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1996 DIGILAW 351 (KER)

Thiruvanchur Radhakrishnan v. State of Kerala

1996-08-14

K.NARAYANA KURUP

body1996
Judgment :- K. Narayana Kurup, J. Petitioner is a member of the Legislative Assembly of Kerala. As per Ext. P1 notification issued by the 2nd respondent, the Cochin University of Science and Technology (CUSAT), it was notified that the Government have been pleased to nominate the petitioner along with another (both of them members of the Legislative assembly) to the Syndicate of CUSAT as per S.17(1)(x) of the Cochin University of Science and Technology Act, 1986 (for short 'the act). However, the first respondent there after issued Ext. P2 letter dt.12.6.1996, addressed to the second respondent stating that respondents 3 and 4 herein are nominated to be members of the Syndicate of CUSAT under S.17(1)(x) of the Act Consequent on Ext. P2 letter, 2nd respondent issued Ext. P3 notification No. GA & EL.4/86 dt.15.6.1996, notifying that the Government have nominated respondents 3 and 4 to the Syndicate of CUSAT as per S.17(1)(x) of the Act, and that their term of office is for a period of 4 years from 12.6.1996. The challenge in this O.P. is directed against Exts. P2 and P3. 2. Learned Advocate General appearing on behalf of the first respondent vehemently contended that Exts. P2 and P3 are not liable to be quashed by this Court, as according to the learned Advocate General, the Government is well within its right in issuing orders nominating respondents 3 and 4 to the Syndicate of the 2nd respondent University and being a political appointment, it is not open to challenge before any court of law. Learned counsel for the 2nd respondent also echoed the submission made by the learned Advocate General and further submitted that the petitioner is not entitled to continue as a member of the Syndicate of CUSAT as he failed to attend three consecutive meetings, resulting in cessation of his office in terms of S.46(4) of the Act. A statement has also been filed by the 2nd respondent, in which the stand taken by them is that, since the petitioner failed to attend three consecutive meetings of the Syndicate held on 21.12.1995,30.12.1995 and 17.1.1996, he ceased to be a member of the Syndicate by virtue of the provisions of S.46(4) of the Act. It is also stated that by Ext. R2(a) letter dt.15.4.1996, the petitioner was informed of the cessation of his membership as evidenced by Ext. It is also stated that by Ext. R2(a) letter dt.15.4.1996, the petitioner was informed of the cessation of his membership as evidenced by Ext. R2(b) receipt evidencing the despatch of the letter to the petitioner. Since the petitioner has ceased to be a member of the Syndicate, the first respondent, invoking the provisions under S.17(1)(x) of the Act, nominated respondents 3 and 4 to the Syndicate as per Ext. P2 Setter. Accordingly, on the basis of Ext. P2 letter, the 2nd respondent issued Ext. P3 notification, notifying that respondents 3 and 4 have been nominated to the Syndicate of the University as per S.17(1)(x) of the Act. The 2nd respondent has a further case that the petitioner failed to show sufficient cause for his failure to attend 3 consecutive meetings so as to enable the Authority - University to consider restoration of his membership as enjoined under the proviso to S.46(4) of the Act. 3.Petitioner has filed a reply affidavit, denying the fact that he was informed of the cessation of his membership by Ext. R2 (a) and further the meeting scheduled to be held on 17.1.1996 was not held for want of quorum and therefore, that cannot be counted for the purpose of incurring disqualification under S.46(4) of the Act. 4. Having heard learned counsel on both sides, I am not satisfied that respondents are on a sound wicket in regard to their submission. The crux of the contention of respondents 1 and 2 is that as per S.46(4) of the Act, if a member of any authority or body of the University who is not an ex-officio member fails to attend three consecutive meetings of that authority or body, he shall cease to be a member of such authority or body and thereupon the Registrar shall intimate him that he has ceased to be such member. Under the proviso to S.40(2) of the Act, if sufficient cause is shown for the absence of the member concerned, he can be restored to the membership. Chapter II of the Cochin University First Statutes 1980 lays down the procedure for the conduct of meeting. Clause 18 of the Statute deals with quorum ofthe meeting. As per clause 18(1), if