High Ground Road,
Pallayankottai,
Tirunelveli District 627002.
5.The Registrar,
Manonmaniam Sundaranar University,
Tirunelveli-627012.
6.The Director,
Directorate of Collegiate Education,
Ninth Floor,
E.V.K.Sampath Buildings,
College Road,
Nungambakkam,
Chennai-600 006.
7.The Director,
Directorate of Collegiate Education,
College Road,
Nungambakkam,
Chennai-600 006.
8.The Chief Educational Officer,
Tirunelveli District,
Tirunelveli.
9.The Branch Manager,
Tamil Nadu Mercantile Banak,
St.John’s College Campus,
Tirunelveli.
10.The Branch Manager,
Indian Overseas Bank,
Palayamkottai-627002.
11.The Branch Manager,
Indian Bank,
Palayamkottai-627002.
12.The Chief Manager,
Canara Bank,
Palayamkottai 627002.
13.The Chief Manager,
State Bank of India,
No.41C,
Trivandrum Road,
Palayamkottai-627002.
14.The Branch Manager,
HDFC Bank,
IOB/1H/2,
Trivandrum Road,
Vannarpettai,
Tirunelveli.
15.The Bishop,
Tirunelveli Diocese,
176b, Trivandrum Road,
Tirunelveli. ..Respondents
in W.A(MD)No.878 of 2019
Writ Appeals filed under Clause 15 of the Letters Patent Appeal against the order dated 05.08.2019 made in WP(MD).No.878 of 2019.
For Appellants : Mr.Karthik Sheshadri &
Mr.S.Parthasarathy, Sr.Counsel
for Mr. J.Barathan
[In WA(MD).Nos.878 & 879/2019]
: Mr.V.Prabhakar
for Mr.J.Barathan
[In W.A(MD).No.927/2019]
: Mr.T.V.Ramanujam, Sr.Counsel
for R.Bharanidharan
[In W.A.No.1073/2019]
: Mr.D.Andrews Samraj
for J.Barathan
[In W.A(MD).Nos.1160 to 1189/2019]
For Respondents : Mr.Thanka Sivan
Mr.Ravindran Charles
K.Samuel Baskaran
M.Sundar
[for R 3 & R 4 in W.A.No.878/2019
for R 15 in W.A.No.879/2019]
Mr.Prabhurajadurai
[for R 1 in W.A.No.879/2019]
Mrs.V.Annalakshmi Government Advocate
[for R 7 & 8 in W.A(MD).No.878/2019]
For Petitioners : Mr.S.Chellapandian [In W.P.(MD).Nos.21217,21219, 25432 & 25451/2019] Mr.S.Chellapandian for M/s.J.Anandkumar [In W.P(MD).Nos.22071/2019] Mr.T.R.Jeyapalam Mr.J.Barathan [In W.P.(MD).No.21201,21206& 21209/2019]
COMMON JUDGMENT
S.VAIDYANATHAN, J.
AND
N.ANAND VENKATESH, J.
All these intra court appeals arise out of the judgment of the learned Single Judge passed in a batch of Writ Petitions, dated 05.08.2019. The Writ Petitions have been filed challenging the orders passed as a result/consequence of the judgment of the learned Single Judge.
2. The Brief Facts of the Case are as follows:
There are hundreds of Churches spread all over the District of Tirunelveli governed by the Diocese of Tirunelveli. The Churches all over the District of Tirunelveli are divided into 140 Pastorates, with each pastorate containing certain number of Churches situated within the respective pastorate area.
3. Further 140 pastorates are divided as six Church Councils and each Church Council contains a certain number of pastorates within its territorial jurisdiction.
4.The election is conducted in four phases covered by Chapter II to V of the Constitution of Diocese, which are as follows:
i. Election to the Pastorate Committees and the Diocesan Council (Diocesan Council members will be elected).
ii. Election for the Constitution of Pastorate Committees (and to the members of the Church Councils).
iii. Election for the Executive Committee of the Diocese and for the Constitution of Church Councils.
iv. Election for selection of office bearers of the Diocesan Council and the Executive Committee viz., Law Secretary Vice Chairman & Clerical Secretary for the Diocese.
5.The term of office bearers of Tirunelveli Diocese was originally four years (maximum). Now due to the amendments of the year 2015, in the CSI Synod Constitution, the term of office bearers in all constituent Diocese has become three years with effect from 2015. The Rules for election are contained in Chapter X of the Constitution of Diocese of Tirunelveli.
6. First Phase-Pastorate level election
There are 125 pastorates within the Tirunelveli Diocese and from these, 6 pastorate Committee members and one or more Diocesan Council members shall be elected from each pastorate. The number of Diocesan Council members depends upon the strength of communicants available in each pastorate. For 500 communicants, there shall be one Diocesan Council member subject to a maximum of four within a pastorate. The procedure for the 1st phase of the election is stipulated in Chapter II of the Constitution of Diocese.
7. Second Phase:
This is called election for the Church Council. There are totally six Church Councils in the Diocese. The posts of Secretary and Treasurer for every pastorate Committee and members for Church Council will be elected. Retired Pastors available within the pastorates, correspondents of schools within the pastorate, representatives of teachers (diocesan workers) within the pastorate, (Church Council representatives) will also constitute Church Council members. The procedure for the 2nd phase of the election is stipulated in Chapter III of the Constitution of Diocese.
8.Third Phase:
This election is for the Executive Committee. Members of Diocese Church Council members, Pastors, Correspondents, retired pastors, nominees of Bishop, teachers representatives, secretary of pastorates, treasurers of pastorates and Church Council members shall jointly elect the executive members of the Diocese. The procedure for the 3rd phase of the election is stipulated in Chapter IV of the Constitution of Diocese.
