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Madras High Court
Rt. Rev. Dr.M.Dorai vs Church Of South India Synod on 5 April, 2013
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 05.04.2013
Coram
The Honourable Mr.Justice M.JAICHANDREN
and
The Honourable Mr.Justice M.M.SUNDRESH
									
Original Side Appeal Nos.33 to 35 of 2013
& M.P.Nos.1, 1 & 1 of 2013

Rt. Rev. Dr.M.Dorai,
No.257, Race Course Road,
Coimbatore-641 018.
(Suing on his behalf and on behalf
of the members of Church  of South
India and Members of CSI Coimbatore Diocese)		     ... Appellant in
									        all OSAs.
-vs-
1.Church of South India Synod, 
  rep. by its General Secretary M.M.Philip,
  CSI Synod Secretariat, CSI Centre,
  No.5, Whites Road, Royapettah, Chennai-600 014.
 (being sued for and against himself and for and
  against the members of Church of South India Synod)

2.Church of South India Synod Executive Committee,
    represented by its Secretary M.M.Philip,
   CSI Synod Secretariat, CSI Centre,
   No.5, Whites Road, Royapettah, Chennai-600 014.
 (being sued for and against himself and for and
  against the members of Church of South India 
  Synod Executive Committee)

3.Church of South India Synod Working Committee,
    represented by its Secretary M.M.Philip,
   CSI Synod Secretariat, CSI Centre,
   No.5, Whites Road, Royapettah,  Chennai-600 014.
  (being sued for and against himself and for and
  against the members of Church of South India 
  Synod Working Committee)

4.Church of South India,
    represented by its Moderator Most Rev.G.Devakadasham,
   CSI Synod Secretariat, CSI Centre,
   No.5, Whites Road, Royapettah,  Chennai-600 014.
  (being sued for and against himself and for and
  against the members of Church of South India)                            

5.Church of South India Bishops' Council,
    represented by its Chairman Most Rev.G.Devakadasham,
   CSI Synod Secretariat, CSI Centre,
   No.5, Whites Road, Royapettah,  Chennai-600 014.
  (being sued for and against himself and for and
  against the members of Church of South India 
  Bishops' Council) 

6.Rt.Rev.S.Vasanthakumar,
  Former Moderator of Church of South India,
  CSI  Diocesan Office, No.20, Third Cross, 
  CSI Compound, Bangalore-560 027.

7.Church of South India Synod Court, 
  represented by its President Rt.Rev.G.Devakadasham,
  CSI Synod Secretariat, CSI Centre,
  No.5, Whites Road, Royapettah,
  Chennai-600 014.
 (being sued for and against himself and for and
  against the members of Church of South India 
  Synod Court)

8 .Rt.Rev.S.Vasanthakumar,
   Bishop of CSI Trichy-Tanjore Diocese & 
   Member of CSI Synod Court,
   CSI  Diocesan Office, No.17, VOC Road,
   Cantonment, Trichy-620 001.

9.Rev.J.Paul Selwyn Prabhudoss,
  Vice-President CSI Coimbatore Diocesan Council,
  CSI Christ Church, No.36, Bharathi Illam,
  Kovaiputhur, Coimbator-641 042.

10.Rev. Richard Durai,
   Secretary of CSI Coimbatore Diocesan Council,
   CSI Rosatae Jane Brough Memorial Church,
   K.K.Nagar, Erode-638 009.

11.I.Manuel Packiaraj,
    Treasurer of CSI Coimbatore Diocesan Council, 
    No.83/5, Cheran Tower Apartments,
    Government Arts College Rad,
    Coimbatore-641 018.

12.Rev.D.V.Karunakaran,
    Moderator's Commissary,
   CSI Coimbatore Diocese,
    No.256, Race Course Road,
   Coimbatore-641 018.

