Kerala High Court
C.H.Ashique vs The Chancellor on 27 March, 2013
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 27TH DAY OF MARCH 2013/6TH CHAITHRA 1935
WP(C).No. 27560 of 2011 (T)
----------------------------
PETITIONER(S) :
---------------------
1. C.H.ASHIQUE,CHELEKKAT HOUSE,
BIG BAZAR, PERINTHALMANNA P.O.
MALAPPURAM.
2. DR.K.P.VARKEY,READER IN PHYSICS,
GOVERNMENT ENGINEERING, COLLEGE
THRISSUR.
3. C.P.ABOOBACKER,
THANAL, MEPPAYYUR, KOZHIKODE.
4. C.R.DAS,VIKAS, MANNOOTHY, THRISSUR.
5. V.K.VINOD,
SUNIL NIVAS, KARASSERI, KOZHIKODE.
6. P.MAMMAD, LECTURER,
SELECTION GRADE, DEPARTMENT OF COMMERCE
PSMO COLLEGE, THIROORANGADI, MALAPPURAM.
7. B.MOHAMMED MUSTHAFA,
MOYYALIPARAMBU, CHITTOOR, PALAKKAD.
8. DR.C.L.JOSHY, READER,
DEPARTMENT OF CHEMISTRY, ST.THOMAS COLLEGE
THRISSUR.
9. DR.K.M.JAYARAM,PROFESSOR,
DEPARTMENT OF BOTANY, UNIVERSITY OF CALICUT
MALAPPURAM.
10. MRINALINI C.P.,PROFESSOR AND HEAD,
DEPARTMENT OF ELECTRONICS AND
COMMUNICATION ENGINEERING, GOVERNMENT ENGINEERING
COLLEGE, SREEKRISHNAPURAM, PALAKKAD.
BY ADV. SRI.P.C.SASIDHARAN
RESPONDENT(S) :
------------------------
1. THE CHANCELLOR,
UNIVERSITY OF CALICUT, RAJ BHAVAN
THIRUVANANTHAPURAM-695 001.
WP(C).No. 27560 of 2011 (T)
2. THE VICE CHANCELLOR,
UNIVERSITY OF CALICUT, THENHIPALAM
MALAPPURAM-673 635.
3. UNIVERSITY OF CALICUT,
THENHIPALAM, MALAPPURAM, REPRESENTED BY
ITS REGISTRAR, PIN-673 635.
4. ABDUL RABB,
GRACE, BEACH ROAD, PARAPPANANGADI
MALAPPURAM-673 303.
5. DR.K.SEKHARAN,
PROFESSOR, DEPARTMENT OF SANSKRIT
UNIVERSITY OF CALICUT, MALAPPURAM-673 635.
6. SHRI. T.V.IBRAHIM,
ATHANIKKAL P.O., VALLUVAMPURAM
MALAPPURAM DISTRICT-676 505.
7. DR.T.P.AHAMED,NASHEMAN,
P.O.FAROOK COLLEGE, KOZHIKODE-673 632.
8. ADV.G.C.PRASANTH KUMAR,
'PRASANTHAM', NELLIKKODE P.O., KOZHIKODE-673 016.
9. SHRI.NAVAS JAN A.,
MORIKARA, KAKKODY, KOZHIKODE DISTRICT-673 611.
10. SHRI.R.S.PANIKKAR,5/410,
THENHIPALAM, MALAPPURAM DISTRICT-673 635.
11. ADV.NIYAS P.M.,'CHILLA',
RARICHAN ROAD, ERANHIPALAM P.O.
KOZHIKODE-673 006.
12. SHRI.K.SIVARAMAN, KOTTAMMAL HOUSE,
EZHAVATHURUTHIL, PONNANI-679 577.
13. PROF.K.M.VANAJAKSHI, PRINCIPAL,
P.M.GOVERNMENT COLLEGE, CHALAKKUDY
THRISSUR-680 307.
14. SHRI.ABRAHAM P.MATHEW,
PRINCIPAL, MAR THOMAS COLLEGE, CHUNGATHARA
MALAPPURAM-679 334.
15. DR.K.V. LAZAR,DEPARTMENT OF ZOOLOGY,
UNIVERSITY OF CALICUT, PIN-673 635.
