judgement:
ivil Appeal No. 3927 of 1986.
From the Judgment and Order dated 18.6.
1986 of the Bombay High Court in Writ Petition No. 10 of 1980.
S.K. Dholakia, A.M. Khanwilkar and Mrs. V.D. Khanna for the Appellant.
V.M. Tarkunde, Karanjawala, Mrs. Karanjawala and H.S. Anand for the Respondent.
The Judgment of the Court was delivered by: K. JAGANNATHA SHETTY, J.
This appeal by leave is from a decision of the Bombay High Court which allowed the respond ent 's petition for a writ of certiorari.
In so doing the court quashed departmental proceedings initiated against the respondent and the resultant order terminating his services.
The facts are substantially undisputed and may briefly be stated as follows: Respondent Seshrao Balwant Rao Chavan was at the rele vant time the Deputy Registrar of the Marathwada University.
One Mr. Yelikar was working then as Controller of Examina tions.
In or about April 1976, Mr. Yelikar proceeded on leave and the present respondent was directed to discharge the duties of the Controller of Examinations.
Accordingly, he joined his new assignment and continued to hold 458 that post when the controversy which culminated in his dismissal took place.
It is said that one Mr. Swaminathan from Madras was entrusted with the printing works needed to conduct annual examinations of the University for the years 1974 and 1975.
Mr. Swaminathan submitted his bills amounting about Rs.6,00,000 for the work performed by him.
The bills were not cleared immediately, and Mr. Swaminathan complained to the University authorities.
He also submitted a petition to the Prime Minister of India which was forwarded to the University for immediate action.
This led to an enquiry to find out whether the bills were deliberately kept pending with any ulterior motive.
The Executive Council of the University appointed a four member committee including the Vice Chancellor to enquire into the matter.
The committee after investigation submitted a report in November 1977 making some prima facie observations against the respondent.
Thereupon, the Executive Council desired to have the matter thoroughly examined by another committee.
It appointed Mr. N.B. Chavan for the purpose.
Mr. Chavan made a detailed enquiry but found nothing against the respondent.
On Decem ber 23, 1978, he submitted a report stating inter alia that there was no delay in clearing the said bills and if there was any delay, it was justified in the circumstances.
He has stated that the University utilised the time for internal audit in which it was found that the claim of Mr. Swamina than was excessive to the extent of Rs.48,000 and odd.
The report of Mr. Chavan thus gave a clean chit to the respond ent as to his conduct in discharging the duties as Control ler of Examinations.
If the Executive Council had accepted the report and closed the matter that would have been better.
But unfortu nately, it was not done and another chapter was opened.
On March 22, 1979, the report of Mr. Chavan was placed before the Executive Council which without taking any decision entrusted the question to the Vice Chancellor.
The Vice Chancellor was present in that meeting and agreed to take a decision in about a month.
But what he did was entirely different.
Purporting to act under the powers given to him by the Executive Council, he directed departmental enquiry against the respondent.
He appointed Mr. Motale, Advocate as an Inquiry Officer who flamed three charges: First charge impeached the respondent of intentionally delaying the clearance of the bills of Mr. Swaminathan and thus tarnish ing the image of the University.
Second charge alleged that the respondent did not place before the Executive Council, the letters , addressed by the Chancellor of the University on July 23, 1976 and 459 August 19, 1976.
Third charge accused the respondent for not producing all the available papers for scrutiny by the one man committee headed by Mr. Chavan.
On October 25, 1979, Mr. Motale submitted his ' enquiry report to the Vice Chancellor holding the respondent guilty of the charges.
After a usual procedure of giving show cause notice and considering the reply thereto, the Vice Chancel lor decided to dismiss the respondent.
On January2, 1980, he accordingly made an order.
The matter did not rest there.
The respondent moved the High Court under article 226 of the Constitution challenging his dismissal.
When the writ petition first came up for hearing in November 1985, the High Court took a very curious stand.
It observed that the entire matter be placed before the Executive Council for taking an appropriate decision.
As per this observation, the matter came up before the Executive Council in the meeting held on December 26/27, 1985.
The Executive Council passed a resolution inter alia, ratifying the action taken by the Vice Chancellor and confirming the dismissal of the respondent.
This has added a new dimension to the case.
At the final disposal of the writ petition, the High Court, however, examined the merits of the matter.
The High Court held that the action taken by the Vice Chancellor was without authority of law.
As to the ratification made by the Executive Council, the High Court held: "That the acts done by the Vice Chancellor remain the acts without any authority or powers and that defects cannot be cured by the subsequent resolution." With these conclusions, the High Court quashed the departmental proceedings taken against the respondent and also the order of termination of his services.
Being aggrieved by the judgment, the Marathwada Univer sity by obtaining special leave has appealed to this Court.
Learned counsel for the appellant put his contention in two ways: First, he said that on the true construction of the relevant provisions of the Marathwada University Act, 1974, the termination of services of the respondent cannot be assailed for want of power or jurisdiction on the part of the Vice Chancellor.
Counsel next said that if the order was defective or without authority, the ratification by the Executive Council has rendered it immune from any challenge.
In order to appreciate these submissions, we must outline the 460 statutory provisions of the Marathwada University Act, 1974 (called shortly "the Act").
Section 8 specifies the officers of the University.
The Vice Chancellor is one of the offi cers.
Section 10 provides for appointment of the Vice Chan cellor.
He shall be appointed by the Chancellor and shall ordinarily hold office for a term.
of three years.
