Basheer Ahmed Sayeed, J.
1. This revision is against the order of the learned District Judge of Nagapattinam, dated 2nd July, 1956, in District Court Proceedings No. 2543. The order sought to be revised is in the following terms:
As that member has been continuously absent for the past six months, it may not be desirable to continue his membership any longer. Sri A.K.M. Lasa Maracair is appointed to be a member of the Board in that place.
This order was passed on a report of the Managing Trustee of the Nagore Darga made to the District Judge, Nagapattinam, dated 30th June, 1956. The report is to the effect that the petitioner, A.S.M. Adam, was continuously absenting himself from the meeting of the Advisory Board as detailed therein, that in all he had absented himself on eleven occasions, including the occasions reported by the President of the Advisory Board and that he had left for Malaya. The Managing Trustee also stated that there were no bye-laws relating to such a matter and that, as far as he could ascertain, there was no precedent to guide him, but that in the interests of the institution, it was only just and proper that a person, who had left the place and thus absented himself from meetings continuously, should be held to have forfeited his seat and that a suitable person should be appointed in his place. The Managing Trustee then gave the dates of the meeting from which the petitioner was said to have been absent. There was also a report from the President, Advisory Board of the Nagore Darga, to the District Judge on 17th June, 1956, in which the President stated that the petitioner Janab A.S. Mohammad Adam, B. Com., of the Advisory Board, Nagore Darga, had not come to eight meetings (i.e., for six months) of the advisory Board and that the said person had gone to Siam (Thailand) and that he was informing the Judge of the same.
2. On receipt of these two reports, the learned District Judge considered these two reports and purported to pass ex parte the order already referred to above. Against this order the present petitioner has filed this revision petition on the grounds inter alia that the learned District Judge had no power to remove him from the office of being a member of the Advisory Board of the Nagore Darga for mere reasons of absence and that the removal, which amounted practically to a dismissal of the petitioner from his office, was done ex parte without notice and that it was opposed to principles of natural justice. It was also contended on behalf of the petitioner that his absence did not in any way affect the management of the trust or its interests for the reason that he was only one of the eleven members of the Advisory Board and that the absence of a single member would not have caused any prejudice to the day-to-day administration of the Nagore Darga Trust, or to the protection of its interests.
3. It must, at the outset, be stated that this Nagore Darga is administered under a scheme framed by this Court in A.S. Nos. 289 and 576 of 1948. Under the scheme, there is provision for the constitution of a Board of Trustees and also a Board of Advisors. In this petition we are not concerned with the Board of Trustees. The constitution, it functions and all other matters concerning the Board of Trustees are dealt with by the first sixteen clauses of the scheme in question. So far as the Advisory Board is concerned, of which alone the present petitioner was appointed a member, its constitution and functions are governed by Clause 17 onwards up to Clause 26. Under Clause 17, the Advisory Board is to consist of 11 members, three of whom shall be elected by the Nattamaigars from among themselves three elected by the Kasupangudars from among themselves and five nominated by the Court from among the Muhammadan gentlemen residing within the limits of the Nagapattinam Municipality as are neither Nattamaigars nor Kasupangudars, provided that no Nattamaigar shall be entitled to stand for elections as a representative of the Kasupangudars. Clause 18 prescribes the term for which a member of the Advisory Board shall hold office and that is fixed as three years from the date of his election or appointment as the case may be. It also provides for his being eligible for re-election or renomination, as the case may be. Power is given to a member only to resign his office of membership in writing addressed to the Court. There is a transitory provision providing for the Budget Committee functioning as Advisory Board until the formation of the first Advisory Board. Clause 19 provides for the election of one among the members of the Advisory Board, not being the Managing Trustee of the Darga, to hold the office of the President and he is to hold office just for the same period as he may continue to be a member of the Advisory Board, and he may also resign his office by writing addressed to the Court. This clause further provides that in the event of the office of the President of the Advisory Board falling vacant, the seniormost in age among the members of the Advisory Board shall convene a meeting for the election of a new President. Clauses 20(a), (20)(b) and 21 prescribe y the qualifications, etc., for the Kasupangudars electing a member to the Advisory Board and also how the vacancies are to be filled up in the representatives of the Kasupangudars on the Advisory Board. Clause 22 provides that the meetings of the Advisory Board shall be held in the office of the Darga and that minutes of such meetings shall