JUDGMENT : Smt. M.S. Jawalkar, J . 1. Heard learned Counsel for the appellants and learned Counsel for respondent Nos. 2 to 4. 2. The present appeal is filed by the appellant challenging the order passed by the Joint Charity Commissioner, Nagpur in Application No.17/2006 under Section 41–D dated 15/12/2018. The appellant No. 1 is the president of Lokseva Shikshan Sanstha, Sirsi. It is registered Public Trust bearing registration No. F-683(N). The said Trust runs Pramilatai Dekate Girls Hostel and Vasantrao Naik Krushi Vidyalaya. The respondent Nos. 2 and 3 claiming members of the trust, filed an application under Section 41-D of the Maharashtra Public Trust Act [for the brevity MPT Act], which was registered as Application No.17/2006. The appellant along with respondent Nos.4 and 5 were respondents while one Madhukar Begde, Rajesh Kune and D.B. Bhandakkar died during the pendency of the proceeding but no steps were taken by the applicants. 3. The respondent No.1, Joint Charity Commissioner conducted enquiry and passed the impugned order on 15/12/2018, whereby removed the appellants from trusteeship. The said order mainly challenged on the ground that the order is per se illegal as the enquiry was proceeded against three persons who were already dead and proceedings continued against them. Resultantly, one Madhukar Begde who is already dead is removed by that order. The order is also contrary to the provisions of law as it does not mention the tenure of removal. The Joint Charity Commissioner removed appellant No.1 for the disobedience of the directions in Application No.15/2004 dated 08/08/2004 and 10/08/2004. In fact, there is no disobedience of the orders as the said order communicated in the year 2006. Another ground for removal of appellants for non filing of audit reports, however, firstly it is the responsibility of the Secretary for which President cannot be removed, secondly due to non-cooperation by the headmistress, the audit report could not be prepared. For that reason there was enquiry conducted against Headmistress and she was removed from the post 4. The appellants submitted that due enquiry was conducted against headmistress. One of the ground for enquiry is non-cooperation for preparing an audited account. Later on she was terminated and entire audit was done and submitted to the Charity Commissioner. As such, there is no intentional delay or negligence on the part of appellants. The appellants submitted that due enquiry was conducted against headmistress. One of the ground for enquiry is non-cooperation for preparing an audited account. Later on she was terminated and entire audit was done and submitted to the Charity Commissioner. As such, there is no intentional delay or negligence on the part of appellants. One of the charge against appellant for removal is that the appellant No.1 obtained donation from students forcefully and Deputy Director imposed a fine of Rs.1,00,000/-. It is submission of the appellants that the said donation was not obtained by the appellant and it was obtained by the earlier headmaster. The said fine was imposed on the headmaster of the school, therefore, appellants made representation and the said fine of Rs.1,00,000/- was reduced to Rs.10,000/- and since the headmaster was not having funds, the appellants gave hand loan to him. But the appellants were nowhere concern with the said donation. The applicant also filed Application (CAF) No 1279/2022 under Order 41, Rule 27 for allowing appellant to place on record documents in the form of additional evidence.The learned Counsel for appellant relied on citations – 1) Vajubhai Patel and another Vs.. The Chairty Commissioner and others reported in (1990)2 Bom CR 702. 2) Bombay Diocesan Trust Association Pvt. Ltd and others Vs. Dr. P.B. Amolik and others reported in (2017) 5 Bom CR 187. 3) Mukund Waman Thatte Vs. Sudhir Parshuram Chitale and others 2012 (3) Mh.L.J. 322 . 4) Mallikarjunappa Sidramappa Bidve Vs. Joint Charity Commissioner 2008(1) Mh.L.J. 148 . 5. The learned Counsel for the respondent vehemently opposed the appeal and supported the order passed by Joint Charity Commissioner. The appellants were in persistent default in filing audit report from 1996 to 2014. It is contended that the learned Charity Commissioner rightly imposed punishment of removal. 6. The learned Counsel for the respondents further submitted that the appellant was present in the meeting held on 08/08/2004, which is annexed as document No.3 along with Civil Application for producing additional evidence on record and in view thereof, the appellants were having knowledge about passing of the order prohibiting appellants from appointing any employee. The learned Counsel drawn my attention to the cross-examination of appellants. It is his contention that he has admitted that appointment was done after passing of order dated 30/07/2004. The learned Counsel drawn my attention to the cross-examination of appellants. It is his contention that he has admitted that appointment was done after passing of order dated 30/07/2004. It is his contention that though it is claimed that order was communicated in the year 2006, he has not taken any steps in that regard for cancellation of appointment made in the year 2004. He further submitted that the letter dated 01/08/2003 imposing fine of Rs.1,00,000/- is admitted. Though appellants claimed that it was reduced to 10,000/-, he has not produced