IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 WP(C).No. 32631 of 2008(I) -------------------------- PETITIONER: ------------------- THE COLLEGE OF FIRE AND INDUSTRIAL SAFETY ENGINEERING, N.P.TOWERS, 2ND FLOOR, WEST FORT, THRISSUR, REPRESENTED BY ITS MANAGING PARTNER. BY MR. M.K.DAMODARAN, SENIOR ADVOCATE, ADVS. MR.NOUSHAD THOTTATHIL, SMT.NOORJI NOUSHAD, MR.P.K.VIJAYAMOHANAN. RESPONDENTS: ----------------------- 1. THE UNION OF INDIA - REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF LABOUR, GOVERNMENT OF INDIA, NEW DELHI. 2. THE STATE OF KERALA - REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE NATIONAL SAFETY COUNCIL, REPRESENTED BY THE DIRECTOR GENERAL, HEADQUARTERS AND INSTITUTE BUILDING, 98-A, SECTOR 15, INSTITUTIONAL AREA, CBD BELAPUR, NAVI MUMBAI - 400 614. W.P.(C). NO.32631/2008-I: 4. THE NATIONAL SAFETY COUNCIL (KERALA CHAPTER), REPRESENTED BY ITS CHAIRMAN, PRODUCTIVITY HOUSE, H.M.T. ROAD, KALAMASSERY - 683 104. R1 BY MR. P. PARAMESWARAN NAIR, ASST. S.G, R2 BY GOVT. PLEADER MR. M.A. ASIF, R3 BY MR.K.P.DANDAPANI, SENIOR ADVOCATE, ADVS. MR.VIKANTH K.PUTHUMANA, MR.K.R.HARIN, MR.ANUKARSHAN.C, R4 BY MR.M.PATHROSE MATTHAI, SENIOR ADVOCATE, ADVS. MR. SAJI VARGHESE, SMT.MARIAM MATHAI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2009, ALONG WITH W.P.(C). NOS. 32663/2008 & 32669/2008 THE COURT ON 04/02/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.32631/2008-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE CERTIFICATE OF REGISTRATION DTD. 04/03/1996 ISSUED BY THE REGISTRAR OF SOCIETIES, DELHI REGISTERING THE NATIONAL SAFETY COUNCIL OF INDIA. EXT.P.2: COPY OF THE BYELAWS OF THE R.4. NATIONAL SAFETY COUNCIL OF INDIA (KERALA CHAPTER) (12). EXT.P.3: COPY OF THE COMMUNICATION NO. 6-11 (302)/2007-HSMD DTD. 16/09/2008 FROM THE GOVERNMENT OF INDIA, MINISTRY OF ENVIRONMENT AND FORESTS TO THE PAY AND ACOUNTS OFFICER WITH COPY TO THE R.4. EXT.P.4: COPY OF THE COMMUNICATION NO. 33621/K2/06/DMD DTD. 23/04/2008 FROM THE GOVERNMENT, DISASTER MANAGEMENT DEPARTMENT TO THE R.4. EXT.P.5: COPY OF THE COMMUNICATION NO. 139996/SUB-CB1/2008/LEG. DTD. 09/06/2008 FROM THE SECRETARY, KERALA LEGISLATURE TO THE R.4. EXT.P.6: COPY OF THE COMMUNICATION NO. NSC (KC)/14/144 DTD. 04/04/2005 FROM THE R.4. EXT.P.7: COPY OF THE MEMORANDUM OF UNDERSTANDING EXECUTED BY THE PETITIONER WITH THE R.4. ON 15/06/2005. EXT.P.8: COPY OF THE COMMUNICATION NO. 308/VIP/2005/M (L & R) DTD. 20/07/2005 FROM THE MINISTER FOR LABOUR AND REHABILITATIONS TO THE UNION MINISTER FOR HUMAN RESOURCE DEPARTMENT WITH ITS ENCLOSURE. EXT.P.9: COPY OF THE COMMUNICATION NO. NSC/KC/2008 DTD. 29/08/2008 FROM THE R.3. TO THE PETITIONER WITH COPY TO THE R.4. EXT.P.10: COPY OF THE COMMUNICATION NO. NSC/ (KC)-ACADEMIC-384 DTD. 25/09/2008 FROM THE R.4. TO THE PETITIONER. EXT.P.11: COPY OF THE SPECIMEN CERTIFICATE ISSUED BY THE R.4.TO THE STUDENTS PRESENTED BY THE TRAINING CENTRES AFFILIATED TO IT. EXT.P.12: COPY OF THE ANNUAL REPORT 2006-207 OF THE R.4. SHOWING THE ACADEMIC ACTIVITIES. EXT.P.13: COPY OF THE INCOME AND EXPENDITURE ACCOUNTS OF THE R.4. FOR THE YEAR ENDED ON 31ST MARCH,2007. W.P.(C). NO.32631/2008-I: EXT.P.14: COPY OF THE RELEVANT PART OF ANNUAL REPORT OF THE R.4. FOR THE YEAR 2007-08 SHOWING THE ACADEMIC ACTIVITIES. EXT.P.15: COPY OF THE INCOME AND EXPENDITURE ACCOUNTS OF THE R.4. FOR THE YEAR ENDED ON 31ST MARCH, 2008. EXT.P.16: COPY OF THE COMMUNICATION NO. B1/TRG-C FAISE/07-D DTD. 15/02/2007 WITH ITS APPENDIX FROM THE COCHIN PORT TRUST TO THE PETITIONER. EXT.P.17: COPY OF THE CERTIFICATE OF MEMBERSHIP ISSUED BY THE BRITISH SAFETY COUNCIL TO THE PETITIONER. EXT.P.18: COPY OF THE LICENCE ISSUED BY THE INSTITUTION OF OCCUPATIONAL SAFETY AND HEALTH TO THE PETITIONER. RESPONDENTS' EXHIBITS: EXT.R3.A: COPY OF THE LETTER NO. V-18025/3/76-FUC VOL.II DTD. 07/07/1981. EXT.R3.B: COPY OF THE MEMORANDUM OF ASSOCIATION AND THE RULES AND