Sakila Begum and ors. Vs. State of West Bengal and ors. - Court Judgment

Soumitra Pal, J.

1. Perused the application for addition of party, I find sufficient grounds have been made out by the applicant in support of the application.

2. Therefore, the application for addition of party being C.A.N. 950 of 2006 is allowed subject to such objection that may be taken by the petitioner.

3. Office is directed to add the applicant as respondents.

4. No order as to costs.

Re: C.A.N. 3075 of 2006

Perused the application for expunging the name of the Zohara Parveen, applicant No. 9, from the application being C.A.N. 950 of 2006. I find sufficient grounds have been made out by the applicant in support of the application.

Therefore, let the name of Zohara Parveen applicant No. 9 be expunged from C.A.N. 950 of 2006.

The application being C.A.N. 3075 of 2006 is disposed of. There will be no order as to costs.

W.P. 2197fW1of2006

This writ petition has been preferred by the petitioners praying for a direction upon the respondents particularly the Inspector of Colleges of Calcutta University, the respondent No. 3 to rescind the impugned letter dated January 10, 2006 for conducting inspection of the college concerned on January 28, 2006. The impugned letter dated January 10, 2006 is as under:

Senate House

Calcutta - 73

Dated, the 10th January, 2006

To

The Principal, Sarisha B.Ed. College,

Sarisha, Diamond Harbour,

24 Parganas (S)

Sir,

The undersigned is directed to inform you that an inspecting team consisting of 07 members will visit your College on 28.01.2006 at 12 Noon in connection with the allegations made by some teaching and non-teaching staff of your College.

You are, therefore, requested to instruct the teaching and non teaching staff as well as students of your College to be present on the date of inspection.

Yours faithfully,

Inspector of Colleges

5. Learned advocate appearing on behalf of the University submitted that as there were glaring Irregularities in the management of the College concerned, the Vice-Chancellor in exercise of the emergency powers conferred under Section 9(6) of the Calcutta University Act, 1979 (for short 'the Act') had called for an inspection of the College. During hearing learned advocate for the University authorities produced a copy of the record. It was submitted that from a perusal of the record, it is evident that besides other reasons, since there was no Governing Body in the College and the members of the staff were not paid their salary, the Vice-Chancellor in exercise of his emergency powers, considering the gravity of the charges, thought it prudent to arrange for inspection and, therefore, the action is just and proper.

6. Learned senior advocate appearing on behalf of the petitioner submitted that the statue is not powerless in granting extraordinary powers to the Vice-Chancellor as he may deem expedient in any matter in an urgent or emergent situation but before embarking on such action under Section 9(6) of the Act, he should come to a belief and form an opinion which should be evident from the records. As seen from the records the Vice Chancellor thought It fit to place it before some statutory body, but changed his mind and directed for arranging inspection. It was further submitted that under the Calcutta University First Ordinance, (for short 'said ordinance') 1979, power has been granted under Ordinance 68(2) for causing an inspection to be carried out through the Inspecting Officers of the University and such other person or persons as may be appointed by the respective council for Undergraduate Studies. Referring to Ordinance 70(1) of the said Ordinance it was contended that if at any time Council for undergraduate studies has reasons to believe that proper standards of teaching, training or research are not maintained in a College, it can cause an investigation into the affairs of the College or institution by such person or persons as it may appoint for the said purpose after consulting the views of the Pro Vice-Chancellor for Academic Affairs. However, in the instant case such procedure has not been followed. Under the garb of inspection an Investigation has been sought to be carried out which is not permissible in law. According to him, the action of arranging inspection is liable to be quashed as there is absence of formation of opinion as envisaged under Section 9(6) of the Act. Relying on a Judgment of the Supreme Court in Ramchandra Keshav Adke and Ors. v. Govind joti Chavare and and Ors. reported in : [1975]3SCR839 it was contended that when power is conferred to do a certain thing in a certain way and is hot done in the manner prescribed, and other methods are resorted to, then the entire action is vitiated and rendered non est for failure to comply with the mandatory provisions. The ratio of the Judgment in Ramchandra Keshav Adke (supra) is applicable to the facts and circumstances of the case since emergency power was not exercised by the Vice-Chancellor in the manner prescribed and, therefore, the action directing inspection of the College cannot be supported.

