1993 ALLMR ONLINE 71
D.R. DHANUKA, J.
MANUBHAI PARAGJI VASHI Vs. UNIVERSITY OF BOMBAY, BOMBAY
W. P. No. 2706 of 1992
22nd January, 1993
Petitioner Counsel: S. Radhakrishnan, R. A. Rodrigues
Respondent Counsel: V. R. Manohar, Ms. S. M. Dandekar, B. P. Pandya
Headnote not Available
JUDGMENT :- This writ petition involves consideration of validity of Ruling given by Shri C. Subramanian, the then Chancellor of University of Bombay incorporated in Circular Exhibit "A" to the petition prescribing a norm of propriety required to be observed by members of Senate and Executive Council of the University who happen to be legal practitioners. By the said ruling, it is declared that it would not be proper for members of Senate and Executive Council to appear against the University in any litigation so long as such members continue to be members of Senate or Executive Council. By the impugned ruling and the impugned Circular members of Senate and Executive Council are requested to refrain from appearing against the University. In case of breach of the said ruling, there is reasonable possibility of commencement of proceedings for disqualification of the member concerned under section 76B of Bombay University Act, 1974.
3. The petitioner is a member of the Senate of University of Bombay. The petitioner was a member of the Executive Council of the said University for several years in the past. The petitioner is an elected member of the Senate since 21st September 1987 and his term as a member of the Senate would expire on 20th September 1993. The Senate and the Executive Council are two of the important authorities of the University. The petitioner is a practising member of Bombay Bar. In his capacity as an advocate, the petitioner has been appearing in various suits, writ petitions and other matters before this Court, Bombay City Civil Court and Statutory Tribunals wherein the University of Bombay is impleaded as a party defendant or party respondent as the case may be. These matters can be broadly divided into two categories i.e. (1) Suits, Writ Petitions or other matters wherein the Respondent No. 1 is merely a pro forma defendant or pro forma respondent. In these matters, the dispute is essentially between an employee of the school or college on the one hand and the management of the school or college on the other hand (2) Suits, Writ Petitions, appeals, or other matters directly concerning the University of Bombay wherein reliefs are claimed by or against the University and the litigation is filed by or against the University itself.
4. Recently the petitioner had appeared on behalf of University of Bombay Employees' Union and other employees in Bombay City Civil Court Suit No. 7476 of 1992 filed by the University of Bombay against the Union and other employees. The merits of the said litigation are irrelevant for purpose of deciding this writ petition.
"That the question whether a member of the Executive Council and/or Senate, who is a legal practitioner, be permitted to appear before the College Tribunal for the Bombay University and in the Courts of law against the University be referred to the Chancellor for his ruling".
6. By a letter dated 7th October 1992, the Secretary to the Chancellor of the University of Bombay informed the Vice Chancellor of the University that the Respondent No. 2, the Chancellor, was pleased to give the following ruling on the subject referred to him :-
"According to the provision of section 18 of the Bombay University Act, 1974 it is the duty of every authority and officer of the University to ensure that the interests of the University are duly safeguarded. A member of the Senate or Executive Council has the advantage of looking into certain papers of the University and also of having knowledge regarding certain matters or decisions of the University. A member of the Senate or Executive Council, even though he is a legal practitioner, is under legal obligation to safeguard and protect the interests of the University and it will therefore, not be proper for him to appear in any case against the University may ask the member concerned to refrain from appearing against the University if he wants to continue as a member of the Executive Council or Senate."
The Respondent No. 1 has circulated the said ruling of the Chancellor to all the members of the Senate and Executive Council. A copy of the said Circular is annexed as Exhibit "A" to this writ petition.
7. By this writ petition filed under Article 226 of the Constitution, the petitioner has impugned the validity of the abovereferred ruling of the Chancellor and the aforesaid Circular dated 31st October 1992, copy whereof is Exhibit "A" to the petition. By the said ruling, the respondent No. 1 in his capacity as Chancellor of the University of Bombay has laid down a guideline, norm or rule of propriety to be followed by members of the Senate and Executive Council to the effect it will not be proper for a member of the Senate or Executive Council to appear in any legal proceeding against the University as more particularly set out in the text of the said ruling.
8. To my mind it is far too obvious that on true construction of the said impugned ruling the said ruling is not applicable in a situation where the University is merely a pro forma defendant or pro forma respondent in a litigation and it is not affected one way or another by the result of the litigation. The learned Counsel for both the respondents agree with this interpretation of the impugned Ruling. To my mind the said ruling prescribes the rule of propriety to be observed by members of Senate and Executive Council who happen to be legal practitioners in relation to the litigation where University is directly concerned one way or another.
