2007 Supreme(Bom) 1408

BOMBAY HIGH COURT
(Aurangabad Bench)
Before : V.R.Kingaonkar,J.
Mallikarjunappa s/o Sidramappa Bidve
And others ……Appellants.
Vs.
Joint Charity Commissioner and others..Respondents.
Second Appeal NOss.44 and 45 of 2004,
decided on 29th September,2007.

Headnote:`Bombay Public Trusts Act, 1950 - Section 41-D-Allegation of Group G that trustees of Group B accepted donations from students for admissions to engineering course and paying less salaries to teachers-Donation from students proved but from that of teachers not proved-Removal of Trustees-Challenged-District Court held that charges was proved against members of Group (B) and not against Group (G), therefore, removal of members of ’G’ Group was illegal-Challenged-Held that removal of trustee was improper and unsustainable.-It appears that, yet another Writ Petition No. 3168 of 1998 was preferred by Mahadevappa Khanapure. This Court again directed that the Joint Charity Commissioner to consider list of witnesses and documents as given by original applicants and no other document shall be allowed to be produced.

       The Joint Charity Commissioner allowed the parties to lead evidence in the context of various charges levelled against the trustees. As many as 13 charges were framed by the learned Joint Charity Commissioner. Out of them, only one charge was held as proved. The remaining charges pertaining to payment of less salary to the teaching staff, non-teaching staff, purchasing of goods for higher prices, excessive expenditure shown towards construction work etc. were held as disproved.

       The learned Joint Charity Commissioner believed the evidence tendered by original applicants in support of the above charge. The learned Joint Charity Commissioner held that original opponent Nos. 1, 3 and 8 i.e. the President, Secretary and Treasure indulged in corrupt practice by collecting donations from Engineering College students at time of their admission to the first year of engineering course and also while allowing them to change the faculty during period before completion of the graduation. The learned Joint Charity Commissioner held, however, that all the managing trustees by their act of omission failed to prohibit above three office-bearers from accepting such donations and hence were equally guilty of the charge of committing malfeasance. Consequently, the learned Joint Charity Commissioner allowed the application and directed removal of all the fifteen (15) trustees i.e. 8 members of Group "B" (Bidve Group) as well 7 members of Group "G" (Girwalkar Group).

       Feeling aggrieved, members of Group "B" preferred Misc. Application No. 29 of 1999 and members of Group "G" preferred Misc. Application No. 52 of 1999 in the Court of District Judge as provided under Section 41(5) of the Bombay Public Trust Act (for short "BPT Act"). Both these applications were heard together and came to be decided by common judgment. The learned Additional District Judge held that the charge of malfeasance and misfeasance was proved only against managing trustees who belong to Group "B" (Bidve Group) i.e. the present appellants. The learned Additional District Judge, however, held that the said charge was not proved against the members of Group "G" (Girwalkar Group). The application filed by Group "G". MA No. 52 of 1999 was, therefore, allowed and their removal from trusteeship was quashed whereas the application filed by Group "B" MA No. 29 of 1999 as well cross-objection preferred by original applicant No. 1 came to be dismissed. Thus, dismissal of the trustees of Group "B" was confirmed by the impugned judgment. The learned Additional District Judge, further proceeded to direct that the trustees from Group "G" shall hold reigns of administration of the trust and take steps for appointment of other trustee according to the provisions of the instrument of the trust of in accordance with provisions of the BPT Act. In other words, by the impugned judgment 8 managing trustees of Group "B" were ousted, 7 managing trustees of Group "G" were exonerated from the charge of malfeasance or misfeasance and were further empowered to appoint other eight trustees.

       The first Appellate Court held that without there being proof to spell out misfeasance of the trustees of Consenting Group (Group "G"), they cannot be held responsible for collection of illegal donations from students or for less payment of salaries to the employees of educational institutions. The first Appellate Court held that the appellants committed misfeasance by making payments of less salaries to various employees of the educational institutions and embezzled such amounts.

