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1973 DIGILAW 2 (CAL)

Jagdish Prasad v. UNION OF INDIA

1973-01-02

S.P.MITRA, SABYASACHI MUKHARJEE

body1973
JUDGMENT (1.) THIS is an appeal from a judgment and order of d. Basu, J., dated the 16th May, 1967. (2.) THE relevant facts are that at the material time the petitioner was officiating as the Harbour Master under the commissioner for the Port of Calcutta. On the 6th January, 1965, Secretary to the Commissioner gave notice of a special meeting to be held on the 11th January, 1965, at 3.30 p.m. It was stated in this notice that the agenda for the meeting would be sent in due course. The meeting was held on the 11th January, 1965. At this meeting 16 out of 24 Commissioners were present. The chairman produced a stencil slip containing item No. 50 of the agenda. This is a new item introduced at the meeting itself. It concerned the continuance of the appellant as Harbour Master. The item was considered by the meeting and it was decided that the appellant should go back to the post of the Deputy harbour Master. In the application under Article 226 of the Constitution the resolution dated the 11th January, 1965, by which the appellant was reverted to the post of Deputy Harbour Master has been challenged. Various contentions were raised before us by Counsel for both the parties; but the real point seems to be whether a resolution of this nature could be passed without a proper agenda. In this connection we have to take note of the relevant provisions of two sections of the Calcutta Port Act, 1890. Section 32 (1) is as follows : - "the power of appointing, promoting, granting leave, suspending, finding, reducing or dismissing, or of disposing of any other question relating to the services of the employees of the commissioners including the power of disposing with the services of any such employee otherwise than by reason of the misconduct of such employee shall be exercised, in the case of employees whose maximum monthly salary exclusive of allowances is less than the thousand rupees, by the Chairman or the deputy Chairman, and in every other case, by the Commissioners in meeting. " (3.) IT is not: disputed that the post of the Harbour Master is a post carrying a salary of more than Rs. 1000/ -. And according to the above provisions any decision relating to the position could be taken only by the Commissioners in a meeting. " (3.) IT is not: disputed that the post of the Harbour Master is a post carrying a salary of more than Rs. 1000/ -. And according to the above provisions any decision relating to the position could be taken only by the Commissioners in a meeting. (4.) WE now come to Section 47. The section runs, thus: "all the powers, authorities and duties in and by this Act, conferred or imposed upon the Commissioners, may be exercised and performed by the chairman or Deputy Chairman, save the powers, authorities and duties by this act, or by any rules, by law or order made under the provisions of this Act, conferred or imposed on, or restricted to, the Commissioners in meeting. " To us the relevance of this section is that only the Commissioners assembled in a meeting could decide whether a person should be appointed as a Harbour master or should be reverted to some other post. The Chairman or the Deputy chairman could not decide what was left to be decided only by the commissioners in a meeting. (5.) NOW, the question is whether in a case like this the Commissioners present at a meeting could pass a resolution on an item which was not circulated to all the Commissioners before the meeting was held. We may conveniently refer to a few authorities in this connection. In Halsbury's Laws of England, third Edition, Volume 9, Page 48, article 94 it is stated: "where there is a usual method of giving notice of a corporate meeting, that usual method cannot be dispensed with, nor can an act purported to be done at such a meeting be good without complying with the usual requirement unless all the persons who have a right to notice are actually summoned and unanimously agree. Notice must, however, be given in a reasonable manner and at a reasonable time before the meeting takes place. The notice convening a meeting should state definitely that it will be held, and must contain sufficient statement of the facts which will have to be considered by the corporators at the proposed meeting. Where notice is given that particular business will be transacted at a meeting, no other business can be embarked upon at this meeting unless the whole body corporate is present and consents. Where notice is given that particular business will be transacted at a meeting, no other business can be embarked upon at this meeting unless the whole body corporate is present and consents. " (6.) THE position, therefore, is that when the prescribed requirement is that a particular decision can be taken or a particular resolution adopted only in a meeting, notice of the item to be discussed has to be given to all the persons who are entitled