7. Learned advocate for the added respondent contended that the action of the Vice Chancellor is just and proper since it appears, inspection was directed after an objective assessment of the situation. However, in his usual fairness it was conceded that the action is open to scrutiny if the Court is of the view that there should have been a subjective assessment.

8. Heard learned advocates for the parties.

Admittedly, power has been exercised by the Vice-Chancellor under Section 9(6) of the Act. The said Section is as under:

Powers and duties of the Vice-Chancellor:

9(1)...

(2)...

(3)...

(4)...

(5)...

(6) The Vice-Chancellor may take on behalf of the University such action as he may deem expedient in any matter which, in his opinion is either urgent or of an emergent nature and shall report the same for confirmation at the next meeting to the authority or body which, in the ordinary course, would have dealt with the matter:

Provided that if the action taken by the Vice-Chancellor is not approved by the authority or body concerned, the matter shall immediately be referred to the Chancellor whose decision thereon shall be final.

(7)...

(Emphasis supplied)

9. From a perusal of Section 9(6) of the Act it is clear that power has been conferred upon the Vice-Chancellor to take action on behalf of the University in any matter which 'in his opinion' is either urgent or of an emergent nature calling for immediate attention. However, before initiating such action there must be appraisal of facts and on subjective satisfaction there should be formation of belief for arriving at an opinion. Such exercise of formation of opinion must be on the basis of facts so that, if called for, it can be demonstrated from the records that there was a definite application of mind to Justify that there indeed was an emergent or urgent situation necessitating action under Section 9(6) of the Act. The approach in such circumstances must be judicious. That, in my view, is the purport of the words 'in his opinion' so that one may know the reasons that had prompted the Vice Chancellor to initiate action in exercise of the emergency powers conferred under the Act. In the absence of any record of formation of opinion, action in exercise of powers conferred under the said subSection can hardly be Justified. In fact, the legislature had consciously used the words 'in his opinion' to check possible misuse or abuse of power.

10. Turning to the records containing the order, I find initially the Vice-Chancellor, thought of placing the matter before some Council or authority. However, he changed his mind, had certain words 'Please place before' deleted. Thereafter, he penned down the order impugned it is as under:

Please arrange inspection

Sd/-

21/11/2005

11. Perusing the records, I find the Vice Chancellor had ordered for arranging inspection. But it does not appear at all whether there was subjective satisfaction after appraisal of facts, formation of belief leading to formation of opinion. Rather the ingredients as noted which warrant for exercise of power under extraordinary circumstances as envisaged under Section 9(6) of the Act, are totally absent. It is apparent, while initiating action, the Vice Chancellor did not comply with the mandatory provisions as envisaged. In this context the ratio laid down in the Judgment of the Apex Court in Ramchandra Keshav Adke (supra) is applicable to the facts and circumstances of the instant case. The relevant paragraph is as under:

A century ago, in Taylor v. Taylor, M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmed v. Emperor and later by this Court in several cases, to a magistrate making a record under Sections 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies 'where, indeed, the whole aim and object of the Legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other.' The rule will be attracted with full force in the present case, because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the Legislature to prohibit the verification of the surrender in a manner other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the surrender and rendered it nonest for the purpose of Section 5(3)(b).(Emphasis supplied)

12. In the instant case too, as noted, there has been failure to comply with the mandatory provisions contained in Section 9(6) of the Act. Therefore, as there was absence of formation of opinion the action of the Vice-Chancellor directing inspection in exercise of the emergency powers under Sub-section 9(6) of the Act can hardly be justified. Hence, the letter dated January 10, 2006 cannot be sustained and is, therefore, set aside and quashed.

There will be no order as to costs.

Urgent xerox certified copy of this order, if applied for, be given to the appearing parties within three days from the date of making such application.

Letter dated January 10, 2006 stood set aside