Delhi High Court
Mohan Chandra And Ors. vs The Institute Of Chartered Accountants ... on 30 August, 1971
Equivalent citations: AIR1972DELHI91, ILR1972DELHI217, AIR 1972 DELHI 91, ILR (1972) 1 DELHI 217
JUDGMENT Hardayal Hardy, J.
(1) This case raises a short point though it has taken considerable time to argue. The point relates to the resignation of the President of the institute of Chartered Accountants of India from his office and its acceptance by the Council of the Institute.
(2) The broad facts are that on 23rd May 1971 there was a meeting of the Executive Committee of the Institute of Chartered Accountants of India at Calcutta which will hereafter be referred to as the Institute. The Committee considered the correspondence received from the Institute of Chartered Accountants in England and Wales which will hereafter be referred to as the Institute in London regarding a world tour organized in the name of Friends of Humanity International of which Shri M. C. Bhandari President of the Institute, was supposed to be the International Chairman. The correspondence made particular reference to the role of the President in the matter of organising the said tour. One of the letters to which particular attention was invited was a letter dated the 5th May 1971 which was allegedly written by the President of the Institute to the Institute in London. This letter also mentioned a telegram which was said to have been sent by the President of the Institute to London and had brought forth a reply dated the 12th May 1971 from Mr. P. Carrel, Secretary Over-seas Relations Committee of the Institute in London to the Secretary of the Institute in India.
(3) This correspondence was regarded as having brought down the image of the institute and although the President had offered an explanation, the Executive Committee, at any rate four of its members, were not satisfied with the explanation given by the President and therefore sent a letter to him wherein it was stated that "there is no more scope for trust and confidence in the President. We will now seek the guidance of the Council in the matter."
(4) A copy of that letter was sent to the Secretary with a direction that he should circulate it along with the letter received from Mr. P. Carrel and the papers enclosed therewith to all the members of the Council of the Institute.
(5) On 27th May 1971, the President sent out a letter to all the members of the Council explaining once again the part played by him in his correspondence with the Institute in London, Meanwhile the President having proceeded on a world tour, a meeting of the Executive Committee was held on 21st June 1971 at Bombay where the minutes of the meeting held at Calcutta on 23rd May 1971 were confirmed with certain alterations. One of the points discussed at that meeting, however, was that the letter circulated by the President on 27th May 1971 was un-convincing and that instead of circulating any detailed letters on the subject the members of the Council should be informed of the position that the President's letter did not give the actual facts and that instead of issuing any further letter on the subject the members of the Committee would prefer to apprise the members of the Council of the true facts at a meeting of the Council. It was accordingly decided to issue a communication to the members of the Council to that effect.
(6) On that very day the four members of the Executive Committee viz. Messrs A. B. Tandon, G. C. Saha, R. K. Khanna, and H. M Damania wrote a letter to their colleagues in the Council and directed the Secretary to circulate that letter also to all the members.
(7) Between 5th June and 22nd June 1971 several members sent a requisition to the Secretary to call a meeting of the Council in terms f Regulation 139 of the Chartered Accountants Regulations, 1964 to consider the matters connected with and arising out of the communication received from four members of the Executive Committee that had been circulated to the members of the Council by the Secretary earlier. On 26th June 1971, the Secretary notified the members of the Council about a special meeting of the Council to be held at 9-30 A.M. on Monday the 19th July 1971 at the premises of the Institute in New Delhi. The agenda circulated for that meeting was as follows :
consideration of the matters connected with and arising out of the communication from four members of the Executive Committee (circulated to the members of the Council by the Secretary with his letter dated 25th May 1971 as per direction received from them) expressing their feeling that "there is no more scope for trust and confidence in the President" and seeking "the guidance of the Council in the matter."
(8) Before the meeting was actually held, the President had returned from tour and on 16th July 1971 he sent a letter to Shri C. C. Ganapathy Joint Secretary, Company Law Board New Delhi, enclosing a copy of the notice thereof. The specific query put by the President ran as follows: "I have been advised that my Council is not competent to discuss such a matter as under the Chartered Accountants Act and Regulations the President once elected by the Council is to hold office for one year implying thereby that the confidence once reposed cannot be withdrawn till the term of one year is over"
(9) The letter went on to add that since the Company Law Board is administering the Chartered Accountants Act and Regulations, shall be grateful to have your department's view whether the Council is competent to discuss the matter or not."
(10) On 17th July 1971 an Under Secretary to the Government of India in the Department of Company Affairs (Company Law Board) wrote back to say that the Government could not interfere with the deliberations of the Council in the Institute. However "we do not find any statutory provision either in the Chartered Accountants Act or Regulations to support the motion of no confidence to remove the President." A copy of that letter was also endorsed to the Secretary of the institute for information and record.