16. DR.ZAINUL ABID KOTA,
ASSISTANT PROFESSOR OF ENGLISH, P.T.M.GOVERNMENT
COLLEGE, PERINTHALMANNA-679 332.
WP(C).No. 27560 of 2011 (T)
17. PROF. L.ABDUL RAHIMAN,
SULLAMUSSALAM ARABIC COLLEGE,
P.O.AREACODE, MALAPPURAM-673 639.
18. PROF.K.A.SIRAJ,ASSOCIATE PROFESSOR,
FAROOK COLLEGE, FAROKE-673 632.
19. SHRI.T.A.ASHRAF ALI,
1ST SEMESTER, M.A.ISLAMIC STUDIES
SAFI INSTITUTE OF ADVANCED STUDIES, VAZHAYOOR
MALAPPURAM-673 633.
R1 BY GOVERNMENT PLEADER SMT.ROSE MICHAL
R2 & R3 BY ADV. SRI.SANTHOSH MATHEW,SC,CALICUTY UNIVERSITY
R10-TO 12,R14 TO R17 & R19, BY ADV. SRI.GEORGE POONTHOTTAM
R6 TO R9,R13,R15 & R18 BY ADVS. SRI.DEVAN RAMACHANDRAN
SRI.K.M.ANEESH
SRI.K.SANTHOSH KUMAR (KALIYANAM)
SRI.S.NIKHIL SANKAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 09/01/2013, THE COURT ON 27-03-2013 DELIVERED THE
FOLLOWING:
BP
WP(C).No. 27560 of 2011 (T)
APPENDIX
PETITIONER(S) EXHIBITS :
EXT.P1 : TRUE COPY OF THE ORDER BY WHICH THE SENATE WAS CONSTITUTED
DTD.30.8.2007.
EXT.P2 : TRUE COPY OF THE CONSTITUTION OF THE SYNDICATE NOTIFIED
DTD.31.10.2007.
EXT.P3 : TRUE COPY OF THE ADVICE TENDERED BY THE STANDING COUNSEL OF
THE UNIVERSITY WHICH WAS CIRCULATED AMONG THE MEMBERS OF THE
SYNDICATE IN ITS MEETING.
EXT.P4 : TRUE COPY OF THE NOTIFICATION.
EXT.P5 : TRUE COPY OF THE ORDER WAS NEITHER COMMUNICATION TO ANY OF
THE MEMBERS OF THE SENATE OR SYNDICATE. BUT THE PETITIONERS
COULD SECURE A COPY OF THE ORDER DTD.21.9.11 UNDER THE RIGHT
TO INFORMATION ACT.
EXT.P6 : TRUE COPY OF THE NOTIFICATION ISSUED BY THE UNIVERSITY
DTD.22.9.2011.
EXT.P7 : TRUE COPY OF THE NOTIFICATION ISSUED BY THE UNIVERSITY
DTD.26.9.2011.
EXT.P8 : TRUE COPY OF THE JUDGMENT IN WPC NO.22535/2008.
EXT.P9 : TRUE COPY OF THE COMMENTS OF THE AUDIT.
EXT.P10: TRUE COPY OF THE JUDGMENT IN WPC NO.12787/2010.
EXT.P11: TRUE COPY OF THE JUDGMENT IN WPC NO.35968 OF 2006
AND CONNECTED.
EXT.P12: TRUE COPY OF THE JUDGMENT IN WPC NO.31739/2005.
EXT.P13: COPY OF ADVICE GIVEN BY THE LEGAL ADVISOR TO THE CHANCELLOR
DT 30/8/2011 UNDER THE RIGHT TO INFORMATION ACT.
EXT.P14: COPY OF NOTICE FILES LEADING TO THE ISSUE FROM THE INFORMATION
COLLECTED UNDER THE RIGHT TO INFORMATION ACT.
RESPONDENTS' EXHIBITS :
EXT.R1(a): COPY OF A DETAILED ADMINISTRATION REPORT DT 29/08/2011 OF VICE
CHANCELLOR TO THE CHANCELLOR.
