Case: The Vice-Chancellor, Utkaluniversity And Others Vs. S. K. Ghosh And Others

Compagnie De Mayville v. Whitley, 1896-1 Ch 788 (C), and - Parker and Cooper ltd. v. Reading, 1926-1 Ch 975 (D); also, in the present case one of the items in the agenda of both notices was "other matters, if any".But it is not necessary to go into that because in this case these members did in fact attend one or other of the meetings and expressed their views, not individually, but as members of a meeting which was considering the matter, and there was unanimity on both occasions. Even on the stricter view taken in the cases relied on by counsel it is pointed out that want of due notice can be waived in given circumstances. Thus, if a person who was not noticed appears at the meeting and waives the irregularity, the defect is cured; so also when a person is too far away to be reached in time to enable him to communicate with the Committee before the meeting; the sending of a notice is then excused. See - AIR 1934 PC 62 (A) and - Young v. Ladies Imperial Club Ltd., (1920) 89 LJKB 536 (E).The substance is more important than the form and if there is substantial compliance with the spirit and substance of the law we are not prepared to let an unessential defect in form defeat what is otherwise a proper and valid resolution. We, however, confine our remarks to the facts of this case where there was actual apperance without objection at meetings properly convened and where there was complete unanimity on both occasions. Where it would be proper to reach the same conclusion when there is a dissentient voice we are not prepared to say. In our opinion, the High Court was wrong in holding that the two resolutions were invalid. Whatever may be thought about each taken separately, the defects, If any, are in our judgment, cured when the two are read together and regarded as a whole.18. We also think the High Court was wrong on the second point. The learned Judges rightly hold that in a mandamus petition the High Court cannot constitute itself into a Court of appeal from the authority against which the appeal is sought, but having said that they went on to do just what they said they could not. The learned Judges appeared to consider that it is not enough to have facts established from which a leakage can legitimately be inferred by reasonable minds but that there must in addition be proof of its quantum and amplitude though they do not indicate what the yard-stick of measurement should be. That is a proposition to which we are not able to assent.19. We are not prepared to perpetrate the error into which the learned High Court Judges permitted themselves to be led and examine the facts for overselves as a Court of appeal but in view of the strictures the High Court has made on the Vice-Chancellor and the Syndicate we are compelled to observe that we do not feel they are justified. The question was one of urgency and the Vice-Chancellor and the members of the Syndicate were well within their rights in exercising their discretion in the way they did. It may be that the matter could have been handled in some other way, as, for example, in the manner the learned Judges indicate, but it is not the function of Courts of law to substitute their wisdom and discretion for that of the persons to whose judgment the matter in question is entrusted by the law.The University authorities acted honestly as reasonable and responsible men confronted with an urgent situation are entitled to act. They had experts or their own on their body. They examined others who in their opinion might throw light on the incident. They themselves compared the two papers and, after a deliberation of some six hours, arrived at an unanimous decision and then they reviewed the matter afresh at a second meeting with the assistance of one of their number who was not present on the first occasion. It is inaccurate to describe that as haste and unjust to characterise their action as unreasonable and lacking due care. This is decidedly not the sort of case in which a mandamus ought to issue. We accordingly set aside the order of the High Court.20. We now come to the undertaking given on behalf of the Vice-Chancellor. As we have observed, the Syndicate reached the conclusion that there had been a leakage and so cancelled the examinations and ordered fresh ones. Had the High Court not stepped in, those examinations would have been held nearly two and a half years ago and it is possible that all the students who were successful then would have passed again, or at any rate many of them would. But because of the High Courts order the examinations could not be held and the University was virtually directed to regard the examinations already held and the results already declared as good.The result has been that the students who passed have been studying and sitting for examinations in the higher classes for some two and a half years. If the status quo which would result from our setting aside of the High Courts order were to be resumed it would mean that those students would be put back to where they were two and a half years ago and would be compelled to do the courses which they have already covered all over again. In order to avoid such injustice we were told at the outset by counsel on behalf of the Vice-Chancellor that the University did not want to penalise them and so gave us the following undertaking drafted by the appellants counsel :"The students who are declared to have passed the first M.B.B.S Examination of the Utkal University held in April 1951 shall be deemed to have duly passed that examination and shall not be required to appear again in Anatomy."

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The substance is more important than the form and if there is substantial compliance with the spirit and substance of the law we are not prepared to let an unessential defect in form defeat what is otherwise a proper and valid resolution. We, however, confine our remarks to the facts of this case where there was actual apperance without objection at meetings properly convened and where there was complete unanimity on both occasions. Where it would be proper to reach the same conclusion when there is a dissentient voice we are not prepared to say. In our opinion, the High Court was wrong in holding that the two resolutions were invalid. Whatever may be thought about each taken separately, the defects, If any, are in our judgment, cured when the two are read together and regarded as alearned Judges rightly hold that in a mandamus petition the High Court cannot constitute itself into a Court of appeal from the authority against which the appeal is sought, but having said that they went on to do just what they said they could not. The learned Judges appeared to consider that it is not enough to have facts established from which a leakage can legitimately be inferred by reasonable minds but that there must in addition be proof of its quantum and amplitude though they do not indicate what the yard-stick of measurement should be. That is a proposition to which we are not able toquestion was one of urgency and the Vice-Chancellor and the members of the Syndicate were well within their rights in exercising their discretion in the way they did. It may be that the matter could have been handled in some other way, as, for example, in the manner the learned Judges indicate, but it is not the function of Courts of law to substitute their wisdom and discretion for that of the persons to whose judgment the matter in question is entrusted by the law.The University authorities acted honestly as reasonable and responsible men confronted with an urgent situation are entitled to act. They had experts or their own on their body. They examined others who in their opinion might throw light on the incident. They themselves compared the two papers and, after a deliberation of some six hours, arrived at an unanimous decision and then they reviewed the matter afresh at a second meeting with the assistance of one of their number who was not present on the first occasion. It is inaccurate to describe that as haste and unjust to characterise their action as unreasonable and lacking due care. This is decidedly not the sort of case in which a mandamus ought tothe status quo which would result from our setting aside of the High Courts order were to be resumed it would mean that those students would be put back to where they were two and a half years ago and would be compelled to do the courses which they have already covered all over again.