9. Fourth Phase (Final Phase) :
Diocese Council members elected in the first phase, all presbyters (Pastors) as ex-officio members, nominees of Bishop, Diocesan workers' representatives, two congregation representatives for Diocesan Council from every Church Council, (one shall be female and the other shall be of less than 35 years of age), shall elect the Diocesan office bearers viz. Lay Secretary, Vice Chairman, Clerical Secretary. The procedure for the 4th phase of the election is stipulated in Chapter V of the Constitution of Diocese.
10.The Tirunelveli Diocese was established in the year 1895 and it owned certain properties and Educational Institutions. It was an unregistered religious body. In the year 1919, the Tirunelveli Diocesan Trust Association [hereinafter referred to as "TDTA"] was formed and incorporated under the Companies Act. This Company administers the properties, funds, educational, charitable and health care Institutions. This TDTA is governed by the Memorandum of Association and Articles of Association and it is a Company under Section 8 of The Companies Act, 2013. The main object of TDTA is to aid and further the work of the Church of South India in the Diocese of Tirunelveli.
11.The Church of South India [hereinafter referred to as "CSI"] was constituted by the Union in 1947 and it became a part of the Union. This CSI is also an unregistered religious body. As per the Constitution of CSI, the Synod is the highest representative body and supreme governing body and final authority in the matters pertaining to the Church. It has also been given the powers to take executive action as may be necessary from time to time for the General Management and governance of the Church and of the property and affairs thereof. In a given situation, the Executive/Working Committee of the Synod, if they are convinced that the administration and financial management in a particular Diocese needs the assistance of the Synod, appropriate action can be taken in consultation with the Executive Committee of the Diocese concerned in order to restore sound administration and financial management. Rule 15(c) of the Constitution of CSI gives the power to the Synod or the Synod Executive which can take the extreme step of taking over the administration of the internal affairs of the Diocese, if it is satisfied that the Diocesan Council is unable or unwilling to perform its functions as laid down in the CSI Constitution or in the Constitution of the Diocese. It is therefore, clear that in terms of hierarchy, the Synod has been given the ultimate rights to even takeover the administration and management of the Diocese.
12.As per the Articles of Association of the TDTA, Article V clearly stipulates that the members of the Association shall be the members of the Executive Committee of the Tirunelveli Diocesan Council on signifying their stand to become members. The Bishop and the Treasurer of the Tirunelveli Diocesan Council shall be ex-officio members of the Association. There are 8 members in the Committee of Management including the ex-officio members [6 elected from among the members of Executive Committee and 2 ex-officio members].
13.An election Notification was issued in the year 2011, for conducting election for the Tirunelveli Diocese for a term of 4 years from 2011-2015. A few members of the Church filed a suit in O.S.No.128 of 2011, before the Additional Sub Court, Tirunelveli, challenging the election schedule and for conducting the election under the supervision of the Court. A Commissioner was appointed to conduct the elections. Disputes started arising from the 3rd phase of the election and it went up to the 4th phase. The same became a subject matter of challenge in I.A.No.205 of 2011. The Additional Sub Court, Tirunelveli, by an order dated 10.02.2017, had set aside the elections for three Councils in the 3rd and 4th phase. This order became a subject matter of challenge before this Court in CRP (MD).Nos.408 & 816 of 2017. This Court after considering the entire facts and circumstances of the case, confirmed the order of the Additional Sub Court, Tirunelveli and directed the Commissioner to conduct the 3rd phase of election for three Councils and to proceed to conduct the election for the 4th phase and file his report. This Court also made it clear that the term of the elected office bearers shall commence from the date of the first meeting for a period of four years. This order was further confirmed by the Hon'ble Supreme Court.
14.The 4th phase of the election was concluded on 23.04.2017 and on the same day, the results were also declared. This Court recorded the completion of the elections and directed the aggrieved parties to approach the trial Court, if they had any grievance on the election that was conducted and closed the Civil Revision Petition by an order dated 28.04.2017. The main suit itself came to be closed as infructuous on 30.11.2017. This was again challenged before this Court in CRP(MD).No.970/2018, and the same was dismissed by an order dated 21.08.2018. It is informed that a Special Leave Petition was filed against this order and the same is pending before the Hon'ble Supreme Court.
15.As per the Constitution of the Diocese of Tirunelveli, Chapter X, Rule 17(b) provides for the procedure to elect a Treasurer. The Bishop has been given the power to constitute a Church Committee, which will propose a name before the Diocesan Council for the post of Treasurer and the Diocesan Council will then elect the Diocesan Treasurer by an affirmative vote. If the person nominated does not get affirmative votes, then, the Church Committee should bring another name for affirmative vote.
16.After the election for the 4th phase was declared, the Diocesan Council took charge. There was a melee which resulted in FIRs being registered both from the side of the Council members and from the side of the Bishop. The Treasurer, who was nominated by the Bishop failed to get the affirmative vote and therefore, his nomination was rejected by the Council. The Executive Committee proceeded to appoint a Treasurer on 15.05.2017. This became a trigger for the Bishop to write a letter dated 15.05.2017, to the CSI Synod to the effect that there is a breakdown of the Constitution of Tirunelveli Diocese and there is chaos prevailing in the Management of all the Educational Institutions and therefore, the Bishop through this letter requested the CSI Synod to intervene and takeover the administration of the Diocese of Tirunelveli. Pursuant to this letter, an emergent meeting was convened by the Executive Committee of the CSI Synod and on 30.5.2017, the Synod decided that there were many untoward incidents that took place resulting in Police Complaints and that the Bishop and the Diocesan Councils are at loggerheads resulting in a breakdown of the constitutional machinery in the Diocese and the term of the Diocesan Council is to expire in June 2017 and therefore, in exercise of its powers under Rule 15(c), the Synod decided to takeover the administration of the Tirunelveli Diocese. By a letter dated 31.05.2017, the Bishop was informed that the Committees, Councils and other Bodies in the Diocese of Tirunelveli, shall stand dissolved and an Administrative Committee of the Synod was appointed consisting of 16 members.
