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PG TRB: Commerce Court Case Judgement

 PGTRB:COMMERCE CASE JUDGEMENT - W.P.No.31869,70, 71/2013


IN THE HIGH COURT OF JUDICATURE AT MADRAS
 DATED :  04.07.2014
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
W.P.No.31869, 31870 and 31871 of 2013 and
M.P.Nos.1 and 2 of 2013 (in each petitions)
P.Kumar ... Petitioner in W.P.No.31869/2013
G.G.Boopathie ... Petitioner in W.P.No.31870/2013
P.Arul ... Petitioner in W.P.No.31871/2013
vs.
1.The Secretary to Government,
  Education Department,
  Fort St.George, Chennai -9.
2.The Director of School Education,
  College Road, Chennai - 600 006.
3.The Chairman/Member-Secretary,
  Teachers Recruitment Board,
  4th Floor, E.V.K.Sampath Maaligai,
  DPI Compound, College Road,
  Chennai - 600 006.   ... Respondents

W.P.No.31869 of 2013 filed under Article 226 of the Constitution of India praying for the issuance of a writ of  mandamus, directing the 3rd respondent to award full marks with reference to the question Nos.115, 126 and 140 in the booklet Series-C in the Commerce Subject to the petitioner and to conduct certificate verification, select, publish and appoint petitioner to the post of P.G.Assistant in Commerce for the year 2012-2013.
W.P.No.31870 of 2013 filed under Article 226 of the Constitution of India praying for the issuance of a writ of  mandamus, directing the 3rd respondent to award full marks with reference to Question Nos.55, 61, 73, 77, 90, 102, 103, 111 and 150 for the Booklet Series B in the Commerce Subject more particularly mentioned in the affidavit and also to award weightage of 4 marks for employment seniority duly registered with the Professional and Executive Employment Office, Chennai-4 to the petitioner and to conduct certificate verification  select  publish and appoint petitioner to the post of P.G.Assistant in Commerce for the year 2012-2013.
W.P.No.31871 of 2013 filed under Article 226 of the Constitution of India praying for the issuance of a writ of  mandamus, directing the 3rd respondent to award full marks with reference to Question Nos.120 and 131 in the Booklet Series A in the Commerce Subject to the petitioner and to conduct certificate verification select  publish and appoint petitioner to the post of P.G. Assistant in Commerce for the year 2012-2013.
For Petitioners : Mr.G.Ilamurugu
For Respondents   : Mr.PH.Arvindh Pandian
  Additional Advocate General
  Assisted by
  Mr.D.Krishna Kumar,
          Special Government Pleader
C O M M O N  O R D E R
These writ petitions have been listed before me as specially ordered cases on the orders of the Hon'ble Acting Chief Justice, dated 25.06.2014.
2.The Teachers Recruitment Board, Government of Tamil Nadu, has issued advertisement in Advt.No.02/2013, dated 09.05.2013, inviting applications from eligible candidates for direct recruitment to various subjects in the Tamil Nadu Higher Secondary Educational Services.  In all these cases, the petitioners had applied for the post of Post Graduate Assistants/Physical Education Directors Grade I.
W.P.No.31869 of 2013
The petitioner participated in the said examination in the subject Commerce.  His Roll Number is 13PG25110131.  The question papers were in four series.  The questions were of objective type.  The petitioner was supplied with 'C' series question paper. Challenging the key answers in respect of question Nos.115, 126 and 140 in "C" Series, the petitioner is before this Court with this writ petition.
3.I have heard the learned counsel for the petitioner and the learned Special Government Pleader appearing for the respondents and I have also perused the records carefully.
4. The learned counsel appearing for the petitioner fairly conceded that the correctness of the said question Nos.126 and 140
have already been decided by this Court in earlier writ petitions. In view of the said admitted position, no further adjudication is required in respect of the key answers for these questions.
5.Now, what remains to be adjudicated upon is question No.115  in 'C' Series. Question No.115 reads as follows:-
"115. A director can be removed from the office by the Central Govt. on the recommendation of:
     (A) Labour Tribunal (B) The Company Law Board
     (C)The Company Law Tribunal
     (D) The Registrar of the Companies "