(11) On 18th July 1971, the President addressed a letter to the Council of the Institute wherein it was stated : "On personal grounds I hereby tender my resignation from the office of the President of the Institute with immediate effect. I hereby convey my thanks and good wishes to all the members of the Council."
(12) The requisitioned special meeting was held on 19th July 1971 at 9-30 A.M. The President did not attend the meeting which was therefore presided over by the Vice-President Shri A. B. Tandon. The minutes of the meeting which have been placed on record at page 93 set out the matter contained in the agenda arid recorded:-
"theHE Council noted that the explanations of the President on the matters contained in the Minutes of the Meeting of the Executive Committee held on 23rd May 1971 were brone out by evidence now available. The Council, therefore, decided that the matter arising out of the letter of the four members of the Executive Committee circulated with the Secretary's forwarding letter dated the 25th May, 1971 be dropped.
nothing of letter dated 18th July 1971 from Shri M. C. Bhandari tendering his resignation from the office of the President of the Institute on personal grounds. The Council noted that the President had, on personal grounds tendered his resignation from the office of the President. The Council accepted the resignation with regret. The Council placed on record its appreciation of the services rendered by the President."
(13) This meeting was attended by 24 out of 27 members of the Council. " Shri P. L. Tandon, who had earlier written to the Secretary on 28th June 1971 that he might not be able to attend the meeting due to his previous commitments was absent on that day. Mr. P. Brahmayya who was one of the requisitionists of the meeting was also unable to attend the same due to indisposition. All the other members of Council except Shri M. C. Bhandari attended the said meeting.
(14) It may be mentioned here that the question of President's resignation was not included in the agenda of the meeting which had obviously been issued much earlier. The President's resignation having been conveyed to the Council in the morning of 19th July 1971 obviously could not be there in the agenda but upon being informed of the President's resignation of 19th July, 1971, 24 members of the Council agreed by their joint letter dated 19th July 1971 that the said resignation may be accepted.
(15) It appears that the acceptance of the resignation .of the President created an agitation. Shri K.M. Azad, convener of the Young Chartered Accountants Forum wrote a letter to the President asking for information as to the circumstances which had prompted him to to resign. The petitioners also placed on record a letter dated 20th July 1971 written by the Chartered Accountants of Jaipur City to the Ministry of Company Affairs New Delhi expressing their concern at the resignation of the President and their appreciation of the services rendered by him in the cause of the profession of Accountancy.
(16) On 26th July 1971 three Chartered Accountants, namely, Shri Mohan Chandra, Shri Umesh Kumar Mohindra and Shri Saradindu Bose filed a petition in this Court under Article 226 of the Constitution praying for various reliefs. One of the reliefs prayed for by the petitioners is to declare illegal and void the proceedings of the Executive Committee meeting held at Calcutta and Bombay on 23rd May and 21st June 1971 respectively. The other relief claimed by the petitioners is to set aside the impugned notice dated 26th June 1971 for convening a special meeting of the Council and the agenda circulated with it and the consequent special meeting by the Council on 19th July 1971 on the ground that there is no authority, power or Jurisdiction in the Council to consider the motion for no confidence and the resignation of the President.
(17) The last prayer is for a declaration that the President Shri M.C. Bhandari, who was imp leaded as respondent No. 4 was still entitled function as the President for the un-expired period of his term and that he be directed to perform the functions, power and duties of the office of the President under the Chartered Accountants Act, 1949 and the Chartered Accountants Regulations, 1964.
(18) The other respondents imp leaded are the Institute of Chartered Accountants of India, Council of the Institute, members of the Executive Committee of the council of the Institute and the Union of India through the Secretary to the Government of India, Ministry of Company Affairs, New Delhi.
(19) When the petition was filed in this Court a rule nisi returnable before a Division Bench was issued by us along with a notice of the stay matter for 3-8-71. Meanwhile operation of the order made in pursuance of the impugned resolution dated the 19th July 1971 was stayed. Before 3rd August 1971 the ad interim order of stay was varied to some extent and with the agreement of the counsel for the parties, the main writ petition was eventually posted for hearing on 9-8-1971. On that day an application was filed on behalf of the President (respondent No. 4) that he should he transposed as a petitioner. This application was not opposed and necessary orders were made in that behalf.