17.In the meantime, TDTA conducted an Extraordinary General Body Meeting attended by 34 members and 6 Directors were unanimously appointed. The Diocesan Council also proceeded to appoint a Treasurer for the Tirunelveli District. On 11.11.2017, the person who was appointed as the Treasurer viz; R.Devadoss Gnanaraj, was also brought in as the ex-officio member of the Association as per Article 4 of the Articles of Association of TDTA.
18.W.P.No.17952 of 2017, was filed by one P.Pushparaj, who claimed himself to be the elected Member of the Executive Committee of the Tirunelveli Diocese and consequently, the member of the TDTA, for the relief of Certiorarified Mandamus to delete the name of R.Devadoss Gnanaraj from the records relating to the Company Master Data and to direct him not to claim or act as the Treasurer of the TDTA.
19.W.P.No.21134 of 2017, came to be filed by one R.Jeyakumar Thomas Jeyaraj, who claimed to be the Financial Administrator of the Tirunelveli Diocese, appointed by the Synod and he sought for necessary action by issuing directions to the concerned authorities to ensure the smooth functioning of the Administrative Committee appointed by the CSI Synod pursuant to its proceedings dated 31.05.2017.
20.The learned Single Judge considered these two Writ Petitions along with all the other connected Writ Petitions. The learned Single Judge found that the Bishop on the one hand and the Executive Committee of the Tirunelveli Diocese on the other hand are in loggerheads and that they are not able to meet eye to eye on any issue. The learned Single Judge also found that the Bishop had an all encompassing power vested in him under the Constitution as well as the Articles of Association of TDTA and this logjam was getting worse by the day and in the meantime, it involved the running of hundreds of Schools, Hospitals and Colleges and it will have a very serious impact on running these Institutions with the impasse created between the Bishop and the Executive Council of the Tirunelveli Diocese and therefore, considering the public interest involved, thought it fit to appoint two Administrators, one being a former retired Judge of this Court and the other being one who retired as the Chief Justice of Jammu and Kashmir High Court, to tide over the situation and to ensure smooth functioning of all the Institutions with the co-operation of the Executive Committee of the Diocese Council on the one hand and the Bishop on the other.
21.This judgment passed by the learned Single Judge has been put to challenge in the present Writ Appeals.
22.Mr. Karthick Shesadri, Mr.V.Prabakar, learned Counsels and Mr.S.Parthasarathy, learned Senior Counsel bad the arguments on the side of the appellants in W.A(MD).Nos.878 & 879 of 2019. Mr.Prabu Rajadurai, Mr.S.Thanka Sivan and Mr.T.V.Ramanujam, learned Senior Counsel appeared on behalf of the Writ Petitioners, Bishop and CSI Synod and made their submissions.
23. The submissions made on the side of the appellants in W.A.(MD) Nos.878 & 879 of 2019 can be summarized as follows:● Mr.P.Pushparaj is the member of TDTA and he cannot challenge the resolution passed in the Extraordinary General Body Meeting by way of a Writ Petition and he has to workout his remedy only under The Companies Act, 2013.
● The Registrar of Companies has only performed a ministerial act and it did not involve an adjudication and therefore there was no basis for entertaining W.P.No.17952 of 2017.
● The TDTA is an independent entity and the resolution passed by the Company cannot be challenged indirectly by the Bishop of an unregistered body by way of filing a Writ Petition.
● The autonomy of the Tirunelvi Diocese cannot be superseded just because the Bishop is not happy with the results of the elections and his person not being selected as the Treasurer and the CSI Synod does not have the power to dissolve an elected body.
● The emergency provision under Rule 15(c) of Chapter IX of CSI Synod cannot be used to take over the Executive Committee of the Diocese without following the procedure.
● The relief claimed in W.P.No.21134 of 2017, is in the nature of enforcing a resolution passed by an unregistered body by way of a writ petition and such a writ petition is not maintainable and it is liable to be dismissed on that ground.
● The Executive Committee of the Tirunelveli Diocese hardly started functioning only on 15.05.2017 and on 31.05.2017, it was taken over by the CSI Synod and within this short time, there is no question of the Executive Committee of the Diocese being unable to or unwilling to perform the functions as laid down in the Constitution.
● The CSI Synod cannot sit over the orders passed by this Court wherein, the elections were upheld and in one stroke, the properly elected Executive Council has been superseded
● The resolution dated 30.05.2017 and the communication made to the Bishop on 31.05.2017, are ex facie illegal and it need not be challenged and in fact it has been held to be bad by this Court while passing orders in CRP.No.970 of 2018, dated 21.08.2018.
● The impugned resolution dated 30.05.2017, was passed solely based on the letter of the Bishop dated 15.05.2017 and just because the Executive Committee of Diocese was not willing to dance to the tunes of the Bishop, elected council cannot be dissolved and it directly resulted in setting at naught the orders passed by this Court confirming the elections.
● The sequence of events after the completion of election was orchestrated by the Bishop to ensure that the elected body does not function.
● The learned Single Judge has not found any fault with the functioning of the elected body and the learned Single Judge has not even gone into the merits of the case and therefore, there is no occasion to appoint Administrators who have been given the final authority on every matter concerning the Management and running of the Schools and Colleges.
● After the Treasurer nominated by the Bishop was rejected, the Bishop failed to renominate any other person and therefore, the Executive Committee had no other go except to appoint the Treasurer since the entire administration will come to a standstill without a Treasurer. There is a power for the Executive committee to take such a decision under the Constitution under Chapter IV, Rule 5.
● The resolution was passed and the Bishop was informed even without putting the Executive Committee on notice and even without hearing the Executive Committee and therefore, the resolution passed by the CSI Synod is ex facie illegal.
● The TDTA has the exclusive right to run the Educational Institutions which are minority institutions and appointment of Administrators is a direct intrusion into the rights of the TDTA, which is a registered body to run the Institutions.