9. Before I deal with various contentions urged by the petitioner in support of the challenge, made, it is necessary to refer to some of the provisions of the Bombay University Act, 1974. Section 8 of the Act reads as under :-
"Following shall be the Officers of the University, namely :-
(i) the Chancellor
Section 9(1) of the Act provides that the Governor of Maharashtra, for the time being, shall be the Chancellor".
Section 9(2) of the Act provides that "the Chancellor shall, by virtue of his office, be the head of the University and the President of the Senate and shall when present, preside at the meetings of the Senate, and at any Convocation of the University". Section 9(3) of the Act provides that "the Chancellor shall have such other powers as are or may be conferred on him by or under this Act or the Statutes". Section 18(1) of the Act is directly relevant for purpose of this Writ Petition. Section 18(1) of the Act reads as under :-
"It shall be the duty of (every authority and officer) of the University to ensure that the interests of the University are duly safeguarded".
Section 19 of the Act provides the list of the various authorities of the University. The said list places the Senate and the Executive Council in the forefront. Each of the members of the Senate and Executive Council is thus liable to be considered as an authority of the University sharing rights and obligations with other members of the said Important bodies. Section 22 of the Act prescribes powers and duties of the Senate. Section 24 of the Act prescribes powers and duties of Executive Council. Section 76A is directly relevant for purpose of this writ petition. The said section reads as under :-
"76A. Notwithstanding anything contained in this Act or the Statutes made thereunder, if at any time the Chancellor is of the opinion that the affairs of the University are not managed in furtherance of the objects of the University or in accordance with the provisions of this Act and the Statutes, Ordinances or Regulations made thereunder, or that special measures are desirable to maintain the standard of University teaching, examinations, research or extension education, or any action taken by the University or its authorities or officers is prejudicial to the interest of the University, the Chancellor may issue such directions as appear to him to be necessary, and the Vice Chancellor and the authorities and officers, concerned shall comply with such directions".
Section 76B of the said Act provides that :
"If upon a report received or otherwise the Chancellor is satisfied that - any member of any authority or body of the University behaves in a manner which is unbecoming of a member of that authority or body, and his continued participation in the proceedings of the authority or body of the University of which he is a member would be prejudicial to the interest of the University, or
a contingency has arisen within the ambit of sub-section (b) of section 76B of the said Act the Chancellor may after giving an opportunity to the member concerned or offer his explanation in writing, pass an Order disqualifying him from the office held by him to such extent and in such manner as provided in the said section."
Section 86 of the said Act provides that :
"If any question arises regarding interpretation of any provision of this Act or of any Statute, Ordinance, Regulation or Rule, the matter may be referred to the Chancellor who shall decide the question."
The said section provides that "the decision of the Chancellor on the questions within the ambit of the said section shall be final."
10. It is well settled proposition of law that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective It was held by the Hon'ble Supreme Court in the case of Income-tax Officer, Cannanore vs. M. K. Mohamed Kunhi, AIR 1969 SC 430, that the statutory power carries with it by necessary implication all the powers and duties which are incidental and necessary to make the exercise of specific powers fully effective.
11. The petitioner has contended that the impusigned ruling was issued by Respondent No. 2 without any power, jurisdiction or authority of law. The petitioner has contended that the Respondent No. 2 has no power or authority to issue the said ruling and the said ruling is not referable to any of the provisions contained in the Bombay University Act, 1974. The said ruling expressly refers to section 18(1) of the Bombay University Act, 1974 and prescribes a norm of propriety to the effect that appearance by a member of the senate or Executive Council of the University before a Court of law or tribunal "against the University" is not proper as the member of the Senate or Executive Council is under a legal obligation to safeguard and protect the interest of the University. The said ruling sets out broadly the reason in support of the view taken. It is obvious that the member of senate or Executive Council has the advantage of looking into papers of the University and having knowledge of matters concerning the decision of the University. The Chancellor has set out the above possibility as the main reason in support of the view taken by him as set out in the said ruling. The Chancellor is entitled to issue the necessary directions having nexus with the object of safeguarding the interest of University. The said ruling is within the scope of the powers conferred on the Chancellor under sections 9(2), 18(1), 76A and 86 of the said Act and is in any event intra vires the powers of the Chancellor having regard to doctrine of ancillary and incidental powers enunciated in various judgments of the Supreme Court.
