Dibakar Chakraborty v. National Institute of Technology
2015-07-15
TINLIANTHANG VAIPHEI
body2015
DigiLaw.ai
JUDGMENT : Tinlianthang Vaiphei, J. 1. The legality of the annulment of the nominations of the petitioners as members of the Board of Governors of the National Institute of Technology, Silchar is called into question in this writ petition. Though facts pleaded by the petitioners are many, the questions for the decision of this Court are really not so. Both the petitioners are the employees of the National Institute of Technology, Silchar; the petitioner No. 1 is presently serving as Professor in the Department of Civil Engineering, while the petitioner No. 2 is presently working as an Assistant Professor in the Department of Mechanical Engineering. The respondent No. 1 is one of the professional institutes established under the National Institutes of Technology Act, 2007 ("the Act"). The case of the petitioners is that the respondent No. 1 is an instrumentality of the State within the meaning of Article 12 of the Constitution of India and is, therefore, amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. Section 11(f) of the National Institute of Technology Act, 2007 as amended in 2012 stipulates that one Professor and one Assistant Professorial or a Lecturer of the Institute are to be nominated as members of the Board of Governors by the Senate. The petitioners were accordingly nominated by election as the nominees of the Senate in the 37th meeting of the Senate held on 20.11.2013: copies whereof were circulated by the Registrar, NIT, Silchar (respondent 5) on 5.12.2013. The Board of the Governors in its 38th meeting held on 10.8.2013 approved the resolution for nomination of its nominees by election. Consequent upon their election as the Senate representatives to the Board of Governors, the respondent No. 5 issued the letter dated 29.11.2013, inter alia, stating that they were nominated through election to the Board of Governors with the approval of the Chairman, Board of Governors on 29.11.2013. Having been elected as Members of the Board of Governors, the petitioners were invited to attend the 40th meeting of the Board of Governors to be held on 15.12.2013 vide the letter dated 30.11.2013 issued by the respondent No. 5. 2. According to the petitioners, by virtue of their becoming members of the Board of Governors, they were also nominated as members of the Finance Committee of the NIT, Silchar.
2. According to the petitioners, by virtue of their becoming members of the Board of Governors, they were also nominated as members of the Finance Committee of the NIT, Silchar. Consequently, the respondent No. 5 invited them to attend the 27th meeting of the Finance Committee to be held on 15.12.2013. The petitioners duly attended the 40th meeting of the Board of Governors as well as the 27th meeting of the Finance Committee on 15.12.2013. After more than a month of the two meetings, the petitioners were handed over the minutes of the 40th meeting of the Board of Governors and the 27th meeting of the Finance Committee. On going through the copies of the minutes of the two meetings served upon them, they found to their horror that only the signatures of the Chairman of the Board of Governors and the respondent No. 5 were found and further that the minutes included therein several resolutions which were neither discussed nor adopted/resolved at all in those meetings. Alarmed by this, the petitioners objected to such unauthorised inclusion of resolutions/subjects in those meetings and their dissenting notes were accordingly e-mailed to the respondent No. 5 and other Members of the Board of Governors with copies of the said dissenting notes. The manners in which the minutes are to be recorded, circulated among the members and to be approved have been violated by the respondent No. 4 and 5. 3. In the meantime, they received invitation to attend the 41st meeting of the Board of Governors scheduled for 24.4.2014 vide the letter dated 8.4.2014. However, apparently prompted by their dissenting notes and protests against the minutes of the two meetings, the invitations issued to them were abruptly withdrawn on the eve of the 41st meeting purportedly on the ground that their nominations had not been placed before the Senate for confirmation and that it would be improper to allow them to attend the meeting till such confirmation. Consequently, the petitioners were barred from attending the meeting held on 24.4.2014. In the 38th meeting of the Senate held on 2.5.2014, the election of the petitioners were held to be void as their election was not in conformity with the provision of para 11(f) of the NIT Act. Moreover, such election would lead to campus politics and factionalism among the faculty members, which is detrimental to the academic health of the institute.