//TRUE COPY//
P.A. TO JUDGE
BP
A.M.SHAFFIQUE, J
* * * * * * * * * * * * *
W.P.C.No.27560 of 2011
----------------------------------------
Dated this the 27th day of March 2013
J U D G M E N T
Petitioners were members of Senate and the Syndicate of University of Calicut who were either elected or nominated. Respondents 4 and 5 are also elected members of the Senate and the Syndicate. The writ petition is filed challenging the action of the Chancellor of the University in invoking the power under Section 7(4) of the Calicut University Act (hereinafter referred as the Act) directing dissolution of the Senate and the Syndicate of the University and nominating an interim body to function as the Senate and the Syndicate. Ext. P5 is the said order and Ext. P6 is the relevant notification regarding the same. Petitioners also seek for a declaration that the exercise of power by the Chancellor under Section 7(4) of the Act is in total violation of the principles of natural justice and therefore it is void ab initio.
W.P.(C).No.27560/2011 2
2. The facts as disclosed in the writ petition would show that the Senate was constituted as per Ext. P1 notification dated 30.08.2007, consisting of 109 members. The members of the Syndicate are elected from the Senate. Ext. P2 is the constitution of the Syndicate as notified on 31.10.2007. The process of election to the Senate of the University was notified on 25.05.2011 and Ext. P4 is the said notification. The election was postponed by the acting Vice Chancellor. Since no election was conducted to re-constitute the Senate and the Syndicate, the elected members were continuing as such.
3. According to the petitioners without any notice the Chancellor had issued Ext. P5 invoking Section 7(4) of the Act. Petitioners submit that they secured a copy of the order under the Right to Information Act. Ext. P6 is the notification issued by the University on 22.09.2011, implementing Ext. P5 order. The main contention urged by the petitioners is that Ext. P5 is issued in gross violation of the principles of W.P.(C).No.27560/2011 3 natural justice and therefore non-est in law. According to the petitioners the members of the Senate and the Syndicate could continue until the next election process is completed. Another argument raised is that Ext. P5 was issued on irrelevant considerations. Ext. P5, according to the petitioners is based on a report submitted by the Vice Chancellor. No other materials or evidence was considered by the Chancellor to arrive at an objective satisfaction or to form an opinion of the circumstances for dissolving the Senate and the Syndicate. The contention is that the power under Section 7(4) being an extra ordinary power can be exercised only under well founded reasons and on exceptional circumstances. The said power cannot be exercised as a routine administrative affair. Therefore the order passed is without proper application of mind. Petitioners also challenge the findings made by the Chancellor in Ext. P5. According to the petitioners the allegations raised are factually incorrect, vague and has no W.P.(C).No.27560/2011 4 basis. The petitioners also explain the various factors leading to the said allegations and an attempt has been made to explain the allegations are unfounded.
4. In the counter affidavit filed by the University it is inter alia contended that there were wide spread complaints raised against the failure of the statutory mechanism of the University. The Vice Chancellor of the University had noticed certain severe lapses as well as laches including failures to carry out statutory obligations by the Senate and the Syndicate. There were also instances of failure to comply with orders passed by the High Court. That apart it was noticed that loss was caused to the University Fund as well. In that view of the matter the Vice Chancellor who is duty bound to report the matter to the Chancellor had filed a detailed administration report requesting the chancellor to take immediate action as there was failure of constitutional machinery inside the University administration. It is further contended that Section 10(16) of the Act obliges the Vice W.P.(C).No.27560/2011 5 Chancellor to see that the proceedings of the University are carried out in accordance with the provisions of the Act, Statute, Ordinance, Regulations, Rules and Bye-laws. Therefore the Vice Chancellor was only acting in accordance with the statutory powers vested in it while forwarding the report to the Chancellor. Further in the counter affidavit an attempt has been made to state that all the allegations stated in Ext. P5 order were correct. It is further submitted that when the Chancellor has taken a decision in terms of Section 7(4) of the Act, the Senate and the Syndicate stands dissolved and they have no further right to claim that they continue to be members of the Senate and the Syndicate as the case may be. It is further contended that the Chancellor had clearly indicated in Ext. P5 that the report of the Vice Chancellor was considered in detail which indicates clear application of mind. In regard to the allegation of violation of natural justice, it is contended that no notice is contemplated to be issued especially in a case where the W.P.(C).No.27560/2011 6 term of the office of members of the Senate and the Syndicate was over and that no prejudice had been caused to such members in that regard.
5. The question to be considered in this writ petition is whether judicial review is possible with reference to an order passed by the Chancellor under Section 7(4) of the Act and if so to what extent.