the said letter before the Joint Charity Commissioner. The said letter is produced in the appeal for the first time. The learned Counsel further submitted that ratio of Mallikarjun (supra) can not be made applicable in the present matter. There are no grounds to entertain this appeal and prayed for rejection of the said. 7. I have heard both the parties at length. Now rival contentions falls for my determination. The Joint Charity Commissioner framed following points and recorded its finding as under : SR. NO. POINTS FOR DETERMINATION FINDINGS (i) Charge No.1 Do the applicants prove that Non-applicant No.1 as working President did not permit Non-applicant No.7 recorded Secretary to discharge his duty as Secretary and pressurised him to sign letters and Non-applicant No.2 to 4 and 6 help Non-applicant No.1 in such activities ...Negative (ii) Charge No.2 Do the applicants prove that Non-applicant No.1 to 7 committed disobedience of directions issued in Application No.15/2004 vide Order dated 08/08/2004 and 10/08/2004 and issued appointment order to M.K. Devate as Shikshan Sevak ? ...Affirmative against Non-applicant No. 1, 2, 4 and 7 and Negative against Non-applicant No.3, 5 and 6. (iii) Do the applicants prove that Non-applicant No.1 as a working President of said trust failed to get accounts of trust regularly audited and to submit returns in office of Deputy Charity Commissioner, Nagpur? ..Affirmative against Non-applicant No. 1 (iv) Do the applicants prove that Non-applicant No.1 as a working President of said trust obtained donations from students forcibly and fine of Rs.100000/- is imposed by Deputy Director of Education against trust and thereby committed the acts of malfeasance and misfeasance? ..Affirmative against Non-applicant No. 1 (iv) Do the applicants prove that Non-applicant No.1 as a working President of said trust obtained donations from students forcibly and fine of Rs.100000/- is imposed by Deputy Director of Education against trust and thereby committed the acts of malfeasance and misfeasance? ..Affirmative against Non-applicant No.1 only (v) Do the applicants prove that Nonapplicant No.4 working as a Headmaster of School illegally changed date of birth of Liladhar Dekate in his Service Book reducing his age by 1 year and illegally received salary for 1 years? ...Negative (vi) What order ? Application partly allowed 8. As learned Joint Charity Commissioner answered the charge No.1 in the negative, I need not discuss the same. So far as charge No.2 is concerned which is answered in the affirmative. Let us see what is the evidence on record. In an application No. 15/2004 under Section 41 -E Joint Charity Commissioner vide interim order dated 08/08/2004 and 10/08/2004 prohibited management from filling up vacancies. Application No. 15/2004 under Section 41–E was filed against the applicant No.1 and others by that order the non-applicants/appellants herein and others were prohibited from appointing any new employee for the institution run by the said Trust. It is alleged that in spite of this order nonapplicant appointed Shikshan Sevak in contravention of the said order. The School Committee issued order appointing Shri Devate as Shikshan Sewak on 11/08/2004. The appellants herein raised defence that the said order passed in application 15/2004 dated 08/08/2004 and 10/08/2004 received by him in the year 2006. His further contention is that the said application No. 15/2004 came to be dismissed in the year 2012 by order dated 18/12/2012.The learned Joint Charity Commissioner held that there is a breach of order dated 10/08/2004 and also relying on cross-examination that appellants herein were having knowledge of passing of order. 9. I have gone through the cross-examination and also finding recorded by the Charity Commissioner against the charge No.2. There is nothing on record to show that the appellant got knowledge of order dated 10/08/2004 before 2006. The admission in cross-examination is about holding of meeting for selection of Devate and knowledge of such appointment to the trustees. 9. I have gone through the cross-examination and also finding recorded by the Charity Commissioner against the charge No.2. There is nothing on record to show that the appellant got knowledge of order dated 10/08/2004 before 2006. The admission in cross-examination is about holding of meeting for selection of Devate and knowledge of such appointment to the trustees. That does not amount to admission anywhere about knowledge of the passing of order on the date of the meeting held by the School Committee while issuing appointment order in favour of one Devate as a Shikshan Sewak. 