       Challenge in Second Appeal No. 44 of 2004 is to part of impugned judgment whereby the appellants are removed from trusteeship for the reason that charge of malfeasance of misfeasance is held as proved against them. They assert that the said charge is not proved against them and the findings of the Joint Charity Commissioner as well first Appellate Court are perverse and hence unsustainable. They seek exoneration from such charge and pray for setting aside the impugned judgment.

       Challenge in Second Appeal No. 45 of 2004 is to the impugned judgment on the ground that the members of Group "G" are wrongly exonerated from the charges of misfeasance and malfeasance and are illegally allowed to appoint other trustees as well to hold reigns of the administration.

       The following substantial questions of law are formulated for decision of these appeals.

       (i) Whether the appellants have locus standi to challenge part of the judgment of the first Appellate Court to the extent it pertains to exoneration of the managing trustees who are members of Group "G" (called "Consenting Group") when the original applicant has not challenged the same?

       (ii) Whether in the facts and circumstances of the present case, the first Appellate Court rendered perverse finding that charge of malfeasance is proved against all the appellants as donations were accepted by the then President, Secretary and Treasure from the students at the time of admission to the Engineering College and/or when change of faculty was being allowed and further that such amounts were not accounted for or were being retained by them or were being misappropriated by them?

       (iii) Whether the first Appellate Court rendered perverse finding while holding that the appellant No. 1 paid less salaries to the employees working in the educational institution of the trust and that the other appellants assisted him or connived with him in doing so?

       (iv) Whether the first Appellate Court exceeded its jurisdiction while directing the members of Consenting Group (Group "G") to take reigns of administration of the public trust and to appoint other trustees as enumerated in Clause.

       (D) of the final order?

       My findings on the above points are (i) YES (ii) YES, partly (iii) YES partly (IV) YES.

       The reasons are discussed hereinafter.

       The legal position, which may be kept at back of the mind, is that removal of a trustee is a drastic action. The charge of malfeasance and/or misfeasance is serious one. The proceeding are of quasi civil and quasi criminal nature. Though the proceedings under Section 41-D is not criminal proceeding as such, yet, proof required to sustain the charges is of high standard. The standard of proof in such proceedings is somewhat more than normally required in cases governed by preponderance of probabilities and somewhat less than required in trials of criminal cases. The degree of proof required in criminal case in such that would prove criminal charge beyond a reasonable realm of doubt. The imputation reflecting on integrity of trustees have to be fortified by proof of high degree which would be somewhere in between standard of proof required in civil proceedings like a suit and criminal proceedings like a trial for offence of criminal breach of trust, or that of cheating. Thus, unless the lapse on part of the trustee is proved to be actuated by dishonesty or active connivance or malfeasance, the drastic action under Section 41-D of the BPT Act, may not be warranted.

       The expression "misfeasance" as used in Clause (c) of Section 41-D would imply commission of breach of trust. It is more than mere negligence of the trustee to perform his duty. "Misfeasance" includes breach of duty by the trustee which would result into loss to the trust or would cause unlawful gain to such a trustee, charged with act of misfeasance. Acceptance of donations from students for giving admission to first year Engineering course is not contemplated under the terms of the office of the trusteeship. It requires no mincing of words to say that ordinarily no student will volunteer to pay in excess of the prescribed fees for admission to the professional course. It is only for compelling reasons, that the donations or capitation fees is paid by the students. They are a needy class. The exploitation is made by those who can fleece the easy money.

       In the context of present appeal, the acts of the appellants are allegedly that of malfeasance or misfeasance or breach of the trust within the meaning of sub-clause (c) of Clause (1) of Section 41-D or may be to some extent within sub-clause (d). The proceeding under Section 41-D cannot be regarded as adversary trial in stricto sensu. For, the Charity Commissioner may take appropriate action in any of the following ways :-

       (i) On application of a trustee which would disclose prima facie substance in respect of any of the act enumerated under the sub-clauses (a) to (f);

       (ii) On application of any person interested in trust, who may be a stranger but has some interest in the functioning of the trust and answers description of interested person within meaning of Section 2 (10) of the BPT Act;

       (iii) On receiving a report under Section 41-B from the Competent Authority; or

       (iv) Suo motu if he finds reason to proceed with such enquiry.