be recorded by the Manager in a register maintained for the purpose. But there is no provision as to how often such meetings should be held. Clause 23 prescribes that the President shall preside at the meetings of the Board and, in his absence, the seniormost in age among the members present shall preside at such meetings. The same clause provides that decisions shall be by a majority of the members of the Board present and voting and in the event of a tie, the President is given a casting vote or a second vote. Clause 24 prescribes the functions of the Board, viz., to prepare and maintain a list of Kasupangudars entitled to vote at the elections of the Kasupangudars representatives on the Advisory Board, Clause 25 gives further powers to the Board to frame rules and bye-laws for the conduct of elections, preparation of the voter's list and all other matters relating to the election of Kasupangudars' representatives, but no power to frame its own rules for the conduct of its own businesses. Under Clause 26, the President of the Advisory Board alone is entitled to notice of the appointment of the Manager and to give his opinion about the suitability of the Manager. But the power of appointing the Manager vests in the Managing Trustee. Under Clause 36, the President of the Advisory Board, along with the hereditary trustees, is entitled to notice of the contracts and the auctions that might be entered into or held, as the case may be, by the Managing Trustee, and he is entitled under Clause 37 to notice of the date and hour of such auctions and such notice should be given at least seven days before the date of auction. Under Clause 46, the Advisory Board has the power to appoint every year a certified auditor to audit the accounts of the Darga. Such appointment shall be made out of a panel of four names recommended by the Board of Trustees and the remuneration for the auditor so appointed is to be sanctioned by the Advisory Board.
4. Among all these provisions of the scheme, it is significant to note that it has not been provided as to how often the Advisory Board should meet and for what purposes. All the more significant is that no disqualifications have been provided for with regard to the members of the Advisory Board which would make them ineligible to hold office after appointment or would disentitle them to be re-appointed as members of the Advisory Board. The Advisory Board is also given power under Clause 51 to apply to the Court if the Board of Trustees does not act in accordance with the budget and the Court may pass such orders on such applications as it may deem fit and necessary. There is no specific provision as to what should be done if the Board does not discharge its functions or ceases to exist or becomes defunct for reasons conceivable. The only provision made is that under Clause 52 any of the trustees or Kasupangudars or any member of the Advisory Board may by petition apply to the Court for all further orders or directions as may be necessary to carry out the provisions of the scheme and the Court, shall have full power to give all such directions, as may be necessary to effectuate and carry out the scheme. Clause 53 provides that if applications are filed for the directions of the Court under the provisions of the scheme by any person, notice of such applications shall be given to the Managing Trustee and the President of the Advisory Board. It is these two provisions that are mainly relied upon by the learned Counsel for the respondents. The question is how far these two provisions justify the removal of the petitioner from membership of the Advisory Board.
5. It is relevant to note at this stage that this petitioner was appointed by the District Judge from among 23 other applicants for the office of the membership of the Advisory Board. At the time this petitioner was appointed to the Advisory Board, he had stated that he was a permanent resident of Nagapattinam Municipality, that he was aged 28 and that his father was doing business in Bangkok and that he was one of the devout worshippers of the Darga. The petitioner is also a B. Com. of the Madras University and a person owning considerable properties in the Nannilam and Nagapattinam taluks. The total value of his assets was shown to be about two lakhs of rupees. At Bangkok also his father was stated to have properties worth two lakhs. He was also a member of the Executive Committee of the Kamalia Muslim League which managed the Kamalia mosque and other institutions at Nagapattinam. After his appointment on the 30th June, 1955, the petitioner left for Bangkok in or about January, 1956. In a letter written in the month of June, 1956, it is stated that the petitioner took leave of the President of the Advisory Board and that he had informed the President that he would be away for about three months. This letter addressed to the President of the Advisory Board also states that after reaching Bangkok, he fell ill and was convalescing and that he expected to leave the place within about 25 days. He expressed the hope that by reason of his absence, the Board had not been handicapped and inconvenienced and he wanted to be excused for his absence. In a certificate issued to him by a doctor of Bangkok, working in the Bangkok Sanatorium and Hospital, on 22nd June, 1956, it is stated that this petitioner had been under the care of the doctor and treatment since May, 1956, and that he had been advised to continue rest for another three to four weeks.