10. The act is of two years prior to intimation of passing of order. The appellant admitted that there was school committee meeting in which Devate was selected and from record also it shows that appellant was one of the member of School Committee. But fact is that there is nothing on record to show that the said order was within the knowledge of either members of School Committee or appellant on the date of said meeting that any prohibitory order came to be passed against the appellant and others for appointing any employee. As such there is no willful or intentional disobedience on the part of appellant. The learned Charity Commissioner erroneously come to the conclusion without any evidence on record that appellant was having knowledge about passing of the order and he willfully disobeyed the order. For taking any action for disobedience of order there has to be intention to flout the order passed by the competent authority. The prohibitory order passed by the Joint Charity Commissioner dated 30/07/2004 and it was communicated in 2006. Therefore, it will take effect from the date on which it was communication and not from the date on which it was passed. The appointment so made is prior to the communication of that order. As such there is no intentional or deliberate defiance of the order passed by Joint Charity Commissioner. As such the finding recorded is patently erroneous. Charge No.2 is not proved against the appellant. The charge is also cannot be said to be proved against dead persons i.e. Madhukar Begde, Rajesh Kunte. 11. As such there is no intentional or deliberate defiance of the order passed by Joint Charity Commissioner. As such the finding recorded is patently erroneous. Charge No.2 is not proved against the appellant. The charge is also cannot be said to be proved against dead persons i.e. Madhukar Begde, Rajesh Kunte. 11. The third charge is in respect of non submission of audited reports in the office of the Deputy Charity Commissioner and failure to submit returns in the office of the Deputy Commissioner and failure to get an account of trustees regularly audited. The learned Joint Commissioner Commissioner held that filing application Exh.62 for condonation of delay for filing audit report till 2012 vide Exh.61 itself shows that there is delay. The learned Joint Charity Commissioner inter linked the two charges i.e. Charge Number 3 and 4. Charge No.4 is in respect of fine of Rs.1,00,000/- imposed by the Deputy Director of Education against Trust and thereby committed acts of ‘malfeasance’ and ‘misfeasance’. The Joint Charity Commissioner relying on the letter issued by Deputy Director of Education held that Rs.1,00,000/- fine was imposed and which was paid from the said Trust fund. In view thereof, it is necessary to maintain books of account and get the account audited within the prescribed time period. 12. The learned Charity Commissioner rejected the contention of appellants that in view of Vajubhai Patel (supra), the charge cannot be framed. It is held that, facts in this case, are such that default committed by the non-applicant is not technical but it is a deliberate one to suppress the financial transaction of said trust, and the finding is recorded against the appellant No.1. In this regard, the learned Counsel for appellant pointed out relevant portion of Vajubhai Patel’s judgment reads as under : “73 It can be urged that Clause (c) of section 41-D(1) treats any act of mal-feasance or mis-feasance or breach of trust in respect of the trust as sufficient to warrant suspension, removal and dismissal. This contention would have an element of plausibility, but no more. The words would take colour from the context. Thus viewed any act of misfeasance, malfeasance or breach of trust would not cover technical deviations. The acts would have to be tainted in the sense contemplated by the authorities mentioned above to merit the penalty prescribed by section 41-D(1). This contention would have an element of plausibility, but no more. The words would take colour from the context. Thus viewed any act of misfeasance, malfeasance or breach of trust would not cover technical deviations. The acts would have to be tainted in the sense contemplated by the authorities mentioned above to merit the penalty prescribed by section 41-D(1). It is in this background that the proved charges have to be appraised.” 13. As submitted by learned Counsel for the appellant as per Constitution, the Secretary is responsible for submitting audited returns. Moreover, to say that charges is proved, it has to be shown that trustees committed malfeasance or misfeasance under Section 41D (1)(c) of MPT Act, or breach of trust in respect of trust. Section 41D of Maharashtra Public Trust Act reads as under : 41D Suspension, removal and dismissal of trustees (1) The Charity Commissioner may, either on application of a trustee or any person interested in the trust, or on receipt of a report under section 4lB or suo motu may suspend, remove or dismiss any trustee of a public trust, if he— (a) …... (b) …... (c) continuously neglects his duty or commits any malfeasance or misfeasance, or breach of trust in respect of the trust; 14. What is malfeasance is defined in law dictionary, is committing some unlawful act and misfeasance is willful and reckless misconduct. The non filing of audited account is mere irregularity. Learned Counsel submitted that there is nothing on record to show that any forcible donations were accepted by the trustees from the students. As per letter dated 01/08/2003, it is alleged by Deputy Director of Education that Rs. 25,100/- amount is taken while admitting student in 11th standard, however, only Rs.21,000/- deposited and Rs.2,600/- not deposited which amounts to financial irregularity. Even authority says that it is financial irregularity and for that fine of Rs.1,00,000/- imposed which was subsequently reduced to Rs.10,000/-. 