Section 11 reads, so far as material, as follows: "11(1): The Vice Chancellor shall be the principal executive and academic officer of the University, and shah in the absence of the Chancellor, preside at the meetings of the Senate and at any Convocation of the Universi ty . " "11(3): It shah be the duty of the Vice Chancellor to ensure that the provisions of this Act, the Statutes, Ordinances and Regulations are faithfully observed.
The Chancellor shall, for this purpose, have the power to issue directions to the Vice Chancel lor who shall give effect to any such direc tions.
" 11(4): If there are reasonable grounds for the Vice Chancellor to believe that there is an emergency which requires immediate action to be taken, he shall take such action as he thinks necessary and shall, at the earliest opportunity, report in writing the grounds for his belief that there was an emergency, and the action taken by him, to such authority or body as would in the ordi nary course, have dealt with the matter . ." 11(6)(a): It shall be lawful for the Vice Chancellor, as the principal executive and academic officer, to regulate the work and conduct of the officers, and of the teaching, academic and other employees of the Universi ty, in accordance with the provisions of this Act, the Statutes, Ordinances and Regulations." "11(7): The Vice Chancellor shah exercise such other powers and perform such other duties as are prescribed by the Stat utes, Ordinances and Regulations.
" Section 19 enumerates the authorities of the University.
The Executive Council is one of the authorities specified thereunder.
Section 23 to the extent necessary is in the following terms: 461 "23(1): The Executive Council shall be the principal executive authority of the University, and shall consist of the following members, namely,: (i) the Vice Chancellorex officio Chairman.
" Section 24 deals with the powers and duties of the Executive Council.
These powers and duties are wide and varied and it is sufficient if we read sub sections (1), (xxix) and (xii) of sec.
They are as follows: "24(1): Subject to such conditions as are prescribed by or under this Act, the Executive Council shall exercise the following powers and perform the following duties, namely . . " "24(1)(xxix): appoint officers and other employees of the University, prescribe their qualifications, fix their emoluments, define the terms and conditions of their service and discipline and where necessary, their duties." "24(1)(x1i): delegate, subject to the approval of the Chancellor, any of its powers (except the power to make Ordinances), to the Vice Chancellor, the Registrar or the Finance Officer, or such other officers or authority of the University or a committee appointed by it, thinks fit." Two other provisions are material, namely, secs.
37 and 84.
Section 37, omitting the unnecessary, is in these terms: Sec.
37 Subject to the conditions prescribed by or under this Act, the Senate may make the Statutes to provide for all or any of the following matters namely: (xvi): The term of office, duties and condi tions of service of officers, teachers and other employees of the University, the provi sions of pension, insurance and provident fund and the manner of termination of their service and other disciplinary action and their quali fications, except those of teachers.
" Section 34 is as follows: "Delegation of powers: Subject to the provi sions of 462 this Act and Statutes any officer or authority of the University may, by order, delegate his or its powers, except.the power to make Stat utes, Ordinances and Regulations, to any other officer or authority under his or its control, and subject to the conditions that the ulti mate responsibility for the exercise of the powers so delegated shall continue to vest in the officer or authority delegating them.
" With these provisions, we turn to consider the first question urged for the appellant.
The question is whether the Vice Chancellor was competent to direct disciplinary action against the respondent.
In this context, we may make a few general observations about the position and powers of the Vice Chancellor.
The University Education Commission in its report (Vol.
I December 1948 to August 1949) has summarised the powers and duties as fol lows (at 421): "Duties of Vice Chancellor A Vice Chancellor is the chief academic and executive officer of his university.
He presides over the Court (Senate) in the absence of the Chancellor, Syndicate (Executive Council), Academic Council, and numerous committees including the selection committees for ap pointment of staff.
It is his duty to know the senior members of the staff intimately and to be known to all members of the staff and students.
He must command their confidence both by adequate academic reputation and by strength of personality.
He must know his university well enough to be able to foster its points of strength and to foresee possible points of weakness before they become acute. ' He must be the 'keeper of the university 's conscience ', both setting the highest standard by example and dealing promptly and firmly with indiscipline and malpractice of any kind.
All this he must do and it can be done as constitutional ruler; he has not, and should not have autocratic power.
Besides, this he must be the chief liaison between his univer sity and the public, he must keep the univer sity alive to the duties it owes to the public which it serves, and he must win support for the university and understanding of its needs not merely from potential benefactors but from the general public and its elected representa tives.
Last, he must have the strength of character to resist unflinchingly the many forms of pressure to relax standards of all sorts, which are being applied to universities today.
" 463 This has been approved by the Education Commission, 1964 66.
In the report of the Education Commission, 1971 (pages 610 11 para 13.32) it was stated: "The person who is expected, above all, to embody the spirit of academic freedom and the principles of good management in a university is the Vice Chancellor.
He stands for the commitment of the university to schol arship and pursuit of truth and can ensure that the executive wing of the university is used to assist the academic community in all its activities.
His selection should, there fore, be governed by this overall considera tion.
" Dr. A.H. Homadi in his wise, little study about the role of the Vice Chancellor in the university administration in developing coun tries has this to state (at 49): The President or the Vice Chancellor: "The President must be willing to accept a definition of educational leadership that brings about change to the academic life of the institution.
He must be fired by a deep concern for education.
He should instil a spirit and keeness about growth and develop ment in such a way that the professiriate feels that their goals are interlinked with those of the University, that their success depends upon the success of the University.
The professors should be given detailed infor mation about the jobs that they have to per form and their good performance should be given due recognition by administration lead ership.
Even such small encouragement will boost theft morale to greater heights.
The President should have faith in his own abili ties as well as on the abilities of other professors and administrators and should provide guidelines about the kind of efforts he would like his professors and administra tors to make, setting an example by his own actions and exercises.