       Needless to say, the enquiry is of semi-adversary and semi-inquisitive character. Sub-clause (5) of the BPT Act would make it manifest that any trustee aggrieved by the order rendered by the Charity Commissioner under sub-section (1) may apply to the Court against such order. Thereafter, an appeal is provide for under sub-section (6), which shall lie to the High Court. Obviously, an appeal by any trustee, who is aggrieved by the order made against him or against any other trustee can be preferred under sub-clause (6). The appellants are partly aggrieved by the order rendered by the first Appellate Court under sub-clause (5), because the trustees of consenting group "G" have been exonerated and discharged by the impugned judgment. The first Appellate Court reversed the findings of the Joint Charity Commissioner in this behalf.

       Mr. Dhorde, learned Advocate for respondent Nos. 3 to 10 would submit that appellants have no locus standi to prefer Second Appeal No. 44 of 2004 against finding of first Appellate Court in respect of exoneration of respondent Nos. 3 to 9 from the charges levelled against them. He would submit that when the original applicant No. 1 did not prefer any such appeal, then the appeal cannot be filed by present appellants against findings which are favourable to respondent Nos. 3 to 9. He would submit that Second Appeal No. 44 of 2004 needs to be dismissed in limine.

       Nothing of much importance could be gathered from cross-examination of PW-Kamal. He admits, unequivocally, that except his words there is no other evidence to show that Mr. Dharane had issued a chit to him for being presented before the principal. Credibility of both the witnesses is not impaired in spite of searching cross-examination. The Joint Charity Commissioner and the first Appellate Court were right in holding that documentary evidence cannot be expected in respect of such donations which are outcome of underhand dealings. Ordinarily, needy students will not insist upon any receipt regarding payment of donation. Even assuming that the witnesses could have prepared xerox copies of such chits, yet, it is improbable that they would keep record of such xerox copies for years together. They could not have ventilated any grievance while they were undergoing studies in the Engineering College. Under these circumstances, I do not find any fault with the reasoning of the Courts below.

       There is sufficient material on record which purports to show that the appellant Nos. 1-4 were the persons concerned with collection of donations from engineering students. They were working as the President and Treasurer of the trust. It does not stand to reason that the Treasure had no knowledge, whatsoever, of the illegal act of collecting donations from students of Engineering College by the President. The First Appellant Court noticed that the statement of account (Exh. 244) is corroborated by PW Guruling and hence it could be inferred that the employees were being paid less salaries at the instance of Executive Director by name Mr. V.C. Dharane and the President i.e. appellant No. 1-Malikarjunappa. Both the Courts have concurrently held that there is sufficient material to reach conclusion that donations were being collected at the instance of appellant No. 1 Millikarjunappa. A xerox copy of account prepared by the opponent No. 10 Mr. Chitkote would fortify such conclusion. There is no reason as to why opponent No. 10 Mr. Chitkote was not called for cross-examination by the appellants. True, he was in the opposite camp. Still, however, he could be called in the witness box only for purpose of cross-examination. That was not done. The findings of both the Courts in respect of collection of donation by Mr. Dharane at the instance of the president is quite sustainable. It is based on adequate material. So also, it is duly proved that less salaries were being paid to the employee and a separate account of such transactions used to be maintained as deposed by PW Somnath Halvale.