sufficient quorum is not present within 15 minutes after the time appointed for a meeting, the meeting shall not be held and the Registrar shall make a record of the fact. Clause 18 of the Statute deals with quorum ofthe meeting. As per clause 18(1), if sufficient quorum is not present within 15 minutes after the time appointed for a meeting, the meeting shall not be held and the Registrar shall make a record of the fact. Hence, it is clear that a member of the Syndicate is bound to attend a meeting only if it is held in accordance with the provisions of the First Statutes. In a case where there is no quorum for the meetings, the meeting shall not be held and the members cannot be found fault within not attending a meeting which was never held. In the eye of law, a valid meeting can be held only if there is proper quorum. Without a quorum, there cannot be a valid meeting. This is clear from clause 18(2) of the Statutes. As per Clause 18(2), if a meeting is held by overlooking the quorum needed and during the course of a meeting, if a member brings to the notice of the Chairman that there is no quorum for the meeting, the Chairman after counting the number of the members, if convinced, that mere is no quorum shall dissolve the meeting. The long and short of it is that when there is no quorum for a meeting, it should be taken that there is no meeting at all. In other words, at the risk of re-petition, I would say that there cannot be a valid meeting without a quorum and a meeting without quorum is no meeting at all. To be legal, a meeting of a registered body must consist of a quorum. (Vide Shackelton on Meetings - 4th Edition (1958) Page 6). S.174(3) of the Indian Companies Act would also indicate that if a quorum is not present within half an hour of the time appointed for holding a meeting of the company, the meeting shall stand dissolved. In this connection, it is pertinent to note that under Clause 18(1) of the Statutes, there is a total prohibition in holding a meeting if there is no quorum. Viewed in the light of the above statutory provisions and the legal principles, it cannot be said that the petitioner has failed to attend three consecutive meetings, when one of such meetings could not be held due to want of quorum. Viewed in the light of the above statutory provisions and the legal principles, it cannot be said that the petitioner has failed to attend three consecutive meetings, when one of such meetings could not be held due to want of quorum. "A failure to attend three consecutive meetings" can take place only when meetings are held in accordance with law with the requisite quorum and not otherwise In the aforesaid view, I am of the opinion that the petitioner is not entitled to be removed from the membership of the Syndicate under S.46(4) of the Act, as he has not failed to attend three consecutive meetings of the Syndicate, the last meeting held on 17.1.1996 being without quorum cannot be treated as a valid meeting, and therefore, cannot be reckoned for cessation of membership under the above said statutory provision. 5. That apart, the power of the Government to make nomination to the Syndicate of the 2nd respondent University is not unfettered. A distinction has to be drawn between cases in which nominees hold office during the pleasure of the Government and nominees whose terms of office do not depend upon such pleasure. In cases, where nominees do not hold office during the pleasure their term is not liable to be terminated otherwise than for reasons stated in the Statute. The Act, here, no doubt provides that if a member fails to attend three consecutive meetings of the Syndicate, he shall cease to be a member of the Syndicate, and thereupon the Registrar shall intimate him that he has ceased to be such a member. For the reasons already noticed, the disqualification prescribed under S.46(4) of the Act is not attracted in the instant case and consequently, the petitioner continues to be a member of the Syndicate and so long as he continues to be so, the first respondent is precluded from making any nomination inducting respondents 3 and 4. Existence of a vacancy is a condition precedent for the exercise of power of nomination under S.17(1)(x) of the Act. On the facts established, as at present, there is no vacancy against which Ext. P2 and its sequel, Ext. P3 could have been issued. I am therefore, satisfied that Exts. P2 and P3 are issued without jurisdiction. In the result, I allow this Original Petition and quash Exts. P2 and P3. There will be no order as to costs.