(20) There is not much dispute about the material facts although in the counter affidavit filed by Shri P. Balakrishnan Secretary of the Institute and Shri A.B. Tandon, Vice-President some of the facts mentioned in the writ petition have been controverter. We shall refer those facts about which the parties are at variance while dealing with the contentions that have been urged at the bar on both sides. It may however be mentioned that the affidavit filed by Shri A.B. Tandon has also the support of 19 other members of the Council, 14 of whom have also filed their separate affidavits and have also supported the averments in the affidavit of Shri A.B. Tandon (21) It will be seen that the real controversy between the parties relates to the resignation of the President Shri M.C. Bhandari dated the 18th July 1971 which was accepted by 24 out of 27 members of the Council on 19th July 1971 and its subsequent withdrawal by the President on 27th July 1971. On 28th July 1971 the President sent a letter to the members of the Council informing them about his withdrawal of the resignation and a detailed note explaining the reasons for withdrawing the resignation, a copy of which was sent to the members.
(22) The question canvassed before us is whether the President could resign from his office before the expiry of the term of one year and if so whether it was open to the Council to accept that resignation.
(23) It is apparent that if the President could resign from his office and the same was validly accepted by 24 out of 27 members of the Council, its subsequent withdrawal by the President will not have any meaning. On the other hand if there is no provision in the Act or in the Regulations to permit the President to resign his office then the circumstance that he tendered such resignation would be meaningless. Assuming however that he could resign, the other question will be whether the resignation would take effect immediately or would be operative after it is accepted by the Council. As a corollary to the last question it will also have to be seen whether there was a validly constituted meeting of the Council and if the absence of three of its members from the meeting of whom the President was one, would make any difference, particularly when it is admitted on all hands that two of those members namely, Shri P. L. Tandon and Shri P. Brahmayya did not have any notice of the fact that the resignation of the President was one of the matters to be considered at the specially requisitioned meeting held on 19th July 1971.
(24) In the course of the proceedings our attention was drawn to a letter dated the 19th July 1971 addressed by 24 members of the Council to the Secretary of the Institute in response to the Secretary's communication bearing the same date in which it was stated : "Please refer to your letter dated 19th July 1971 with its enclosure. We regret that the President has tendered resignation. Under the circumstances, it may be accepted." As the meeting was held on 19th July at 9-30 A.M. it seems difficult to hold how the Secretary's letter of that date could have been delivered to the members before the time of the meeting so that they could communicate in writing their acceptance of the resignation when the meeting was held.
(25) It is contended by the counsel for the petitioners that the Secretary's letter of 19th July and the members' communication of acceptance have been fabricated. We do not wish to say anything definite about these communications. It may be that the Secretary's letter was delivered to these 24 members before the meeting commenced on that day and besides formally accepting resignation at the meeting the members also felt obliged to communicate their acceptance in writing. The written communication could, therefore, have been prepared and handed over to the Secretary while the meeting was still going on. No adverse inference can, therefore, be drawn against the respondents including the Secretary of the Institute.
(26) In any event as was said by Lindlay L.J. with whom Lord Halsbury and A. L. Smith L.J. agreed in re : George Newman & Co (1895-1 Ch. 674), (1); individual assents given separately may preclude those who give them from complaining of what they have sanctioned; but for the purpose of binding a company in its corporate capacity individual . assents given separately are not equivalent to the assents of a meeting. The company is entitled to the protection afforded by a duly convened meeting, and by a resolution properly considered and carried and duly recorded.
(27) The resignation of the President of the Institute is not a small matter. In a way it is unprecedented because it was urged that there is no such prior instance. There is also no provision in the Act or in the regulations providing for such a resignation. It is. therefore, necessary to state the material provisions of the Act and the Regulations.
(28) The Institute of Chartered Accountants of India is an institute established under the Chartered Accountants Act, 1949. The Institute, we are told, has about 12,000 members whose names are entered in the Register maintained under the provisions of the Act and is a body corporate having perpetual succession and a common seal with power to acquire, hold and dispose of property, both moveable and immovable and shall by its own name sue or be sued. By virtue of that Act and by virtue of Section 9 in particular, the entire management of the affairs of the Institute has been entrusted to the Council of the Institute consisting of 21 elected members and six members nominated by the Central Government. The election to the Council takes place on the basis of single transferable vote as provided by the Act and the Regulations, framed in 1964, called the Chartered Accountants Regulations 1964 which will hereafter be called Regulations. The members of the Council are elected once in three years and any fellow member of the Institute is eligible to stand as a candidate if so desired.
(29) The last election of the present Council was held in the year 1970. Twenty-one members were elected from 5 different regions in the country while the remaining 6 were nominated by the Central Government. Section 12 deals with the election of the President and the Vice-President. Section 13 relates to resignation of the members of the Council to fill in casual vacancies.