       The clinching question is whether the evidence on record is sufficient to prove the acts of malfeasance or misfeasance against all the appellants. The first Appellate Court held that respondent Nos. 3 to 9 i.e. trustees of Group "G" cannot be held responsible for collection of the donations and the acts of malfeasance. The first Appellate Court held that the said trustees must be exonerated from the charges because they were not involved in collection of the illegal donations or payment of less salaries to the employees. The first Appellate Court did not apply the same yardstick to those appellants of Group "B" who are not directly involved in such acts of malfeasance. It bears out from record that only appellant No. 1 and the appellant No. 4 i.e. the President and the Treasurer were involved in collection of the donations from the students. Though appellant No. 2 was working as Secretary at the relevant time, yet, there is no material on record to show his complicity. He and other appellants cannot be lightly roped-in only because they did not oppose misdeeds of appellant No. 1 Malikarjunappa and appellant No. 4 Nagnathappa Revadkar. The evidence on record is rather insufficient to reach conclusion that appellant No. 2 Nagnathappa Kerale, appellant No. 3 Vishwanathappa Hurne and appellant Nos. 5 to 8 were involved in the act of alleged misfeasance. It cannot be said that they were concerned with admission of students to the Engineering College. It also cannot be said on the basis of material produced on record that they were concerned with distribution of the salaries to the employees. In my opinion, the first Appellate Court rendered lopsided finding while holding these appellants as guilty for alleged malfeasance and misdeeds on par with appellant No. 1 and appellant No. 4. The first Appellate Court ought to have weighed the evidence in the same scale in respect of involvement of the said appellants likewise that of respondent Nos. 3 to 9. Under these circumstances, there is no escape from the conclusion that the concurrent findings of both the Courts are sustainable only to the extent of charge of malfeasance held to have been proved against appellant No. 1 Malikarjunappa Bidve and appellant No. 4 Nagnathappa Revadkar. Other appellants must be, therefore, exonerated from the charges of malfeasance and misfeasance. By applying same yardstick, respondent Nos. 3 to 9 also cannot be removed from the trusteeship on the strength of material which is presently available on record. If the appellants or any them would choose to retire.

       To conclude, I have no hesitation in holding that the charges of alleged malfeasance are sustainable only against appellant Nos. 1 and 4. The removal of other appellants is improper and unsustainable. The findings of the first Appellate Court in this context are without material. Therefore, part of the impugned judgment deserves to be set aside. Second Appeal No. 44 of 2004 will have to be dismissed as the concurrent findings of both the Courts need not be disturbed in respect of the absolvement of respondent Nos. 3 to 9 from allegations of misfeasance or misappropriation. For the reasons aforesaid Second Appeal No. 44 of 2004 is dismissed whereas Second Appeal No. 45 of 2004 is partly allowed. The impugned judgment is confirmed only to the extent of rem oval of appellant No. 1 Malikarjunappa Bidve and appellant No. 4 Nagnathappa Revadkar and is set aside as regards findings against other appellants. Those other appellants exonerated from the charge of malfeasance and would be entitled to continue as trustees of the trust. The parties to bear their own costs. The appeals are accordingly disposed of.

       Bombay Public Trusts Act, 1950 - Section 41-D - Allegation of Group G that trustees of Group B accepted donations from students for admissions to engineering course and paying less salaries to teachers - Donation from students proved but from that of teachers not proved - Removal of Trustees - Challenged - District Court held that charges was proved against members of Group (B) and not against Group (G), therefore, removal of members of ’G’ Group was illegal - Challenged - Held that removal of trustee was improper and unsustainable. - It appears that, yet another Writ Petition No. 3168 of 1998 was preferred by Mahadevappa Khanapure. This Court again directed that the Joint Charity Commissioner to consider list of witnesses and documents as given by original applicants and no other document shall be allowed to be produced.

       The Joint Charity Commissioner allowed the parties to lead evidence in the context of various charges levelled against the trustees. As many as 13 charges were framed by the learned Joint Charity Commissioner. Out of them, only one charge was held as proved. The remaining charges pertaining to payment of less salary to the teaching staff, non-teaching staff, purchasing of goods for higher prices, excessive expenditure shown towards construction work etc. were held as disproved.