● The powers of the Executive Committee of Tirunelveli Diocese is wide enough to function even without the dependence of the Bishop and therefore, the functioning of the Diocese cannot be left to the whims and fancies of the Bishop.
● The learned Single Judge wanted to bring an understanding between the parties by appointing Administrators. However, the directions given by the learned Single Judge are contradictory and inconsistent and the entire powers have been taken away from the elected body.
● TDTA is the Educational Agency insofar as all the Schools are concerned and this was even accepted by the Bishop in his earlier letters and there was no major controversy on the appointments and transfers made by TDTA and there is no necessity to appoint Administrators.
● The election of the Executive Committee has not been challenged till date and the tenure of 4 years will get over only in April 2021 and therefore, the elected body must be allowed to continue with its functioning as per the Constitution of the Tirunelveli Diocese.
● There is absolutely no public duty involved in the present case and what is sought to be achieved is a Private Unregistered Body seeking to enforce its resolution and under such circumstances, a writ petition is not maintainable. To substantiate the submissions, the following judgments were relied upon:
- Ramakrishna Mission and Another .v. Kago Kunya and Others reported in [2019 SCC Online SC 501]
- Santhoshkumar S. and Ors. .v. Church of South India and Ors. reported in MANU/KE/4029/2019.
- Rajbir Surajbhan Singh .v. The Chairman, Institute of Banking Personnel Selection, Mumbai reported in MANU/SC/0619/2019.
4.K.K.Saksena .v. International Commission on Irrigation and Drainage and Others reported in [2015 4 SCC 670].24. Per contra, the learned counsel/Senior Counsel, who appeared on the side of the Writ Petitioners, Bishop and CSI Synod made the following submissions:● The role and powers on the Bishop was the main focus of the arguments and what is being vested under the Constitution of the Diocese of Tirunelveli is extracted hereunder:
Role and Powers of the Bishop as enshrined in the Constitution of
Diocese of Tirunelveli
Chapter I
Rule 7: All Presbyters who offer themselves for the ministry --- in the Diocese whether in the Pastorate or in Institutions under the Diocese - - - must hold the licence given by the Bishop. (Page 6 of the 3rd respondent’s typed set in W.A.No.878 of 2019 and 15th respondent in W.A.No.879/2019)Chapter I –B
Rule 4a. The Bishop will be the Chairman - - - of the election Commission and election commission shall enquire into and settle all election disputes within the Diocese.General Rule 5: The Bishop shall have power to give a ruling regarding any question of interpretation of Diocese rules….his ruling shall not be subject to any appeal.
General Rule 6: The Bishop of the Diocese shall preside over all meetings of the Diocesan Council and of its Committees —————— Committees of the Diocese.
In the absence of the Bishop, the Bishops’ Commissary, and in the absence of the Bishops Commissary Vice-Chairman shall preside but shall have only the ordinary powers of the chairman. Neither of them shall have the power of final assent and dissent which power belongs to the Bishop as Bishop and not as Chairman. General Rule
28 (a) A member or employee of the Church / Diocese for enforcing his rights ————– shall submit his case in writing to the Bishop of the Diocese.
(d) The Bishop shall refer the matter in dispute to an Arbitration Board -------------- chosen by the Bishop. Chapter II Pastorate
Rule 1 (a) A Pastorate ---------------under the superintendence of the Presbyter appointed by the Bishop.Rule 2 The determination or alteration of boundaries of a Pastorate ———–subject to the approval of the Bishop.
Rule 37 The written consent of the Bishop shall be necessary for the removal to any other place of church building or a cemetery ------------.Rule 39 All matters connected with the mode order and arrangement of Services, Baptism, Marriages, Burials and other sacred offices are —— subject to the Bishop of the Diocese.
Rule 40 Alteration in forms of worship ——————— after getting permission from the Bishop.
Rule 49 The Bishop on the advice of the Diocesan Executive Committee shall have power to supersede the decision of Pastorate Committee to carry on the administration of Elementary Schools.
Rule 50 There shall be a Manager of all TDTA Elementary Schools in the Diocese appointed by the Bishop.Chapter III Church Council
Rule 2 The determination or alteration of the boundaries of a Church Council -------------------- shall be decided by the Diocesan Executive Committee with the approval of the Bishop.
Rule 3 (x) Nomination by the Bishop for Church Council.
Rule 9 Church Council Chairman’s duties.
(a) To fix the date of meetings in consultation with the Bishop ………….. (This confirms that the meeting of the Church Council shall be fixed with the concurrence of the Bishop only).
Rule 14 The time and place of meeting shall be arranged only in consultation with the Bishop. .Chapter IV Diocesan Council
Rule 2 (a) The Diocesan Council shall consist of the Bishop (as Chairman).
(d) (IV) Upto 20 members can be nominated by the Bishop for the Diocesan council.
Rule 3 Cessation of Membership – The Bishop of the Diocese is empowered to make temporary arrangements for the proper administration of the Diocese.
Rule 6 The Bishop shall be ex-officio Chairman of the Diocesan Council
Rule 8 Diocesan Secretaries have mandatory duties.
(a) To receive from the Bishop the agenda
(b) To send to the Bishop within seven days ------------- proceeding for his final assent.
Rule 11 Diocesan Court
Bishop may summon assessors to sit on the Diocesan Court.
Rule 13 The Diocesan Council may be convened at any time or place in the Diocese appointed by the Bishop of the Diocese.
Rule 15 The agenda shall include any subject forwarded for discussion by the Synod the Bishop of the Diocese -------------------
Rule 16 The Bishop shall have the right to place on the agenda he may desire and to veto at his discretion the discussion of any subject or motion --------------------------
Rule 17 The Bishop or his Commissary shall be the Chairman of the Diocesan Council and shall preside over all meetings of the Diocesan Council and of its Committees. He shall also have the right to preside over all subordinate Councils and Committees of the Diocese.