6.The learned counsel for the petitioner would submit that  Chapter IV A of the Companies Act was introduced by means of Companies (Second Amendment) Act, 2002. He would further submit that as per the said amendment, in the place of "Company Law Board", "Tribunal" was substituted. According to the learned counsel, the said provision was challenged before this Court in R.Gandhi v. The State, wherein, this Court has held that the constitution of the Tribunal was unconstitutional. As against the same, SLP was filed before the Hon'ble Supreme Court, wherein, a same view was taken.  Further, according to the learned counsel for the petitioner, Chapter IV A was never notified as required under the Companies (Second Amendment) Act, 2002. Therefore, according to him, it is only "Company Law Board", which has got power to make recommendation and on whose recommendation, a director can be removed.
7. Today, four experts in the said subject are present before this Court. They are Dr.R.Prabakaran, Head of the Department and  Associate Professor of Commerce, Government Arts College,   Nandanam, Dr.C.Ladha Pooranam, Associate Professor of Commerce, Presidency College, Chennai, Dr.D.Usha Rani, Associate Professor of Commerce, Queen Mary's College, Chennai and Dr.Jayanthi Lakshmanaswamy, Associate Professor of Commerce, Government Arts College, Nandanam. This Court had the benefit of hearing them also. According to them, as per Section 388-E of the Act, which was introduced by means of Companies (Second Amendment) Act, 2002, the "Tribunal" alone is competent to make a recommendation to the Central Government for removal of a director.
8. I have considered the above submissions.
9. The examination in question was conducted in the year 2012 and therefore, we are concerned with the Companies Act, 1956. Of course, now the said Act has been repealed by Companies Act of 2013.  So far as Companies Act of 1956 is concerned, Chapter IV A was introduced by means of Amendment Act 53 of 1963 with effect from 01.01.1964.  As per Section 388 E of  Chapter IV A, notwithstanding any other provision contained in this Act, the Central Government shall by order, remove from office any director, or any other person concerned in the conduct and management of the affairs, of a company, against whom there is a decision of the Company Law Board under this Chapter.
10. By means of the Companies (Second Amendment) Act, 2002, Chapter IV A was amended and instead of "Company Law Board", the "Tribunal" was substituted.  Thus, according to the Amendment Act, which was introduced in the year 2002, it is only the "Tribunal", which has got the power under Section 388E to make recommendation for removal of a Director. But unfortunately, the said Amendment Act of 2002, relating to Chapter IV A was never notified.  As per the Amendment Act, the provisions of the amendment Act shall come into force from the date to be specified by the Central Government by means of notification. Since in this case, amendment made to Chapter IV A, was not all notified, the "Tribunal" was not constituted and it was only "Company Law Board" which has been functioning. Above all, the said amendment was already set aside by this Court, which has been confirmed by the Supreme Court. Therefore, as it stood in the year 2012, under Section 388E, as it remained unamended, it was only the "Company Law Board", which was competent to recommend for removal of a director. In that view of the matter  Option B - "The Company Law Board" alone is the right answer.
11. At the same time, this Court cannot deny marks for the candidates who have answered Option C - "The Company Law Tribunal".   In all the text books, which have been produced before me, it is stated that it is Company Law Tribunal, which has got power to make recommendation to the Central Government to remove a director.  This is based on the Amendment Act 2002.  Now the question is whether a Post Graduate Teacher, who is not a legal expert, can be expected to know about the judgment of this Court as well as the judgment of the Hon'ble Supreme Court and also about the date of notification. In my considered opinion, the answer is an emphatic No.  It is expected of from a Teacher to read only text books and not to analyse the legal position like a law expert.  Therefore, those candidates, who have answered option 'C' as right answer based on the text books cannot be penalised. This is accepted by the learned Special Government Pleader also.
12. Therefore, I am of the view that while awarding marks for those candidates, who have opted Option "B" as right answer, marks cannot be denied to those candidates, who have opted Option "C" as right answer.