The negative force of fear, when used and no one denies that an element of hard headedness is some times required as a persuasive inducement to profes sors and administrators of university should be employed judiciously.
Under no circum stances should the apathy and belligerence of the professors and administrators be aroused.
These call for strong but sympathetic leader ship in the President.
" 464 The Vice Chancellor in every university is thus the conscious keeper of the University and constitutional ruler.
He is the principal executive and academic officer of the University.
He is entrusted with the responsibility of overall administration of academic as well as nonacademic affairs.
For these purposes, the Act confers both express and implied powers on the Vice Chancellor.
The express powers include among others, the duty to ensure that the provisions of the Act, Statutes, Ordinances and Regulations are observed by all concerned.
(Section 11(3)).
The Vice Chancellor has a right to regulate the work and conduct of officers and teaching and other employees of the University (Section 11(6)(a)).
He has also emergency powers to deal with any untoward situation (Section 11(4)).
The power conferred under sec.
11(4) is indeed significant.
If the Vice Chancellor believes that a situation calls for immedi ate action, he can take such action as he thinks necessary though in the normal course he is not competent to take that action.
He must, however, report to the concerned authority or body who would, in the ordinary course, have dealt with the matter.
That is not all.
His pivotal position as the principal executive officer also carries with him the im plied power.
It is the magisterial power which is, in our view, plainly to be inferred.
This power is essential for him to maintain domestic discipline in the academic and non academic affairs.
In a wide variety of situations in the relationship of tutor and pupil, he has to act firmly and promptly to put down indiscipline and malpractice.
It may not be illegitimate if he could call to aid his implied powers and also emergency powers to deal with all such situations.
Counsel for the appellant argued that the express power of the Vice Chancellor to regulate the work and conduct of officers of the University implies as well, the power to take disciplinary action against officers.
We are unable to agree with this contention.
Firstly, the power to regulate the work and conduct of officers cannot include the power to take disciplinary action for their removal.
Secondly, the Act confers power to appoint officers on the Executive Council and it generally includes the power to remove.
This power is located under sec.
24(1)(xxix) of the Act.
It is, therefore, futile to contend that the Vice Chancellor can exercise that power which is conferred on the Executive Council.
It is a settled principle that when the Act pre scribes a particular body to exercise a power, it must be exercised only by that body.
It cannot be exercised by others unless it is delegated.
The law must also provide for such delegation.
Halsbury 's Laws of England (Vol.14th Ed. para 32) summarises these principles as follows: 465 "32.
Sub delegation of powers.
In accordance with the maxim delegatius non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub delegation of the power is authorised by express words or necessary implication.
There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind.
" The counsel for the appellant next submit ted that the Executive Council in the instant case had delegated its disciplinary power to the Vice Chancellor and the Act provides for such delegation.
In support of the contention he relied upon the following resolution of the Executive Council: "Full power be given to the Vice Chancellor to take a decision on this question and the Vice Chancellor informed the Executive Council that he will take decision in about a month On this decision, Shri Gangadhar Pa thrikar gave his opinion that the Executive Council should take a decision on the note dated 16.1.
1979 submitted by him and other two members and since it was not accepted, he does not agree with the above decision." This resolution, in our opinion, is basically faulty at least for two reasons.
It may be recalled that the Executive Council without considering the report of Mr. Chavan, wanted the Vice Chancellor to take a decision thereon.
It may also be noted that the Vice Chancellor was present at the meeting of the Executive Council when the resolution was passed.
He was given "full power to take a decision" which in the context, was obviously on the report of Mr. Chavan, and not on any other matter or question.
He said that he would take a decision in about a month.
In our opinion, by the power delegated under the resolution, the Vice Chancellor could either accept or reject the report with intimation to the Executive Council.
He could not have taken any other action and indeed, he was not authorised to take any other action.
The other infirmity in the said resolution goes deeper than what it appears.
The resolution was not in harmony with the statutory requirement.
Section 84 of the Act provides for delegation of powers and 466 it states that any officer or authority of the University may by order, delegate his or its power (except power to make Ordinance and Regulations) to any other officer or authority subject to provisions of the Act and Statutes.
Section 24(1)(xii) provides for delegation of power by the Executive Council.
It states that the Executive Council may delegate any of its power (except power to make Ordinances) to the Vice Chancellor or to any other officer subject to the approval of the Chancellor.
(underlying is ours).
The approval of the Chancellor is mandatory.
Without such ap proval the power cannot be delegated to the Vice Chancellor.
The record does not reveal that the approval of the Chancel lor was ever obtained.
Therefore, the resolution which was not in conformity with the statutory requirement could not confer power on the Vice Chancellor to take action against the respondent.
This takes us to the second contention urged for the appellants.
The contention relates to the legal effect of ratification done by the Executive Council in its meeting held on December 26/27, 1985.
The decision taken by the Executive Council is in the form of a resolution and it reads as follows: "Considering the issues, the Execu tive Council resolved as follows: 1.
The Executive Council at its meeting held on March 22, 1979, had by a resolution given full authority to the Vice Chancellor for taking further proceedings and decision in both the cases of the defaulting officers.
In exercise of above authority, the Vice Chancellor appointed an Inquiry Officer and as suggested by the Inquiry Offi cer issued Show Cause notices, obtained re plies from the Officers and lastly issued orders for terminating their services; XXX XXX XXX XXX XXX It was further resolved that (i) There has been no inadequacy in the pro ceedings against both the officers; (ii) The punishment ordered against both the officers is commensurate with the defaults and allegations proved 467 against both the officers; and (iii) The Executive Council, therefore, whol ly, endorses the actions taken by the then Vice Chancellor against both the officers.
