{"id":254110,"date":"1954-01-15T00:00:00","date_gmt":"1954-01-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-vice-chancellor-vs-s-k-ghosh-and-others-on-15-january-1954"},"modified":"2015-11-29T23:21:14","modified_gmt":"2015-11-29T17:51:14","slug":"the-vice-chancellor-vs-s-k-ghosh-and-others-on-15-january-1954","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-vice-chancellor-vs-s-k-ghosh-and-others-on-15-january-1954","title":{"rendered":"The Vice-Chancellor, … vs S. K. Ghosh And Others on 15 January, 1954"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The Vice-Chancellor, … vs S. K. Ghosh And Others on 15 January, 1954<\/div>\n
Equivalent citations: 1954 AIR 217, 1954 SCR 883<\/div>\n
Author: V Bose<\/div>\n
Bench: Mahajan, Mehar Chand (Cj), Mukherjea, B.K., Das, Sudhi Ranjan, Bose, Vivian, Hasan, Ghulam<\/div>\n
           PETITIONER:\nTHE VICE-CHANCELLOR, UTKALUNIVERSITY AND OTHERS\n\n\tVs.\n\nRESPONDENT:\nS. K. GHOSH AND OTHERS.\n\nDATE OF JUDGMENT:\n15\/01\/1954\n\nBENCH:\nBOSE, VIVIAN\nBENCH:\nBOSE, VIVIAN\nMAHAJAN, MEHAR CHAND (CJ)\nMUKHERJEA, B.K.\nDAS, SUDHI RANJAN\nHASAN, GHULAM\n\nCITATION:\n 1954 AIR  217\t\t  1954 SCR  883\n\n\nACT:\n Constitution  of  India,  art.\t 226-<\/a>Mandamus\tpetition-High\n Court-Whether\tcan  constitute itself as  court  of  appeal-\n Resolutions  passed  by  University  Syndicate-Validity  of-\n Notice\t of meeting issued to all-Want of due notice  waived-\n Substantial compliance with spirit of law.\n\n\n\nHEADNOTE:\nIn  the\t present  case\tthere  were  two  meetings  of\t the\nUniversity Syndicate, consisting of twelve members.   Proper\nnotices of both meetings were issued to all the members\t but\none member did not attend one meeting and another member did\nnot  attend  the  other meeting.  The defeat  was  that\t the\nsubject\t matter of the present case was not included in\t the\nagenda of either meeting but one of the items in the  agenda\nof  both  the notices was \" other matters, if  any.   \"\t The\nsubject\t matter consisted of leakage of\t examination  papers\nand  the cancellation of results.  Those present passed\t the\nresolution on both occasions unanimously The High Court held\nthat  want  of\tnotice\tin the\ttwo  cases  invalidated\t the\nresolutions\n884\nand issued a mandamus directing the syndicate to take  steps\nfor the publication of the results\nHeld, that want of due notice can be waived in given circum-\nstances.  In the present case the two absentees did in\tfact\nattend\tone  or other of the meetings  and  expressed  their\nviews,\tnot individually but as members of a  meeting  which\nwas  considering the matter and there was unanimity on\tboth\noccasions.   The substance is more important than  the\tform\nand  if there is substantial compliance with the spirit\t and\nsubstance of the law, an unessential defect- in form  should\nnot  be\t allowed to defeat what is otherwise  a\t proper\t and\nvalid resolution.  As in the present case, there was  actual\nappearance  without objection at meetings properly  convened\nand  there was complete unanimity on both occasions the\t two\nresolutions were not invalid because whatever may be thought\nabout each taken separately, the defects, if any, are  cured\nwhen two are read together and regarded as a whole.\nHeld  further,\tthat in a mandamus petition the\t High  Court\ncannot\tconstitute  itself into a court of appeal  from\t the\nauthority  against  which appeal is sought.  It is  not\t the\nfunction  of  courts of law to substitute their\t wisdom\t and\ndiscretion  for\t that of the persons to whose  judgment\t the\nmatter in question is entrusted. by the law.\nThe  present  was not the sort of case in which\t a  mandamus\nought to issue.\nRadha  Kishan Jaikishan v. Municipal Committee, Khandwa\t (61\nI.A.  125)  and Young v. Ladies Imperial Club  (89  L.J.K.B.\n563) referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPFLLATE JURISDICTION Civil Appeal No. 7 of 1952.