15. I have seen the deposition of appellant, wherein he has specifically stated that the said amount was reduced to Rs.10,000/-. The said letter is produced on record by the appellant along with application No. 1279/2022. As there is deposition to that effect, I do not see any reason not to take these documents on record which will assist in passing judgment. The said letter is produced on record by the appellant along with application No. 1279/2022. As there is deposition to that effect, I do not see any reason not to take these documents on record which will assist in passing judgment. By this letter dated 02/01/2004, Education Officer on the request of the society reduced the said amount to Rs.10,000/-. As such, finding recorded that the amount of Rs.1,00,000/- paid from said Trust fund is having no substance. There is nothing on record to show that amount of Rs.1,00,000/- paid from the fund of said Trust. The learned Joint Charity Commissioner come to the conclusion that Rs.1,00,000/- paid from fund of the Trust and also erroneously come to the conclusion that the fault committed by the non-applicant is not technical but it is deliberate one to suppress the financial transaction of said Trust. Thus it has linked the Charge No.4 with Charge No.3. 16. The learned Joint Charity Commissioner has not considered the fact that the headmaster was removed and one of the charge was that he has received the donation. The finding in this regard that appellant No.1 collected donation from the students forcibly and Trust must suffered with financial loss of Rs.1,00,000/- is totally without any evidence. His cross examination is not properly appreciated by the Joint Charity Commissioner. Appellant denied the fact that he has any point of time received donation from the students that to forcibly. Though, he has admitted that Education Officer vide letter dated 11/08/2003 imposed fine of Rs.1,00,000/- and the said fact was communicated to the Trust and on that basis Joint Charity Commissioner come to the conclusion that president of the said Trust collected donation and he has committed acts of malfeasance and misfeasance in view of section 41D (1)(c). He has not discussed any thing about reduction of said amount to Rs.10,000/- and not verified whether such amount was really deducted from the Trust fund. The conclusion of loss to the Trust of Rs.1,00,000/- is totally erroneous. Neither charge No.3 nor charge No.4 is proved against the appellant No.1. 17. As regards charge No.5 is concerned, it is answered in the negative. So I do not see any reason to discuss the same. 18. The Joint Charity Commissioner recorded perverse findings to come to the conclusion that the charge against appellant No.1 is proved and removed the appellant from the Trust. 17. As regards charge No.5 is concerned, it is answered in the negative. So I do not see any reason to discuss the same. 18. The Joint Charity Commissioner recorded perverse findings to come to the conclusion that the charge against appellant No.1 is proved and removed the appellant from the Trust. As held in Mukund Thatte (supra) : “For taking drastic action of removal, suspension and dismissal from the posts of the trustees, a very high degree of proof is required and the person seeking removal has to prove that the irregularities within the scope of Section 41D (i) are proved without any manner of doubt. Unless and until the lapse on the part of the trustee is proved to be actuated by dishonestly, a drastic action under Section 41D of the Bombay Public Trusts Act may not warranted. The errors committed by the trustees were not so severe so as to warrant their removal. Imputation reflecting on the integrity of the trustees have to be fortified by proof of high degree which will have to be higher than the standard of proof required in the civil proceedings.” 19. As such there is no submission of audited report for a long period, which is mere irregularity unless there is any specific allegation that it is actuated by dishonest intention. Moreover, as per Constitution it is the duty of the Secretary. It also depends on cooperation by the head of the school for this. Therefore, the removal of appellant No.1, who is President of the Trust is, in my opinion, a drastic action which may not be warranted. Though Joint Charity Commissioner tried to link the loss of Trust fund of Rs.1,00,000/- which is not actually established for want of submission of audited report is patently erroneous. Even if, there is irregularity, the Secretary would have to be held responsible. For that reason President cannot be removed. 20. Considering the above referred discussion and conclusion drawn by me, judgment in application No. 17/2016 is liable to be quashed and set aside. Accordingly I proceed to pass following order. ORDER i] The appeal is allowed. ii] The order passed by Joint Charity Commissioner, Nagpur in Application No.17/2006, dated 15/12/2018 is hereby quashed and set aside. iii] The appellant Nos.1 and 2 are hereby exonerated from the charge framed against them. iv] The Civil Application No. 1279/2022 is allowed. Accordingly I proceed to pass following order. ORDER i] The appeal is allowed. ii] The order passed by Joint Charity Commissioner, Nagpur in Application No.17/2006, dated 15/12/2018 is hereby quashed and set aside. iii] The appellant Nos.1 and 2 are hereby exonerated from the charge framed against them. iv] The Civil Application No. 1279/2022 is allowed. Documents are taken on record. At this juncture, learned Counsel for respondent Nos. 2 to 4 seeks time for approaching the higher Court to challenge this order. I do not see any reason to stay the order. Hence the prayer is rejected.