(30) Section 15 provides for the functions of the Council which inter alia, includes the duty of carrying out the provisions of the Act. The duty of carrying out the provisions of the Act vests in the Council and such other matters detailed in sub-section (2) of Section 15.
(31) There are also sections for constituting Standing Committees viz. Executive Committee, an Examination Committee and a Disciplinary Committee, the procedure for inquiries relating to mis-conduct of members of the Institute, penalties and appeals. Section 30 gives power to the Council to make regulations by notifications in the Gazette of India for the purpose of carrying out the objects of the Act. Clause (p) of sub-section (2) enables the Council to make regulations to provide for the powers, duties and functions of the President and the Vice- President of the Council.
(32) The resume of the above provisions makes it clear that the President shall alone be the Chief Executive authority of the Council under sub-section (2) of Section 12. He shall hold office for a period of one year from the date on which he is chosen but the said period cannot extend beyond his term of office as a member of the Council and subject to his being a member of the Council at the relevant time, he shall be eligible for re-election as provided in sub-section (3) of Section 12.
(33) The first contention urged by the petitioners is that under Section 12(2) the President of the Institute is the Chief executive authority of the Council. Under sub-section (3) he shall hold office for a period of one year from the date on which he is chosen. He was elected President on 17-9-1970 and the period of one year shall come to an end on 16-9-1971. The Institute being an un-wieldy body, the duty of carrying out the provisions of the Act stands vested under section 15 in the Council. Its functions are almost the same as those of the Institute.
(34) Under regulation 176, on the expiration of the duration of the Council, the President of the Council at the time of such expiration shall discharge all the administrative duties of the Council under the Act and the Regulations and all the functions of the Executive and Examination Committees of the Council until such time as a new President shall have been elected and shall have taken over charge of his duties.
(35) The performance of duties of the Council and its President, it was urged are public duties and if the intention of the Act was that the President was to hold office for a period of one year he could not throw away that office. It was argued that the members of the Institute are concerned with the audit of hundreds of companies including large public and private sector enterprises. The President of the institute which regulates the conduct of such accountants has to assume large responsibilities as a chief executive authority of the council. In such circumstances, the public interest might suffer if there is no such authority holding that office. If the President throws away his office before the expiry of the period there would be a hiatus in the office. Reliance was placed on a decision of the Supreme Court of the United States in Edward M. Edward v. United States (26 Lawyers Edition 314 :103 United States Reports 47)(2)anditwasurgedthat according to the common law, after an office was conferred and assumed in England. it could not be laid down without the consent of the appointing power. This was so because the public interests might suffer inconvenience for the want of public servants to execute the laws.
(36) Reference was also made to Rex v. Nathaniel Dawes (98 English Reports 188) (3) where it was said that the Corporation had interest in the Mayor's title to his office and that he ought not (as an honest man or as a just corporator) desert and give it up in prejudice to the rights of the Corporation in general, or of particular corporators, when he was offered a complete, indisputable indemnification on the part of those who desired to defend his right in order to support their own. It was therefore not in his power to give up the office.
(37) The case reported in 26 Lawyers' Edition where the doctrine of common law was invoked, related to a town clerk. In England when a person was elected to a municipal office he was obliged to accept it and perform its duties and subjected himself to penalty by refusal. We do not find any such analogy between the office of the President of the Institute and a civil officer appointed to carry on the functions and operations of municipal government. The case of Nathaniel Dawes (3) is also a case of Mayor of a Corporation where the corporators were willing to indemnify him for holding on to the office till the question of his title was decided.
(38) In India the common law rule does not appear to have been applied to the various offices under the Companies Act, where the position is generally regulated by the Articles of Association. Even in America, the common law rule is not followed in some of the States. There is for instance, no provision in the Companies Act, 1956 relating to resignation of his office by a director although there was a provision to that effect vis a vis a Managing Agent (see Section 342 of the Indian Companies Act, 1913). If there is any provision in the articles giving a right to a director to resign at any time, the rule is that the resignation will take effect without any need for its acceptance by the Board of the company in general meeting. Where the director is elected or has contracted to act for a fixed period his resignation, before the expiration of the period, may make him liable for damages for breach of his contract, unless-the articles permit such resignation. But when there is no such provision in the articles of association and the resignation says that it is to take effect immediately, acceptance is not necessary.
