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Godavaris Mahabidyalaya and anr. Vs. Director of Public Instruction (H.E.), Orissa - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberOrl. Jurn. Case No. 544 of 1981
Judge
Reported inAIR1982Ori101; 53(1982)CLT323
ActsOrissa Education Act, 1969 - Sections 3, 7 and 11; Orissa Education Code - Articles 130 and 131; Constitution of India - Article 226
AppellantGodavaris Mahabidyalaya and anr.
RespondentDirector of Public Instruction (H.E.), Orissa
Appellant AdvocateG. Rath, ;N.C. Panigrahi and ;B.K. Nayak, Advs.
Respondent AdvocateAddl. Govt. Adv.
DispositionPetition allowed
Cases ReferredShree Rama Vilas Service (P) Ltd. v. C. Chandrasekharan
Excerpt:
.....government advocate that notice to all these persons substantially amounts to notice to the governing body, because it has been mentioned in annexure-2 that the governing body of the college failed to perform its duties and being called upon to show cause why the governing body should not be superseded, eleven persons submitted show cause as per annexure-3. 6. from annexure-1, it appears that government has reconstituted the governing body by order dated 12-9-1979. it is asserted that the president did not attend any meeting and capt. such reporting has already been made and that has not been disapproved, therefore, the governing body has acted according to the provisions of the rules. 10. for superseding a governing body, according to section 11 of the act, it must be shown that..........of the institution. on 19-2-81 opp. party no. 1 issued a notice under section 11(1) of the orissa education act, 1969 framing charges against the governing body and asking to show cause why the governing body should not superseded. eleven members of the governing body showed cause, but in spite of that the opposite party superseded the governing body. it is stated that the order superseding the governing body as well as the action of the opposite party are illegal, mala fide and without jurisdiction and the order has been issued under political pressure exercised by some local politicians. it is further asserted that the charges framed against the governing body are not covered by the provisions of section 11 of the orissa education act and, as such, the order of supersession is.....
Judgment:

Das, J.

1. Petitioner No. 2 is the Member and Secretary of petitioner No. 1 which is an aided college. This writ petition has been filed by the petitioners challenging the jurisdiction of the opposite party, the Director of Public Instruction (H. E.), Orissa superseding the governing body of petitioner No. 1.

The case of the petitioner is that the governing body of the college was reconstituted on 26-7-1979, under An-nexure-1. The governing body was managing the affairs of the college properly. Under political pressure, some disturbances were created through some teachers of the institution. On 19-2-81 opp. party No. 1 issued a notice under Section 11(1) of the Orissa Education Act, 1969 framing charges against the governing body and asking to show cause why the governing body should not superseded. Eleven members of the governing body showed cause, but in spite of that the opposite party superseded the governing body. It is stated that the order superseding the governing body as well as the action of the opposite party are illegal, mala fide and without jurisdiction and the order has been issued under political pressure exercised by some local politicians. It is further asserted that the charges framed against the governing body are not covered by the provisions of Section 11 of the Orissa Education Act and, as such, the order of supersession is illegal.

2. In the return filed on behalf of opposite party it is contended that the action of the opposite party was according to the provisions of Section 11 of the Orissa Education Act and the Rules thereunder. The governing body mismanaged the affairs of the institution and, therefore, charges were framed and explanations were called for. Eleven members out of fourteen showed causes which were considered and found to be not satisfactory and, as such, the opposite party, in exercise of powers under Section 11 of the Act, has superseded the governing body. The action of the opposite party is neither mala fide nor illegal and there was no political pre-sure. The charges framed against the governing body were valid charges. The explanations were considered and after that the impugned order was passed.

In the rejoinder filed by the petitioners, it is stated that there has been no proper notice to show cause to the governing body and some persons who have already ceased to be members of the governing body have been noticed. Even though the governing body has intimated the opp. party relating to election of new members of the governing body, the opp. party remained silent and there has been no disapproval of the same.

