IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 30.07.2008 CORAM: THE HONOURABLE MR. JUSTICE K.K.SASIDHARAN W.P.NO.1746 OF 2006 Dr. K.Kuppusamy ..Petitioner -Vs.- 1. Anna University Rep.by its Registrar Chennai-600 025. 2. The Registrar Anna University Chennai-600 025. 3. The Director Centre for faculty development Anna University, Chennai-600025. ..Respondents. Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorari calling for the records of the second respondent culminating in his order No.5135/PD7/2004 dated 22.9.2005 and to quash the same. For Petitioner : Mr.L.Raja for Mr.Rajah and Venkatesan Associates For Respondents : Mr.Mani Sundaragopal for M/s. G.M.Mani Associates ---------- O R D E R This writ petition has been preferred by a retired professor and former Chairman, Faculty of Electrical Engineering of Anna University challenging the order dated 22.9.2005 in No.5135/Pd/7/2004 on the file of the second respondent whereby a sum of Rs.10.24 lakhs was determined as one time honorarium for developing a software package for Engineering students. https://hcservices.ecourts.gov.in/hcservices/ 2. The factual details as culled out from the affidavit filed in support of the writ petition are as follows:- a) The petitioner as the Chairman of the faculty of Electrical Engineering took the initiative to introduce a new laboratory course "EEE435 Power System Simulation Laboratory" in the existing curriculum of B.E. Electrical and Electronic Engineering and the said proposal was considered by the Anna University in its meeting held on 6.12.2003 and approved by way of a resolution for introduction of the new laboratory course in the curriculum of B.E. Electrical and Electronics Engineering. b) The petitioner also proposed a software package to conduct the laboratory course and constitution of a committee for implementation of the proposal to develop the software. Accordingly a committee was constituted by the Vice Chancellor with the Professor of Electrical Engineering as Convenor and three persons including the petitioner as members for the purpose of development of software modules required for the laboratory course "Power System Simulation", preparation of documents relating to software such as user manual and programme reference manual etc. The Committee was directed to complete the work by the end of March, 2004 so as to enable the University to communicate to the affiliated colleges for implementation in the VII Semester of B.E. Electrical and Electronics Engineering commencing from June, 2004. c) In response to the said communication the petitioner as per his letter dated 19.3.2004 sought details about the project, expenses for developing the project etc., and in the said letter it was also stated that the project might be considered as a consultancy project. The second respondent as per proceedings dated 19/23.3.2004 granted necessary approval to undertake the said project and in the said communication, it was clearly stated that the project should be administered as per norms established for a consultancy project by the University. d) The second respondent also as per proceedings dated 25.3.2004 informed the principles of all affiliated colleges about the new course and the software and indicated that the affiliated colleges can either procure the required software modules for the course from open market or go in for in-house development or may contact the writ petitioner, being Chairman, Faculty of Electrical Engineering as well as Member of the Committee for development of fresh software. As per proceedings dated 22.1.2004 norms for https://hcservices.ecourts.gov.in/hcservices/ calculation towards distribution of consultancy charges were prescribed by the Anna university (hereinafter referred to as "University") wherein 64.5% received on account of the consultancy charges were to be distributed to the project team. ` e) The petitioner and other members of the team developed the software package AU Power Lab and distributed the software with relevant training to thirty three colleges under Phase-I. Subsequently, the petitioner raised a bill amounting to Rs.24.948 lakhs representing the consultancy charges collected from thirty three colleges. The said bill was approved by the University officials and the same was submitted to the Vice Chancellor for approval. The Vice Chancellor has accordingly approved the said bill as well as the note appended to the bill certifying that the consultancy charges have been checked by the Professor of Planning and Development Section and found to be as per the University norms. f) Subsequently the second respondent as per letter dated 26.7.2004 sought certain clarification with respect to the software development of the petitioner and his team and accordingly they have submitted a detailed report on 12.8.2004 which was followed by another letter by the second respondent dated 5.10.2004 addressed to the third respondent raising objections to certain particulars provided by the co-ordinator and sought further clarifications to enable the second respondent to take a decision on the norms for pricing the software consultancy project. Later the petitioner came to know that a committee was constituted to fix the norms of distribution of revenue between the University and the project team. g) While the matter stood thus, the petitioner received the impugned order dated 22.9.2005 addressed to the Co-ordinator of the project fixing a sum of Rs.10.24 lakhs as one time honorarium to the team to be distributed to the team members with indication that the ownership of the package on payment of the said sum would vest with the University. The order further directed the team members to hand over the developed source code and the executable version of AU Power lab simulation software to the University. The said order dated 22.9.2005 is the subject matter of the present writ petition. 