6. Heard the learned counsel for the petitioners and the learned Special Government Pleader and the learned counsel appearing for the University and the party respondents.
7. The learned counsel for petitioners relied upon the judgment of Supreme Court in S.L. Kapoor v. Jagmohan and Others [(1980) 4 SCC 379]. Reference is made to the following paragraphs:-
xxx "Narrow as were the considerations applied by the Privy Council to determine whether the principle audi alteram partem applied or not, Alfred Thangarajah Durayappah v. W.J. Fernando appears to us to furnish a complete answer W.P.(C).No.27560/2011 7 to the submission of the learned Attorney-General that, as a matter of interpretation, Section 238 of the Punjab Municipal Act did not contemplate and did not require that an opportunity should be given to the Committee before an order of supersession was passed. We may notice here that the language of Section 238(1) of the Punjab Municipal Act is very nearly the same as the language of Section 277(1) of the Municipal Ordinance which was interpreted by the Privy Council in Alfred Thangarajah Durayappah v. W.J. Fernando. We have already referred to some of the relevant provisions of the Punjab Municipal Act to indicate some of the rights and duties of the committee under that Act. A committee so soon as it is constituted, at once, assumes a certain office and status, is endowed with certain rights and burdened with certain responsibilities, all of a nature commanding respectful regard from the public. To be stripped of the office and status, to be deprived of the rights, to be removed from the responsibilities, in an unceremonious way as to suffer in public esteem, is certainly to visit the committee with civil consequences. In our opinion the status and office and the rights and responsibilities to which we have referred and the expectation of the committee to serve its full term of office would certainly create sufficient interest in the municipal committee and their loss, if superseded, would entail civil consequences so as to justify an insistence upon the observance of the principles of natural justice before an order of supersession is passed.
10. One of the submissions of the learned Attorney-General was that when the question was one of disqualification of W.P.(C).No.27560/2011 8 an individual member, Section 16 of the Punjab Municipal Act expressly provided for an opportunity being given to the member concerned whereas Section 238(1) did not provide for such an opportunity and, so, by necessary implication, it must be considered that the principle audi alteram partem was excluded. We are unable to agree with the submission of the learned Attorney-General. It is not always a necessary inference that if opportunity is expressly provided in one provision and not so provided in another, opportunity is to be considered as excluded from that other provision. It may be a weighty consideration to be taken into account but the weightier consideration is whether the administrative action entails civil consequences. This was also the view taken in Mohinder Singh Gill v. Chief Election Commissioner, New Delhi7 where it was observed (at p. 316): (SCC pp. 446-447, para 77) "We have been told that wherever Parliament has intended a hearing it has said so in the Act and the rules and inferentially where it has not specified it is otiose. There is no such sequitur. The silence of a statute has no exclusionary effect except where it flows from necessary implication. Article 324 vests a wide power and where some direct consequence on candidates emanates from its exercise we must read this functional obligation."
11. Another submission of the learned Attorney-General was that Section 238(1) also contemplated emergent situations where swift action might be necessary to avert W.P.(C).No.27560/2011 9 disaster and that in such situations if the demands of natural justice were to be met, the very object of the provision would be frustrated. It is difficult to visualise the sudden and calamitous situations gloomily foreboded by the learned Attorney-General where there would not be enough breathing time to observe natural justice, at least in a rudimentary way. A municipal committee under the Punjab Municipal Act is a public body consisting of both officials and non-officials and one cannot imagine anything momentous being done in a matter of minutes and seconds. And, natural justice may always be tailored to the situation. Minimal natural justice, the barest notice and the "littlest" opportunity, in the shortest time, may serve. The authority acting under Section 238(1) is the master of its own procedure. There need be no oral hearing. It is not necessary to put every detail of the case to the committee: broad grounds sufficient to indicate the substance of the allegations may be given. We do not think that even minimal natural justice is excluded when alleged grave situations arise under Section 238. If indeed such grave situations arise, the public interest can be sufficiently protected by appropriate prohibitory and mandatory action under the other relevant provisions of the statute in Sections 232 to 235 of the Act. We guard ourselves against being understood as laying down any proposition of universal application. Other statutes providing for speedy action to meet emergent situations may well be construed as excluding the principle audi alteram partem. All that we say is that Section 238(1) of the Punjab Municipal Act does not.