Note : The Commissary or Vice Chairman can preside over the Committee Meetings if only, either of them is authorised by the Bishop in writing to do so. If they violate and conducted the meetings the resolutions passed in the meetings are invalid and of no force.
Rule 18 Ref: Rule 6 Chapter I B General Rules. This rule gives the power at final assent only to the Bishop and not to the Commissary.
Rule 19 Quorum - The presence of the Bishop ------------------ constitute a quorum of the Council.
Rule 21 With the permission of the Bishop visitors may be present.
Rule 32 Declaration (Oath)
c) That every member of the Diocesan Council ---------shall, before he takes his seat in the Council, sign before the Bishop.
d) ------ appointment by the Bishop of a person to be his legal adviser.
Rule 35 (a) That the agreement of the Bishop ------------- is necessary to the validity of any act of the Diocesan Council.
b) ----- no resolution or decision of the Diocesan Council shall be valid unless and until it has received the assent of the Bishop.
c) The Bishop of the Diocese shall have the right of suspending the operation of decision or resolution of the Diocesan Council ----------
Rule 45 All resolutions of Standing Committee are recommendations to the Bishop shall not be subject to revision by the Diocesan Council. Chapter V Diocesan Executive Committee
Rule 1 The Diocesan Executive Committee shall consist of The Bishop (President) Rule 2 The Bishop shall nominate any number of members subject to the total of executives is not more than 50, at his discretion.
Rule 7 The Diocesan Executive Committee shall meet at any time or place in the Diocese appointed by the Bishop ---------------- special meetings may be convened when summoned by the Bishop. .. (this empowers the Bishop to fix the date time and place for meeting of Diocesan Executive Committee).
Rule 9 All resolutions of the Diocesan Executive Committee with the exception of financial matters shall be subject to the assent of the Bishop. .
Rule 18 Diocesan Executive Committee shall decide subject to the approval of the Bishop the determination or alteration of the boundaries of the Pastorates and Church Councils. .Rule 20 If a Pastorate Committee persistently obstructs the transaction of business ……….. the Bishop shall have the power to supersede it. .
Chapter VI
Rule 1 The Bishop shall be the Chairman of the Standing Committee of higher education
Rule 2 There shall be a Manager of all Higher Secondary Schools ………. appointed by the Bishop. (in so far as the schools of TDTA is concerned, Bishop shall be empowered to appoint the manager therefor as per Rule 50 of Chapter II .
Rule 3 The Bishop shall be the Manager of the Colleges of the Diocese.
Rule 4…. The Bishop shall have power to defer action on any resolution passed by a Board. .
Rule 5 powers of managers (appointed by Bishop) absolutely covered powers for appointment of Head masters/Head Mistress, teachers, their transfers etc. Disciplinary proceedings power is with the Bishop appointed managers. This reiterates the absolute powers of the Bishop in all educational institutions (schools).
In so far as the colleges are concerned, the Bishop himself is the manager. .Chapter VIII Property
Rule 2 Alienation – Proposal brought forward subject to veto of the Bishop.
Chapter IX Diocesan Synod
Rule 3 The Bishop shall be the Chairman of the Diocesan Synod.
Rule 5 The Secretary to receive from the Bishop the agenda.
Rule 7 The agenda shall be framed by the Bishop.
Rule 9 The presence of the Bishop …… shall be necessary to form a quorum.
Rule10 With the permission of the Bishop visitors may be present.
Rule 14 ………. assent of the Bishop required to constitute a vote of the Diocesan Synod.
Chapter X
Rule 17(b) In so far as the post of Treasurer of the Diocese, it is not an elected post. The Bishop has to constitute a search committee and such committee shall nominate persons for the post of Treasurer. This is a special provision relating to the post of Treasurer and this ensures the authority of Bishop in selecting a person as Treasurer of the Diocese.
● Originally, the term of the Diocesan Council/Executive Committee was 4 years under Chapter X, Rule 10. This has now been amended to 3 years in the year 2015 and the term of Office will come to an end in April 2020. That apart, the term of the Bishop will also come to an end in April 2020 and therefore, there is no necessity to interfere with the interim arrangement made by the learned Single Judge and the Administrators can also be directed to conduct fresh elections for all 4 phases during which time the new Bishop will also take charge.
● The Synod which is the highest body took into consideration, the fact that the Executive Committee of the Tirunelveli Diocese and TDTA were acting against the interest of the Church and the institutions and were even trying to go independent and therefore, the Synod had to interfere and supersede the Executive Committee in the interest of the various Educational Institutions, Hospitals and other Charitable Institutions.
● The learned Single Judge has discussed in detail and found that the writ petitions are maintainable and therefore, there are no grounds to interfere with the judgment passed by the learned Single Judge regarding maintainability. In order to substantiate this submission, the judgment of the Hon’ble Supreme Court in Dr.Janet Jeyapaul .v. SRM University and Ors reported in [2016 1 CTC 240] was relied upon.
● The Manager was the person, who was vested with the powers to run the minority Schools and Colleges and there was no Manager from the year 2017 and the Bishop was also not allowed to function as a Manager of the Colleges and therefore, this Court had taken cognizance of the public interest involved in this case and appointed Administrators.
● The resolution passed by the Synod superseding the Executive Committee of the Tirunelveli Diocese has not been put to challenge and therefore, the appellants do not have the right or authority to question the functioning of the Committee appointed by the CSI Synod and they cannot prevent the Administrators from carrying on with their duties.
● The Diocese was discharging a public function since they are dealing with the Government grants which is public money and this Court has found that the funds are no longer safe in the hands of the elected body and therefore, Administrators have been appointed in exercise of its jurisdiction under Article 226 of the Constitution of India.
● The TDTA is only acting as a Trustee of the Synod and it cannot proclaim that it is independent since its identity itself is through the CSI Synod, which is the supreme governing body.