       The learned Joint Charity Commissioner believed the evidence tendered by original applicants in support of the above charge. The learned Joint Charity Commissioner held that original opponent Nos. 1, 3 and 8 i.e. the President, Secretary and Treasure indulged in corrupt practice by collecting donations from Engineering College students at time of their admission to the first year of engineering course and also while allowing them to change the faculty during period before completion of the graduation. The learned Joint Charity Commissioner held, however, that all the managing trustees by their act of omission failed to prohibit above three office-bearers from accepting such donations and hence we re equally guilty of the charge of committing malfeasance. Consequently, the learned Joint Charity Commissioner allowed the application and directed removal of all the fifteen (1 5) trustees i.e. 8 members of Group "B" (Bidve Group) as well 7 members of Group "G" (Girwalkar Group).

       Feeling aggrieved, members of Group "B" preferred Misc. Application No. 29 of 1999 and members of Group "G" preferred Misc. Application No. 52 of 1999 in the Court of District Judge as provided under Section 41(5) of the Bombay Public Trust Act (for short "BPT Act"). Both these applications were heard together and came to be decided by common judgment. The learned Additional District Judge held that the charge of malfeasance and misfeasance was proved only against managing trustees who belong to Group "B" (Bidve Group) i.e. the present appellants. The learned Additional District Judge, however, held that the said charge was not proved against the members of Group "G" (Girwalkar Group). The application filed by Group "G". MA No. 52 of 1999 was, therefore, allowed and their removal from trusteeship was quashed whereas the application filed by Group "B"MA No. 29 of 1999 as well cross-objection preferred by original applicant No. 1 came to be dismissed. Thus, dismissal of the trustees of Group "B" was confirmed by the impugned judgment. The learned Additional District Judge, further proceeded to direct that the trustees from Group "G" shall hold reigns of administration of the trust and take steps for appointment of other trustee according to the provisions of the instrument of the trust of in accordance with provisions of the BPT Act. In other words, by the impugned judgment 8 managing trustees of Group "B" were ousted, 7 managing trustees of Group "G" were exonerated from the charge of malfeasance or misfeasance and were further empowered to appoint other eight trustees.

       The first Appellate Court held that without there being proof to spell out misfeasance of the trustees of Consenting Group (Group "G"), they cannot be held responsible for collection of illegal donations from students or for less payment of salaries to the employees of educational institutions. The first Appellate Court held that the appellants committed misfeasance by making payments of less salaries to various employees of the educational institutions and embezzled such amounts.

       Challenge in Second Appeal No. 44 of 2004 is to part of impugned judgment whereby the appellants are removed from trusteeship for the reason that charge of malfeasance of misfeasance is held as proved against them. They assert that the said charge is not proved against them and the findings of the Joint Charity Commissioner as well first Appellate Court are perverse and hence unsustainable. They seek exoneration from such charge and pray for setting aside the impugned judgment.

       Challenge in Second Appeal No. 45 of 2004 is to the impugned judgment on the ground that the members of Group "G" are wrongly exonerated from the charges of misfeasance and malfeasance and are illegally allowed to appoint other trustees as well to hold reigns of the administration.

       The following substantial questions of law are formulated for decision of these appeals.

       (i) Whether the appellants have locus standi to challenge part of the judgment of the first Appellate Court to the extent it pertains to exoneration of the managing trustees who are members of Group "G" (called "Consenting Group") when the original applicant has not challenged the same?

       (ii) Whether in the facts and circumstances of the present case, the first Appellate Court rendered perverse finding that charge of malfeasance is proved against all the appellants as donations were accepted by the then President, Secretary and Treasure from the students at the time of admission to the Engineering College and/or when change of faculty was being allowed and further that such amounts were not accounted for or were being retained by them or were being misappropriated by them?

       (iii) Whether the first Appellate Court rendered perverse finding while holding that the appellant No. 1 paid less salaries to the employees working in the educational institution of the trust and that the other appellants assisted him or connived with him in doing so?

       (iv) Whether the first Appellate Court exceeded its jurisdiction while directing the members of Consenting Group (Group "G") to take reigns of administration of the public trust and to appoint other trustees as enumerated in Clause (D) of the final order?