6. In view of the fact that there was no provision in the scheme decree disqualifying the members of the Advisory Board once appointed from continuing as such for reasons of absence from station and also in view of the fact that no particular duties were to be discharged by the individual members of the Advisory Board except to function as a Board the letter, dated June, 1956, the certificate, dated 22nd June, 1956, do not seem to have been called for at all. Nevertheless, as a demonstration of good manners and conduct and out of a sense of responsibility, the petitioner would appear to have sent this letter and the medical certificate. It transpires that it is only after his letter and certificate that the President of the Advisory Board and the Managing Trustee of the Darga made a report respectively on the 17th June and 30th June, 1946, to the District Judge informing the District Judge about the absence of the petitioner from station and his not attending the meetings of the Advisory Board. These reports are addressed to the District Judge, Nagapattinam, by means of letters. The Managing Trustee reported that the petitioner had left the place and thus absented himself from the meetings continuously and that he should be held to have forfeited his seat and that in his place a suitable person should be appointed by the District Judge. He also said that it was necessary to do so in the interests of the institution. While the President of the Advisory Board had stated that the petitioner had left for Siam, the Managing Trustee had stated that he had left for Malaya. This difference must be due to the wrong information one of them had about his whereabouts. But the significant fact to be noted with regard to these two reports to the District Judge is that they proceeded on the basis that the petitioner had left Nagapattinam once for all and as if he was not going to return to Nagapattinam again, simply because his father had a business at Bangkok and he went to look after that business along with his father, it cannot be presumed that this petitioner left Nagapattinam once for all ; nor could it be inferred that he intended never to return to Nagapattinam so as to be able to exercise the duties and functions that were conferred upon him by the office as a member of the Advisory Board to which he was appointed some time. The impression given to the learned District Judge that this petitioner had once for all left Nagapattinam and making it appear as if he was not going to return to his permanent place of residence was certainly not quite warranted and was misleading. It was also not proper on the part of the District Judge without making enquiries as to the real situation to have proceeded on the basis that this petitioner had left Nagapattinam once for all, as it appears to be the case from a reading of this order. It is settled law that if a person has a place of residence with an intention to return to that place at any time he chooses, his absence from the permanent place of residence, for whatever long period it might be, cannot be construed to be an abandonment of his intention to return to his permanent place of residence. Unless it was proved by the Managing Trustee or the President of the Advisory Board to the satisfaction of the District Judge that the petitioner, who was appointed a member of the Advisory Board, had decided never to return to India or to Nagapattinam and that his services would no more be available to the Advisory Board, there could have been no justification to consider that this petitioner had forfeited his post on the Advisory Board, as was suggested by the Managing Trustee of the Nagore Darga. No foundation was laid on any facts before the Judge to enable him to come to a conclusion that the petitioner's place had become vacant.
7. Apart from this, Mr. Vaidialingam, appearing on behalf of the petitioner, has urged that the District Judge has no power to remove from office a member appointed by him to the Advisory Board in the absence of express powers so given to him under the scheme which is a self-contained one so far as it goes. It is true that in the scheme, as already observed, there is no provision which disqualifies a member of the Advisory Board from holding the office for any reason whatsoever. It was obviously not intended that any disqualification should operate in the case of members who were functioning on a purely honorary basis and in an advisory capacity in a collective manner. Nor is there any provision empowering the appointing authority to remove him from office for any reason. When no provision has been made as to compulsory attendance of these members at meetings of the Advisory Board for any minimum period or number of meetings and when there is no supervening disqualification imposed for non-attendance at the meeting of the Advisory Board, it cannot be considered that non-attendance at meetings of the Advisory Board for any length of period would amount to a forfeiture of the office of the membership of the Advisory Board so as to justify the removal of the member from the Board. A close reading of the clauses referred to above does not give the impression that it was the intention of the scheme that every member of the Advisory Board should attend every meeting of that body and render advice to the Board. Though certain powers are given to the Advisory Board by way of a check against the administration of the trust by the Board of Trustees or by the Managing Trustee or by the Manager himself, still it does not seem to have been within the contemplation of the framers of the scheme that every member of the Board should function continuously as a member and should help the Board both with his advice and actual presence at meetings. It should be remembered that most of the functions that are of an executive nature are assigned only to the President of the Advisory Board. The question in these circumstances arises as to whether it was ever intended by the provisions of this scheme that a member who did not attend any number of meetings of the Board should be considered to have forfeited his office or to have become disqualified to hold office any further so as to entail a removal from office. A reading of the provisions of the scheme does not enable me to come to such a conclusion.