W.P.(C).No.27560/2011 10
xxx
16. Thus on a consideration of the entire material placed before us we do not have any doubt that the New Delhi Municipal Committee was never put on notice of any action proposed to be taken under Section 238 of the Punjab Municipal Act and no opportunity was given to the Municipal Committee to explain any fact or circumstance on the basis that action was proposed. If there was any correspondence between the New Delhi Municipal Committee and any other authority about the subject- matter of any of the allegations, if information was given and gathered it was for entirely different purposes. In our view, the requirements of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. We do not suggest that the opportunity need be a "double opportunity" that is, one opportunity on the factual allegations and another on the proposed penalty. Both may be rolled into one. But the person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the requirements are met. We disagree with the finding of the High Court that the Committee had the opportunity to meet the allegations contained in the order of supersession.
xxx W.P.(C).No.27560/2011 11
24. The matter has also been treated as an application of the general principle that justice should not only be done but should be seen to be done. Jackson's Natural Justice (1980 Edn.) contains a very interesting discussion of the subject. He says:
"The distinction between justice being done and being seen to be done has been emphasised in many cases. . . .
The requirement that justice should be seen to be done may be regarded as a general principle which in some cases can be satisfied only by the observance of the rules of natural justice or as itself forming one of those rules. Both explanations of the significance of the maxim are found in Lord Widgery, C.J.'s judgment in R. v. Home Secretary, ex. p. Hosenball, where after saying that "the principles of natural justice are those fundamental rules, the breach of which will prevent justice from being seen to be done" he went on to describe the maxim as "one of the rules generally accepted in the bundle of the rules making up natural justice".
xxx In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier W.P.(C).No.27560/2011 12 where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal.
25. Every wrong action of a municipal committee need not necessarily lead to the inference of incompetence on the part of the committee or amount to an abuse of the powers of the committee. That is a matter to be decided by the State Government on the facts of each case. A committee may admit that what it has done is wrong and yet may plead that its action does not reveal incompetence or an abuse of its powers. It may plead an honest error of judgment, it may plead some misapprehension about the state of facts or state of the law; it may plead that in any event the drastic action contemplated by Section 238(1) is not called for. Therefore, merely because facts are admitted or are indisputable it does not follow that natural justice need not be observed. In fact in the present case one of the complaints of the appellant is that relevant facts were not considered by the Lt. Governor. Neither the impugned order nor the note of Shri Shaiza shows that in regard to the first allegation two vital circumstances were considered: (a) The contractor had agreed to pay interest at the rate of 9 per cent on the mobilisation advance; (b) the contractor had agreed to offer bank guarantee to W.P.(C).No.27560/2011 13 cover the mobilisation advance as well as the interest. It was argued that had these facts been brought to the notice of the Lt. Governor he might not have made the impugned order. If notice had been given to the Committee, the Committee would have certainly brought these facts to the notice of the Lt. Governor.
26. In the light of the discussion we have no option but to hold that the Order dated February 27, 1980, of the Lt. Governor superseding the New Delhi Municipal Committee is vitiated by the failure to observe the principle audi alteram partem. The question is what relief should be given to the appellant? The term of the Committee is due to expire on October 3, 1980 which means that just a few days more are left for the term to run out. If now the order is quashed and the Committee is directed to be reinstated with liberty to the Lt. Governor to proceed according to law -- this should be our order ordinarily -- it may lead to confusion and even chaos in the affairs of the municipality. Shri Sorabjee, learned Counsel for the appellant, had relieved us of our anxiety by stating:
"In view of the fact that the term expires on October 3, 1980, and as the appellant is anxious to have the stigma cast on him by the notification removed, the appellant does not press either for reinstatement in office or for striking down the notification so long as there is a just determination of the invalidity of the notification."
We have held that the notification is vitiated by the failure to observe the principles of natural justice and we let the matter rest there. We neither quash the notification nor W.P.(C).No.27560/2011 14 reinstate the Committee. Nor are we to be understood as having expressed any opinion on the merits of the supersession. We allow the appeal in the manner indicated. The appellant is entitled to his costs." On the basis of the above judgment it is contended that since the allegations constitutes civil consequences touching the reputation of the members of the Senate as well as the Syndicate, absence of giving notice before coming to such conclusions clearly amounts to violation of natural justice and therefore the order is to be treated as non-est.