       My findings on the above points are (i) YES (ii) YES, partly (iii) YES partly (IV) YES.

       The reasons are discussed hereinafter.

       The legal position, which may be kept at back of the mind, is that removal of a trustee is a drastic action. The charge of malfeasance and/or misfeasance is serious one. The proceeding are of quasi civil and quasi criminal nature. Though the proceedings under Section 41-D is not criminal proceeding as such, yet, proof required to sustain the charges is of high standard. The standard of proof in such proceedings is somewhat more than norm ally required in cases governed by preponderance of probabilities and somewhat less than required in trials of criminal cases. The degree of proof required in criminal case in such that would prove criminal charge beyond a reasonable realm of doubt. The imputation reflecting on integrity of trustees have to be fortified by proof of high degree which would be somewhere in between standard of proof required in civil proceedings like a suit and criminal proceedings like a trial for offence of criminal breach of trust, or that of cheating. Thus, unless the lapse on part of the trustee is proved to be actuated by dishonesty or active connivance or malfeasance, the drastic action under Section 41-D of the BPT Act, may not be warranted.

       The expression "misfeasance" as used in Clause (c) of Section 41-D would imply commission of breach of trust. It is more than mere negligence of the trustee to perform his duty. "Misfeasance" includes breach of duty by the trustee which would result into loss to the trust or would cause unlawful gain to such a trustee, charged with act of misfeasance. Acceptance of donations from students for giving admission to first year Engineering course is not contemplated under the terms of the office of the trusteeship. It requires no mincing of words to say that ordinarily no student will volunteer to pay in excess of the prescribed fees for admission to the professional course. It is only for compelling reasons, that the donations or capitation fees is paid by the students. They are a needy class. The exploitation is made by those who can fleece the easy money.

       In the context of present appeal, the acts of the appellants are allegedly that of malfeasance or misfeasance or breach of the trust within the meaning of sub-clause (c) of Clause (1) of Section 41-D or may be to some extent within sub-clause (d). The proceeding under Section 41-D cannot be regarded as adversary trial in stricto sensu. For, the Charity Commissioner may take appropriate action in any of the following ways : -

       (i) On application of a trustee which would disclose prima facie substance in respect of any of the act enumerated under the sub-clauses (a) to (f);

       (ii) On application of any person interested in trust, who may be a stranger but has some interest in the functioning of the trust and answers description of interested person within meaning of Section 2 (10) of the BPT Act;

       (iii) On receiving a report under Section 41-B from the Competent Authority; or

       (iv) Suo motu if he finds reason to proceed with such enquiry.

       Needless to say, the enquiry is of semi-adversary and semi-inquisitive character. Sub-clause (5) of the BPT Act would make it manifest that any trustee aggrieved by the order rendered by the Charity Commissioner under sub-section (1) may apply to the Court against such order. Thereafter, an appeal is provide for under sub-section (6), which shall lie to the High Court. Obviously, an appeal by any trustee, who is aggrieved by the order made against him or against any other trustee can be preferred under sub-clause (6). The appellants are partly aggrieved by the order rendered by the first Appellate Court under sub-clause (5), because the trustees of consenting group "G" have been exonerated and discharged by the impugned judgment. The first Appellate Court reversed the findings of the Joint Charity Commissioner in this behalf.

       Mr. Dhorde, learned Advocate for respondent Nos. 3 to 10 would submit that appellants have no locus standi to prefer Second Appeal No. 44 of 2004 against finding of first Appellate Court in respect of exoneration of respondent Nos. 3 to 9 from the charges levelled against them. He would submit that when the original applicant No. 1 did not prefer any such appeal, then the appeal cannot be filed by present appellants against findings which are favourable to respondent Nos. 3 to 9. He would submit that Second Appeal No. 44 of 2004 needs to be dismissed in limine.