REGULATIONS OF THE R.3. EXT.R3.C: COPY OF THE BYE LAWS OF THE R.4. EXT.R3.D: COPY OF THE LETTER DTD. 25/01/2008 WRITTEN BY IFAST TO R.3. EXT.R3.E: COPY OF THE MINUTE NO.20 OF THE 136TH BOARD MEETING RESOLUTION OF THE R.3. EXT.R3.F: COPY OF THE LEGAL OPINION. EXT.R3.G: COPY OF THE 137TH BOARD MEETING RESOLUTIONS OF THE R.3. EXT.R3.H: COPY OF THE LIST OF SUCH INSTITUTES/ORGANIZATIONS CONDUCTING DIPLOMA/ADVANCED DIPLOMA/P.G. DIPLOMA COURSES IN INDUSTRIAL SAFETY. EXT.R3.I: COPY OF THE LETTER DTD. 17/02/2005 FROM NAPCOL OF WHICH THE PETITIONER (C-FASE) IS A DIVISION. EXT.R3.L: COPY OF THE LETTER FROM R.4. DTD. 06/03/2008 RECEIVED BY R.3. ON 10/03/2008. EXT.R3.K: COPY OF THE LETTER FROM R.4. DTD. 10/07/2008 RECEIVED BY R.3. ON 25/07/2008. W.P.(C). NO.32631/2008-I: EXT.R4.A: COPY OF THE LETTER DTD. 03/10/2008 ISSUED BY THE R.3. REJECTED THE REQUEST FOR RATIFICATION AND INSTRUCTED. EXT.R4.B: COPY OF THE PUBLIC NOTICE IN HINDU DTD. 20/10/2008. //TRUE COPY// P.A. TO JUDGE. prv. ANTONY DOMINIC,J. --------------------------------- W.P.(C).Nos.32631,32663 & 32669 OF 2008 --------------------------------- Dated this the 4rd day of February, 2009. J U D G M E N T These three writ petitions raise identical issues and are heard and disposed of together. For the sake of convenience, I shall refer to the facts in W.P.(C)No. 32669 of 2008. 2. Although there are several prayers in the writ petition, Sri.M.K. Damodaran, Sr. Counsel, who appeared for the petitioner confined himself to the first prayer sought to direct the 4th respondent to honour the commitment undertaken in Ext.P10 by conducting the examination and issuing certificates for the Fire and Safety Courses. 3. Petitioner conducts certificate course in Fire and Safety Engineering, Diploma in Fire and Safety Engineering and Post Graduate Diploma in Fire and Safety Engineering, as per the scheme prescribed by the 4th respondent. Apart from this petitioner also conducts a Diploma in Industrial Safety Engineering and Diploma in Fire Safety Engineering as approved WP(c).Nos.32631/08 & Ors. :2: by Director of Technical Education, Government of Kerala. Ext.P11 is the order dated 05.11.2007 issued by the Director of Technical Education granting approval to the petitioner to conduct the above courses. It is stated that the examination of the courses which are approved by Ext.P11, are conducted by the Director of Technical Education and the Diploma is granted by the Government. 4. In so far as the issue in this case is concerned, the relevant facts are that Ext.P1 is a communication issued by the 4th respondent to the petitioner conveying their decision to recognize the petitioner for conducting certificate, diploma and post graduate diploma courses on Fire and Safety and to conduct examinations subject to the conditions mentioned therein. It is stated that in pursuance to Ext.P1, petitioner entered to a Memorandum of Understanding with the 4th respondent and on their agreeing to all the conditions specified in Ext.P1. The 4th respondent issued Ext.P2, certifying that the petitioner is an affiliated institution to the 4th respondent. 5. Petitioner submits that thereafter the 4th respondent issued Ext.P3 guidelines for the affiliated institutes conducting courses in Fire and Safety Engineering. Ext.P4 is the scheme of examination WP(c).Nos.32631/08 & Ors. :3: for the certificate, diploma and post graduate diploma courses in Fire and Safety Engineering. It is stated that the students are given training in public sector undertakings such as Cochin Shipyard Ltd., Cochin Port Trust and Hindustan Newsprint Ltd. Exts. P5 to P7 are referred to in this context. Petitioner has also produced as Ext.P8 a list containing the name and details of placement of their students in foreign countries. 