\nAppeal\tby special leave from the Judgment and Order,  dated
\n9th  and 17th August, 1951, of the High Court of  Judicature
\nat Orissa in Miscellaneous Judicial Case No. 80 of 1951, and
\nOrder- dated the 20th August. 1951, in Supreme Court  Appeal
\nNo. 15 of 1951, on the’ file of the said High Court.
\nDr.  Bakshi Tek Chand (G.  C. Mathur and H. Mohapatra,\twith
\nhim) for the appellants.\n<\/p>\n
N.  C. Chatterjee (V.  S. Sawhney and R. Patnaik, with\thim)
\nfor respondents Nos. 1-8, 10-16, 18-23 and 25-34.
\n1954.  January 15.  The Judgment of the Court was  delivered
\nby
\nBOSE J.-This appeal arises out of a petition made by certain
\nstudents of the Utkal University of Orissa
\n885<\/span>
\nto  the High Court of Orissa at Cuttack seeking\t a  mandamus
\nunder  article\t226<\/a> of the Constitution\t against  the  Vice-
\nChancellor  of\tthe  University and  certain  other  persons
\nconnected with it.\n<\/p>\n
In  view of an undertaking given before us on behalf of\t the
\nUniversity,  the  questions  at issue  lose  most  of  their
\npractical  importance  and only two questions  of  principle
\nremain.\t  Because  of this we do not intend to\texamine\t the
\nmatters which arise at any length.\n<\/p>\n
The facts are as follows.  The first M.B.B.S. Exa.  mination
\nof  the University included Anatomy as one of its  subjects.
\nThis   examination  was\t divided  into\tthree  parts.\t The
\ntheoretical  portion, which was written, was fixed  for\t the
\n9th  and 10th of April, 1951.  The practical was  fixed\t for
\nthe 19th and the viva voce for the 20th.\n<\/p>\n
At  7  o’clock\ton  the\t morning  of  the  9th,\t before\t the
\nexamination  began,  a member of the Senate  was  told\tthat
\nthere had been a leakage of the questions and’ he was  given
\na  paper which was entitled “hints”.  He at  once  contacted
\nthree other members of the Senate and handed over copies  of
\nthese  “hints” to them.\t The three members were Mr.  Justice
\nJagannadhadas\tMr.   Pradhan,\tthe   Director\t of   Public
\nInstruction in Orissa, and Mr. Lingaraj Misra, the  Minister
\nfor Education.\tThe Vice-Chancellor was not informed at\t the
\ntime  and  no  further action was  taken.   The\t examination
\nproceeded as scheduled on the date,, fixed.
\nThe  Vice-Chancellor was informed on the 19th.\tHe  at\tonce
\nasked  Lt.   Col.   Papatla, the Principal  of\tthe  Medical
\nCollege,  to  look into the matter.  This was done  and\t Lt.
\nCol.   Papatla submitted a report on the 20th.\tHe  compared
\nthe “hints” with the question paper and considered that\t the
\nsimilarity between them justified the conclusion that  there
\nhad been a leakage.\n<\/p>\n
It  so happened that an ordinary meeting of  the  University
\nSyndicate had been called for the 21st to
\n886<\/span>
\nconsider  certain other matters.  This question was  not  on
\nthe agenda but the last item was, “other matters, if any.”
\n   The\tVice-Chancellor\t presided and he  told\tthe  members
\npresent\t what had happened.  He had already prepared a\tnote
\nabout  this  on the 21st before the  meeting  began.   After
\nsetting out the facts the note concluded-\n<\/p>\n
”  I request the syndicate to discuss the matter as it is an
\nimportant and urgent one before taking up the publication of
\nthe  M.B.B.S.  results\twhich are  also\t ready,\t though\t the
\nsubject is not in the agenda.\n<\/p>\n
The report of the Board of Examiners setting out the results
\nof the examination was received on the ,morning of the\t21st
\nsome  time before the meeting.\tIt showed that thirty  seven
\nstudents  had appeared for the examination in question.\t  Of
\nthese,\ttwenty\tseven passed and ten failed in\tthe  written
\nexamination  and   the\tsame ten,  plus\t one  other  (making
\neleven),  failed in the practical and viva voce\t tests.\t  In
\nthe result, eleven of the thirty seven failed and twenty six
\npassed.\t  The petition for mandamus was made by\t the  twenty
\nsix who had passed and eight who failed: thirty four in all.
\nThe  syndicate heard Lt.  Col.\tPapatla at length  and\talso
\nexamined  three other persons, namely, Mr.  Bhairab  Chandra
\nMahanty, who first gave the information, Dr. R. K.  Mahanty,
\nthe  internal  examiner\t for  the M.B.B.S.  and\t Dr.  8.  M.