8. Another judgment relied upon by the learned counsel for the petitioner is Sahara India (Firm), Lucknow v. Commissioner of Income Tax, Central-I and Another [(2008) 14 SCC 151]. Reference is made to paragraph 26, 29, 30 and 31 which reads as under:-
26. In the light of the aforenoted legal position, we are in respectful agreement with the decision of this Court in Rajesh Kumar that an order under Section 142(2-A) does entail civil consequences. At this juncture, it would be relevant to take note of the insertion of proviso to Section 142(2-D) with effect from 1-6-2007. The proviso provides that the expenses of the auditor appointed in terms of the W.P.(C).No.27560/2011 15 said provision shall, henceforth, be paid by the Central Government. In view of the said amendment, it can be argued that the main plank of the judgment in Rajesh Kumar to the effect that direction under Section 142(2-A) entails civil consequences because the assessee has to pay substantial fee to the special auditor is knocked off.
xxx
29. In Rajesh Kumar it has been held that in view of Section 136 of the Act, proceedings before an assessing officer are deemed to be judicial proceedings. Section 136 of the Act, stipulates that any proceeding before an Income Tax Authority shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Penal Code, 1860 and also for the purpose of Section 196 IPC and every Income Tax Authority is a court for the purpose of Section 195 of the Code of Criminal Procedure, 1973. Though having regard to the language of the provision, we have some reservations on the said view expressed in Rajesh Kumar case, but having held that when civil consequences ensue, no distinction between quasi-judicial and administrative order survives, we deem it unnecessary to dilate on the scope of Section 136 of the Act. It is the civil consequence which obliterates the distinction between quasi-judicial and administrative function. Moreover, with the growth of the administrative law, the old distinction between a judicial act and an administrative act has withered away. Therefore, it hardly needs reiteration that even a purely administrative order which entails civil consequences, must be consistent with the rules of natural justice. (Also W.P.(C).No.27560/2011 16 see Maneka Gandhi v. Union of India and S.L. Kapoor v. Jagmohan.)
30. As already noted above, the expression "civil consequences" encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. Anything which affects a citizen in his civil life comes under its wide umbrella. Accordingly, we reject the argument and hold that since an order under Section 142(2-A) does entail civil consequences, the rule audi alteram partem is required to be observed.
31. We are also unable to persuade ourselves to agree with the proposition canvassed by learned counsel for the Revenue that since a post-decisional hearing in terms of sub-section (3) of Section 142 is contemplated, the requirement of natural justice is fully met. Apart from the fact that ordinarily a post-decisional hearing is no substitute for pre-decisional hearing, even from the language of the said provision it is plain that the opportunity of being heard is only in respect of the material gathered on the basis of the audit report submitted under sub-section (2-A) and not on the validity of the original order directing the special audit. It is well settled that the principle audi alteram partem can be excluded only when a statute contemplates a post- decisional hearing amounting to a full review of the original order on merit, which, as explained above, is not the case here."
W.P.(C).No.27560/2011 17 Here also the main issue considered is what is the impact of the expression civil consequences. It is stated that civil consequences encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages anything which affects a citizen in a civil life comes under its wide umbrella.
9. The learned counsel appearing for the respondents have contended that the Chancellor had exercised the power under Section 7(4) of the Act after properly considering the report submitted by the Vice Chancellor who is the statutory authority to provide such reports in terms of Section 10(16) of the Act. Still further it is contended that the impugned order has been passed after application of mind and on the subjective satisfaction of the Chancellor. Reference is also made to the judgment in Gopalakrishnan v. Chancellor, University of Kerala [1991 (1) KLT 681] at paragraph 18 which reads as under:-
18. We must here observe that the Governor's functions are not purely those which are vested in him by or under the W.P.(C).No.27560/2011 18 Constitution. He also exercises functions which are vested in him by statute. In our opinion, Art.163 is limited to those functions which the Governor exercises by virtue of his position as such, in respect of matters required to be done by him by or under the Constitution, and hot otherwise. Where a power is conferred on the Governor under a statute, her is equally bound by the statute, and is bound to exercise those powers in accordance with the provisions of the statute in question. If the statute requires that the Governor shall act either in his discretion or in a particular manner, he shall have to act accordingly. None can thereafter contend that the Governor who has performed his functions in accordance with the statute or its mandate has nevertheless acted unconstitutionally for not acting on the aid and advice of the Council of Ministers under Art.163. It is only those functions which are vested in the Governor, or which the Governor is required to do by virtue of his position as such, under the Constitution, that are attracted by Art.163 and it is only in relation to these functions that the Governor is bound to act on the aid and advice of the Council of Ministers - for instance, the executive functions of the Governor under Art.154. Statutory functions which the Governor is empowered or bound to do under a particular enactment are beyond the purview of Art. 163.