" By this resolution, we are told that the Executive Council has ratified the action taken by the Vice Chancellor.
Ratification is generally an act of principal with regard to a contract or an act done by his agent.
In Friedman 's Law of Agency (Fifth Edition) chapter 5 at p. 73, the/principle of ratifica tion has been explained: "What the 'agent ' does on behalf of the 'principal ' is done at a time when the relation of principal and agent does not exist: (hence the use in this sentence, but not in subsequent ones, of inverted commas).
The agent, in fact, has no authority to do what he does at the time he does it.
Subse quently, however, the principal, on whose behalf, though without whose authority, the agent has acted, accepts the agent 's act, and adopts it, just as if there had been a prior authorisation by the principal to do exactly what the agent has done.
The interesting point, which has given rise to considerable difficulty and dispute, is that ratification by the principal does not merely give validity to the agent 's unauthorised act as from the date of the ratification: it is antedated so as to take effect from the time of the agent 's act.
Hence the agent is treated as having been authorised from the outset to act as he did.
Ratification is 'equivalent to an antecedent authority ' .
" In Bowstead on Agency (14th Ed.) at p. 39) it is stated: "Every act whether lawful or unlaw ful, which is capable of being done by means of an agent (except an act which is in its inception void) is capable of ratification by the person in whose name or on whose behalf it is done . .
The words "lawful or unlawful", however, are included primarily to indicate that the doctrine can apply to torts.
From them it would follow that a principal by ratification may retrospectively turn what was previously an act wrongful against the princi ple, e.g. an unauthorised sale, or against a third party, e.g. a wrongful distress, into a legitimate one; or become liable for the tort of another by ratifying.
" 468 These principles of ratification, apparently do not have any application with regard to exercise of powers conferred under statutory provisions.
The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity.
It is ab initio void and cannot be ratified.
The counsel for the appellant, however, invited our attention to the case of Parmeshwari Prasad Gupta vs The Union of India, ; It was a case of termina tion of services of the Secretary of a Company.
The Board of Directors decided to terminate the services of the Secre tary.
The Chairman of the Board of Directors in fact termi nated his services.
Subsequently, in the meeting of the Board of Directors the action taken by the Chairman was confirmed.
In the suit instituted by the Secretary challeng ing the termination of his services, the Court upheld on the principle that the action of the Chairman even though it was invalid initially, could be validated by ratification in a regularly convened meeting of the Board of Directors.
Ma thew, J. while considering this aspect of the matter, ob served [at pp.
307 and 308] "Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Direc tors passed on December 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the BOard of Directors.
The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution.
Therefore, it was open to a regularly constituted meeting of the Board of Direction to ratify that action which, though unauthorised, was done on behalf of the Company.
Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on December 17, 1953.
The appellant was not entitled to the declaration prayed for by him and the trial court as well as the High Court was right in dismissing the claim.
" These principles of ratification governing transactions of a company where the general body is the repository of all powers not be 469 extended to the present case.
We were also referred to the decision of the Court of Appeal in Barnard vs National Dock Labour Board, [1953] 1 All Eng.
Law Reports 1113 and in particular the observation of Denning L.J., (at 1118 and 1119): "While an administrative function can often be delegated, a judicial function rarely can be.
No judicial tribunal can dele gate its functions unless it is enabled to do so expressly or by necessary implication.
In Local Government Board vs Arlidge (2) the power to delegate was given by necessary implication, but there is nothing in this scheme authorising the board to delegate this function and it cannot be implied.
It was suggested that it would be impracticable for the board to sit as a board to decide all these cases, but I see nothing impracticable in that.
They have only to fix their quorum at two members and arrange for two members, one from each side, employers and workers, to be responsible for one week at a time.
"Next, it was suggested that, even if the board could not delegate their functions, at any rate they could ratify the actions of the port manager, but, if the board have no power to delegate their functions to the port manager, they can have no power to ratify what he has already done.
The effect of ratifica tion is to make it equal to a prior command, but as a prior command, in the shape of dele gation, would be useless, so also is a ratifi cation.
" These observations again are of little assistance to us since we have already held that there was no prior delega tion of power to the Vice Chancellor to take disciplinary action against the respondent.
There was no subsequent delegation either.
Therefore, neither the action taken by the Vice Chancellor, nor the ratification by the Executive Council could be sustained.
In the result, the appeal fails and is dismissed with costs.
N.V.K. Appeal dis missed.

summary/full:
The respondent was a Deputy Registrar of the appellant University.
As the Controller of Examinations had proceeded on leave the respondent was discharging the duties of Con troller of Examinations.
A complaint alleging that the respondent had delayed the payment of the bills of an out station party who had printed the question papers for the annual examination was received by the University.
The Executive Council of the University appointed an Enquiry Officer to hold an enquiry to find out whether the bills were deliberately kept pending with any ulterior motive.
The Enquiry Officer gave a clean chit to the respondent as to his conduct in discharging the duties as Controller of Examinations.
The Executive Council of the University did not take any decision on the report of the Enquiry Officer, but entrusted the question to the Vice Chancellor who was present at the meeting.
The Vice Chancellor directed a departmental enquiry against the respondent and appointed an advocate as the Enquiry Officer.
The Enquiry Officer by his report held the respondent guilty of all the charges levelled against him.
The Vice Chancellor after giving a show cause notice and considering the reply of the respondent, dismissed him from service.
The respondent moved the High Court under Article 226 chal 455 lenging his dismissal.