       Nothing of much importance could be gathered from cross-examination of PW-Kamal. He admits, unequivocally, that except his words there is no other evidence to show that Mr. Dharane had issued a chit to him for being presented before the principal. Credibility of both the witnesses is not impaired in spite of searching cross-examination. The Joint Charity Commissioner and the first Appellate Court were right in holding that documentary evidence cannot be expected in respect of such donations which are outcome of underhand dealings. Ordinarily, needy students will not insist upon any receipt regarding payment of donation. Even assuming that the witnesses could have prepared xerox copies of such chits, yet, it is improbable that they would keep record of such xerox copies for years together. They could not have ventilated any grievance while they were undergoing studies in the Engineering College. Under these circumstances, I do not find any fault with the reasoning of the Courts below.

       There is sufficient material on record which purports to show that the appellant Nos. 1-4 were the persons concerned with collection of donations from engineering students. They were working as the President and Treasurer of the trust. It does not stand to reason that the Treasure had no knowledge, whatsoever, of the illegal act of collecting donations from students of Engineering College by the President. The First Appellant Court noticed that the statement of account (Exh. 244) is corroborated by PW Guruling and hence it could be inferred that the employees were being paid less salaries at the instance of Executive Director by name Mr. V.C. Dharane and the President i.e. appellant No. 1-Malikarjunappa. Both the Courts have concurrently held that there is sufficient material to reach conclusion that donations were being collected at the instance of appellant No. 1 Millikarjunappa. A xerox copy of account prepared by the opponent No. 10 Mr. Chitkote would fortify such conclusion. There is no reason as to why opponent No. 10 Mr. Chitkote was not called for cross-examination by the appellants. True, he was in the opposite camp. Still, however, he could be called in the witness box only for purpose of cross-examination. That was not done. The findings of both the Courts in respect of collection of donation by Mr. Dharane at the instance of the president is quite sustainable. It is based on adequate material. So also, it is duly proved that less salaries were being paid to the employee and a separate account of such transactions used to be maintained as deposed by PW Somnath Halvale.

       The clinching question is whether the evidence on record is sufficient to prove the acts of malfeasance or misfeasance against all the appellants. The first Appellate Court held that respondent Nos. 3 to 9 i.e. trustees of Group "G" cannot be held responsible for collection of the donations and the acts of malfeasance. The first Appellate Court held that the said trustees must be exonerated from the charges because they were not involved in collection of the illegal donations or payment of less salaries to the employees. The first Appellate Court did not apply the same yardstick to those appellants of Group "B" who are not directly involved in such acts of malfeasance. It bears out from record that only appellant No. 1 and the appellant No. 4 i.e. the President and the Treasurer were involved in collection of the donations from the students. Though appellant No. 2 was working as Secretary at the relevant time, yet, there is no material on record to show his complicity. He and other appellants cannot be lightly roped-in only because they did not oppose misdeeds of appellant No. 1 Malikarjunappa and appellant No. 4 Nagnathappa Revadkar. The evidence on record is rather insufficient to reach conclusion that appellant No. 2 Nagnathappa Kerale, appellant No. 3 Vishwanathappa Hurne and appellant Nos. 5 to 8 were involved in the act of alleged misfeasance. It cannot be said that they were concerned with admission of students to the Engineering College. It also cannot be said on the basis of material produced on record that they were concerned with distribution of the salaries to the employees. In my opinion, the first Appellate Court rendered lop sided finding while holding these appellants as guilty for alleged malfeasance and misdeeds on par with appellant No. 1 and appellant No. 4. The first Appellate Court ought to have weighed the evidence in the same scale in respect of involvement of the said appellants likewise that of respondent Nos. 3 to 9. Under these circumstances, there is no escape from the conclusion that the concurrent findings of both the Courts are sustainable only to the extent of charge of malfeasance held to have been proved against appellant No. 1 Malikarjunappa Bidve and appellant No. 4 Nagnathappa Revadkar. Other appellants must be, therefore, exonerated from the charges of malfeasance and misfeasance. By applying same yardstick, respondent Nos. 3 to 9 also cannot be removed from the trusteeship on the strength of material which is presently available on record. If the appellants or any them would choose to retire.