10. Om Narain Agarwal and Others v. Nagar Palika, Shahjahanpur and Others [1993 (2) SCC 242] is also relied upon to contend that there is no reason to hear W.P.(C).No.27560/2011 19 the person who is affected by such orders if the same will amount to a useless formality. According to the learned Government Pleader in so far as the members of the Senate and the Syndicate are concerned their period in office had already expired. They have been continuing as elections were not held. As matters stand now the elections have been declared and therefore in any case they have to step down. The orders had been passed because of lack of proper governance which is not focused on any particular individual but the Senate and the Syndicate as a whole and therefore there is no civil consequences involved in the matter. The learned counsel appearing for the University also submitted that elections have been notified on 23.01.2013 and the date of poll is between 13.03.2013 to 19.03.2013 and the date of receipt of postal ballet is between 19.03.2013 and 12.04.2013 and the date of counting and declaration of result is 16.04.2013 and 29.04.2013. On this premise it is submitted that no useful purpose will be served in W.P.(C).No.27560/2011 20 adjudicating the present list. It is also stated that except for Serial nos. 2, 5 and 6 all other persons are nominated to the Senate and therefore they cannot have any complaint at all.
11. The learned counsel appearing for party respondents submit that judgment in S.L. Kapoor's case cannot be made applicable to the present situation as no civil consequence of any citizen is involved in the matter. The impugned order concerns a body of persons and if the chancellor had only made reference to the action of such body of persons and not to a particular individual, it will not affect the rights of citizens as such. Specific reference is also made to the judgment in Bhikhubhai Vithlabhai Patel and Others v. State of Gujarat and Another [(2008) 4 SCC 144] to indicate that in the absence of any illegality in the matter the jurisdiction of the Court should not be invoked to examine the validity of the action taken by the Chancellor.
W.P.(C).No.27560/2011 21
12. Section of 7(4) of the Act reads as under:-
"7(4). The Chancellor may, if he deems it necessary in the public interest or in the interest of the proper functioning of the University, suspend, dismiss or dissolve any authority of the University and -
(a) In the case of suspension, take measures for the interim administration of the University
(b) In the case of dismissal or dissolution, constitute such authority by nomination for the interim administration of the University, till such authority is reconstituted in accordance with the provisions of this Act.
Provided that the nominated authority shall not in any case continue in office for a period exceeding one year."
13. Section 7(4) can be invoked by the Chancellor in public interest or in the interest of the proper functioning of the University. In Ext. P5 order the Chancellor had indicated several deficiencies that had occurred due to the functioning of the Senate and the Syndicate. Specific reference is made to an instance of victimisation of Dr. P. P. Mohammed, illegal appointments in the University, financial loss caused to the University Fund, non-compliance of Court Orders, denial of natural justice, destruction of public properties and absence W.P.(C).No.27560/2011 22 of good governance. This order is based on a report submitted by the Vice Chancellor. Still further at page 6 of the impugned order the Chancellor holds as under :-
"I have considered the report submitted by the University and also independently examined the evidence and materials produced in support of the Report. On an independent examination of the facts and circumstances of the case and on an objective analysis of the factual and legal position, I am satisfied that Senate which is the Supreme Authority of the University has failed in its duty to discharge its powers and functions for the proper functioning of the University. I am also satisfied that the Syndicate has failed to exercise its executive powers for the proper functioning of the University and the alarming situation warrants immediate remedial action in the best interest and for the proper functioning of the University. This is a rarest of rare situation wherein there is a total failure with regard to proper superintendence and control over the administration of the University on the part of the Statutory Authorities. viz. Senate and Syndicate.
Taking into account all the relevant facts and circumstances, invoking the powers vested in me under Section 7(4) of the Calicut University Act, I hereby dissolve the Senate and Syndicate of the University of Calicut in the interest of the proper functioning of the University, with immediate effect."