6. According to the petitioner, during 2007-08, there were 11 institutions affiliated to the 4th respondent. It is stated while so, the 3rd respondent issued Ext.P9 letter to the 4th respondent conveying the resolution passed in the 137th meeting of the Board of Governors, the relevant portion of which reads as under: “You are hereby informed that the National Safety Council or any of its Chapters do not have any power to give affiliation to any institution to conduct courses for any certificate, diploma or PG diploma. Any such action is ultra vires both prospectively and retrospectively. Hence we will urge upon you not to use the name and goodwill of the National Safety Council and/ or its Chapter and/or the Ministry of Labour, Govt. of India in any manner connected with the courses run by you. Kindly take effective steps so that your students’ community does not have any WP(c).Nos.32631/08 & Ors. :4: misapprehension or misgiving in this regard”. 7. Based on Ext.P9 the 4th respondent issued Ext.P10 informing the petitioner that they have decided to recall the affiliation certificate issued by them but with the commitment to conduct examination for the ongoing students. Ext.P10 letter dated 25.09.2008 reads as under: “The sub committee appointed by the Executive Committee of the National Safety Council (Kerala Chapter) to look into the issues related to Academic Institutions conducting Fire and Safety Courses have met on 25th September 2008 at 3.00 p.m., and has decided on the following subject to ratification by NSC (HQ) and Legal Expert. 1. The Affiliation Certificate issued by NSC (KC) to be returned before 4th October, 2008. 2. The MoU between NSC (KC) and concerned institution to be returned and cancelled by both parties before 4th October 2008. 3. The NSC (KC) will be responsible for the following exams only. i) Exams to be held in December, 2008 ii) Exams to be held in May, 2009 iii) Exams to be held in December, 2009 Applicable to those students, who have been admitted before August, 31st 2008. 4. The Certificates (PG Diploma/Diploma/Certificate) issued to WP(c).Nos.32631/08 & Ors. :5: students has been ratified by the sub committee is attached herewith for your perusal.” 8. Petitioner states that the 4th respondent commenced academic activities in 2002 and that in their annual reports the income generated by these activities is reflected. Therefore, it is contended that these activities were with the full knowledge of the 3rd respondent and hence it is not open to the 3rd respondent to take the stand that the educational activities of the 4th respondent were unauthorized. 9. Irrespective all these contentions, it is stated that the 4th respondent should at least continue affiliation, conduct the examinations and issue certificates for the ongoing students. According to the petitioner in their institute itself there are 730 students and that if certificates are not issued, the students will be adversely effected. It was therefore that the learned counsel for the petitioners contended that the 4th respondent should be directed to honour the commitment they have made in Ext.P10. 10. Counter affidavit has been filed by the 3rd respondent. According to them the 3rd respondent is a society registered under the Societies Registration Act as well as the Bombay Public Trusts WP(c).Nos.32631/08 & Ors. :6: Act, with the objective of creating a scientific mindset and organized approach to safety, health and environment in the industrial community and the society at large. They have 17 chapters and 29 action centers covering 29 states and union territories. According to them they are an autonomous voluntary organization and the Government of India does not exercise any control over their functions. It is contended that the 3rd respondent or its chaptors are not a state or an instrumentality of state to be amenable to the writ jurisdiction of the High Court. 