8. What then is the position when there is no express provision for removal in the scheme? Mr. Gopalaswami Ayyangar, appearing on behalf of the 3rd respondent, contends that the power of the District Judge, the nominating authority, cannot be disputed if he exercises the power of removal of any member of the Advisory Board. That the power of appointment necessarily involves and implies the power of removal, is the principle which is urged by Mr. Gopalaswami Ayyangar, learned Counsel for the third respondent. Though there is no express provision in the scheme giving such a power to the District Judge to remove a person already nominated by him to the Advisory Board, still his point is that any person appointed by the Court can also be removed by that very Court. I think the principle that the appointing authority generally is vested with the power to remove the appointee for good cause and especially so if the appointee holds office during the pleasure of the appointing authority, cannot be questioned. But what one has to consider here is whether in the absence of any provision vesting such power of removal of a member of the Board, the District Judge while exercising such power by implication, has acted properly and with sufficient justification.
9. In support of his contention Mr. Gopalaswami Ayyangar relied on the provision contained in Clause 52 of the scheme which has already been referred to by me in the earlier part of this judgment. Under that clause any of the trustees or Kasupangudars or any member of the Advisory Board may by petition apply to the Court for all further orders or directions as may be necessary to carry out the provisions of the scheme and the Court shall have full power to give all such directions as may be necessary to effectuate and carry out the scheme. Instead of a trustee or any member of the Advisory Board in this case it is the Managing Trustee of the Darga and the President of the Advisory Board that have taken to the notice of the District Judge that the petitioner has been absent and they have asked the District Judge to declare the petitioner to have vacated his office and appoint another person in his place. Mr. Gopalaswami Ayyangar contended that in view of the fact that the petitioner had not been attending the meetings and has not made available, to the rest of the Advisory Board, the benefit of his advice and presence at meetings, the action taken by the Managing Trustee and the President of the Advisory Board should be considered to be in the interests of the administration of the trust and necessitated by considerations of the proper administration of the trust and that it was within the duties of the Managing Trustee and the President of the Advisory Board to keep the District Court informed of the situation and ask for directions. He further urged that the directions asked for by the President of the Advisory Board and the Managing Trustee were only to give effect to the scheme which provided for the appointment of an Advisory Board and for the proper functioning of that Board. But the point to be considered in this connection is whether the absence of this petitioner has been so detrimental to the proper functioning of the Advisory Board or the administration of the trust that it called for his removal and whether the letters written by the Managing Trustee and the President of the Advisory Board were really intended for the purpose of carrying out the provisions of the scheme and whether the orders of the District Judge were necessary to effectuate and to carry out the scheme. It must be remembered that this petitioner was only one of the eleven members of the Advisory Board and it cannot with any justification be argued that the absence of this single member from the meetings of the Advisory Board was really prejudicial or detrimental to the effective and proper carrying out of the scheme by the Advisory Board as provided for in the scheme. It was not the case that by reason of the absence of this petitioner that there was failure of a quorum for any meeting or that the Advisory Board failed to carry out the functions and duties effectively and that by reason of such inability to discharge its functions the administration of the Trust suffered to any extent. It is hardly conceivable that the absence of a single member out of a large body of eleven members would certainly give rise to such undesirable results when there was no quorum fixed for meetings. Considered in that light, it is difficult to agree with Mr. Gopalaswami Ayyangar that the letters written by the Managing Trustee and the President of the Advisory Board were really conceived in the interests of the proper administration of the Trust. The administration had not suffered by any means and there is no proof of that. It could not also be so for the Board was to function only as a collective body and in an advisory capacity.