Moreover, such election would lead to campus politics and factionalism among the faculty members, which is detrimental to the academic health of the institute. Though the petitioner No. 1 attended the meeting, he was not allowed to express his views in the course of the meeting. To add insult to the injury, the petitioner No. 1 was subsequently relieved of the responsibility of the Dean (Alumni Relations) with immediate effect Similarly, the petitioner No. 2 was harassed by not allotting teaching duty to him on the ground that an enquiry is being contemplated against him. Complaining that such actions taken against them are malicious, arbitrary and illegal, they are filing this writ petition for appropriate relief. 4. The writ petition is resisted by the respondent authorities, who have filed their affidavit-in-opposition. According to the answering respondent, the election of the petitioners was held on the extended session of the 37th meeting of the Senate on 28.11.2013. However, as per the provisions of para 7(9) of the Statute, the election should have been recorded in the draft minutes of the 37th meeting of the Senate and circulated by the respondent No. 5 by inviting amendments/suggestions for change, if any. It is only after such exercise, the matter is to be placed before the next meeting for confirmation as required by para 7(10) of the Statute. After confirmation, the minute is required to be recorded in the minute book. Through oversight, the minutes were drawn and circulated without being confirmed, and action taken on the draft minutes. The election results were intimated to the Chairman, Senate for approval before being confirmed by the 38th meeting of the Senate resulting in major technical flaw. After the approval, the Chairman of the Board of Governors and MHRD were informed accordingly. It is pointed out that there is no requirement of approval from the Chairman, Board of Governors for the nomination as stipulated in Section 11(f) of the NIT Act The respondent No. 5, through bona fide mistake, issued the letter dated 29.11.2013 stating that the nomination of the petitioners through election had been approved by the Chairman, Board of Governors, which cannot be taken advantage of by the petitioners.
As the nomination of the petitioners were done in contravention of paragraph 7(1) of the NIT Statute, the Board of Governors as the Apex Body declared the decision of the Senate as invalid in terms of the powers vested in them under Section 13(1) of the NIT Act read with Clause 5(III) of the NIT Statute in its 41st Meeting, advised the Senate to review their earlier decision, which accordingly reviewed by the Senate in their 38th meeting and corrected their earlier decision whereby the petitioners were nominated through election. 5. It is also the case of the answering respondents that the petitioners were never nominated to the Finance Committee by the Board: they were merely allowed to attend the 27th meeting of the Finance Committee. The minutes of the meeting are the reflection of the decision of the Board either taken unanimously or by the majority. Every detail of the discussions on every agenda could not be recorded in the minutes, and only substantial parts of the discussion and decisions taken were incorporated in the minutes. Out of eleven members, only two members cannot impose their views. There is no irregularity or illegality in drafting the minutes: the minutes are subject to confirmation by the next Board meeting after receiving comments from the members. There is no misuse of public fund: Extending invitation to the petitioners and granting them station leave to attend the 41st meeting of the Board of Governors turned out to be a mistake and had to be withdrawn after it was found that the nominations of the petitioners had not been confirmed by the Senate. The petitioner No. 1 was relieved of the responsibly of the Dean (Alumni Relations) because of his non-performance and not for any other reasons. In view of his attitude, the Department of Science and Technology issued the letter dated 21.4.2014 to the Director threatening to blacklist the organization from receiving grants from the DST. The disciplinary authority, after preliminary investigation, found a prima facie case of misconduct against the petitioner No. 2, and decided to initiate disciplinary proceedings against the petitioner No. 2. The respondent authorities have no mala fide intention against the petitioners and all actions taken against them are bona fide. These are the sum and substance of the case of the respondent authorities in resisting the writ petition. 6.