(39) On behalf of the respondents our attention was drawn to resignations by members of a club and our attention was invited to para 614 of Halsbury's Laws of England (Third Edition, Vol. 5, page 261) where it is stated that the resignation of a member does not require any acceptance by the Committee and cannot in the absence of a bye-law to the contrary be withdrawn or revoked. A member who sends a letter of resignation thereupon ceases to be a member, and can only be reinstated by re-election. Similarly where by the articles, a director has power to resign at any time his resignation takes effect independently of acceptance by the other directors or the company. Where the articles of association of a company provide that the office of a director is to be vacated ipso facto by a resignation in writing sent to the company the resignation takes effect immediately. Even an oral resignation if accepted by the company is valid. (See Latch ford Premier Cinema Limited v. Emion 1931(2) Chancery 409) (4) Such resignation cannot even be withdrawn but, if it is with-drawn, it must be by the consent of the company properly exercised by their managers who are the directors of the company. This view was taken by Neville J. in Glossop V Glossop (1907- 2 Chancery 371). (5) (40) It is therefore apparent that in case of companies and clubs, lineless there is a provision to the contrary in the articles of association or bye laws a mere resignation by a director or a member has the effect of terminating his membership.
(41) It was argued by the counsel for the petitioners that there is a distinction between companies and clubs on the one hand and officers carrying public duties. In the case of companies and clubs, lineless there is some thing to the contrary in the articles of association or bye laws a mere resignation ipso facto terminates the membership of the person concerned but in the case of offices carrying public duties the common law rule applies and an officer has no right to throw away his office unless the appointing authority accepts the resignation or re- elects someone else in his place.
(42) Whatever may be the duties of the Institute or its Council or its President they cannot be characterised as public duties. Those duties may be important in themselves but they have no reference to the administration of a the country whether municipal or national.. In our opinion, the office of the President of the Institute is in no way different from that of manager of a company or at any rate., from that of a managing agent (which office has since been abolished). We find it difficult to accede to the submission made by the petitioners that the President is not removable by the Council once he is elected or that the Council has no power to consider or pass a motion of no confidence against the president. The office of the President is an honorary office and there is no provision which makes it incumbent that a person chosen as president has necessarily to bear the burden for a full period of one year. The provision in Section 12(3) that the President and the Vice-President shall hold office for one year merely indicates that the office should not be held for more than the specified period. It cannot be construed to mean that the incumbent has per force to continue in that office even if he is un-willing to continue in that position.
(43) One of the arguments that was strongly pressed by the Council for the petitioners was that while there is no provision in the Act or Regulations for resignation of office by the President there is a provision in Section 13 of the Act which enables any member of the Council to resign his membership. The argument was that the absence of such a provision shows that a member of the Council can submit his resignation but the President cannot do so. The only manner in which the office of the President can fall vacant before the expiry of the period is that the member holding that office should also resign his membership of the Council. He may also lose that office if he has been found guilty of professional mis-conduct, but so long as he remains a member of the Council he cannot throw his office before the expiry of the period.
(44) We do not think the absence of any provision regarding resignation will render the President irremovable from his office. A Person may like to retain his seat in the Council and yet he may not want to bear the burden of the office of the President. There are detailed provisions in the Regulations for election to the Council but there is no provision relating to election to the office of the President except under S. 12(1) where the Council is required at its first meeting to elect two of its members to be respectively the President and the Vice-President thereof. When the office of a member of the Council falls vacant as a result of his resignation such resignation is notified in the Official Gazette. But there is no provision for publication in the Official Gazette when the office of the President falls vacant. When a member of the Council is elected President he is so elected because the Council wants him to hold that office. The Council is thus the appointing authority in the case of the President and it is well recognised that the power to appoint includes the power to suspend or dismiss (see Section 16 of the General Clauses Act, 1897). If the Council as the appointing authority could therefore suspend or remove the President from his office the holder of that office could also tender his resignation and the fact that there is no provision in Section 12 which provides for any such resignation will in no way preclude the Council from accepting such resignation.
(45) In this connection our attention was drawn to the letter received by the President from the Department of Company Affairs where in it was stated that there was no statutory provision to support the motion of no confidence to remove the President. The opinion of the Company Law Board is in no way binding on this Court. In our opjnion, the absence of any such statutory provision either in the Act or in the Regulations does not at all preclude the members of the Council to bring forth and support any motion of no confidence to remove the President. The council being the authority to appoint the President also had the power to suspend or dismiss him and the act of bringing forth a motion of no confidence and supporting it, is merely one of the ways in which the power of dismissal or removal could be effectuated by the Council.
(46) We are of the opinion that it was open to the Council to consider a motion of no-confidence against the President. The latter had also the power to tender the resignation of his office The only question is whether such resignation could take effect without its being accepted by the Council (47) It was urged that if the President could tender his resignation it could only be accepted if there was a validly convened meeting of the Council and there was also a quorum for passing the resolution. The argument advanced on behalf of the petitioners was that in the instant case the meeting of the Council had not been properly convened. Under Regulation 139, a special meeting of the Council may at any time be called by the President or in his absence by the Vice-President, or at the request in writing addressed to the Secretary by at least 25 % of the members of the Council.