11. Ext.R3(c) is the Memorandum of Association and the rules and regulations of the 3rd respondent and Ext.R3(d) is the bye laws of the 4th respondent, the Kerala chapter of the 3rd respondent. It is stated that a perusal of Ext.R3(c) and (d) would show that neither the 3rd respondent nor the 4th respondent is mandated to conduct full-fledged academic courses as being presently undertaken by the petitioner nor is there any power to recognize/ grant affiliation to any such institutions running academic courses. According to them, they are only mandated to create awareness on safety among public and the employees of industrial undertakings by conducting seminars, workshops, training courses etc. WP(c).Nos.32631/08 & Ors. :7: 12. It is stated that only when by Ext.R3(e), the petitioner approached the 3rd respondent with a request to grant recognition to their courses proposes to be conducted in Mumbai, they came to know about the affiliations that were given by the 4th respondent to various institutes in Kerala. According to them on receipt of the request they investigated whether they were competent to grant such affiliation and that the matter was deliberated by the Board of Governors on 21.04.2008 when, by Ext.R3(f) it was resolved to seek legal opinion and that accordingly Ext.R3(g) legal opinion was obtained. The opinion was placed before the Board of Governors on 27.08.2008 when they passed EXt.R3(h) Resolution and by thereupon Ext.P9, addressed all the 11 institutions wrongly affiliated by the 4th respondent and brought to their notice the correct position and advised them to take immediate corrective steps. Thus in short, the contention taken up by the 3rd respondent is that their bye laws or the bye laws of the 4th respondent do not authorize them to engage in educational activities or to grant affiliation and that it was without their knowledge or concurrence that the 4th respondent granted affiliation to the institutes in Kerala. 13. The 4th respondent has filed its counter affidavit. The first WP(c).Nos.32631/08 & Ors. :8: contention raised is regarding the maintainability of the writ petition. According to them, they are neither a statutory body nor an authority under Article 12 of the Constitution of India, and that they do not have any statutory functions or powers. It is stated that the objects of the 3rd respondent do not authorize affiliation of institutions or conduct of examinations to confer certificate, diploma or post graduate diploma. The 4th respondent is only a chapter or branch of the 3rd respondent and that its object also does not authorize affiliation of institutions. 14. According to the 4th respondent, Ext.P3 guidelines for affiliation, Ext.P4 syllabus or scheme of examinations and the affiliation granted are all beyond the objects and power of the 3rd and 4th respondents. It is stated that the aforesaid ultra vires and void acts were committed by the former office bearers of the 4th respondent and that the 3rd respondent had removed them from the office of Chairman, Vice Chairman and Secretary. 16. In so far as Ext.P10 is concerned, they say that the matters stated therein were subject to satisfaction by the 3rd respondent and legal advise and that the 3rd respondent declined to ratify the proposals, by Ext.R4(a) letter. 3rd respondent also refers WP(c).Nos.32631/08 & Ors. :9: to Ext.R4(b), the public notice issued by the 3rd respondent, informing that they have no mandate to affiliate any institution or run academic courses. 17. The Union of India, the 1st respondent also has filed a counter affidavit. According to the 1st respondent, the 3rd respondent functions in accordance with its Memorandum of Association, Bye laws, Rules and Regulations. The Ministry of Labour and Employment has a representative in the Board of Governors of the 3rd respondent. It is stated that there is no legislation conferring any power of accreditation or award of degree/ certificates upon the 3rd respondent or its chapters and that the only legislation governing technical education is All India Council for Technical Education Act 1987. 