● The Synod has also filed an appeal in W.A.No.1073 of 2019 since it is aggrieved by the finding of the learned Single Judge, who has allowed the elected members of the Executive Council to participate in the functioning along with the Administrators.
25.This Court has carefully considered the submissions made on either side and the materials available on record.
26.Almost all the issues that were urged before us was also canvassed before the learned Single Judge. Therefore, it will be useful to extract the important findings given by the learned Single Judge in the Writ Petitions and the same is extracted hereunder:
78. An argument was advanced by the learned Counsel for the TDTA that when the Companies Act specifically provides for certain redressal mechanism, Mr.P.Pushparaj, as the petitioner in W.P(MD)No.17952 of 2017, cannot file the present writ petition by knocking the doors of this Court under Article 226 of the Constitution of India and hence, the writ petition is not maintainable.
79. At this juncture, it is useful to refer to the following decisions of the Hon'ble Supreme Court:
79.1........
79.2........
79.3........
79.4........
79.5.........
80. At the same time, having regard to the admitted fact that the Diocese is running hundreds of educational institutions, hospitals and orphanages which discharge public functions and the prayer sought for is only to protect such public functions by the institutions of the Diocese, the writ petition is maintainable. The same is fortified in the judgement reported (2016) 1 CTC 240 (Dr. Jenat Jayapaul v SRM University and Ors), wherein, at paragraph 15, it has been held as follows:-
“15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants trust was managing the affiliated college to which public money is paid as government aid. Public money paid as government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party".
82. Further, a writ of Mandamus could be issued to an official or a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed to carry out duties cast upon it by a statute. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. No matter by what means the duty is imposed. If a positive obligation exists, Mandamus cannot be denied.
83. No doubt, it is the case of all parties that the Diocese is running several educational institutions, hospitals, etc. The aided institutions are also discharging public functions. They are subject to the rules and regulations. Their activities are closely supervised by the authorities. Employment in such institutions is, therefore, not devoid of any public character. Because of all these, this Court is of the opinion that the service conditions of the academic staff are not purely of a private character, but it has super added protection by decisions creating a legal right and duty relationship between the staff and the management. If such relationship is in existence, a mandamus cannot be refused to the aggrieved party. Also, Article 226(1) of the Constitution of India, empowers this Court to issue directions, orders or writs to 'any person or authority'.
84. That apart, the issue involved is not with regard to the conduct of election, but with regard to the violation of the Constitution of the Diocese, after the election results were published i.e., on 23.04.2017. Hence, the writ petition filed is maintainable and the arguments advanced to the effect that further action has to be taken only under the Companies Act, are liable to be rejected.
97. Materials available on record would further disclose that there was a complaint dated 02.06.2017 sent by the Bishop to the CSI synod and therefore, in order to bring peace, there held a meeting on 23.06.2017, however, the respondents 16 and 17 circulated a letter wherein they declared that the members of the Diocese should not attend such meeting. Further, by another letter, dated 19.10.2017 they stated that Tirunelveli Diocese was no more a constituent body of CSI Synod. All the above continuing acts and deeds of respondents 16 and 17 are borne out from records and clearly disclose that they had not followed the Constitution of diocese.
98. Be that as it may, the present litigation is nothing but a sheer challenge made to the object with which the institutions, both educational and health care, being run by the Diocese of Tirunelveli and administered by Tinnevelly Diocesan Trust Association. - In the considered opinion of this Court, “Paramount, it is, the noble cause than any other. Because of the litigative battle from the civil Court till this Court as well as the Honourable Supreme Court, all the functions of the institutions run by the Diocese are paralysed.” In order to resolve amicably the same, this Court took pains to settle the dispute amongst the parties. Accordingly, on 14.06.2019, this Court has passed the following order:
- It is undisputed fact that the election of the newly elected members to the Diocesan Council and Tinnevelly Diocesan Trust Association is not yet put to challenge before the competent civil Court and so also, the proceedings of the CSI Synod, dated 31.05.2017 in accordance with law. What has been impugned in all these batch these writ petitions, is to the simultaneous orders of appointments and transfers made by the newly elected members as well as the CSI Synod.
108……………………………………………………….
Apart from spiritual work, Tirunelveli Diocese has been striving hard to address to the economic, educational and social needs of the poor, the aged, the mentally retarded, the visually disabled etc. The fruits of this Diocese are in every nook and corner of globe bearing witness to the Good Shepherd.
Vision Statement:
- It is undisputed fact that the election of the newly elected members to the Diocesan Council and Tinnevelly Diocesan Trust Association is not yet put to challenge before the competent civil Court and so also, the proceedings of the CSI Synod, dated 31.05.2017 in accordance with law. What has been impugned in all these batch these writ petitions, is to the simultaneous orders of appointments and transfers made by the newly elected members as well as the CSI Synod.
• Changing the Society by teaching and practicing the Christianity. ?
• Communalism with constructive dialogue and interaction with different religious groups on social and religious issues.
• Evagelization and Church-Planting.
Institutions:
• Hospitals - 6
• Colleges - 3
• Nursing College - 1
• College of Education - 2
• Teachers Training Institutes - 3
• Higher Secondary Schools - 11
• High Schools - 3
• Middle Schools - 74
• Primary Schools - 249
• Special Schools - 3
• Matriculation Schools - 2
• Medical Mission relating to various hospitals and allied purposes.
• CSI Rhenius Community Health and Development project with
beneficiaries of various diseases.Hospitals in the Diocese:
• CSI Jeyaraj Annapackiam Mission Hospital Palayamkottai
• CSI Bell Pins Indrani Chelladurai Mission Hospital Palayamkottai
• St. Immanuel Hospital Idaiyankudi
• Barenbruck Hospital Bangala Surandai
• Barenbruck Mission Hospital Athisayapuram, Surandai.