The respondent authorities have no mala fide intention against the petitioners and all actions taken against them are bona fide. These are the sum and substance of the case of the respondent authorities in resisting the writ petition. 6. On perusing the materials on record and after hearing both the learned counsel appearing for the rival parties, the first point for consideration is whether the Board of Directors have the powers to declare the nomination of the petitioners to be members of the Board of Governors (BOG) as invalid. It is the contention of Mr. S.S. Dey, the learned senior counsel for the petitioner that none of the provisions of the Act empowers (BOG) to cancel the election/nomination of the petitioners as members of the BOG He also contends that once the Senate has adopted a resolution nominating the petitioners as members of the BOG, it does not have the power either under the Act or under the Statute to review its own decision, that too, at the behest of the BOG; both the Senate resolution dated 2-5-2014 and the resolution passed by the BOG cancelling the nominations of the petitioners as members of the BOG are liable to quashed. It is also the contention of the learned senior counsel that the impugned resolutions as well as the decision to debar the petitioners from attending the meetings of the BOG and the Finance Committee can be traced directly to, and are in retaliation to, the action of the petitioners in sending their dissenting notes to the draft minutes of the 40th meeting of the Board and the 27th meeting of the Finance Committee, and, are therefore, arbitrary, actuated by malice and cannot be sustained in law. The learned senior counsel maintains that as the petitioners have the fixed tenure of two years, the annulment of their nomination before the expiry of their statutory tenure without affording them reasonable opportunity of hearing is in breach of the principles of natural justice. It is, therefore, submitted by the learned senior counsel that the impugned resolutions are illegal and should be quashed. 7. Per contra, the impugned resolutions of the respondents are supported by Mr.
It is, therefore, submitted by the learned senior counsel that the impugned resolutions are illegal and should be quashed. 7. Per contra, the impugned resolutions of the respondents are supported by Mr. S.P. Choudhury, the learned CGC, who submits that the resolution of the Senate nominating the petitioners is subject to confirmation by the BOG, which under Section 13(1) of the Act has, among others, the power to review the acts of the Senate, and no illegality is thus committed by the Board in advising the Senate to review their earlier decision nominating the petitioners as members of the BOG According to the learned CGC, the BOG took a conscious decision to advise the Senate to review their nomination not only because the nominations by means of election were done in contravention of Clause 7(10) of the Statute but also such nomination by election would give rise to campus politics and factionalism amongst faculty members thereby destroying the academic atmosphere of the Institute. Moreover, submits the learned CGC, even if the petitioners have any grievance at all also, they have the statutory remedy of arbitration provided for by Section 29 of the Act, and the writ petition filed the petitioners under such circumstances is not maintainable and is, therefore, liable to be dismissed. 8. The composition of the members of the Board of Governors and the procedure for their appointments/nominations are dealt with in Section 11 of the National Institutes of Technology, Science Education and Research Act, 2007 ("the Act" for short), which is as under: "11.
8. The composition of the members of the Board of Governors and the procedure for their appointments/nominations are dealt with in Section 11 of the National Institutes of Technology, Science Education and Research Act, 2007 ("the Act" for short), which is as under: "11. Board of Governors.--The Board of every Institute shall consist of the following members, namely:- (a) the Chairperson to be nominated by the Visitor; (b) the Director, ex officio; (c) two persons not below the rank of the Joint Secretary to the Government of India to be nominated by the Central Government from amongst persons dealing with technical education and finance; (d) two persons to be nominated by the Government of the State in which the Institute is situated, from amongst persons, who, in the opinion of that Government, are technologists or industrialists of repute; (e) two persons, at least one of whom shall be a woman, having special knowledge or practical experience in respect of education, engineering or science to be nominated by the Council; (f) one professor and one assistant professor or a lecturer of the Institutes to be nominated by the Senate. (g) the Director of the Indian Institute of Technology in whose zone the Institute is located or his nominee, not below the rank of a Professor. * * * *" 9. Having gone through the provision of Section 11(f) of the Act extracted above, it becomes obvious that one professor and one assistant professor or a lecturer of the Institute are to be nominated by the Senate as members of the BOG The term used is "to be nominated" in contradistinction to the term "to be elected". The word' nominated" comes from the word "nominate", which, according to P. Ramanatha Aiyer's Law Lexicon (3rd Edn), means: "To select a candidate to be voted for a public office; or as a member of a legislative or representative assembly; to name or to recommend for confirmation. To name or designate a Person for some position or office. In a will the words "I nominate" may be used as the equivalent of the more formal and usual words, "I bequeath." The word "nominate" means to recommend for confirmation." 10. Thus, in my opinion, the term "to be nominated" is different from, and cannot be confused with, the term "to be elected".