3. The second respondent, the Registrar, Anna University in his counter denied the claim of the writ petitioner pertaining to the consultancy project. It was his contention that reference to administration of the project as a consultancy project in the https://hcservices.ecourts.gov.in/hcservices/ communication issued by the respondents would only mean the administration aspect regarding the consultancy to be carried out by the Committee and has nothing to do with the remuneration of the Committee. It was further indicated in the counter that there was no contract between the petitioner and the University to pay the consultancy charges and as such, the petitioner is not entitled to claim the usual consultancy charges for the work undertaken by the team. It was also stated that the withdrawal of a sum of Rs.24,94,800/- as per the bill received by the petitioner cannot be construed to be an approval for making the payment for remuneration to them . In short, it was the contention of the second respondent that the petitioner is not entitled to treat the work as any other consultancy project undertaken by the University. 4. Heard Mr.L. Rajah, learned counsel for the petitioner and Mr.Mani Sundaragopal, learned counsel appearing on behalf of the respondents. 5. Learned counsel for the petitioner by placing reliance on the correspondence between the parties as well as the proceedings of the University contended that there was a binding contract between the parties whereby the University agreed to pay the consultancy charges to the petitioner. It was only after the completion of work by the team and payment of the first instalment that the University has constituted a committee to fix the norms for the payment to the team for developing the software and as such post facto review cannot be permitted. Learned counsel further contended that the letter sent by the University to the petitioner clearly shows that the project was treated as any other consultancy project by the University and it is too late for them to contend that by using the word "administration" they meant only the administration aspect of the consultancy and not payment of the remuneration to the team treating it as a consultancy project. 6. Thiru Mani Sundaragopal, learned Standing Counsel for the University contended that the very writ petition is not maintainable in view of the disputed questions of fact involved in the matter. It was also contended that the University never agreed to pay the consultancy charges to the petitioner and it was only a request made by the petitioner to pay the charges and at no point of time the University agreed to pay the charges. Learned counsel by placing reliance on the undated report of the Committee appointed by the Vice Chancellor submitted that the Committee after due deliberation took the decision to pay a consolidated amount to the team and the said decision cannot be stated to be bad so as to get it quashed in a proceeding under https://hcservices.ecourts.gov.in/hcservices/ Article 226 of the Constitution of India. With respect to the contention that no notice was given to the petitioner before taking the decision by the Committee, learned counsel for the University contended that there was no requirement to give such notice as the same was only an administrative function assigned to the Committee by the Vice Chancellor. In the said factual situation, the learned counsel prayed for dismissal of the writ petition. 7. The only point which arises for consideration in the present writ petition is as to whether there was any such agreement to pay consultancy charges to the project team as contended by the petitioner so as to quash the order impunged in the writ petition. 8. It is found from the proceedings dated 10.6.1995 of the University that they have issued guidelines in respect of the consultancy undertaken by the faculty members and that the remuneration to the staff member is restricted to his annual gross salary and as per the appendix to the said guideline it was indicated that out of the consultancy charges calculated by the University 33.5% would go to the University and 64.5% would be divided between the consultancy group as well as non teaching staff. 9. The writ petitioner in his capacity as the Chairman, Faculty of Electrical Engineering as well as Member of the Project team for developing the software package for Power System Simulation Laboratory to be submitted to the affiliated colleges, submitted a request to the University as per letter dated 22.4.2004 wherein it was indicated that the Registrar has approved the proposal to treat the project like any other consultancy project and requested the University to relax the guideline regarding the maximum amount payable to the project team being their annual gross salary as a special case. In the said letter, the University has made an endorsement to the effect that the matter was discussed in detail in an informal meeting at the Registrar's Chamber and it was decided that the product development would be treated as a consultancy project undertaken by the team members on behalf of the University and handled by the Centre for Faculty Development as the product is to be used by the affiliated colleges for academic purposes. It was further indicated in the said note that all procedural formalities relating to any consultancy project will be followed in the present case also. https://hcservices.ecourts.gov.in/hcservices/ 10. As per letter dated 19.3.2004, the petitioner requested the University for their approval for the consultancy project with a request that the same may be administered as per the norms of the University for consultancy works. Accordingly, approval was granted by the University as per proceedings dated 23.3.2004 and in the said proceedings it was clearly indicated that the project should be administered as per the norms established for a consultancy project by the University. The software was intended to be used by the Colleges affiliated to the University and in effect it was a commercial transaction for the University. The Registrar of the University as per his communication dated 25.3.2004 informed the affiliated colleges about the software with a request to contact the petitioner for the software developed by the University 11. The Registrar of the University as per proceeding No.5135/PD7/2004 dated 30.4.2004 informed the Director of Centre for Faculty Development of Anna University about the constitution of a Committee by the Vice Chancellor on the basis of the proposal given by the writ petitioner to undertake the project of developing software modules and that the project team consists of the Professor of Electrical Engineering as Co-ordinator and three other members. In the said proceedings it was also clearly indicated that the project should be administered as per the norms established by the consultancy project by the University. In fact in the later part of the proceedings it was noted that the project was being carried out as a consultancy project and all norms and procedures relating to the consultancy projects shall be followed in the particular project also. The Registrar as per proceedings dated 3.5.2004 granted sanction for drawal of a sum not exceeding Rs.1,51,200/- by the Finance Officer treating the sanction under the head "consultancy charges". 