• St. Luke's Hospital Maruthakulam
109. When such being the noble object of the Diocese of Tirunelveli, but for the litigative battle, the aim and goal of the institutions should not be allowed to be defeated. One thing is clear that the utmost interest of the institutions has been pushed back behind the rival claims over the administration and management of the Diocese of Tirunelveli as well as TDTA. This Court, while entertaining the present writ petitions, could not be a mere spectator to the happenings just opposite to the object with which the institutions have been originated and issue mere directions. At the present stage as projected by either side, the need of the hour is to oxygenate the total administration and management of the institutions.
112. Thus, this Court holds that the newly elected Diocesan Council as well as the Bishop (Dr.J.J.Christdoss) shall continue to do their functions as per the Constitution of Diocese of Tirunelveli and also as per the relevant provisions of the Constitution of CSI, however, taking into consideration the fact that there are allegations made with regard to the alleged misappropriation of funds on taking over the charge after 23.04.2017, which admittedly led to the proceedings dated 30.05.2017 passed by the CSI Synod for appointing an Administrative Committee to administer the Diocesan Council and TDTA, the same shall be subjected to scrutiny by independent personnel, like, Administrators, as mutually agreed by both the parties, to look into such allegations/counter allegations made by the respective parties against one another. No doubt, the election of the newly elected Diocesan Council cannot be impugned in the writ proceedings by invoking the inherent jurisdiction of this Court under Article 226 of the Constitution of India. Similarly, the legality of the proceedings of the CSI Synod, dated 30.05.2017, has not been challenged herein and hence, in order to give a quietus to the issue on hand, this Court is inclined to dispose of all the writ petitions in the following manner. CONCLUSION:
113. Considering the overall facts and circumstances of the case, this Court is of the firm opinion that the Hon’ble Dr. Justice N.Paul Vasanthakumar, Chief Justice of Jammu & Kashmir (Retd.) and the Hon’ble Dr. Justice P.Jyothimani (Retd.) could be appointed as Administrators, to control the affairs of the Diocesan Council and TDTA an effective truce between the newly elected members of the Executive Committee and the Bishop/Chairman and the Financial Administrator appointed by the CSI Synod, at the instance of the Bishop.
27.The above order passed by the learned Single Judge was more driven by the fact that the Court proceedings after the elections commenced, had virtually affected the functioning of the Diocese and it had a direct impact on the running of the Educational Institutions. The concerns expressed by the learned Single Judge is apparent from the order. This Court had taken into consideration the fact that there was no challenge either to the election of the newly elected Diocesan Council nor was there a challenge to the resolution passed by the Synod which virtually superseded the Executive Committee of Tirunelveli Diocese. This Court also did not want to go into that issue since it would require deep consideration of the facts which is not normally done while exercising its jurisdiction under Article 226 of the Constitution of India. The learned Single Judge has made an attempt to strike a via media between the elected members on the one hand and the Bishop on the other hand. As could be seen from the Constitution of the CSI Synod and the Tirunelveli Diocese and also from the Articles of Association of TDTA, the Bishop has been given enormous powers and no effective functioning can take place without the concurrence/participation of the Bishop. The present case cannot be understood from the angle of a normal election that takes place in an Association or a Body. In the present case, there is a religious backdrop which runs through the functioning of the Synod and the Diocese. The Bishop is considered to be the head and he is given a very special status and that is the reason why his involvement is contemplated in each and every functioning of the Synod and Diocese including TDTA. The consistent complaint on the side of the appellants was that the Bishop is the reason for the entire problem and he wants his men to be in the elected Council and as the Treasurer and therefore, he has ensured that the elected body does not function. Even, if this is taken to be true, for the sake of argument, the Elected Body cannot really function or take any important decisions without the participation and concurrence of the Bishop. In other words, the Constitution is drafted in such a way that the Diocesan Council or the TDTA cannot function without the co-operation of the Bishop. If this stand-off continues, as has been rightly held by the learned Single Judge, it will have a direct impact on the running of the Educational Institutions, Hospitals and others Charitable Institutions.
28.The learned Single Judge has exercised his discretion under Article 226 of the Constitution of India. The extent to which it can be interfered was dealt with by this Court in Union of India, Ministry of Petroleum, rep.by its Secretary to Government of India .v. Government of Tamil Nadu & Others reported in [2013 3 LW 201]. The relevant portions of the judgment is extracted hereunder:
"25. Learned Additional Solicitor General submitted that this Court, in the appeal preferred under Clause 15 of the Letters Patent, should consider the question as to whether the writ petition preferred by the first respondent herein is at all maintainable or not, as it challenges the policy decision taken by the appellant, and also whether the first respondent herein has any case on merits. No doubt, in Villupuram Market Committee (supra), the Division Bench of this Court has held that even though it is in nature of an appeal under Clause 15 of the Letters Patent, inasmuch as such an appeal is as against the order of the learned single Judge passed in exercise of the extra-ordinary jurisdiction vested with the learned single Judge under Article 226 of the Constitution of India, the Appellate remedy as against the said order is nothing, but continuation of the very constitutional remedy, which was available to the writ petitioner under Article 226 of the Constitution of India and mere provision of an appeal before the Division Bench, as provided under Clause-15 of the Letters Patent, cannot be held to be an independent proceedings of the remedy, which was invoked by the writ petitioner under Article 226 of the Constitution of India. The Division Bench further observed that in other words, Letters Patent as against an order passed under Article 226 of the Constitution of India cannot be dealt with in isolation or disjunctive of the parent proceedings, namely the writ petition, from which alone it stems up.
26. What is the true nature and scope of the jurisdiction exercised by the High Court in a Letters Patent Appeal is no longer resintegra. We find that the Hon'ble Supreme Court in the case of Baddula Lakshmaiah and others vs. Sri Anjaneya Swami Temple and others reported in (1996) 3 SCC 52 has held that "a letters patent appeal, as permitted under the Letters Patent, is normally an intra-court appeal whereunder the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench. Such is not an appeal against an order of a sub-ordinate court. In such appellate jurisdiction the High Court exercises the powers of a Court of Error. So understood, the appellate power under the Letters Patent is quite distinct, in contrast to what is ordinarily understood in procedural language."