\nBanerjee, President of the Board of Examiners. (Two  members
\nof  the syndicate were experts in Anatomy, namely Lt.\tCol.
\nPapatla and Dr. S. N. Acharya, the Civil Surgeon).
\nAfter carefully considering the question for some six hours,
\nthe members present passed the following resolution :
\n”  That after enquiry, the syndicate is satisfied that there
\nhas been leakage of questions in Anatomy and that the result
\nin  Anatomy  examination  be  cancelled\t and  that   another
\nexamination  in the subject be held commencing from the\t 7th
\nMay, 1951.”\n<\/p>\n
The syndicate consists of twelve members. these, all but one
\nMr.  Pradhan,  the  Director  of  Public  Instruction,\twere
\npresent at the meeting.\t Those present passed the resolution
\nunanimously.   It is admitted that Mr. Pradhan was not\ttold
\nthat  this was one of the matters which would be  considered
\nat  the\t meeting.  This is one of the grounds on  which\t the
\nvalidity of this resolution is attacked.\n<\/p>\n
The  successful\t candidates entered a  protest\tagainst\t the
\nresolution  and\t asked\tthe  syndicate\tto  reconsider\t its
\ndecision.   This was on the 26th.  The\tVice-Chancellor\t had
\nalready called another meeting of the syndicate for the 28th
\nto consider other matters.  Once again, this was not  placed
\non the agenda but the Vice-Chancellor brought it up suo moto
\n“as  before.  Again, eleven of the twelve were\tpresent\t but
\nthis time the absentee was Dr. M. Mansinha who had  approved
\nof  the\t previous  resolution.\t The  former  absentee,\t Mr.
\nPradhan, was present at this meeting.  For a second time the
\ndecision was unanimous and all eleven refused to review\t the
\nformer resolution.  It is admitted that Dr.Manasinha who was
\nnot  there  did\t not  know  that  this\tquestion  would\t  be
\nconsidered again.\n<\/p>\n
The  learned High Court Judges held that the want of  notice
\nin the two cases invalidated the resolutions,, They examined
\nthe  facts  for themselves and concluded that  even  if\t the
\nevidence  is sufficient to indicate a a possibility of\tsome
\nleakage,  there was “no justification for the  syndicate  to
\npass  such a drastic resolution in the absence of  proof  of
\nthe  quantum and the amplitude of leakage.” They  held\tthat
\nthe  syndicate had acted unreasonably and without due  care.
\nThey therefore issued a mandamus directing the syndicate  to
\ntake steps for the publication of the results.
\nThe Vice-Chancellor and the others appeal.
\nThe  right of the syndicate to control the examinations,  to
\nscrutinise  the\t results, to invalidate an  examination\t for
\nproper\t reasons  and  to  order  a   re-examination,\twhen
\nnecessary,  was\t not disputed.\tIn view of  the\t undertaking
\ngiven the only points argued were the
\n888<\/span>
\ntwo which the High Court decided against the University.
\nSeveral\t English authorities were cited about the effect  of
\nan  omission  to give notice to even one member\t of  a\tbody
\nentitled  to  receive it, in particular a  decision  of\t the
\nPrivy  Council\tin  Radha  Kishan  Jaikishan  v.   Municipal
\nCommittee,  Khandwa(1).\t  We do not think  it  necessary  to
\nexamine the general principle at any length because, in\t our
\nopinion,  this\tcase is governed by its own facts.   It\t may
\nwell  be  that when there is a statutory  requirement  about
\nnotice\tthe  provisions of the statute cannot be  evaded  or
\nignored.   It may also be, though we do not stop to  enquire
\nwhether it is, that when the constitution of a\tnonstatutory
\nbody requires notice to be given, then also there cannot  be
\nany relaxation of the rule.\n<\/p>\n
The  reason  for the stricter rule laid down  in  the  cases
\ncited before us is that though an incorporated body like  an
\nUniversity is a legal entity it has neither living mind\t nor
\nvoice.\t It  can only express its will in formal  way  by  a
\nformal\tresolution  and. so can only act  in  its  corporate
\ncapacity  by  resolutions properly considered,\tcarried\t and
\nduly  recorded in the manner laid down by its  constitution.
\nIf its rules require such resolutions to be moved and passed
\nin  a meeting called for the purpose, then every  member  of
\nthe body entitled to take part in the meeting must be  given
\nnotice\tso  that  he  can  attend  and\texpress\t his  views.