12. The petitioner has contended that the impugned ruling and the impugned circular is not in conformity with the provisions of law contained in section 18(1) of the Bombay University Act, 1974 as the guidelines or norms laid down therein have no reasonable nexus with the avowed object of safeguarding the interest of the University or furthering its objects. The petitioner has further contended that the said ruling is patently unreasonable as the said ruling does not restrict its application to situation where a member of the Senate or Executive Council of University has actual access to the papers of the University which are germane to the subject matter of the litigation in question. The learned Advocate General appearing for Respondent No. 1 has relied on the principles of law laid down by the Hon'ble Supreme Court in the case of Sakhwant Ali vs. State of Orissa, AIR 1955 SC 166. In this case the nomination paper of the appellant legal practitioner was rejected by the Election Officer on the ground that the appellant was employed as a legal practitioner against the Municipality pending before a Court of law. Section 16(1) of Bihar and Orissa Municipal Act provided that no person shall be qualified for election to a seat in a municipality, if such person was employed as a paid legal practitioner on behalf of the municipality or as legal practitioner against the municipality. In para 9 of this judgment Bhagwati, J. speaking for the Apex Court considered the question as to whether section 16(1)(ix) of the said Act violated the fundamental right of the appellant under Articles 14 and 19(1) of the Constitution of India. The relevant extracts from the above cited judgment of the Apex Court which deserves to be specially noticed for purpose of this writ petition are as under :-
"The object or purpose to be achieved is the purity of public life, which object would certainly be thwarted if there arose a situation where there was a conflict between interest and duty. The possibility of such conflict can be easily visualised, because if a municipal councillor is employed as a paid legal practitioner on behalf of the municipality there is a likelihood of his misusing his position for the purpose of obtaining municipal briefs for himself and persuading the municipality to sanction unreasonable fees.
Similarly if he was acting as a legal practitioner against the municipality he might in the interests of his client misuse any knowledge which he might have obtained as a councillor through his access to the municipal records or he might sacrifice the interests of the municipality for those of his clients".
It is well known that the most of the legal practitioners follow the best traditions of the Bar. The relevant principles are however, laid down by the legislature or statutory authorities to eliminate possibility of conflict between interest and duty. The learned Advocate General has also referred to the principle of law laid down by the Hon'ble Supreme Court in the case of Manaklal vs. Dr. Premchand Singhvi and others, AIR 1957 SC 425, in support of his submission. In this case also it was observed in para 4 of the judgment of the Hon'ble Supreme Court by Gajendragadkar, J. speaking for the Court that reasonable apprehension of likely bias was sufficient to affect the proceedings before the tribunal and proof of actual bias was not necessary. It is not possible to accept the submission of the petitioner to the effect that the impugned ruling has no reasonable nexus with the object sought to be achieved. The petitioner contended that if the impugned ruling is interpreted to be applicable only in a situation where a member of the Senate or Executive Council has actually looked into the papers of the University concerning the subject matter of the litigation, the impugned ruling can be considered reasonable but not otherwise. It is not possible to accept this submission of the petitioner. The question before the Court is as to whether Respondent No. 2 was empowered or justified in prescribing the rule of propriety to the effect that a member of the Senate or Executive Council ought not to appear in a litigation against the University on the footing that such appearances if permitted might be against the interest of the University which the members of the Senate or Executive Council were under a legal obligation to protect. In my opinion likely prejudice to the University by appearances of Members of Senate or Executive Council against the University is enough to justify the ruling. Mr. Radhakrishnan, the learned counsel for the University on this aspect derived support from the judgment of Court of Appeal in the case of Metropolitan Pro-perties Co. (F. G. C.) Ltd. vs. Lannon and others, 1969 1 QBD 577.1t does not appear to be necessary to discuss this authority at length. It is enough to state that the relevant principle laid down in this judgment are also helpful to the res-pondents. The question to be asked also is as to what would be reaction of a rea-sonable person if he was asked to comment on conduct of a member of Senate or Executive Council of the unnecessiy in respect of his appearance against the Uni-versity. I have no hesitation in observing that a reasonable person would consider such conduct on the part of a member of Senate or Executive Council as unfair and reasonable conflict of interest and duty is far too obvious. It is well settled that all persons occupying public offices must act in a manner so as to avoid any conflict between interest and duty, even a reasonable possibility of such conflict. I have no hesitation in holding that the rule of propriety or the norm laid down in the impugned ruling has clear nexus with the provisions contained in section 18(1) of the University Act : The Chancellor is the head of the University. The Chancellor is entitled to issue the necessary ruling in the meeting of the Senate or by a letter or in the form of directions as appear to him to be reasonable and necessary for furtherance of the objects of the University. The said ruling is issued in good faith for safeguarding the interest of University and preventing any possible prejudice to it.