27. In the case of Sanjay Kumar and others vs. Narinder Verma and others reported in (2006) 6 SCC 467, the Hon'ble Supreme Court has held that the Letters Patent Appeals could have proceeded only on the basis of the writ petitions and the judgment of the learned Single Judge, which was being challenged.
28. In B. Venkatamuni vs. C.J. Ayodhya Ram Singh and others, reported in (2006) 13 SCC 449, the Hon'ble Supreme Court has held as follows: “11. In an intra-court appeal, the Division Bench undoubtedly may be entitled to reappraise both questions of fact and law, but the following dicta of this Court in Umabai V. Neelkanth Dhondiba Chavan [(2005) 6 SCC 243] could not have been ignored by it, whereupon the learned counsel for the respondents relied (SCC p. 261, para 52).
’52. It may be, as has been held in Asha Devi V. Dukhi Sao [(1974) 2 SCC 492], that the power of the appellate court in intra-court appeal is not exactly the same as contained in Section 100 of the Code of Civil Procedure but it is also well known that entertainment of a letters patent appeal is discretionary and normally the Division Bench would not, unless there exists cogent reasons, differ from a finding of fact arrived at by the learned Single Judge. Even as noticed hereinbefore, a court of first appeal which is the final court of appeal on fact may have to exercise some amount of restraint.”
From the aforesaid decisions, we find that now it is well-settled that in an intra-court appeal, the Division Bench examines the correctness of the order passed by the learned Single Judge vis-a-vis the material on record. It acts as a Court of Correction.
29.In the above judgment, the Division Bench has considered all the earlier judgments and has held that in the intra court appeal, the Bench is only sitting as a Court of correction and it corrects its own orders in exercise of the same jurisdiction as was vested in the learned Single Judge. The Appellate power under the Letters Patent is quite distinct in contrast to what is ordinarily understood in the procedural language.
30.In the considered view of this Court, the learned Single Judge has used his discretion, while taking into account the extraordinary situation that was prevailing in this case and also after taking into account the interest of hundreds of Educational Institutions. This Bench must be very slow in interfering with this discretion which has been exercised for very strong reasons.
31.There is yet another development which can be taken into consideration in the present case. The period of the Bishop is coming to an end in April 2020 and the learned counsel appearing for the Bishop submitted that he is no longer interested in controlling the affairs of the Synod or the Diocese and the Bishop will be out of scene immediately on the expiry of his tenure. That apart, now the term of office bearers of the Diocesan Council/Executive Committee/Office Bearers has been amended as three years in the year 2015. The relevant amendment is extracted hereunder:
12.A) The term of the Diocesan Council shall be three years. The Diocesan Constitution shall also state the month in which the term of the Council would normally begin, so that elections to the Diocesan Councils from the pastorates and other constituencies can be arranged accordingly. If for any reason the convening of the Council after fresh elections is delayed, such delay shall not prolong the life of the council beyond the time stipulated in the constitution, subject to Clause (c) under this rule. The new Council shall function only for the remainder of the term. (2015).
32.In view of the above amendment, the period of the present Elected Body will come to an end in April 2020. We are now hardly left with another two months for the new elections that are to take place and for a new Bishop to takeover the charge. For these two months, we are not inclined to disturb the present arrangement that has been made by the learned Single Judge. The present arrangement can continue for the coming two months and the Administrators can be requested to start the process of election for all the four phases immediately after the term comes to an end in April 2020. They will also complete the process of elections and the new Elected Body with the new incumbent, who is going to assume the office of the Bishop, will hopefully get together and ensure the smooth functioning of the Educational Institutions, Hospitals and Charitable Institutions.
33.In view of the above discussions, we are not inclined to interfere with the judgment of the learned Single Judge. The Administrators are requested to continue with their services as directed in paragraph 114 of the judgment of the learned Single Judge. We make it clear that the decisions taken by the Administrators cannot be made as a subject matter of challenge before any other Court or Authorities. The learned Single Judge has come out with a mechanism whereby, the writ petition is kept alive as a continuing mandamus that will be issued by this Court while monitoring the functioning of the Administrators and scrutinizing their reports. Therefore, any person aggrieved by the decision taken by the Administrator can always agitate the same before the learned Single Judge as and when the case is posted for scrutinizing the report of the Administrator. We also make it clear that no individual writ petitions will be entertained against the decisions of the Administrators. As already held by this Court, this arrangement is only going to last for a few more months. If any interim orders are in operation which directly or indirectly touches upon the functioning of the Administrators, the same is hereby vacated. Consequently, all the Writ Petitions that have been filed challenging the decisions taken by the Administrators is also closed.
34.The Administrators are requested to make arrangements for conducting the elections immediately after the tenure comes to an end in April 2020. By then, they will also have the assistance of the new Bishop, who is going to take charge in April 2020. The Administrators are requested to complete the 4 phases of election as early as possible. Immediately, after the newly Elected Body takes over, the Administrators can report the same before this Court and they will be thereafter relieved from their duties. Till then, the Administrators are requested to continue with their service as per the orders of the learned Single Judge. The learned Administrators shall also file Status Report every month, to enable this Court to appraise itself of all the latest developments and in order to approve the decisions of the Administrators and if necessary, after hearing the aggrieved parties. The Writ Petition shall be posted before the same Judge, who passed the final orders, in this regard, after obtaining necessary orders from the Hon'ble Chief Justice.
All the Writ Appeals and Writ Petitions are disposed of accordingly. No costs. Consequently, all the connected miscellaneous petitions are closed.
[S.V.N., J.] & [N.A.V., J.]
25.02.2020Index: Yes/No
Internet:Yes