10. A technical point has been raised by Mr. Vaidialingam that even if such action was justified under Clause 52 on the part of the Managing Trustee and the President of the Advisory Board, the procedure adopted by the two authorities was not competent, for what is contemplated under Clause 52 is the procedure of an original petition and not a demi-official letter as the two authorities have conceived it to be. The language seems to be clear that any trustee or any member of the Advisory Board may by petition apply to the Court. This would naturally mean that there must be an original petition filed for this purpose in the proper manner as recognised by the Procedure Code and not that any action should be taken by the District Court on some letters written to the District Judge. That however, is a technical point. This is only to show the impropriety of the application and also the impropriety of the action taken on such application by the District Judge. Instead of rushing to take action on the letters, the District Judge would have done well in insisting upon the proper procedure, to be followed under Clause 52 of the Scheme.
11. Mr. Gopalaswami Ayyangar next invited my attention to a decision in Veeraragavachariar v. Advocate-General of Madras I.L.R.(1927) Mad. 31 : 51 M.L.J. 722 , to the effect that the procedure provided in Clause 52 of the Scheme decree is quite legal and did not offend against Section 92, Civil Procedure Code. He rightly contended that the removal of a member of the Advisory Board is not the same as removing a trustee under Section 92, Civil Procedure Code. Obviously, a member of the Advisory Board cannot be considered to be a member of the Board of Trustees for the management of the Trust. Section 92 would come into operation only if there is a prayer for the removal of a trustee or for accounting or if there is any charge of breach of trust or even any prayer for modification or alteration of the Scheme. A mere application for the removal of a member of the Advisory Board is not certainly within the purview of Section 92, and, therefore, Clause 52 of the Scheme decree is certainly not ultra vires of Section 92, Civil Procedure Code. But this is not the real point that is involved in this petition. Clause 52 may not be illegal nor liable to question under Section 92, Civil Procedure Code.
12. Mr. Gopalaswami Ayyangar next referred me to a decision in Ram Charan Bajpai v. Rakhal Das Mookerjee I.L.R.(1913) Cal. 19. This he relied on for the proposition that a power of appointment ordinarily involves a power of dismissal. In this case, there was a superintendent appointed by the trustees under the power vested in the trustees. It was held that he was a servant of the trustees and that if he was dismissed by them he had no right to an injunction restraining the trustee from interfering with the enjoyment of the rights and privileges of such superintendence as the deed of trust provided. At page 29 the Bench of the Calcutta High Court observed that the power of appointment ordinarily involved a power of dismissal, unless there was anything special in the nature of the office, or the deed or statute under which a person was appointed showed the contrary. As already stated that this is the ordinary position need not be canvassed lest the question involved is quite different. Mr. Gopalaswami Ayyangar also invited my attention to the decision in Tiruvambala Desikar v. Manikkavachaka Desikar (1915) 30 M.L.J. 274 : I.L.R. Mad. 177. But this decision does not really help him. I shall advert again to this decision at a later stage in the course of this judgment.
13. Mr. Gopalaswami Ayyangar's main contention was that if the member of the Advisory Board was not in a position to give his services to the Adviory Board, the Court will not be violating any principles of justice if it should remove him from his place and appoint another instead, that the Court was entitled to take such action in the best interests of the trust, that the protection of the interests of the trust must be paramount should be kept in view and that the powers of the Court to safeguard the interests of the trust were not fettered in any way, especially when the Court itself was the appointing authority of the members of the Advisory Board, as in this case. His point is that if the welfare of the trust and its protection was the paramount concern, the Court was well within its power to remove the member of the Advisory Board who was not available to the trust to render any service for such a long period and it cannot be said that the Court has wrongly exercised the power. Mr. Gopalaswami Ayyangar relies on Halsbury's Laws of England, Volume 4, 3rd edition, page 377, and also the case cited therein, namely Letterstedt v. Broers (1884) L.R. 9 A.C. 37, in support of this proposition.