In a will the words "I nominate" may be used as the equivalent of the more formal and usual words, "I bequeath." The word "nominate" means to recommend for confirmation." 10. Thus, in my opinion, the term "to be nominated" is different from, and cannot be confused with, the term "to be elected". In the case of nomination, it is all about selection or naming or designating a person for some position or office, for which election is not contemplated. The term "elected" is again defined by P. Ramanatha Aiyer's Law Lexicon (3rd Edn.) to mean "Chosen by a popular vote: the condition of having been chosen or selected, (as Elected member of legislative assembly as opposed to a nominated member). When a word is not defined in the Act itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance. However, in selecting one out of the various meaning of a word, regard must always be had to the context as it is a fundamental rule that the meanings of words and expressions used in an Act must take their colour from the context in which they appear. Therefore, when the context makes the meaning of a word quite clear, it therefore becomes unnecessary to search for and select a particular meaning out of diverse meanings a word is capable of, according to lexicographers." See G.P. Singh's Principles of Statutory Interpretation, 9th Edn., p.302. In this case, we are not dealing with political issues and are more concerned with the management of academic institutions where the concept of election is hardly envisaged. Therefore, in the context in which the term "to be nominated" is used, namely, professional/academic institutions, I am of the considered opinion that there is no scope for importing the concept of election usually associated with political institutions into academic institutions unless expressly provided for by a statute. So understood, the term "to be nominated by the Senate" should always mean naming/designating one professor and one assistant professor or a lecturer by the Senate without holding election or a democratic process of voting. 11. In the instant case, the Senate in its 36th meeting held on 2.8.2013 by a resolution approved the nomination of its nominee to be members of the BOG by election.
11. In the instant case, the Senate in its 36th meeting held on 2.8.2013 by a resolution approved the nomination of its nominee to be members of the BOG by election. Accordingly, the Senate in its 37th meeting held on 20.11.2013 elected both the petitioners as members of the Board of Governors (Annexure-2). However, the when the nominations of the petitioners by way of election were placed before the 38th meeting of the BOG, the method of the nomination was only noted by the Board without examining the legality of their nominations. According to the answering respondents, the nominations of the petitioners were found to be inconsistent with Clause 7(10) of the Statutes inasmuch, due to oversight, the draft minutes of the 37th meeting, along with its amendments, if any, suggested, were not placed for confirmation at the next meeting of the Senate as mandated therein. The election results were intimated to the Chairman, Senate for approval before being confirmed by the 38th meeting of the Senate which resulted in major technical defect. After approval, the Chairman, Board of Directors and MHRD were informed accordingly. It was due to this major technical defect that the nominations of the petitioners as members of the Board were declared invalid whereafter the Board advised the Senate to review its decision and correct it as per the provisions of the Statutes. According to the respondents, the provisions of the Act do not contemplate the election of the petitioners as members of the BOG The BOG reconsidered the election of the petitioners by taking into account the interest of the Institute and the provisions of the Act: the petitioners are academic persons and their involvement in electoral politics would create unhealthy competitions amongst the faculty members and such activities would prevent them from serving the interest of the Institute and the students. In my opinion, the view taken by the respondent authorities, in declaring the nominations of the petitioners by election to be void and in advising the Senate to review such nominations, on the facts so found, cannot be said to be irrational. In the first place, the nominations of the petitioners as members of the BOG by way of election is not, as already noticed, sanctioned by Section 11(f) of the Act and is, therefore, ultra vires the Act. 12.