When the writ petition was taken up for hearing the High Court directed the entire matter to be placed before the Executive Council for an appropriate decision.
The Executive Council considered the matter at its meeting and passed a resolution ratifying the action taken by the Vice Chancellor, and confirming the dismissal of the respondent.
At the final disposal of the writ petition, the High Court examined the matter on merits and held that the action taken by the Vice Chancellor being without any au thority or power, these defects could not be cured by rati fication by the Executive Council in its subsequent resolu tion.
The High Court accordingly quashed the departmental proceedings taken against the respondent, and also the order of termination of his services.
In the appeal to this Court, it was contended on behalf of the University: (i)That on a true construction of the several provisions of the Marathwada University Act, 1974, the termination of services of the respondent cannot be assailed for want of power or jurisdiction on the part of the Vice Chancellor, and (2) that if the order was defective or without authority, the ratification by the Executive Council had rendered it immune from any challenge.
Dismissing the Appeal, the Court, HELD: 1.
The Vice Chancellor in every university is the conscious keeper of the University and the constitutional ruler.
He is the principal executive and academic officer of the University.
He is entrusted with the responsibility of overall administration of academic as well as non academic affairs.
[464A B] 2.
As the principal executive officer the Vice Chancel lor also carries with him an implied power, the magisterial power.
This power is essential for him to maintain domestic discipline in the academic and non academic affairs.
In a wide variety of situations in the relationship of tutor and pupil, he has to act firmly and promptly to put down indis cipline and malpractice.
It may not be illegitimate if he could call to aid his implied powers and also emergency powers to deal with all such situations.
[464D E] 3.
The Marathwada University Act, 1974 confers both express and implied powers on the Vice Chancellor.
The express powers include among others, the duty to ensure that the provisions of the Act, Statutes, Ordinances and Regula tions are observed by all concerned.
[Section 11(3)] He has a right to regulate the work and conduct of 456 Officers and teaching and other employees of the University [Sec. 11(b)(a)].
He has also emergency powers to deal with any untoward situation [Section 11(4)] a very significant power.
If he believes that a situation calls for immediate action, he can take such action as he thinks necessary, though in the normal course he is not competent to do so.
However he must report to the concerned authority or body, who would, in the ordinary course, have dealt with the matter.
[464B C] 4.
The power 'to regulate the work and conduct of the officers ' cannot include the power to take disciplinary action for their removal.
[464F] 5.
When a statute prescribes a particular body to exercise a power, it must be exercised only by that body.
[464G] Halsbury 's Laws of England Vol. 1, 4th Edn.
page 32, re ferred to.
The Marathwada University Act confers power to appoint officers on the Executive Council and it generally includes the power to remove.
This power is located under Section 24(1) (XXIX) of the Act.
[464F G] 7.
The resolution of the Executive Council at a meet ing, at which the Vice Chancellor was also present, gave full power to the Vice Chancellor 'to take a decision on this question '.
By the power delegated under the resolution, the Vice Chancellor could either accept or reject the report with intimation to the Executive Council.
He could not have taken any other action and indeed, he was not authorised to take any other action.
[465F G] : 8.
The resolution was also not in harmony with the statutory requirement.
Approval of the Chancellor to the delegation of power by the Executive Council to the Vice Chancellor was mandatory under section 24(1)(xii) read with section/84 of the Marathwada University Act.
The resolution not being in conformity with the statutory requirement could not confer power on the Vice Chancellor to take action j against the respondent.
[465H; 466A C] 9.
Ratification is generally an act of principal with regard to a contract or an act done by his agent.
The prin ciples of ratification in the context of the law of agency apparently do not have any application with regard to exer cise of power conferred under statutory provisions.
The statutory authority cannot travel beyond the power conferred and 457 any action without power has no legal validity.
It is ab initio void and cannot be ratified.
[468A B] Friedman 's Law of Agency (5th Edn.) Chapter 5at page 73, Bowstead on Agency (14th Ed.) at page 39, Parmeshwari Prasad Gupta vs Union of India, ; and Bernard vs National Dock Labour Board, [1953] 1 All Eng.
Law Reports 1113.
In the instant case, there was no prior delegation of power to the Vice Chancellor to take disciplinary action against the respondent.
There was no subsequent delegation either.
Therefore, neither the action taken by the Vice Chancellor, nor the ratification by the Executive Council could be sustained.
[469F]


judgement:
Appeal No.122 of 1956.
Appeal from the judgment and order dated March 5, 1954, of the Bombay High Court in Appeal from its Original Jurisdiction Misc.
Application No. 1 of 1954.
H. N. Sanyal, Addl.
Solicitor General, G. N. Joshi and R. H. Dhebar, for the appellants.
N. A. Palkhivala, section N. Andley, J. B. Dadachanji, P. L. Vohra and Rameshwar Nath, for the respondent.
April 28.
The Judgment of the Court was delivered by GAJENDRAGADKAR J.
This is an appeal by the Income tax Officer, Companies Circle I (1), Bombay and the Union of India and it raises a short question about the construction of section 35 of the Income tax Act read with section 1, sub section
(2) and section 13 of the Indian Income tax (Amendment) Act, 1953 (XXV of 1953).
It arises in this way.
The Income tax Officer, by his assessment order made on October 9, 1952, for the assessment year 1952 53, assessed the respondent, the Bombay Dyeing and Manufacturing Co. Ltd., under the Act.
In the said assessment order the respondent, was given credit for Rs. 50,603 15 0 as representing interest at 2% on tax paid in advance under section 18A of the Act.