14. In the light of his argument the question that arises is as to whether the interests of the trust and its welfare did really demand that the petitioner a member of the Advisory Board, should be removed from office and whether his absence did really contribute to any prejudice to the interests of the trust. Unless it be that his continuous absence was an impediment in the way of the proper functioning of the Advisory Board and that the interests of the Trust really suffered by reason of his continuous absence, or there were circumstances which impressed the Court that his continuous absence was a serious handicap to the smooth and efficient administration of the trust to its best advantage, it is difficult to say how the question of the protection of the interests of the trust or its welfare could be brought into the fore for removing a person who has not attended, especially when it was not made compulsory on him to attend or when he was not put on notice that if he failed to attend a certain number of meetings he should forfeit his place. No doubt Mr. Gopalaswami Ayyangar said that one of the conditions imposed for eligibility to be a member of the Advisory Board is that he should be a resident of the municipal limits of Nagapattinam and since the present petitioner was not available in Nagapattinam, within its municipal limits, the President of the Advisory Board and the managing trustee of the trust were both of them within their province to take the matter to the District Judge and the District Judge was justified in removing the petitioner and appointing another in his place. In this case, it is not so much a question of error of jurisdiction to justify intervention under Section 115, Civil Procedure Code; but it is largely a question as to how far the power exercised by the learned District Judge has been exercised in a proper and judicious manner. When the petitioner left India he had taken leave of the President of the Advisory Board and after having gone there, when he fell ill he had also intimated to the President that he was ill and was convalescing and expected to return within a month. He also sent a medical certificate, though he was not compelled to send any medical certificate about his illness and detention for reasons beyond his control. Such being the case, as already observed, there was no ground for the Managing trustee or the President of the Advisory Board to suspect the bona fides of the petitioner or to feel that his absence had done any serious wrong or caused any prejudice or detriment to the interest of the trust. In the absence of proof of these, the order of the District Judge cann6t be supported.
15. Mr. Vaidialingam raised a further point which he said militated against the legality of the order passed by the learned District Judge. He argued that even granting that the District Judge had power to remove a person whom he had nominated to the Advisory Board, still such removal cannot take place without a notice being issued to the person concerned to show cause why he should not be removed from office, and that it was necessary in the interests of natural justice that the person sought to be removed and against whom an order was being sought to be made should be put on notice and he should be given an opportunity to explain and show cause why such an order should not be passed against him. Notice was required to be sent to him to show as to whether his inability to render service, which was all that counted according to Mr. Gopalaswami Ayyangar, was really for reasons beyond his control, or it was sheer neglect and indifference to the duties expected of him as a member of the Advisory Board. No doubt it may be open to the appointing authority to think of a more useful and competent person when the one appointed by it was not rendering service as could be expected or had proved himself to be incompetent or otherwise disqualified. But that is not the case here. The petitioner was always willing to come back and render service as a member of the Advisory Board, and possibly if notice had been given to him, there was every chance of his rushing back to India and begin functioning as a member of the Advisory Board. But no such notice has been given to him after the two authorities, namely, the President of the Advisory Board and the Managing trustee of the Darga, had reported to the District Judge that the petitioner was absenting himself for a long period from attending meetings of the Board. Mr. Gopalaswami Ayyangar however contended that notice was not necessary in such a case, because it was not a question of a trustee and his removal that were involved in this case, but merely an honorary member of the Advisory Board and that notice was usually and generally required to be given only when the person who was to be given notice was holding any right as that of a freehold. According to him, a member of the Advisory Board does not hold any property in the legal sense by virtue of his being a member of such an Advisory Board. The functions of the Board are merely advisory and in that capacity only the petitioner has been nominated by the District Court. Trusteeship as such has been held to be a 'freehold interest' but this office of Advisory Board cannot be put in the same category as Trusteeship. There was therefore nothing wrong in the Court not having given notice to the petitioner before he was removed from office is the argument of Mr. Gopalaswami Ayyangar. I do not think I can agree with the contention put forth by Mr. Gopalaswami Ayyangar. The petitioner did hold an office and he had a right to hold that office by virtue of his having been appointed as a member and that office as has been contended for by Mr. Gopalaswami Ayyangar involved some rights and duties. The Advisory Board is charged with several functions and duties. The Board has effective power of the administration of the Darga by the trustees and it has to be in constant touch with the affairs of the Darga as managed by the Board of trustees. The membership of such a Board, though it may be only an Advisory one is certainly a privilege and a right which he is entitled to hold and enjoy and if a person is to be deprived of that privilege and right, it is but natural justice that he should be given due notice before his removal takes place. Mr. Vaidialingam has contended that the removal of the petitioner from his membership of the Advisory Board amounts virtually to a dismissal from his office. Whether it could be considered to be a dismissal from his office or not, nevertheless the fact remains that the order passed by the learned District Judge was an ex parte order on two letters, demi-official received from the President of the Advisory Board and the Managing Trustee. The question is how far such an ex parte order against the member of the Advisory Board was justified in the circumstances. Unless there is gross misconduct or mis-behaviour in his office and such is proved before the appointing authority, any suspension or removal would not be justified. In this case, it cannot be said that mere absence would tantamount to a misconduct of any kind, especially when there is no provision, as already observed more than once in the scheme decree that if a member is absent from any meetings he should lose his office or forfeit the same. In this connection a reference to Tiruvambala Desikar v. Manikkavachaka Desikar (1915) 30 M.L.J. 274 : I.L.R. Mad. 177 and the observations made at page 190 becomes relevant. The learned Judge has observed at page 190 as follows:
It is not suggested in the present case that any notice was given to the defendant by Sivagnana of the charges on which he purported to dismiss him after his return from Benaras, and consequently such dismissal is Wholly void and inoperative and the defendant, if he has not already succeeded by virtue of Exhibit S, remained the junior Pandarasannadhi and on Sivagnana's death was his legal representatives and entitled to succeed him.