12. While the matter stood thus, the Co-ordinator of the consultancy project as well as the project team submitted a proposal to the Director, Centre for Faculty Development of the University for approval of the disbursement of consultancy charges for Phase – I as per university norms. In the said communication it was clearly stated that as per the university norms, the share to the consultancy work team members out of the consultancy charges of Rs.24.984 lakhs were given in Annexure I and II and requested for approval. Annexure No.1 shows the break up of the consultancy charges and consultancy group, claimed at 64.5% as per the University norms for consultancy charges. The distribution of the consultancy charges were clearly as per the University norms as evident by the proceedings dated 9.6.2004. https://hcservices.ecourts.gov.in/hcservices/ 13. The proposal for distribution of consultancy charges as submitted by the Co-ordinator as per letter dated 9.6.2004 was examined by the University at the higher level consisting of Vice Chancellor, Professor for Planning and Development as well as the Director, Centre for Faculty Development. In the proceedings of the Vice Chancellor dated 9.6.2004 the request made by the Co- ordinator of the consultancy project for approval of the distribution of consultancy charges as per University norms was clearly stated. The said proposal was approved by the Vice Chancellor and the other two members and decided to place the same before the Executive Committee for ratification. 14. In pursuance of the request given by the Co-ordinator of the consultancy project as per his letter dated 9.6.2004 and the approval granted by the Vice Chancellor as per proceedings dated 9.6.2004, the Registrar granted financial approval for drawal of a sum of Rs.24,94,800/- and to transfer the same to the Director, Centre for Faculty Development, Anna University and to treat the sanction under the head of account "consultancy charges". After payment of the amount as per the sanction order dated 10.6.2004, the Registrar called upon the third respondent as per communication dated 26.7.2004 to submit certain particulars for the purpose of processing the consultancy project. It was also indicated that the information sought for in the said communication was for the purpose of deciding the norms for payment regarding the software projects done as consultancy project. 15. In pursuance of the said request, the third respondent submitted the required particulars to the second respondent as per his reply dated 12.8.2004. Having not satisfied with the reply received from the third respondent the Registrar as per letter dated 5.10.2004 again requested the third respondent to submit certain other particulars and in the said letter it was indicated that the University will decide on the norms for pricing the software consultancy project and the request was also complied with by the third respondent. The said reply was followed by another letter from the second respondent dated 9.2.2005 addressed to the third respondent wherein the University had indicated its intention to put the product for commercial use. For the first time in the said communication the second respondent has come up with the information regarding constitution of a Committee to define the norms. https://hcservices.ecourts.gov.in/hcservices/ 16. It was found from the proceedings dated 9.2.2005 of the second respondent that the University constituted a Committee to fix the norms of distribution of revenue between the University and the project team in charge of developing and distributing the software. In the note appended to the constitution of the Committee it was indicated by the University that the laboratory subject EE 435 named as "Power System Simulation" was introduced after the University became affiliating type in the early 2001 and a team of faculty members of the EEE Department put their minds together to integrate all the modules developed over a period of 25 years with the objective to help the self financing colleges with this package to conduct the above mentioned laboratory and a last lap of the work was the development of an opening manual in the commercial package style to go along with software package. It was also stated in the note that the project was not originally envisaged as a consultancy work but the idea came later to help the students and ultimately the team leader has raised a bill for consultancy charges which runs to tens of lakhs of rupees and in the said circumstances the University was faced with the problem of disposal of the claim and as such the legitimacy of the claim was referred to the Committee to examine and make suitable recommendations to settle the issue. 17. Subsequently the Committee appears to have submitted its report to the University and accordingly the impugned order has been passed on 22.9.2005 fixing the one time honorarium at Rs.10.25 lakhs to the team to be distributed among its members. In the impugned communication it was also indicated that the ownership of the package rests with the University and the team members should educate the junior faculty members in the department about the know how of the package so as to enable the University to use the same. Aggrieved by the said order, the petitioner has filed the present writ petition. 