13.CSI Coimbatore Diocesan Administrative Committee,
     represented by its Secretary S.Rajendran, 
    CSI  Diocesan  Office, No.256, Race Course Road,
    Coimbatore-641 018.
   (being sued for and against himself and for and
   against the members of CSI Coimbatore Diocese 
   Administrative Committee)

14.P.S.Enos,
   Administrative Officer, CSI Diocesan Office,
   No.256, Race Course Road,
  Coimbatore-641 018.

15.G.Charles Chelladurai,
   Finance Administrator, CSI Diocesan Office,
   No.256, Race Course Road,
  Coimbatore-641 018.	
  ( In O.S.A.No.33/2013, the appellant is giving up 
  the respondents 1 to 3, 5 to 11, 14 and 15 in this 

appeal ad these respondents are not necessary parties to this Original Side Appeal) ( In O.S.A.No.34 & 35 of 2013, the appellant is giving up the respondents 1 to 3, 5, 9 to 15 in this appeal as these respondents are not necessary parties to this Original Side Appeal) ... Respondents in all OSAs Original Side Appeals filed under Order XXXVI Rule 9 of the Original Side Rules, 1956, read with Clause 15 of the Letter Patent against the order dated 19.12.2012 made in C.S.No.85 of 2012.

		For appellant     :   Mr.O.S.Thilak Pasumboodiyar
		
		For respondents  :  Mr.V.Selvaraj for R1 to R3
					 Mr.Prabhu Mukund for R6
					 No appearance for R4,5, 7, 8, 12 & 15

					
COMMON JUDGMENT

	(The Judgment of the Court was delivered by M.M.SUNDRESH,J.)

	The appellant herein, who is the Bishop of Church of  South India Coimbatore Diocese, has filed a suit  in C.S.No.85 of 2012 seeking the following reliefs:

"(a) for declaration to declare that resolution No.EC:2010-25-3(b) passed by the 2nd defendant / CSI Synod Executive Committee in its meeting held on 1st and 2nd July 2010 appointing the 6th defendant as Bishop-in-charge of CSI Coimbatore Diocese is illegal, null and void; (b)for declaration to declare that resolution No.EC:2010-25-3(c) passed by the 2nd defendant / CSI Synod Executive Committee in its meeting held on 1st and 2nd July 2010 dissolving the Executive Committee of CSI Coimbatore Diocese is illegal, null and void;

(c) for declaration to declare that resolution No.EC:2010-25-3(d) passed by the 2nd defendant / CSI Synod Executive Committee in its meeting held on 1st and 2nd July 2010 appointing the 13th defendant administrative committee for CSI Coimbatore Diocese is illegal, null and void;

(d) for declaration to declare that the letter dated 12.01.2011 written by the 6th defendant asking the plaintiff to continue on sabbatical leave is illegal, null and void;

(e) for declaration to declare that the order dated 17.03.2011 passed by the 6th defendant appointing the 12th defendant as Moderator's Commissary of Church of South India Coimbatore Diocese is illegal, null and void;

(f) for declaration to declare that 4th, 6th, 12th, 13th and 14th defendants or their agents or their servants or their successors-in-office or anybody acting on their behalf have no power or jurisdiction to convene the XXXI Session of Coimbatore Diocesan Council;

(g) for declaration to declare that the verdict of the CSI Synod Court dated 15.12.2011 holding that the plaintiff cannot continue as Diocesan Bishop any longer is illegal, null and void;

(h) for declaration to declare that the order of the 6th defendant dated 09.01.2012 declaring that the plaintiff ceases to be the Bishop of CSI Coimbatore Diocese and declaring CSI Coimbatore Diocese as a vacant Diocese is illegal, null and void;

(i) for permanent injunction restraining the 4th defendant / Moderator from functioning as Bishop-in-charge of Church of South India Coimbatore Diocese;

(j)for permanent injunction, restraining 13th, 14th and 15th defendants from functioning as administrative committee of Church of South India Coimbatore Diocese;

(k)for permanent injunction, restraining 12th defendant from functioning as Moderator's Commissary of Church of South India Coimbatore Diocese;