In the first place, the nominations of the petitioners as members of the BOG by way of election is not, as already noticed, sanctioned by Section 11(f) of the Act and is, therefore, ultra vires the Act. 12. The next question to be determined is whether the BOG has the power to interfere with the decisions of the Senate. This takes me to the provision of Section 13(1) of the Act, which are reproduced below: "13. Powers and functions of Board.--(1) Subject to the provisions of this Act, the Board of every Institute shall be responsible for the general superintendence, direction and control of the affairs of the Institute and shall exercise all the powers of the Institute not otherwise provided for by this Act, the Statutes and the Ordinances, and shall have the power to review the acts of the Senate. * * *" Even a cursory look at Section 13(1) of the Act will demonstrate that the BOG, subject to the provisions of the Act, is vested with the power of general superintendence, direction and control of the affairs of the Institute, is endowed to exercise the residuary powers of the Institute not otherwise provided for by the Act, the Statutes and Ordinances and also have the power to review the acts of the Senate. Thus, the contention of the learned senior counsel for the petitioners that the BOG has no power to annul the resolutions of the Senate is without substance. True, such powers are necessarily conferred subject to the provisions of the Act, but on reading and rereading the entire provisions of the Act, I am unable to find any provision therein circumscribing the power of the BOG to review the decisions of the Senate. Consequently, the decisions of the BOG annulling the nominations of the petitioners as members of the BOG and of advising the Senate to review their nominations, are within the four corners of, and are saved by Section 13(1) of the Act. As a matter of fact, the Senate is bound by the advice of the BOG once it held that the impugned resolutions/decisions of the BOG and the Senate do not fall foul of the provisions of the Act, the edifice of the case of the petitioners falls to the ground. 13.
As a matter of fact, the Senate is bound by the advice of the BOG once it held that the impugned resolutions/decisions of the BOG and the Senate do not fall foul of the provisions of the Act, the edifice of the case of the petitioners falls to the ground. 13. As the nominations of the petitioners as members of the BOG are found to be a nullity, there is no need to observe the principles of natural justice before annulling their nominations and to insist upon such observance, on the facts of this case, will amount to resort to useless formality rules or to reduce the rules of natural justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked or rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial of opportunity of hearing to the petitioners before annulling their nominations has to be considered on the facts and circumstances of each case. If no prejudice is likely to be caused to them, to direct the respondent authorities to hear the petitioners before annulling their nominations will amount to an "unnatural expansion of natural justice" which in itself is antithetical to justice. Though the aforesaid observations were made by the Apex Court in Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727 in the context of a departmental enquiry, in my judgment, the underlying principles are clearly applicable to the case at hand. Consequently, the many other contentions raised by the learned senior counsel for the petitioners need not be gone into on the principle that courts do not decide more than what is necessary. Academic body should be free from factional politics; study atmosphere should rather be preserved and maintained in our educational campuses at any cost. We already have more than our legitimate share of politicians in our country. It is a universal knowledge that factional politics in the academic campuses have the tendency to degrade or even ruin the educational standards of the students.
We already have more than our legitimate share of politicians in our country. It is a universal knowledge that factional politics in the academic campuses have the tendency to degrade or even ruin the educational standards of the students. As for the contention with respect to the non-allotment of teaching duty to the petitioner No. 2, he cannot have any legitimate grievance inasmuch as disciplinary proceedings are being conducted against him. Moreover, no illegality could be pointed out by him against such action. The result of the foregoing discussion is that there is no merit in this writ petition, which is accordingly dismissed. The interim order stands vacated. However, the parties are directed to bear their own costs.