This credit was given to the respondent in pursuance of the provisions contained in section 18A, sub section
(5) of the Act as it then stood.
On May 24, 1953, the Amendment Act came into force.
Section 1, sub section
(2) of the Amendment Act provides that " subject to any special provision made in this behalf in the Amendment Act, it shall be deemed to have come into 705 force on the first day of April, 1952 ".
By section 13 of the Amendment Act, a proviso was added to section 18A (5) of the Act.
The effect of the amendment made by the insertion of the said proviso to section 18A (5) was that the.
assessee was entitled to get interest at 2% not on the whole of the advance amount of tax paid by him as before but only on the difference between the payment made and the amount at which the assessee was assessed to tax under the regular assessment under section 23 of the Act.
After the Amendment Act was passed, the first appellant exercised his power under section 35 of the Act and purported to rectify the mistake apparent from the record in regard to the credit for Rs. 50,603 15 0 allowed by him to the assessee.
The first appellant held that the assessee was really entitled to a credit of only Rs. 21,157 6 0 by way of interest on tax paid in advance as a result of the retrospective operation of the amendment made in section 18A (5) by the Amendment Act.
In accordance with this order a notice of demand under section 29 of the Act was issued against the assessee for the sum of Rs. 29,446 9 0 on the ground that the assessee had been given credit for this excess amount through mistake.
Aggrieved by this notice of demand, the respondent filed a petition in the High Court of Bombay on January 4, 1954, under article 226 of the Constitution praying for a writ against the appellants inter alia prohibiting them from, enforcing the said rectified order and the said notice of demand.
It appears that this petition was admitted by Tendolkar J. on January 6, 1954, and a rule issued on it.
Thereafter the said petition was referred to a Division Bench by the Hon 'ble the Chief Justice for final disposal.
Accordingly on March 5, 1954, the petition was heard by Chagla C. J. and Tendolkar J. and a writ was issued against the appellants.
The High Court held that section 35 of the Act had no application to the facts of the case because the mistake apparent from the record contemplated by the said section is not a mistake which is the result of the amendment of the law even though the amending law may be retrospective in operation.
In other words, in the opinion of the High Court, the 706 mistake mentioned by section 35 had to be apparent on the face of the order and it can only be judged in the light of the law as it stood on the day ,When the order was passed.
The appellants then applied for and obtained a certificate from the High Court on October 8, 1954; on their behalf it is urged ' that the High Court of Bombay has erred in law in taking the view that the appellant No. I was not entitled to rectify the mistake in question under section 35 of the Act.
Thus the short question which arises before us in the present appeal is whether an order which was proper and valid when it was made can be said to disclose a mistake apparent from the record if the said order would be erroneous in view of a subsequent amendment made by the Amendment Act when the Amendment Act is intended to operate retrospectively ? It is unnecessary to refer to the provisions of section 18A (5) as well as the provision of the proviso which was subsequently added by section 13 of the Amendment Act.
It is common ground that, in the absence of the subsequently inserted proviso, the assessee would be entitled to obtain a credit for Rs. 50,603 15 0.
It is also common ground that, if the subsequently inserted proviso covered the assessee 's case, he would be entitled to a credit only of Rs. 21,156 9 0.
It is thus obvious that the order giving the relevant credit to the assessee was valid when it was made and that it would be erroneous under the subsequent amendment.
Under these circumstances, was the first appellant justified in exercising his power of rectification under section 35 of the Act ? In deciding this question it would be necessary to determine the true legal effect of the retrospective operation of the Amendment Act.
Section 1, sub section
(2) of the Amendment Act expressly provides that subject to the special provisions made in the said Act it shall be deemed to have come into force on the first day of April 1952.
The result of this provision is that the amendment made in the Act by s, 13 of the Amendment Act must, by legal fiction, be deemed to have been included in the principal Act as from the first of 707 April, 1952, and this inevitably means that, at the time when the Income tax Officer passed his original order on October 9, 1952, allowing to the respondent credit for Rs. 50,603 15 0, the proviso added by section 13 of the Amendment Act must be deemed to have been inserted in the Act.
As observed by Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. vs Finsbury Borough Council (1), " if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.
One of those in this case is emancipation from the 1939 level of rents.
The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs ".
Thus, there can be no doubt that the effect of the retrospective operation of the Amendment Act is that the proviso inserted by the said section in section 18A (5) of the Act would, for all legal purposes, have to be deemed to have been included in the Act as from April 1, 1952.
But it is urged for the respondent that the retrospective operation of the relevant provision is not intended to affect completed assessments.
It is conceded that, if any assessment proceedings in respect of the assessee 's income for a period subsequent to the first of April 1952 were pending at the time when the Amendment Act was passed, the proviso inserted by section 13 would govern the decision in such assessment proceedings; but where an assessment proceeding has been completed and an assessment order has been passed by the Income tax Officer against the assessee, such a completed assessment would not be affected and cannot be reopened under section 35 by virtue of the retrospective operation of the Amendment Act.
In support of this contention, reliance is placed on the observations of the Privy Council in Delhi Cloth and (1) , 132.
90 708 General Mills Co. Ltd. vs Income tax Commissioner, Delhi and Anr.
Lord Blanesburg who delivered the judgment of the Board referred to the Board 's earlier decision in the Colonial Sugar Refining Company vs Irving (2) where it was in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment.
The learned Judge then added that " Their Lordships have no doubt that the provisions which, if applied retrospectively, would deprive of their existing finality orders which, when that statute came into force, were final, are provisions which touch existing rights.