As extracted above the Chancellor had applied his mind by referring to the report of the Vice Chancellor and had also W.P.(C).No.27560/2011 23 arrived at the very same finding. Merely for the reason that the Chancellor had extracted the opinion expressed by the Vice Chancellor does not mean that the Chancellor had not applied his mind independently. An independent consideration had been made as evident from the extracted portion at page 6 of Ext.P5 and therefore it may not be possible for this Court to come to a different finding in this regard.
14. It is contended that the Chancellor's order at Ext. P5 is a replica of the report given by the Vice Chancellor. No doubt as contended by the learned Government Pleader it is for the Vice Chancellor to make reports on the basis of Section 10(16) of the Act and thereafter it is for the Chancellor to take a decision in the matter. If the Chancellor felt that on the basis of a report received from Vice Chancellor the power under Section 7(4) can be invoked, definitely such invocation of power cannot be treated as bad in any manner.
W.P.(C).No.27560/2011 24
15. An allegation has been made that the power under section 7(4) was invoked based on opinions given by the Advocate General and the Legal opinion obtained by the Chancellor's secretariat. Such expression of opinions cannot be taken into consideration by this Court as those are confidential information given by an Advocate or Legal Adviser to his client and cannot form the basis of any judgment. This practice of producing opinions expressed by Advocates acting as Legal Advisers can never be treated as having evidentiary value in the eye of law. Such opinions on legal matters are professional communications protected under section 126 of the Evidence Act. It is totally improper for a party to the case to produce such documents as evidence in a case without obtaining the consent of said Advocate and his client. The practice of producing such opinions without permission is to be deprecated and I do so.
16. Having found that there is proper application of mind by the Chancellor, the question to be considered is W.P.(C).No.27560/2011 25 whether any notice had to be given to the members of the Senate or the Syndicate before issuing Ext.P5 order. A reference to S.L. Kapoor's case has been made to indicate that since the impugned order indicates that there are several instances of bad governance and violation of Norms and Rules prescribed by the University and even violation of Court Orders, such allegations will clearly affect the personal right of the members of the Senate and the Syndicate as the case may be and therefore an explanation ought to have been called for by the Chancellor before passing the impugned order. But it is relevant to note that in the present case this is not an order issued against a particular individual. It is an order passed against a body of persons statutorily created for the purpose of functioning of a University. The Senate as well as the Syndicate has independent functions and it is definitely a body of individuals which has to function for a definite number of years. Their tenure of office is admittedly over. When the W.P.(C).No.27560/2011 26 Vice Chancellor or the Chancellor imputes certain allegations against the Senate or the Syndicate as the case may be it is against the said body of individuals and not against a particular person as such. If the allegation is against a particular person and an action is taken against such a person definitely S.L. Kapoor's case will come into effect. But if in a case where the Chancellor comes to a conclusion that a statutory body has not performed his function in accordance with the procedure prescribed or against the norms by which the University becomes responsible, it is not a case where a civil consequence of a citizen is affected but it is a case where a body of individuals forming a statutory authority is found to be wrong, improper or illegal. In that view of the matter I do not think that the S.L. Kapoor's case or the judgment in Sahara India's case could be made applicable to the factual situation arising in this case. The judgment in Om Narayan Agarwal and Others would support the view taken by me, which would indicate that the W.P.(C).No.27560/2011 27 nominated members constitute a separate class whose induction and removal depends upon the pleasure of the Government which is based on political consideration and their removal does not put any stigma on their performance or character and therefore there is no reason to give notice before removing them. This principle is shown as the Doctrine of Pleasure. Therefore as far as the nominated members are concerned they cannot have a complaint at all that they have been removed with a stigma as they are always working under the pleasure of the Government. In respect of elected members admittedly their period is over and it has been extended from time to time as the elections were not held. Therefore they have no right as such to continue other than at the will and the pleasure of the Government who had extended their period. Therefore they cannot claim the benefit of being elected members to the Senate as well.
W.P.(C).No.27560/2011 28
17. Having regard to the aforesaid factual circumstances and having found that no civil consequences occur as far as the petitioners are concerned, absence of issuing notice to them before passing Ext.P5 order does not affect the validity of the order.
Accordingly the writ petition is dismissed.
sd/-
(A.M.SHAFFIQUE, JUDGE) DCS