18. Petitioner has filed a reply to the counter affidavit filed by the 4th respondent. Referring to Ext.P16, an order passed by the High Court of Bombay in Income Tax Appeal No.30/2001, it is contended that the 4th respondent is estopped from raising the contention that they are not authorized to carry on educational activities. They have also produced Ext.P17, a communication issued by the Chairman of the 3rd respondent to the Minister of State WP(c).Nos.32631/08 & Ors. :10: for Labour and Employment, Government of India, reporting the developments in Kerala. Petitioner states that Ext.P18 shows that the Board of Governors of the 3rd respondent had appointed a committee to study the matter and that the 4th respondent by Ext.P19 has written to all the members of its Board of Governors about the necessity of affiliating the institutions. Ext.P20 is the report of the committee set up by the Board of the 3rd respondent, where they have referred to of the activities of the 4th respondent, and concluded that the 4th respondent was incompetent to grant affiliation to institutes such as that of the petitioner. 19. Although Sri. M.K. Damodaran, Sr. Counsel for the petitioner canvassed that the writ petition is maintainable against respondents 3 and 4, and that the directions sought for can be issued by this Court and this contention was refuted by both Sri. K.P. Dandapani, Sr. Counsel, appearing for the 3rd respondent and Sri. Pathrose Mathai, Sr. Counsel appearing for the 4th respondent. However, I do not think an examination of this disputed issue is necessary for the disposal of the writ petition. 20. Admittedly, the 4th respondent granted affiliation to the institutions, prescribed the syllabus, the examination schedules, WP(c).Nos.32631/08 & Ors. :11: conducted examinations and have been granting certificates to the students of institutes such as that of the petitioner. The 4th respondent is only a chapter of the 3rd respondent. The Memorandum of Understanding and the Bye Laws of the 3rd and 4th respondents have been produced as Exts.R3(c) and R3(d). Since the objects of both the 3rd and 4th respondents are specified in these bye laws, their activities will have to be confined to the objects specified in these bye laws and anything that they do beyond the bye laws, is certainly ultra vires and illegal. 21. Therefore the first issue to be examined is whether the bye laws of respondents 3 and 4 permit them to engage in educational activities, grant affiliations, prescribe syllabus and conduct examinations. I have gone through Exts.R3(c) and (d) and despite having anxiously searched for any provision authorizing these activities, I have not succeeded in coming across any provision enabling respondents 3 and 4 to engage in educational activities in the manner that the 4th respondent has done. The petitioner has also accepted this position and in fact during the course of the arguments, a contention to the contrary was not forcefully urged. In fact, it was realizing this difficulty that the learned Sr. Counsel WP(c).Nos.32631/08 & Ors. :12: required this court to direct the 4th respondent to conduct examination, atleast for the ongoing students. 