" The argument for the respondent is that the assessee has obtained a right under the order passed by the Income tax Officer to claim credit for the specified amount under section 18A(5) and the said right cannot be taken away by the retrospective operation of section 13 of the Amendment Act.
The same argument is put in another form by contending that the finality of the order passed by the Incometax Officer cannot be impaired by the retrospective operation of the relevant provision.
In our opinion, this argument does not really help the respondent 's case because the order passed by the Income tax Officer under section 18A(5) cannot be said to be final in the literal sense of the word.
This order was and continued to be liable to be modified under section 35 of the Act.
What the Income tax Officer has purported to do in the present case is not to revise his order in the light of the retrospective amendment made by section 13 of the Amendment Act alone, but to exercise his power under section 35 of the Act; and so the question which falls to be considered in the present appeal.
centres round the construction of the expression "mistake apparent from the record " used in section 35.
That is why we think the principle of the finality of the orders or the sanctity of (1)[1927] L.R. 54 I.A. 421.
(2)[1905] A.C. 369.
709 the existing rights cannot be effectively invoked by the respondent in the present case.
The respondent then urged that the Amendment Act should not be given greater retrospective operation than its language and its general scheme render necessary.
This convention is based on the provisions of section 3, sub section
(2), section 7, sub section
(2) and section 30, sub section
(2) of the Amendment Act.
Where the Amendment Act intended that its provisions should affect even concluded orders of assessment it is expressly so provided.
Since section 13 does not specifically authorise the reopening of concluded assessments it should be held that its retrospective operation is not intended to cover such concluded assessments.
That in brief is the argument.
We are, however, not satisfied that this argument is wellfounded.
Let us examine the three provisions of, the Amendment Act on which the argument rests.
Section 3, sub section (1) of the Amendment Act makes several additions and modifications in section 4 of the principal Act.
Section 3, sub section (2) then provides that, the amendments made by sub cl.
(3) of cl.
(b) of sub section
(1) shall be deemed to be operative in relation to all assessments for any year whether such assessments have or have not been concluded before the com mencement of the Amendment Act of 1953.
It would be noticed that the main object of this sub section is to extend the retrospective operation of the relevant provisions of the Amendment Act beyond the first of April 1952 mentioned by section 1, sub section
(2) of the Amendment Act.
Since it was intended to provide for such further retrospective operation of the relevant provision the legislature thought it advisable to clarify the position by saying that the said extended retrospective operation would cover all assessments whether they had been completed or not before the commencement of the Amendment Act.
Section 7, sub section
(1) adds two provisos to section 9 of the principal Act by cls.
(a) and (b).
Sub section (2) of section 7 then lays down that the amendments made in cl.
(a) of sub section
(1) shall be deemed to be operative for any assessment for the year ending the 31st day of March, 1952, whether made before or after the commencement of this Act and, where any such 710 assessment has been made before such commencement, he Income tax Officer concerned shall revise it whenever necessary to give effect to this amendment.
The position under section 30, sub section
(2) of the Amendment Act is substantially similar.
By sub section
(1) of this section certain additions and amendments are made in the schedule to the principal Act by cls.
(a), (b), (c) and (d).
sub section
(2) then provides for the retrospective operation of the amendment made by sub section
(1) in terms similar to those used in section 7, sub section
It is clear that the Provisions in sections 7 and 30 are intended for the benefit of the assessees and so the legislature may have thought it necessary to confer on the Income tax Officer specific and express power to revise his orders in respect of the relevant assessments wherever necessary to give effect to the amendments in question.
The effect of this provision is to make it obligatory on he Income tax Officer to revise his original orders in he light of the amendments and also to confer on the assessee right to claim such revision.
It may be con ceded that in respect of the other retrospective provisions of the Amendment Act such a power to revise the earlier orders cannot be claimed or exercised by the Income tax Officer.
In other words, a distinction can be drawn between there two provisions of the Amendment Act and the rest in respect of the power which the Income tax Officer can purport to exercise to give effect to the amendments made by the Amendment Act.
Whereas, in respect of the amendments made by section 7 and section 30 of the Amendment Act, the Income tax Officer can and must revise his earlier orders covered by section 7, sub section
(2) and section 30, sub section
(2), such a power of revision has not been conferred on him in the matter of giving effect to the other amendments made in the Amendment Act.
Even so, we do not think it would be legitimate or reasonable to hold that the provisions of section 7(2) and section 30(2) lead to the infference that the retrospective operation of the other provisions of the Amendment Act is not intended to affect concluded assessments in any manner whatever.
In this connection, it would be pertinent to remember that the power to revise which has been conferred on 711 the Income tax Officer by section 7(2) and section 30(2) of the Amendment Act is distinct and independent of the power to rectify mistakes which the Income tax Officer can exercise under section 35 of the Act.
It is in the light of this position that the extent of the Income tax Officer 's power under section 35 to rectify: mistakes apparent from the record must be determined; and in doing so, the scope and effect of the expression " mistake apparent from the record " has to be ascertained.
At the time when the Income tax Officer applied his mind to the question of rectifying the alleged mistake, there can be no doubt that he had to read the principal Act as containing the inserted proviso as from April 1, 1952.
If that be the true position then the order which he made giving credit to the respondent for Rs. 50,603 15 0 is plainly and obviously inconsistent with a specific and clear provision of the statute and that must inevitably be treated as a mistake of law apparent from the record.
If a mistake of fact apparent from the record of the assessment order can be rectified under section 35, we see no reason why a mistake of law which is glaring and obvious cannot be similarly rectified.
Prima facie it may appear somewhat strange that an order which was good and valid when it was made should be treated as patently invalid and 'wrong by virtue of the retrospective operation of the Amendment Act.