\nIndividual  assents given separately cannot be\tregarded  as
\nequivalent   to\t the  assent  of  a  meeting   because\t the
\nincorporated body is different from the persons of which  it
\nis composed.  Hence, an omission to give proper notice\teven
\nto  a single member in these circumstances would  invalidate
\nthe  meeting and that in turn would  invalidate\t resolutions
\nwhich  purport to have been passed at it.  But this is\tonly
\nwhen   such   inflexible   rigidity  is\t  imposed   by\t the
\nincorporating constitution.  The position is different when,
\neither\tby  custom or by the nature of the body\t or  by\t its
\nconstitution and rules, greater latitude and flexibility are
\npermissible.  Each
\n(1)  61 I.A. 125.\n<\/p>\n
889<\/span><\/p>\n
case must be governed by its own facts and no universal rule
\ncan be laid down; also it may well be that in the same\tbody
\ncertain things, such as routine matters, can be disposed  of
\nmore  easily  and with less formality than others.   It\t all
\ndepends on the nature of the body and its rules.
\nIn  the present case, there were not one but  two  meetings.
\nProper\tnotices\t of  both meetings were issued\tto  all\t the
\nmembers\t including  the two absentees.\tThe only  defect  is
\nthat  the matter we are concerned with was not\tincluded  in
\nthe  agenda  of\t either meeting.  We need  not\tdecide\there
\nwhether\t this  must always be done-there are  English  cases
\nwhich indicate that is not always necessary, see for example
\nThe  King  v.  Pulsford(1),  La\t Compagnie  De\tMayville  v.
\nWhitley(1), and Parker and Cooper Ltd. v. Reading(1);  also,
\nin  the present case one of the items in the agenda of\tboth
\nnotices\t was  ”\t other matters, if any.\t ”  But\t it  is\t not
\nnecessary to go into that because in this case these members
\ndid  in\t fact  attend  one or  other  of  the  meetings\t and
\nexpressed their views, not individually, but as members of a
\nmeeting\t which\twas considering the matter;  and  there\t was
\nunanimity on both occasions Even on the stricter view  taken
\nin  the\t cases relied on by counsel it is pointed  out\tthat
\nwant  of  due notice can be waived in  given  circumstances.
\nThus, if a person who was not noticed appears at the meeting
\nand  waives the irregularity, the defect is cured;  so\talso
\nwhen  a\t person\t is too far away to be reached\tin  time  to
\nenable\thim  to communicate with the  Committee\t before\t the
\nmeeting: the sending of a notice is then excused.  See Radha
\nKishan\tJaikihsan  v. Municipal\t Committee,  Khandwa(4)\t and
\nYoung  v.  Ladies Imperial Club, Lim.(1). The  substance  is
\nmore  important\t than the form and if there  is\t substantial
\ncompliance with the spirit and substance of the law, we\t are
\nnot  prepared  to let an unessential defect in\tform  defeat
\nwhat  is  otherwise  a proper  and  valid  resolution.\t We,
\nhowever, confine our
\n(1)  108 E.R. 1073.\n<\/p>\n
(2)  [1896] 1 Ch. 788.\n<\/p>\n
(3)  [1926] 1 Ch. 975.\n<\/p>\n
(4)  61 I.A. 125.\n<\/p>\n
(5)  89 L.J.K.B. 563.\n<\/p>\n
890<\/span><\/p>\n
remarks\t to  the facts of this case where there\t was  actual
\nappearance  without objection at meetings properly  convened
\nand  where there was complete unanimity on  both  occasions.
\nWhether it would be proper to reach the same conclusion when
\nthere is a dissentient voice we are not prepared to say.  In
\nour  opinion, the High Court was wrong in holding  that\t the
\ntwo resolutions were invalid.  Whatever may be thought about
\neach  taken  separately, the defects, if any,  are,  in\t our
\njudgment, cured when the two are read together and  regarded
\nas a whole.\n<\/p>\n
We also think the High Court was wrong on the second  point.
\nThe learned Judges rightly hold that in a mandamus  petition
\nthe  High  Court cannot constitute itself into\ta  court  of
\nappeal\tfrom  the  authority against  which  the  appeal  is
\nsought,\t but having said that they went on to do  just\twhat
\nthey  said they could not.  The learned Judges\tappeared  to
\nconsider  that\tit is not enough to have  facts\t established
\nfrom  which  a\tleakage\t can  legitimately  be\tinferred  by
\nreasonable minds but that there must in addition be proof of
\nits  quantum and amplitude though they do not indicate\twhat
\nthe  yard-stick\t of measurement should be.  That is  a\tpro-
\nposition to which we are not able to assent.