3. By Annexure-1 dated 26-7-1979, Government has reconstituted the governing body with thirteen members of whom one Dr. S. N. Patra has been described as 'V. C. S. Nominee'. One Shri C. M. Mishra has been nominated as President of the governing body. It is stated that Capt. S. S. Satrusalya (No. 12 in Annexure-1) has resigned. It is not disputed that from the middle of 1978, proposal for reconstitution of the governing body has been sent to the opp. party and in pursuance to that the order under Annexure-1 was passed.

4. It is further not disputed that one member was nominated for three years whose term was continuing by the time the proposal was sent by the governing body, but had already expired by the time the order under Annexure-1 was passed.

5. Annexure-2 is the notice sent to fourteen persons. It is stated by the petitioners that there has been no notice at all to the governing body as such. Notice has been issued to individuals only. Undoubtedly, there is no mention as to who is the President or who is the Secretary of the managing committee, It is contended by the learned Additional Government Advocate that notice to all these persons substantially amounts to notice to the governing body, because it has been mentioned in Annexure-2 that the governing body of the college failed to perform its duties and being called upon to show cause why the governing body should not be superseded, eleven persons submitted show cause as per Annexure-3.

6. From Annexure-1, it appears that Government has reconstituted the governing body by order dated 12-9-1979. It is asserted that the President did not attend any meeting and Capt. S. S. Satrusalya resigned. These facts are not denied. It is further asserted by the petitioners that some of the members did not attend meeting consecutively and they were disqualified as per the rules of business of the college which has been accepted by necessary implication by letter dated 15-9-78. The stand taken by the opp. party is that whenever any change was made in the governing body it should have been approved by the Director of Public Instruction, As approval has not been obtained, the action of the governing body should be deemed to be illegal or irregular. In the rejoinder, it has been asserted that all the changes and election of members, have been intimated to the Director of Public Instruction in due course and in due time, and there was never any disapproval by the Director, These facts have not been denied.

7. Section 7 of the Orissa Education Act provides that every private educational institution will have a governing body in case of a college constituted in accordance with the rules made in that behalf, failing which the recognition granted to the institution may be withdrawn by the State Government. The governing body constituted after the commencement of this Act in respect of any aided educational institution shall, before it starts functioning as such, obtain the approval of the prescribed authority in the prescribed manner. Certain provisions of the Orissa Education Code have been notified to be accepted rules under the Act. The opp. party also takes the stand that the governing body has not acted according to Article 130 of the Orissa Education Code.Article 130 of the said Act (Code?) pro-vides as follows :--

'Every aided college must be governed by a body whose constitution has been approved by Government. The duly appointed Secretary to this body will be the corresponding agent of the college recognised by Government. Every change of Secretary must be notified to the Director under the signature of the new Secretary and the Chairman of the Governing Body. Every new election to the Governing Body must be reported to the Director,'

According to the aforesaid provisions, any new election to the governing body is to be reported to the Director. Such reporting has already been made and that has not been disapproved, Therefore, the governing body has acted according to the provisions of the rules. Article 131 of the Orissa Education Code also provides that the rules of business of the governing body must be submitted to the Director for approval. The rules of business have already been sent and it has been asserted that the said rules of business have been impliedly accepted by the Director. This fact is not specifically denied. According to the rules of business of the governing body, if a member does not attend three consecutive meetings, he will cease to be a member of the governing body (See Annexure-3). It is, therefore, clear that the stand taken by the opp. party is not correct. Section 7 of Act read with Article 130 of the Orissa Education Code would show that the governing body first constituted after the commencement of the Act is to be approved by the D. P. I. Any subsequent election is also to be reported to the D. P. I. Section 7 of the Act and Article 130 of the Orissa Education Code should be read together and there should be harmonious construction of the same. The wordings are clear. This is no ambiguity so as to add something to it in order to find out the intention of the legislature. In case there is any ambiguity in the aforesaid provision, then the Court can look to the intention of the legislature. If the aforesaid provisions of the Act and the Code are read together, the intention of the legislature is clear and nothing is left to be sought for so as to find out the intention of the legislature. Both the aforesaid provisions should be harmoniously constructed to make the same workable and the Court cannot import anything to it to find out something else when the wordings are clear. These provisions do not show that the approval of the governing body is a pre-condition for the members to be taken into the governing body. In absence of any provision as to prior approval, it is to be held that once the matter of election is reported to the D. P. I., the provisions of Article 130 of the Orissa Education Code are complied with. Therefore, the stand taken by the opposite party that in each case of election to the governing body there should have been prior approval, has no basis. Most of the charges relate to this question. We therefore, hold that the opposite party has erred in framing charges as there has been no irregularity or illegality in the action of the governing body in not obtaining prior approval in case of election of members in place of persons who had already ceased to be members. The considerations which weighed with the opposite party in this respect are irrelevant and not germane to the question and are against the provisions of the Act and the Rules thereunder.