13. The petitioner then contended that the impugned ruling purports to encroach on statutory right of an Advocate to practise the profession of law. The said right is regulated by the provisions contained in section 14 of India Bar Council Act, 1926 and various provisions contained in Advocates Act, 1961. The petitioner has contended that the rules of ethic are already prescribed by the Bar Council of India in exercise of the power conferred on it under section 49 of the Advocates Act. The petitioner has contended that in absence of an express statutory power, the Chancellor is not entitled to prescribe a restriction on the right of an advocate to practise profession of law. On this aspect the petitioner has relied upon the Judgment of Dhabe, J. of our High Court in the case of Vithaldas Jagannath Khatri and another vs. State of Maharashtra and others, 1991 Mh.L.J. 608 = 1991 BCR 18. With respect this ruling appears to have no relevance to the question under consideration in this case. The Respondent No. 2 has not imposed any restriction on statutory right of an advocate to practise the profession of law. The Respondent No. 2 has merely prescribed a rule of propriety to be observed by the members of the Senate or Executive Council required it to be observed during tenure of their holding the office as members of the Senate or Executive Council. The alleged encroachment on the sphere occupied by Indian Bar Council Act, 1926 or the Advocates Act, 1961 if any is incidental and of no consequence. Rules of ethics prescribed by the Bar Council of India under section 49 of the Advocates Act are not exhaustive. It is open to the Chancellor to clarify the norms which ought to be followed by the members of the Senate or Executive council (who happen to be legal practitioners) during the tenure of their office so as to protect and safeguard the interest of the University. The impugned ruling prescribes norms of behaviour in relation to the member of Senate or Executive Council, and is therefore valid.
14. The petitioner has contended that the petitioner would not have contested election of the Senate of the University if he would have known earlier that his right to appear before the Court or tribunal on behalf of employees and others concerning matters against the University might be affected or restricted on being elected to Senate or Executive Council. The petitioner has contended that the said ruling is not applicable and cannot be made applicable to the members of the Senate or Executive Council who have been elected to the said offices prior to the date of the said ruling. The petitioner contends that the said ruling cannot be applied retrospectively. In my opinion there is no merit in this contention also. The Respondent No. 2 has not laid down any law. The Respondent No. 2 has not prescribed any new norms. The Respondent No. 2 has merely interpreted the existing provisions of Act and has reiterated or clarified the pre-existing norms which ought to have been followed in the past and which ought to be followed now.
15. The next question which does not directly arise for consideration of the Court in this petition concerns interpretation of section 76B of the Act. It is well settled that the writ Court shall not decide any question academically. The question however, still arises at least incidentally as to what would be legal effect of breach or non-observance of the said ruling by a member of the Senate or member of the Executive Council who happens to be a legal practitioner. I have no doubt in my mind that the breach or non-observance of the said ruling does not per se attract disqualification from membership of the Senate or Executive Council under section 76B of the said Act. I have also no doubt in my mind that the breach or non-observance of the said rule may perhaps provide an occasion for the authorities to initiate proceedings for disqualification under section 76B of the said Act and it would be then for the Chancellor to decide the disqualification proceedings in accordance with mandate of law. I think that I have said enough. Nothing more need be stated at this stage. If the proceedings under section 76B happen to be initiated against a member for not following of the said ruling read with section 18(1) of the Act or for acting in a manner prejudicial to the interest of the University the Chancellor is enjoined by law to apply the criteria laid down under section 76B of the Act and provide reasonable opportunity to the member concerned to offer his written explanation, in the matter and then decide whether a case is made out for passing of an order of disqualification against the member within the contemplation of section 76B of the Act.
16. The petitioner has submitted that the petition involves question of public importance and the petition deserves to be admitted. I agree with the petitioner that the questions involved are of public importance. However, I have not been able to discover any legal infirmity in the impugned ruling and the impugned circular. Having regard to the public importance of the questions involved in the matter, I have heard this petition on two occasions at some length and considered all the submissions made at the Bar. The petition cannot be admitted unless a strong prima facie case is made out in support of challenge to the impugned ruling. The petitioner has failed to make out a prima facie case. It is desirable that the impugned ruling be observed by all the members of Senate and Executive Council. In my humble opinion, the impugned ruling is legally valid and morally just. It is the sacred duty of all national institutes to build up high traditions and safeguard the future.
17. In view of the above discussion, the petition fails. The impugned ruling and the impugned circular as interpreted by the Court are upheld as valid. The petition is summarily dismissed. No order as to costs.