18. The string of correspondence referred to above clearly shows that there was meeting of minds between the project team including the petitioner (hereinafter referred to as "project team") and the University to pay the consultancy charges. Even though no written agreement had been entered into between the parties, the correspondence exchanged between them speaks for themselves and without any difficulty it could be seen that they have entered into a consultancy agreement, the terms and conditions of which are binding on the respective parties. https://hcservices.ecourts.gov.in/hcservices/ 19. The terms and conditions of the consultancy project and the division of profits between the University and the project team are clearly found in the guideline dated 10.6.1995. Therefore there is no difficulty about the mode of distribution of the consultancy charges. 20. The next issue is as to whether on the basis of the correspondence exchanged between the parties, it can be said that a binding contract had been entered into between the parties. 21. The Apex Court in Rickmers Verwaltung GMBH v. Indian Oil Corpn. Ltd., reported in 1999(1) SCC 1 considered the question as to whether any agreement can be spelt out from the correspondence between the parties in a particular case and held thus:- "12. The submission of Mr. Nariman that an agreement, even if not signed by the parties, can be spelt out from correspondence exchanged between the parties, admits of no doubt. In fact, various judgments cited by him at the Bar unmistakably support this assertion. The question, however, is: can any agreement be spelt out from the correspondence between the parties in the instant case? 13. In this connection the cardinal principle to remember is that it is the duty of the court to construe correspondence with a view to arrive at a conclusion whether there was any meeting of mind between the parties, which could create a binding contract between them but the court is not empowered to create a contract for the parties by going outside the clear language used in the correspondence, except insofar as there are some appropriate implications of law to be drawn. Unless from the correspondence, it can unequivocally and clearly emerge that the parties were ad idem to the terms, it cannot be said that an agreement had come into existence between them through correspondence. The court is required to review what the parties wrote and how they acted and from that material to infer https://hcservices.ecourts.gov.in/hcservices/ whether the intention as expressed in the correspondence was to bring into existence a mutually binding contract. The intention of the parties is to be gathered only from the expressions used in the correspondence and the meaning it conveys and in case it shows that there had been meeting of mind between the parties and they had actually reached an agreement upon all material terms, then and then alone can it be said that a binding contract was capable of being spelt out from the correspondence." 22. The following factors would show that there was a concluded contract between the parties to pay the consultancy charges to the project team in accordance with the guidelines framed by the University for distribution of consultancy charges. "(a) The project team through the petitioner made a request to the University to grant exemption from the provisions of the guideline to the effect that the remuneration to the project team should not exceed their annual gross salary. In the said communication it was also emphasised by the project team that the project is being taken up and treated as a consultancy project for financial administration. In the note found in the said letter dated 22.4.2004, the University has clearly recorded that the product development will be treated as a consultancy project undertaken by the team members on behalf of Anna University. It was also indicated that all procedural formalities relating to any other consultancy project will be followed in this case too. (b) As per letter dated 19.3.2004, the Chairman, Faculty of Electrical Engineering requested the University to treat the project as consultancy project undertaken by the office of the Chariman, Faculty of Electrical Engineering through the committee constituted by the Registrar and to grant approval to the consultancy project with a further request to administer the same as per the norms of the University for consultancy https://hcservices.ecourts.gov.in/hcservices/ works. The said application was approved by the University as per communication dated 23.3.2004. In the said communication there was a clear recital that the project should be administered as per the norms established for a consultancy project by the University. (c) In the proceedings dated 30.4.2004 of the University the factum of treating the project as a consultancy project was further underlined by the University by stating that all norms and procedures relating to consultancy projects shall be followed in this project. (d) The Co-ordinator of the project team submitted a proposal for distribution of consultancy charges Phase -I as per University norms through his letter dated 9.6.2004. The said letter was accompanied by Annexures I and II and in those two Annexures the distribution of consultancy charges as per the guidelines of the University viz., 64.5% for the consultancy group and 33.5% to the University was clearly indicated. The said proposal to distribute the consultancy charges as per the guideline of the University dated 10.6.1995 was approved by the University as per proceedings dated 9.6.2004. The Vice Chancellor, Professor of Planning and Development as well as Director, Centre for Faculty Development were the signatories in the said proceeding. (e) The University as per proceedings dated 10.6.2004 permitted withdrawal of a sum of Rs.24,94,800/- for the purpose of payment of consultancy charges to the project team and the sanction was marked under the head "Consultancy Charges". The proceedings dated 9.6.2004 and 10.6.2004 clearly shows that there was a concluded contract between the project team and the University binding on both the parties and by way of part performance of the contract, the University had disbursed a sum of Rs.24,94,800/- to the project team, being consultancy charges for Phase-I. https://hcservices.ecourts.gov.in/hcservices/ 23. The materials produced by the petitioner referred to above clearly shows that an enforceable agreement has been entered into between the project team and