(48) One of the objections raised on behalf of the petitioners was that the requisitionists were not ad idem. In some of the requisitions there was no request for a meeting and only a suggestion for calling the meeting was made. In others There was a reference to a lack of confidence in the President but it was the case of the respondents themselves that the letter of four members of the Executive Committee which had prompted the members to requisition a meeting, did not amount to lack of confidence in the President. Considerable emphasis was laid by the petitioner's counsel on the language employed by the various requisitionists. We called upon the respondents to file copies of the original requisitions and are satisfied that the object of ail those requisition was to consider the circumstances mentioned in the letter written by Four members of the executive committee wherein it was stated that there was no more scope for trust and confidence in the President. Whether the four members of the Executive Committee wanted to move a vote of no confidence against the President or they merely sought the guidance of the Council in the matter, is neither here nor there. Their main object was to consider the conduct of the Pre- President with reference to the world tour organized by the Friends of Humanity International and the correspondence carried on by him or on his behalf with the Institute in London. The requisitionists, clearly understood the object of the meeting and therefore asked the Secretary to call such a meeting. We are therefore not convinced that the members requisitioning the meeting were not ad idem. The President himself understood what the object of the meeting was going to be and in order to put across his view-point before the members, he circulated his own explanation. The meeting was therefore properly requisitioned and the agenda circulated by the Secretary clearly set out the object of that meeting.
(49) If the meeting was therefore, properly requisitioned the next question that was raised by the petitioners was that in any event, the question of resignation of the President did not form part of the agenda of the meeting. We have already said that the resignation which bears the date 18th July 1971, was handed over by the President to the Council and was presented at the meeting held on 19th July 1971 at 9-30 A.M. Notices of this meeting had been duly sent out and served on all the members of the Council. The meeting was therefore validly convened. It however transpired that besides the President who deliberately refrained from attending the meeting two of the members of the Council Shri P. L. Tandon and Shri P. Brahmayya were both absent. Shri P. L. Tandon had earlier written to the Secretary on 28th June 1971 that he might not be able to attend the meeting due to his previous commitment. Mr. Brahmayya who was incidentally one of the requisitionists, was also unable to attend the meeting due to indisposition. The resolution of acceptance of resignation was therefore placed before the Council which was attended by 24 out of 27 members and was presided over by the Vice-President. It was not disputed that in the absence of the Presedent, the Vice-President was entitled to preside at that meeting. At that meeting the resignation was accepted. If the resignation was properly accepted then the argument of the petitioners that the President could not resign his office lineless his resignation was accepted by the Council loses all its weight. On the other hand. if the resignation could not be accepted at that meeting then whether the resignation was to take effect immediately as was contended by the respondents or it had to be accepted by the Council would be entirely meaningless. There would be no resignation in the eye of law.
(50) Several authorities were cited on behalf of the petitioners to show that the meeting of the Council had not been properly requisitioned, It was said that the notice was not in proper form or that the Secretary was not authorised to call such a meeting. In any case. the agenda did not state the object of the meeting with sufficient particularity and therefore the meeting could not be held to have been validly convened. It was argued that it was not among the functions of the Executive Committee as detailed in Regulation 151 to call upon the Secretary to circulate the letter of four members to the members of the Council. The argument appears to us to be wholly un-founded. Whether it was among the functions of the Executive Committee to call upon the Secretary to circulate the letter of four of its members among the members of the Council has not significance. Any member of the Executive Committee who also happened to be a member of the Council and the four members of the Executive Committee who were parties to that letter, were members of the Council, had a right to call upon the Secretary to circulate that letter among other members of the Council. The meeting of the Council was not called by the Secretary on July 19, 1971 at the instance of any individual member of the Council or of the Executive Committee. The meeting was called under regulation 139 on a requisition sent by more than the requisite number of of members and whether the matter that was placed before the Council at that meeting consisted of the letters sent by four members of the Executive Committee and other matters, has nothing to do with the validity of the meeting. The meeting was a special meeting called by the Secretary at the requisition of the members of the Council and it had the right to consider any matter that was placed before it by the agenda circulated by the Secretary.