16. In Letterstedt v. Broers (1884) L.R. 9 A.C. 371 , the House of Lords quoted Section 1289 in Story's Equity Jurisprudence to the following effect:
But in cases of positive misconduct, Courts of Equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts of Equity to adopt such a course, But the acts or omissions must be such as to endanger the trust property or to show a want of honesty, or a want of proper capacity to execute the duties, or a Want of reasonable fidelity.
and further observed as follows:
It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or Were greatly exaggerated, so that the trustee was justified in resisting them, and the Court might consider that in awarding costs, yet if satisfied that the continuance of the trustee Would prevent the trust being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.
These observations though they apply to trustees are still apposite in this case in that the learned Counsel for the respondent had not succeeded in showing that there has been anything on the part of the petitioner that could be legitimately claimed to entail any danger to the trust property or to show a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity. No such thing has been alleged or proved against the petitioner in this case.
17. It must also be remembered that in ordering the removal of a member of the Advisory Board the Court was exercising only judicial functions and it was determining as to whether a member of the Advisory Board was competent any more to hold the office or whether he has ceased by reason of the circumstances complained against him to hold the office any further. In exercising such judicial functions and in determining the rights of a member of the Advisory Board to hold office or otherwise, certainly the principles of natural justice require that there should be notice given to him in order to show that he had not acted in such a manner as to deserve a removal from his office. Mr. Vaidialingam has invited my attention to numerous decisions on this point and I do not think I need go into each one of them in detail. It is sufficient for me to state that these decisions lay down the proposition that in a case where the Court is called upon to exercise judicial functions in determining the rights and liabilities of parties, the party should be before the Court and the Court should hear whatever explanations that the party might be willing to offer before any adverse order is passed against him. These decisions are : Balakrishna Udayar v. Visudeva Ayyar Ranganatha Thathachariar v. Krishnaswami Thathachariar I.L.R.(1923) Mad. 139, Lakshmana v. Govindan A.I.R. 1939 Mad. 969, Ebrahim Saheb v. Regional Transport Authority, Tanjore ( : AIR1951Mad419 , and Seetharamaiya v. Bhaskaranarayana (1954) 2 M.L.J. 226. In my view the absence of notice to the petitioner before his office was held to have been vacated and before it could be filled up by another person, notwithstanding the fact that the appointing authority was competent to remove a person, is certainly not legal, nor proper and is vitiated. It does not appear to be also the case that the complaining parties have really made out a case for the removal of the petitioner from his office knowing as they do that he was absent from Nagapattinam only with a view to return to his place of permanent residence and that he was prevented by reasons beyond his control in doing so in the immediate future.
18. Therefore, considering all the circumstances, I am of the opinion that the order of the learned District Judge was not competent and that it was not rightly made. This order therefore has to be set aside and it is set aside accordingly. Until the expiry of the period of three years the petitioner will therefore be deemed to continue to be the holder of the office of membership of the Advisory Board. This Civil Revision Petition is therefore allowed with costs.