(l)for permanent injunction restraining the 4th, 6th, 12th, 13th and 14th defendants or their agents or their servants or their successors-in-office or anybody acting on their behalf from convening the XXXI Session of CSI Coimbatore Diocesan Council on any date or in any place;

(m)for permanent injunction, restraining all the defendants i.e. defendants 1 to 15 or their agents or their servants or their successors-in-office or any other persons acting on their behalf from interfering with the functioning of the plaintiff / Bishop Dorai as Bishop of Church of South India Coimbatore Diocese;

(n) for permanent injunction restraining the 4th defendant Moderator of Church of South India from enforcing the order of the Synod Court dated 15.12.2011;

(o)for permanent injunction restraining the 4th defendant from enforcing the order of the 6th defendant dated 09.01.2012 declaring that the plaintiff ceases to be the Bishop of CSI Coimbatore Diocese and declaring CSI Coimbatore Diocese as a vacant Diocese;"

2. Pending suit, the appellant filed applications in Original Application Nos.103 to 111 of 2012 in C.S.No.85 of 2012. All the applications filed by the appellant were dismissed. Being aggrieved against the dismissal of three of the applications, viz.,Application Nos.108 to 110 of 2012 in C.S.No.85 of 2012, the present appeals have been filed.

3. Application in O.A.No.108 of 2012 in C.S.No.85 of 2012 has been filed seeking an order of injunction restraining the respondents from interfering with the functioning of the appellant as the Bishop of Church of South India Coimbatore Diocese pending disposal of the suit.

4. O.A.No.109 of 2012 in C.S.No.85 of 2012 has been filed seeking an order of interim injunction restraining the fourth respondent-Moderator of Church of South India from enforcing the order of Synod Court dated 15.12.2011 pending disposal of the suit.

5. O.A.No.110 of 2012 in C.S.No.85 of 2012 has been filed to restrain the fourth respondent from enforcing the order of the sixth respondent dated 09.01.2012 declaring that the appellant ceases to be the Bishop of CSI Coimbatore Diocese pending disposal of the suit.

6. It is seen that the appellant herein was originally functioning as a Bishop of Church of South India Coimbatore Diocese. Cases have been filed against him by the State Police, CBI and Enforcement Directory. The respondents have also framed charges against the appellant. The appellant raised some objection to the enquiry. However, the enquiry was proceeded with. Accordingly an order was passed removing the appellant as the Bishop of Church of South India Coimbatore Diocese.Consequently, it was declared as vacant and the administration was directed to be devolved upon the Moderator. Even prior to that, the appellant was granted sabbatical leave. A suit was also filed by the appellant much prior to the order under challenge in the present suit. However, the same was withdrawn with leave.

7. Pending the present suit, the appellant did not have the benefit of injunction. In other words, the orders under challenge in the suit continued to be in force pending suit. The appellant has raised various contentions before the learned single Judge. By a detailed order, the contentions have been rejected by dismissing the applications filed. Aggrieved against the same, the present appeals have been filed.

8. The learned counsel appearing for the appellant would vehemently contend that the order passed against the appellant removing him as the Bishop of Church of South India Coimbatore Diocese, is tainted with mala fides. The persons, who are inimically disposed of the appellant, were made to take part in the enquiry. The entire proceedings are initiated by the violation of principles of natural justice. There is no element of fairness in the enquiry conducted. Even the charges proved are regarding misuse only. The appellant has got only one more month of service left. He has rendered a Yeoman service to the community. The learned single Judge has not considered the materials available on record in a proper perspective. The appellant has got a prima facie case. The specific averments made in the affidavit filed in support of the applications have not been denied. Therefore, the decision of the learned single Judge requires interference. In support of his contention the learned counsel has also made reliance upon the following judgments of the Honourable Apex Court.

(i) Ranjith Thakur V. Union of India and Others (1987)    4 Supreme Court Cases 611. 
(ii) Asha V. Pt.B.D.Sharma University of Health Sciences and Others (CDJ 2012 SC 456).