But such a result is necessarily involved in the legal fiction about the retrospective operation of the Amendment Act.
If, as a result of the said fiction we must read the subsequently inserted proviso as forming part of section 18A(5) of the principal Act as from April 1, 1952, the conclusion is inescapable that the order in question is inconsistent with the provisions of the said proviso and must be deemed to suffer from a mistake apparent from the record.
That is why we think that the Income tax Officer was justified in the present case in exercising his power under section 35 and rectifying the said mistakes.
Incidentally we may mention that in Moka Venkatappaiah vs Additional Income Tax Officer, Bapatla (1), the High Court of Andhra has taken the same view.
(1)(1957) 712 In this connection it would be useful to refer to the decision of the Privy Council in the Commissioner of [Income Tax, Bombay Presidency and Aden vs Khemchand Ramdas (1).
In Khemchand 's case, the assessees were registered as a firm and they were assessed under section 23(4) on an income of Rs. 1,25,000 at the maximum rate.
Being a registered firm no super tax was levied.
A notice of demand was also made before March 1927.
On February 13, 1928, the Commissioner, in exercise of his powers under section 33, cancelled the order registering the assessee as a firm and directed the Income tax Officer to take necessary action.
The Income tax Officer accordingly assessed the firm to super tax on May 4, 1929.
The Privy Council held that the assessment made on January 17, 1927, was final both in respect of the income tax and super tax.
The fresh action taken by the Income tax Officer on May 4, 1929, was out of time though it had been taken in pursuance of the directions of the Commissioner and that the order of May 4, 1929, was one which the Income tax Officer had no power to make.
One of the points raised before the Privy Council was whether, under the relevant circumstances the Income tax Officer had power to make the impugned order in view of the provisions of sections 34 and 35 of the Act.
The Privy Council dealt with this question on the footing that the Commissioner 's order cancelling the registration had been properly made.
On this basis their Lordships thought that it was unnecessary to consider whether the. case would attract the provisions of section 34 " inasmuch as in Their Lordships ' opinion the case clearly would have fallen within the provisions of section 35 had the Income tax Officer exercised his powers under the section within one year from the date on which the earlier demand was served upon the respondents ".
The judgment shows that Their Lordships took the view that looking at the record of the assessments made upon the respondents as it stood after the cancellation of the respondents ' registration and the order effecting the cancellation would have formed part of the record it would be apparent that a mistake (1)(1938) L.R. 65 I.A. 236. 713 had been made in stating that no super tax was leviable.
This decision clearly shows that the subsequent cancellation of the assessees ' registration was held by Their Lordships of the Privy Council to form part of the record retrospectively in the light of the said subsequent event, and the order was deemed to suffer from a mistake apparent from the record so as to justify the exercise of the rectification powers under section 35 of the Act.
It is because Their Lordships thought that section 35 would have been clearly applicable that they did not decide the question as to whether section 34 could also have been invoked.
This decision lends considerable support to the view which we are disposed to take about the true meaning and scope of the expression " the mistake apparent from the record " occurring in section 35.
We must accordingly hold that the High Court of Bombay was in error in coming to the conclusion that the notice issued by the Income tax Officer calling upon the respondent to pay 9the sum of Rs. 29,446 9 0 was not warranted by law.
The result is the order passed by the High Court issuing a writ against the appellant is set aside and the appeal is allowed with costs throughout.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
The Income tax Officer, by his order dated October 9, 1952, assessed the respondent for the assessment year 1952 53 and gave him credit for Rs. 50,603 15 0 as representing interest on tax paid in advance under section 18 A(5) of the Income tax Act.
On May 24, 1953, the Indian Income tax (Amendment) Act, 1953, came into force adding a proviso to s.18 A(5) of the Act to the effect that the assessee was entitled to interest not on the whole of the advance tax paid by him but only on the difference between the payment made and the amount assessed.
The Amendment Act provided that it shall be deemed to have come into force on April 1, 1952.
The Income tax Officer, acting under section 35 of the Act, rectified the assessment order holding that the assessee was entitled to a credit of only Rs. 21,157 6 0 by way of interest on tax paid in advance as a result of the retrospective operation of the amendment in section 18 A(5), and issued a notice of demand against the assessee for the balance of Rs. 29,446 9 0.
The assessee filed a petition in the High Court of Bombay.
under article 226 of the Constitution praying for a writ prohibiting the appellants from enforcing the rectified order and notice of demand.
The High Court issued the writ holding that section 35 was not applicable to the case as the mistake mentioned in section 35 had to be apparent on the face of the order and the question could only be judged in the light of the law as it stood on the day when the order was, passed: Held, that the Income tax Officer was justified in exercising his powers under section 35 and rectifying the mistake.
As a result of, the legal fiction about the retrospective operation of the Amendment Act, the subsequently inserted proviso must be read as.
forming part of section 18 A(5) of the principal Act as from April 1, 1952, and consequently the order of the income tax Officer dated October 9, 1952, was inconsistent with the provisions of the proviso, and suffered from a mistake apparent from the record.
Commissioner of Income tax, Bombay Presidency and Aden vs 704 Khemchand Ramdas, (1938) L.R. 65 I.A. 236 and Moka Venkatap paiah vs Additional Income tax Officer, Bapatla, (1957)32 I.T.R. 274, referred to.
The order passed by the Income tax Officer under section 18 A was not final in the literal sense of the word; it was and con tinued to be liable to be modified under section 35.
It is also not correct to say that the retrospective operation of the amended s.18 A(5) was not intended to affect concluded transactions.