\nWe  are not prepared to perpetrate the error into which\t the
\nlearned High Court Judges permitted themselves to be led and
\nexamine the facts for ourselves as a court of appeal but  in
\nview of the strictures the High Court has made on the  Vice-
\nChancellor  and\t the syndicate we are compelled\t to  observe
\nthat  we do not feel they are justified.  The  question\t was
\none  of urgency and the Vice-Chancellor and the\t members  of
\nthe  syndicate were well within their rights  in  exercising
\ntheir  discretion in the way they did.\tIt may be  that\t the
\nmatter\tcould have been handled in some other way,  as,\t for
\nexample,  in the manner the learned Judges indicate, but  it
\nis  not\t the function of courts of law to  substitute  their
\nwisdom\tand  discretion\t for that of the  persons  to  whose
\njudgment  the  matter in question is entrusted by  the\tlaw.
\nThe University authorities acted honestly as reasonable\t and
\nresponsible
\n891<\/span>
\nmen confronted with an urgent situation are entitled to act.
\nThey had experts of their own on their body.  They  examined
\nothers\twho  in\t their opinion, might  throw  light  on\t the
\nincident.   They  themselves compared the  two\tpapers\tand,
\nafter  a  deliberation\tof some six  hours,  arrived  at  an
\nunanimous decision and then they reviewed the matter  afresh
\nat  a  second meeting with the assistance of  one  of  their
\nnumber\twho  was not present on the first occasion.   It  is
\ninaccurate   to\t describe  that\t as  haste  and\t unjust\t  to
\ncharacterise  their action as unreasonable and\tlacking\t due
\ncare.\tThis  is decidedly not the sort of case in  which  a
\nmandamus8  ought  to issue.  We accordingly  set  aside\t the
\norder of the High Court.\n<\/p>\n
We now come to the undertaking given on behalf of the  Vice-
\nChancellor.  As we have observed, the syndicate reached\t the
\nconclusion  that there had been a leakage and  so  cancelled
\nthe examinations and ordered fresh ones.  Had the High Court
\nnot  stepped  in, those examinations would  have  been\theld
\nnearly two and a half years ago and it is possible that\t all
\nthe  students  who were successful then\t would\thave  passed
\nagain,\tor at any rate many of them would.  But\t because  of
\nthe  High Court’s order the examinations could not  be\theld
\nand  the  University was virtually directed  to\t regard\t the
\nexaminations  already held and the results already  declared
\nas  good.  The result has been that the students who  passed
\nhave  been  studying  and sitting for  examinations  in\t the
\nhigher\tclasses\t for  some two and a half  ‘years.   If\t the
\nstatus quo which would result from our setting aside of\t the
\nHigh  Court’s  order were to be resumed it would  mean\tthat
\nthose students would be put back to where they were two\t and
\na  half years ago and would be compelled to do\tthe  courses
\nwhich they have already covered all over again.\t In order to
\navoid  such injustice we were told at the outset by  counsel
\non behalf of the Vice-Chancellor that the University did not
\nwant  to  penalise  them  and  so  gave\t us  the   following
\nundertaking drafted by the appellants’ counsel:
\n”  The\tstudents who are declared to have passed  the  first
\nM.B.B.S. Examination of the Utkal University
\n892<\/span>
\nheld  in  April, 1951, shall be deemed to have\tduly  passed
\nthat  examination and shall not be required to appear  again
\nin Anatomy.  ”\n<\/p>\n
The appeal is allowed.\tThe High Court’s order is set  aside
\nand the petition for mandamus filed before it is  dismissed,
\nbut  without costs.  There will be no order about  costs  in
\nthis court either.\n<\/p>\n
Appeal allowed.\n<\/p>\n
Agent for the appellants: Rajinder Narain.
\nAgent for the respondents Nos. 1-8, 10-16, 18-23 and  25-34:
\nS. P. Varma.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The Vice-Chancellor, … vs S. K. Ghosh And Others on 15 January, 1954 Equivalent citations: 1954 AIR 217, 1954 SCR 883 Author: V Bose Bench: Mahajan, Mehar Chand (Cj), Mukherjea, B.K., Das, Sudhi Ranjan, Bose, Vivian, Hasan, Ghulam PETITIONER: THE VICE-CHANCELLOR, UTKALUNIVERSITY AND OTHERS Vs. RESPONDENT: S. K. GHOSH AND OTHERS. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-254110","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe Vice-Chancellor, ... vs S. K. 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