8. Admittedly, Shri B. B. Harichan-dan was a member of the governing body. When he was elected as a member of the Legislative Assembly, and became a minister, he intimated to the governing body that in his place one Shri K. Bhimaraj Patra would act as his representative. As such, Sri Patra was taken as a member of the governing body. This was the intimation sent by the Education Minister himself. The allegation against the governing body is that it described Shri Patra as a minister's nominee. This has no basis at all, nor does it come under the provisions of Section 11 of the Act.

9. The other allegation is that one Shri Arakhita Patra was invited to attend the meeting of the governing body without prior approval of the competent authority. Shri Arakhita Patra was not a member, but it was the governing body which invited him for some discussion. That cannot be said to be a mismanagement or acting against any provision of the Act and the Rules. There is no bar for the governing body to invite a person for discussion if it is in the interest of the institution.

10. For superseding a governing body, according to Section 11 of the Act, it must be shown that the governing body has neglected or failed to perform any of the duties imposed by or under the Act or the Rules made thereunder. Reasonable opportunity should be given for showing cause against the proposed action and after considering the cause, shown if any, the D. P. I. can supersede the governing body. We have already pointed out that the action of the governing body does not amount to any negligence on its part and is not against the provisions of the Act or the Rules made thereunder. Therefore, the action of the opposite party under Section 11 of the Act is not supported by the provisions of the said section.

11. The next contention of the learned counsel for the petitioner is that there has been no proper notice according to the provisions of the Act and the Rules thereunder, which amounts to absence of reasonable opportunity and, as such, rules of natural justice have been violated. Notices were sent admittedly to individual members of the governing body who were nominated by Government in the year 1979. By the time notice to show cause was sent, some had ceased to be members by not attending the meetings or had resigned or had failed to attend the meetings. Four persons had already been elected in their places, but no notice has been sent to these four persons. On the other hand, notices were sent to persons who had already ceased to be members or the President of the governing body. Further, the governing body as such has not been asked to show cause. Each individual constituting the governing body in the year 1979 was noticed. Any reply by an individual member cannot amount to a reply by the governing body itself. Correspondence of the institution is to be made through the Secretary. Article 130 of the Orissa Service (Education?) Code clearly provides this. It is contended by the learned Additional Government Advocate that notice to individual members of the governing body amounts to notice to the governing body and there has been sustantial compliance of the notice. He further contends that as the governing body has shown cause, it will amount to substantial compliance. He relies on the definition of 'governing body' in Section 3 (g)of the Orissa Education Act, which provides that 'governing body' means any body of individuals, by whatever name designated, in which the management of a college vests. True it is that notice has been given to the individual members. But there are some persons who, as we have pointed out above, have not at all been noticed. Further, notice has been sent to some who have already ceased to be members or office bearers of the governing body. Moreover, correspondence with the governing body is to be made through the Secretary, which has not been done.