to attend the meeting. In the absence of such notice the matter cannot be considered at all unless all the persons entitled to attend are present and they unanimously agree to embark upon consideration of the matter concerned. The same principles have been reiterated by different authorities in different ways. For instance, in Dillon on Municipal Corporations, Volume II in section 505 it is stated inter alia it is not necessary to state what business is to be done, when the meeting relates only to the ordinary affairs of the corporation; but when it is for the purpose of electing or removing officers, passing ordinances, and the like, the fact should be stated, so that members may know that something more than the usual routine, of business will he transacted. Such great importance is attached to notice that it can only be waived by universal consent : "but if every members of a select body be present at a regular or stated meeting or at a special meeting, they may, if every one consents, but mot otherwise, transact any business, ordinary or extraordinary, though no notice was given, or an insufficient notice was given. But the unanimity of consent should plainly appear from their recorded declaration, acts or conduct. This unanimity is only necessary in order to enter upon the business; on commence, the usual rules which govern the body and its actions apply ". (7.) IN the instant case, the facts are that the item under which the appellant was reverted to the post of a Deputy harbour Master from the post of an officiating Harbour Master was not in the agenda of the meeting. It was introduced by the Chairman at the meeting itself. The meeting was attended by only 16 out of 24 Commissioners. On these facts, it is obvious that the resolution under this item was not passed according to law. It was introduced by the Chairman at the meeting itself. The meeting was attended by only 16 out of 24 Commissioners. On these facts, it is obvious that the resolution under this item was not passed according to law. (8.) ON behalf of the respondents it has been argued before us that the appellant wag holding the post of the harbour Master in an officiating capacity only. He had no legal right to the post and on his reversion to the post of the Deputy Harbour Master he cannot maintain an application under article 226 of the Constitution. We are unable to accept this argument. Here the appellant's contention is that a matter relating to his services under the commissioners has been decided in contravention of Section 32 and 47 of the Calcutta Port Act, 1890. We are of the view that, on these allegations, the appellant is entitled to apply to this Court under Article 226 of the Constitution. The next argument of the respondents Counsel has been that the decision which was taken at the first meeting on the 11th January, 1965, under item No. 50 was ratified by the commissioners at a subsequent meeting held on 26th June, 1967, and as such there has been substantial compliance with the provisions of section 32 and 47 of the Calcutta Port Act, 1890. Reliance was placed on the judgment of the Supreme court reported in (Vice-Chancellor, utkal University and others v. S. K. Ghose and others) 1954 S. C. A. 311. It seems to us that we need not enter into the problem of substantial compliance on the facts of the instant case. We have already said that eight commissioners were absent at the meeting of the 11th January, 1965. If these absent commissioners had been present in the subsequent meeting of the 26th June, 1967, or if they had been given notice of item No. 50 of the first meeting, questions of substantial compliance might have arisen for our consideration. But the fact is that these eight absentees were neither present at the subsequent meeting nor had they any notice at any time of the 50th item of the agenda of the first meeting. On these facts we overrule the respondents' contention of substantial compliance with the provisions of section 32 and 47 of the Calcutta port Act, 1890. But the fact is that these eight absentees were neither present at the subsequent meeting nor had they any notice at any time of the 50th item of the agenda of the first meeting. On these facts we overrule the respondents' contention of substantial compliance with the provisions of section 32 and 47 of the Calcutta port Act, 1890. (9.) THE result, therefore, is that this appeal is allowed. The resolution dated the 11th January, 1965, referred to in the petition, in so far as it relates to the appellant's conditions of service is set aside and the respondents are directed not to give effect to the said resolution. The respondents, however, would be free to take decision in this matter in accordance with law. There will be no order as to costs. (10.) THE applications filed on 15. 3. 68 and 22. 7. 69 are not pressed. We make no order on these two applications which will be treated as disposed of. Let appropriate Writs issue. There will be no order as to the costs of any of these applications. Appeal allowed.