13.  Therefore, W.P.No.31869 of 2013 stands allowed. The  Teachers Recruitment Board is directed to revaluate the answer scripts of all the candidates in the subject of Commerce and award marks for both Options viz., Option B - The Company Law Board and Option C - The Company Law Tribunal  in respect of question No.115. No costs. Connected miscellaneous petitions are closed.
W.P.No.31870 of 2014
14. The challenge in this writ petition relates to key answers in Commerce subject. The petitioner challenges key answers to  Question Nos. 55, 61, 73, 77, 90, 102, 103, 111 and 150 in "B" Series.
15. It is brought to my notice by the learned Special Government Pleader appearing for the respondents that the correctness of the said question Nos. 55, 73, 77, 90, 103, 111 and 150 in "B" Series have already been decided by this Court in earlier writ petitions.  In view of the said admitted position, no further adjudication is required in respect of the key answers for the said questions.
16. Now what remains to be adjudicated upon is question Nos.61 and 102.
"Question No.61 reads as follows:-
61. Tariff is a tax levied on:
(A) Exports (B) Imports
(C)Profit of a firm (D)Sales of a Commodity
R';fthp vjw;F tpjpf;fg;gLfpwJ ?
(A) Vw;Wkjpfs; (B) ,wf;Fkjpfs;
(C) epWtdj;jpd; ,yhgk; (D) bghUl;fs; tpw;gid"
17. The learned counsel for the petitioner would submit that in Tamil Version, the expression used is  "R';fthp", which  means Customs. He would submit that customs duty can be imposed only on imported goods and not on exported goods.  It is on this ground, the learned counsel would submit that the question is wrong.
18. But the learned Special Government Pleader would submit that customs duty is imposed both on import as well as on export goods. Therefore, Option "A" as well as Option "B" are correct answers. Accordingly, marks have been awarded for  Option "A" as well as Option "B" The said statement is recorded.
19. Admittedly, the question relates only to customs duty.  The contention of the petitioner that customs duty can be imposed only on import goods cannot be accepted, in view of Section 16 of the Customs Act, 1962, which states customs duty is leviable on export goods as well.
20. In such view of the matter, TRB was right in awarding marks for Option "A" as well as Option "B". Hence, the same does not require any interference.
21. Question No.102 reads as follows:-
"102. The numerical statements as well as statistical methodology is known as
A) Mathematics B) Statistics
C)Financial Management D)Commerce
vz;zpay; mwpf;ifia nghd;nw g[s;spay; Kiwfisa[k;________vd mwpfpnwhk;
(A) fzpjtpay; (B) epjpapay; nkyhz;ik
(C) g[s;spapay; (D) tzpftpay;"
22. Admittedly, the right answer is "Statistics". In the English version of the question, Option "B" is Statistics, whereas, in Tamil version, Option "C" is Statistics. Thus, the question itself is wrong.  Therefore, in my considered opinion, this question should be deleted and accordingly, it is ordered.  W.P.No.31870 of 2013 stands partly allowed. No costs. Connected miscellaneous petitions are closed.
W.P.No.31871 of 2014
23. The challenge in this writ petition relates to key answers in Commerce subject. The petitioner challenges key answers to  Question Nos. 120 and 131  in "A" Series.
24. It is brought to my notice by the learned Special Government Pleader appearing for the respondents that the correctness of the said question No.120 in "A" Series have been decided today by this Court in W.P.No.31869 of 2013 and hence, the same may be ordered in this writ petition also. It is submitted that so far as Question No.131 in "A" Series is concerned, the same has already been decided by this Court in earlier writ petition.
25. In view of the said submission made by the learned Special Government Pleader, in respect of Question No.120 in "A" Series is concerned, the order passed by this Court in W.P.No.31869 of 2013 is also extended to the petitioner herein. So far as Question No.131 in "A" Series is concerned, in view of the said admitted position, no further adjudication is required.  W.P.No.31871 of 2013 stands partly allowed. No costs. Connected miscellaneous petitions are closed.

04.07.2014
Index : Yes
Note : Issue order copy on 15.07.2014
svki
To
1.The Secretary to Government,
  Education Department,
  Fort St.George, Chennai -9.
2.The Director of School Education,
  College Road, Chennai - 600 006.
3.The Chairman/Member-Secretary,
  Teachers Recruitment Board,
  4th Floor, E.V.K.Sampath Maaligai,
  DPI Compound, College Road,
  Chennai - 600 006.
S.NAGAMUTHU,J.
svki
W.P.No.31869, 31870 and
31871 of 2013
04.07.2014

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