In Gandhi Harijan Ucchtar Madhymik Vidyataya v. Director of Education, Delhi Administration, AIR 1977 Delhi 240, it has been held that there is the legal right of the management to conduct the affairs of the institution. There are the claims of the staff, the security of their tenure and proper conditions of works. There is the interest of the students. In a system governed by the Rule of Law every executive action, to be valid must not only conform to the constitutional or statutory constraints but also be bona fide, just and fair. The case of State of Mysore v. Allum Karibasappa, AIR 1974 SC 1863, is under the Co-operative Societies Act relating to supersession of the board of management. In para-13 of the judgment in that case it has been mentioned that reasonable opportunity should be given to the management to state its objections, if any before removing the committee or appointing a new committee because the existing committee is deprived of the right of managing the affairs of the society and if action is taken without giving proper opportunity, the action becomes arbitrary and amounts to utter defiance of the powers under the statute. Relating to supersession of the committee of a municipality, the Supreme Court in S. L. Kapoor v. Jagmohan, AIR 1981 SC 136, has held that 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 wav or for some other purpose. The person proceeded against must know that he is being required tomeet the allegations which might lead to a certain action being taken against him. If there was any correspondence between the municipal committee and any other authority about the subject matter or any of the allegations, if information was given and gathered, it was for entirely different purposes. These 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 prej udice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. This Court in K. S. Co-op. Society v. Deputy Registrar, Co-op. Societies, AIR 1981 Orissa 112, was considering a case of amendment of bye-laws of society and in connection with it had to deal with the question of reasonable opportunity before registering the amendment by the Registrar of Co-operative Societies. It was held that as the statute requires the society to be given a reasonable opportunity of being heard, the rule cannot confine the right of hearing to the committee of management, a body different from the society.

As regards management and administration of companies, it has been held that in order that a notice to the company may be effectual, either it must be given to the company itself through its proper officers, or it must be received by the company in the course of the transaction of its business. Casual knowledge acquired by the Secretary, as an individual and not whilst he is engaged in transacting business of the company, cannot be deemed notice to the company (See Ghosh on Company Law, 1979 Edition, page 516 para 809).

For the aforesaid reasons, we hold that there has not been proper notice to the governing body as such. The D. P. I. was aware of the elections made from 1979 till the date of notice to show cause. The elections of the governing body have already been reported to the D. P. I. and he has never expressed his disapproval to the same. There was election of the President of the governing body which has also not been disapproved. There has been no correspondence with the governing body through the Secretary. Therefore, it cannot be said that there has been proper notice to the governing body to showcause and the governing body has been deprived of the reasonable opportunity to show cause. The rules of natural justice, therefore, have been violated. The order of supersession cannot be sustained.

12. Further, there is no finding by the D. P. I. that the charges have been established. We have already held that the charges as framed are also not substantial. Charges 1, 2, 4 and 5 relate to violation of Article 130 of the Orissa Education Code. We have already held that there has been no violation of Article 130 of the Code. Charge 3 relates to mentioning 'Minister's Nominee'. If this charge 3 is read carefully, it does not amount to a charge at all. It is further contended that Shri Arakhita Patra has been taken in as a member on 30-9-1979 and although this fact has been intimated to the D. P. I., there has been no disapproval. Even if approval is not taken, that does not amount to violation of any rule nor does it come under the provisions of Section 11 of the Act, Reliance has been placed by the learned Additional Government Advocate on Adwaita Charan Jena v. State of Orissa, (1974) 2 Cut WR 995, This was a case where the governing body was in existence prior to the enforcement of the Act, and, therefore, there was necessity of approval after the commencement of the Act. But in the instant case, governing body has come into existence after the enforcement of the Act and, as such, no fresh approval, or prior approval was necessary. The governing body has to act only according to Article 130 of the Orissa Education Code.

13. As we have discussed above, relevant factors arising out of the facts and circumstances of the case have not been taken into consideration. On the other hand, irrelevant, factors have been taken into consideration in basing the order of supersession. It has been held in Shree Rama Vilas Service (P) Ltd. v. C. Chandrasekharan, AIR 1965 SC 107, that where the decision is based on irrelevant considerations which are invalid in law, it would justify the issue of a writ under the well-recognised principles laid down by judicial decisions in that behalf. For the aforesaid reasons, we hold that no reasonable opportunity was given to show cause and the rules of natural justice have beenviolated thereby. The charges levelled against the governing body do not warrant any action under Section 11 of the Orissa Education Act or any of the Rules thereunder.

14. In the result, the writ petition is allowed, Annexure-4, the order of the D. P. I. dated 13-3-1981, is quashed. In the circumstances of the case, there will be no order as to costs.

R.C. Patnaik, J.

15. I agree.


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