22. If as I have found the bye laws of the 3rd and 4th respondents do not permit them to affiliate institutions, any such act of theirs is ultra vires the bye laws and this court will not be justified in issuing a writ of mandamus directing either the 3rd or 4th respondents to continue their ultra vires activity, even if it be for one year. I fully endorse the contention that this is a human problem, that the students will be adversely affected that, those who have qualified many not get employment and those who are employed may also face the risk of loosing it. However fact remains that all this is the result of an unauthorised activity of the 4th respondent and the 4th respondent is now taking the position that it was the unauthorized activity of the previous office bearers, who were removed by the 3rd respondent. What ever it is and whoever is responsible for the same, truth is that thousands of students have been defrauded. Although it’s a matter of serious concern, this court has its limitations and has to act within the four corners of law and if that be so, this court will not be justified in issuing a direction requiring the 4th respondent to continue affiliation any longer or to WP(c).Nos.32631/08 & Ors. :13: conduct any examination. 23. In this context it is profitable to refer to the Apex Court judgment in State of Tamil Nadu and Ors. V. St. Joseph Teachers Training Institute and Another(1991(3) SCC 87), where in paragraph '6' it has been held as follows; “The practice of admitting students by unauthorized educational institutions and then seeking permission for permitting the students to appear at the examination has been looked with disfavour by this Court. In N.M.Nageshwaramma V. State of A.P. this court observed that if permission was granted to the students of an unrecognized institution to appear at the examination, it would amount to encouraging and condoning the establishment of unauthorized institutions. The court declared that the jurisdiction of this Court under Article 32 or of the High Court under Article 226 of the Constitution should not be frittered away for such a purpose. In A.P. Christians Medical Educatonal Society V. Government of A.P, a similar request made on behalf of the institution and the students for permitting them to appear at the examination even though affiliation had not been granted, was rejected by this Court. The court observed that any direction of the nature sought for permitting the students to appear at the examination without the institution being affiliated or recognized would be in clear transgression of the provision of the Act and the regulations. The court cannot be a party to direct the students to disobey the statute as that would be destructive of the rule of law. The Full Bench noted these decisions and observations and yet it granted relief to the students on humanitarian grounds. Courts cannot grant relief to a party on humanitarian grounds WP(c).Nos.32631/08 & Ors. :14: contrary to law. Since the students of unrecognized institutions were legally not entitled to appear at the examination held by the Education Department of the Government, the High Court acted in violation of law in granting permission to such students for appearing at the public examination. The directions issued by the Full Bench are destructive of the rule of law. Since the Division Bench issued the impugned orders following the judgment of the Full Bench, the impugned orders are not sustainable in law.” 24. As already noticed the students have been defrauded and these kind of institutions have thrived in this state, by inducing the innocent students to join them through attractive advertisements in the Print and Electronic media. Such institutions should certainly be taken to task and brought before law and I hope and trust that the law enforcement agencies of the state will take appropriate action in this behalf. For the damage that has been caused to the student community, they can only claim such damages by taking recourse to the remedy available before the civil court. I am not in a position to grant any relief to the petitioner and the writ petition is only to be dismissed and I do so. WP(c).Nos.32631/08 & Ors. :15: WPC Nos. 32631 and 32663 of 2008 In view of the judgment in WPC No.32669 of 2008, these writ petitions are also dismissed for the same reasons. (ANTONY DOMINIC) JUDGE vi/