9. Per contra, the learned counsel appearing for the respondents would submit that the appellant has been facing various proceedings. The charges against the appellant are very serious. Some of the charges were not gone into in view of the pendency of the criminal cases. There is no mala fides as alleged by the appellant, since the decision was taken by the competent body constituted. The decision was made by the Synod Executive Committee in its meeting held on 1st/2nd July, 2010 and it unanimously made diverting the appellant to go on a sabbatical leave and further directed the Moderator to function as Bishop in-charge. The respondents have taken over the charge. The appellant is not performing the role of the Bishop of Church of South India Coimbatore Diocese, from August, 2010 onwards. There is no prima facie case and balance of convenience in favour of the appellant. Therefore, the appeals will have to be dismissed.

10. The facts narrated above would show that after conducting an enquiry in pursuant to the charges framed, the order under challenge was passed. The said order has also been given effect to. Admittedly, the appellant is not functioning as Bishop of Church of South India Coimbatore Diocese for more than two years now. Number of criminal cases are pending against the appellant. He has been set at liberty by the grant of bail. As rightly held by the learned single Judge, the question as to whether there is any mala fides and the principles of natural justice have been followed or not will have to be decided at the time of trial by letting in evidence. Now, admittedly the appellant is not holding the post. Therefore, there is no question of granting any order of injunction in his favour. In other words, what the appellant seeks is by way of a mandatory injunction. Thus, the appellant cannot seek an order of injunction in O.A.No.108 of 2012. The other two applications viz., O.A.Nos.109 and 110 of 2012 are incidental.

11. While considering an applications filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure, the primary duty of the Court is to consider as to whether the case requires an order of protection to maintain status quo. Such a situation has not arisen in the case on hand. We do not find any balance of convenience or irreparable loss which cannot be compensated in the event of dismissing the applications. The orders under challenge in the suit have been given effect to in the sense that they have been in force. The Administration of the Diocese continues to be under the control of Moderator. Therefore, we do not find any perversity in the order of the learned single Judge.

12. The submissions made by the learned counsel for the appellant cannot be accepted. As discussed above, the appellant has not been in-charge as Bishop of Church of South India Coimbatore Diocese at least from August 2010 onwards. It is also not the case of the appellant that the synod Court does not have jurisdiction to pass the order under challenge. A decision was made by the synod Court unanimously. Merely because some of the respondents contested the election against the appellant, it cannot be presumed that the action taken against the appellant is tainted with male fides as it has to be established during trial.

13. The question as to whether a misuse of power would warrant the order under challenge is an issue to be decided in the suit. The contesting respondents have not filed the written statements. The learned single Judge has considered the total averments made in the affidavits filed by both sides along with the records. The parties were permitted to file their written arguments also. Therefore, the contention raised by the learned counsel for the appellant that the averments made in the affidavit regarding the mala fides is not specifically denied. A perusal of the counter affidavit filed would show that the respondents did not accept the said averment. It is settled position of law that the averments will have to be seen as a whole. More over, when the learned single Judge has considered the entire materials available on record, both oral and documentary and thereafter, arrived at a decision based upon evidence, then it is not open for this Court to reappreciate them and come to a different factual conclusion. Therefore looking from any point of view, we do not find any reason to reverse the judgment and decree of the learned single Judge. Accordingly, Original Side Appeal Nos.33 to 35 of 2013 are dismissed. However, considering the facts and circumstances of the case, we request the learned single Judge dealing with the suits to expedite the same. We also make it clear that the suit has to be disposed of without being influenced by any of the observations made by the learned single Judge in the order passed in the applications or by us in these appeals. No costs. Consequently, connected miscellaneous petitions are also dismissed.

	                           				  (M.J.,J)       (M.M.S.,J.)			             					 05.04.2013
Index:Yes
Internet:Yes

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						 		    M.JAICHANDREN, J.
								    and
						                      M.M.SUNDRESH, J.


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   O.S.A.Nos.33 to 35  of 2013












										
									   05.04.2013