(51) The next question which was pressed by the counsel for the petitioners with great emphasis was that the agenda being restricted to the matters mentioned therein and the question of resignation of the President was not included in the agenda, it was not open to the Council to consider that resignation. Reliance was placed on an ancient judgment of House of Lords in William Smyth v. Henry G Farran Barley (2 H. L. C. 789-9 English Reports 1293).(6) This case of 1849 had the approval of the Privy Council in Radha Kishan Jaikishan and others v. Municipal Committee. Khandwa (AIR 1934 P C 627 (7) where the following observations of Lord Campbell were specifically mentioned:__ "the election being by a definite body on a day of which, till summons, the electors had no notice, they were all entitled to be specially summoned, and, if there was any omission to summon any one of them, unless they all happened to be present er unless those not summoned were beyond summoning distance- as, for instance, abroad-there could not be a good elect- oral assembly: and even a unanimous election by those who did attend would be void."
(52) These observations no doubt related to elections and it was also stated that this general rule was modified in particular cases as, for instance, by authorising as sufficient notice the posting of a written notice to the usual address of the member. But the rule was applied in cases other than elections. In Vice-Chancellor, Utkal University and others v. S. K. Gilosh and others where their Lordships of the Supreme Court referred to the Privy Council decision in Radha Kishan Jaikishan's case it was observed :- "the reason for the stricter rule laid down in the cases cited before us is that though an incorporated body like an University is a legal entity it has neither a living Mind nor voice. It can only express its will in a formal way by a formal resolution and so can only act in its corporate capacity by resolutions properly considered, carried and duly recorded in the manner laid down by its constitution. If its rules require such resolutions to be moved and passed in a meeting called for the purpose, then every member of the body entitled to take part in the meeting must be given notice so that he can attend and express his views. Individual assents given separately can not be regarded as equivalent to the assent of a meeting because the incorporated body is different from the persons of which it is composed. Hence an omission to give proper notice even to a single member in these circumstances, would invalidate the meeting and that in turn would invalidate resolutions which purport to have been passed at it. But this is only when such inflexible rigidity is imposed by the incorporating constitution ;
(53) The case of Young v. Ladies' Imperial Club (1920-2 K. B. 523 (9) was the other case referred to by the Counsel for the petitioners. This case appears to have had the approval of the Supreme Court in the case of Vice-Chancellor Utkal University and others (8) mentioned above and has therefore been strongly relied upon by the counsel for the petitioners. The notice convening the meeting of the committee in that case stated that the object of the meeting was " to report on and discuss the matter concerning the plaintiff and Mrs. L". This notice was sent to each member of the committee except one, who had previously intimated to the Chairman that she would be unable to attend the meeting of the Committee. In an action for declaration that the plaintiff was still a member of the Club it was held by the Court of Appeal in England that the omission to summon the absentee member of the committee invalidated the proceedings of that body and that the notice did not state the object of the meeting with sufficient particularity. On both these grounds the plaintiff was entitled to succeed.
(54) The argument advanced on behalf of the petitioners was that it was admitted by the respondents that no notice of the meeting in which the question of resignation was to be considered was sent to Mr. P. L. Tandon. An attempt was no doubt made on behalf of the respondents to show that such a notice was in fact sent to Mr. Tandon at his Delhi address but Mr. Tandon was at Bombay at the relevant time and in any case it seems rather far fetched that any such notice was actually sent to Mr. Tandon at his Delhi address. There was hardly any time during which such a notice could be sent to him. The argument of the learned counsel was that if Mr. Tandon had attended the meeting he would have been able to dissuade the other members from accepting that resignation, or it is quite likely that he might have suggested that the question of acceptance of resignation should be considered after a proper notice of the resignation had been sent to other members of the Council. Mr. P. Brahmayya who was the other member of the Council had also not received any such notice. The absence of these two members from the Council therefore invalidated the proceedings of that body.
(55) We have already held that Mr. P. Brahmayya was one of the requisitionists and but for his indisposition he would have been present at the Council's meeting. The question therefore is whether the absence of these members invalidated the proceedings of the meeting.
(56) On behalf of the respondents reliance was placed on the Supreme Court's decision in Vice-Chancellor Vtkal University and other's , to which we have already referred, and it was said that the substance is more important than the form and if there is substantial compliance with the spirit and substance of law, an un-essential defect in form would not be allowed to defeat what is otherwise a proper and valid resolution. If Mr. P. L. Tandon had already expressed his inability to be present at the meeting and this is evident from the fact that he did not attend the meeting called in pursuance of the requisition, then the circumstance that he was not sent any notice of the meeting relating to resignation of the President would not make much difference. At any rate, it is highly speculative to imagine that Mr. P. L. Tondon would have taken the view that is canvassed for by the petitioners. As regards Mr. P. Brahmayya the fact that he was one of the requisitions itself goes to show that he would have joined his other colleagues. That again is a matter of speculation and we do not know what the attitude of Mr. P. L. Tandon and Mr. P. Brahmayya would have been had a proper notice of resignation been sent to them and they had attended the meeting.
(57) The Supreme Court decision in the case of Vice Chancellor, Vtkal University and others (8), is a decision on its own facts otherwise the rule laid down in the case of Young v. Ladies' s Imperial Club Limited (9) was accepted by their Lordships. That decision went on the basis that the syndicate consisted of 12 members. In the first meeting there was one absentee though the resolution was unanimous. The absentee member was not told that the question of leakage of papers would be one of the matters to be considered at the meeting. Some days afterwards another meeting was called. This time also the question of consideration of the previous decision was not on the agenda. But the Vice-Chancellor brought the question before the meeting suo motu. This time again only 11 members were present but the member who was absent at the first meeting, was not the person who was absent at the second meeting. By a unanimous resolution the members refused to review their previous decision. It was in these circumstances that it was held that there was actual appearance without objection at meetings properly convened and that there was complete unanimity on both accasiops. This case is therefore no authority for the view canvassed for by the respondents. No such second meeting of the Council has been held in the instant case. If the two members of the Council were not served or in any case. one of them was not served at all for the purpose of considering the resignation of the President then the proceedings held at the meeting must be held to have been invalidated.
(58) It was argued on behalf of the respondents that the question of resignation of the President arose out of the matters that were already mentioned in the agenda. We do not think so. The question of resignation is an entirely different matter and had nothing to do with the consideration of the matters set out in the agenda.
(59) The result of this discussion is that if it was necessary in law that the resignation tendered by the President should be accepted by the Council then the obvious inference is that till the resignation is accepted the President will have the right to withdraw the same.
(60) In Rajkumar v. Union of India which is an authority relating to a public servant the same principle was accepted and it was said that if the public servant had tendered his resignation and had sought to withdraw the same, the general principle is that till the resignation is accepted by the appropriate authority in consonance with the rule governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter.
(61) In this view of the matter we need not go into the questions raised by the petitioners that the resignation was the result of coercion and un-due influence. Frankly speaking, there is hardly any material on the point. The president appears to us to have resigned because he was afraid of facing a no confidence motion at the meeting or may have otherwise developed cold feet but there is no question of any body having coerced him to do so.
(62) It will be seen that while dealing with the questions that have been raised before us we have made no attempt to deal with the circumstances under which the above-mentioned un-fortunate developments have occurred in the Institute. A great deal of our time was, however, taken by a discussion of those matters. We are of the view that the conduct of the President is a matter of internal management for the Institute and its Council and that this Court cannot interfere with the deliberations of the Council in such matters.
(63) One other point was also sought to be raised on behalf of the petitioners, namely, the power of the Vice-President to put before the meeting of the Council the question of resignation which was otherwise not included in the agenda. It was argued that under S. 12(1) the Vice President does not take the place of the President whereas under regulation 2(ix) the President means President for the time being elected under S. 12 and in his absence the Vice-President for the time being elected under S. 12. The provision in regulation 2(ix) was claimed to be ultra vires because the President and the Vice-President have to be elected separately and the Vice-President cannot take the place of the President. Under Regulation 177(2) it is the President who alone has the power to direct any business to be brought before the Council for its consideration. That power cannot be exercised by the Vice-President although it is stated in clause (3) of regulation 177 that if the office of the President is vacant or if the President for any reason is unable to exercise the powers Or to perform the duties of his office the Vice-President shall act in his place and shall exercise the powers and perform the duties of the President. The power of the Vice-President to perform the duties of the President is exercisable only if the President for any reasons, is unable to exercise the powers or perform the duties of his office. Merely because on 19th July 1971 the President was absent from the meeting that would not attract clause (3) of Regulation 177 and as such the Vice-President had no power to bring the resolution to the notice of the Council because such a power can only be exercised by the President himself. We have not considered it necessary to go into these questions for we have held that in the absence of a notice to all the members of the Council the question of resignation could not be put before the Council.
(64) We have not been impressed by the respondents' argument that since the Council was in session it could consider any matter that was brought before it and as the President was the creature of the Council he could vacate his office without his resignation being accepted by the Council.
(65) We hold that the meeting of July 19. 1971 was properly convened to consider the subject matter of the agenda. The said meeting, however. could not consider the resignation tendered by the President which could only be considered by a meeting of the Council of which a proper notice had been served on all the members of the Council. No such meeting was called for the purpose. The resignation was, therefore not. accepted by a validly convened and constituted meeting and could, therefore, be withdrawn by the President. The petition is thus allowed to the extent mentioned above, but in the circumstances there will be no order as to costs.