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Tribendralal Choudhury Vs. Gauhati University and ors. - Court Judgment

LegalCrystal Citation
Subject;Constitution
CourtGuwahati High Court
Decided On
Case NumberCivil Rule No. 144 of 1982
Judge
ActsConstitution of India - Article 226
AppellantTribendralal Choudhury
RespondentGauhati University and ors.
Appellant AdvocateP.K. Goswami and S.N. Sarma, Advs.
Respondent AdvocateB. Sarma, T.N. Phukan and A.C. Sarma, Advs.
DispositionPetition allowed
Excerpt:
.....or the boards, set up enquiry committees to deal with the problem posed by the adoption of unfair means by candidates, and normally it is within the jurisdiction of such domestic tribunals to decide all relevant questions in the light of the evidence adduced before them. this problem which educational institutions have to face from time to time is a serious problem and unless there is justification to do so, courts should be slow to interfere with the decisions of domestic tribunals appointed by educational bodies like the universities. chakra-vorty, we find no corroboration in the charge as well as the subsequent communications. otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought..........incident took place in the examination hall or outside as alleged. in fact, the petitioner adopted unfair means in the examination while appearing in b.a. part i examination on 5-5-81 and he was detected by the invigilator sri s. k. chakravorty, after the examination was over while shri s. k. chakravorty was returning home, the petitioner assaulted him in front of central telegraph office. the matter was immediately reported by shri s. k. chakravorty to the principal, cotton college, who called the petitioner and was informed about the fact that he had assaulted shri s. k. chakravorty, as shri. chakravorty as an invigilator objected to his adopting unfair means in the examination on 5-5-81. the petitioner in the circumstances was given enough notice about the allegation made against him.....
Judgment:

Saikia, J.

1. The writ petitioner herein impugns the order D/- 15-12-81 (Annexure F) issued by the Deputy Registrar (Examination), Gauhati university, informing the petitioner that his B.A. (Two Year) Examination of 1980 has been cancelled and he has been further debarred from appearing at any University Examination for two subsequent years for his assaulting invigilator in the said examination.

2. The facts are short. The petitioner appeared in the B.A. Part-II 1980 examination which ended on 5-5-81 from the Cotton College, Gauhati, under Roll No. 14127. On 6-5-81 his father received a letter dated 6-5-81 (Annexure A) from the Principal, Cotton College. It stated that there was some anomaly relating to the petitioner's examination, and, therefore, the father was urgently requested, to come to the Principal's office with his son, the petitioner, by 7th May, 1981. When the petitioner with his father met the Principal, on being asked the petitioner denied that there was any assault of any invigilator by him. While the matter was expected to have ended there, the petitioner received a letter D/- 17-9-81 (Annexure B) informing him that his result was withheld on a confidential report that he assaulted invigilator, Sri S. Choudhury (later on corrected as S. K. Chakravorty) while the latter was returning home after completing his invigilation duty on 5-5-81. The petitioner was asked to show cause on or before 26-9-81 why he would not be liable for appropriate action for the above charge. The petitioner showed cause in his No. TLC/1 dated 20-9-81 (Annexure C), wherein he stated that he did not recognise Sri S. Choudhury, invigilator either by face or by name; there was no reason of assaulting him as alleged; that there was no incident of assaulting anybody by him on 5-5-81; that he submitted his answer paper as usual without any obstacles and came out of the hall and went straight to the city bus stand for proceeding towards his home as he felt very much exhausted. He expressed surprise as to what might be the intention of bringing such an allegation against him about which he had no knowledge at all. It may be noted that the name of the invigilator was yet to be corrected. The petitioner's father also sent a letter D/- 4-11-81 to the Deputy Registrar (Examination), praying that the result of his son may be declared, otherwise the life of his innocent young son might be ruined. The Deputy Registrar in reply D/- 7-11-81 informed that the case of his son had not yet been decided and the candidate would be informed in due course.

3. By letter D/- 15-12-81 (Annexure F), the petitioner has been informed that his B.A. (Two Year) Examination of 1980 has been cancelled for assaulting invigilator in ' he said examination and further he has been debarred from appearing at any University examination of two subsequent years. Hence, this petition.

4. The University in para 4 of its affidavit-in-opposition, states :--

'It was not a fact that no incident took place in the examination hall or outside as alleged. In fact, the petitioner adopted unfair means in the examination while appearing in B.A. Part I Examination on 5-5-81 and he was detected by the invigilator Sri S. K. Chakravorty, After the examination was over while Shri S. K. Chakravorty was returning home, the petitioner assaulted him in front of Central Telegraph Office. The matter was immediately reported by Shri S. K. Chakravorty to the Principal, Cotton College, who called the petitioner and was informed about the fact that he had assaulted Shri S. K. Chakravorty, as Shri. Chakravorty as an invigilator objected to his adopting unfair means in the examination on 5-5-81. The petitioner in the circumstances was given enough notice about the allegation made against him which he had denied. No further question of giving any opportunity can arise in the circumstances of the case.'

5. Mr. P. K. Goswami, the learned counsel for the petitioner, inter alia, contends that on the allegations in the show cause notice, the University should not have penalised the petitioner by cancelling his examination and debarring him from appearing in the University Examinations for the next two years; that no enquiry of any kind having been made, and the confidential report having not been furnished; and no hearing of any kind having been given, there is violation of the principles of natural justice; and that the whole action is colourable for the alleged adoption of unfair means while the petitioner is penalised for assault of invigilator.

6. Mr. B. Sarma, the learned counsel for the University on the other hand, submits that the Executive Council of the University has the authority to cancel the examination of an examinee who adopts unfair means at the examination and to debar him from appearing ia future examinations; and that the petitioner has been rightly penalised for his adopting unfair means and assaulting invigilator. Counsel further submits that if such a candidate is not penalised, none will come forward to perform invigila-tion duty at University examinations. He, however, fairly concedes that the charge in this case was not happily framed.

7. The principles of law in the matter of cancellation of examinations by Universities and Education Boards on the ground of the students having adopted unfair means have by now been more or less crystallised. In Board of High School and Intermediate Education, U. P. Allahabad v. Ghanshyam Das Gupta AIR 1962 SC 1110, it has been observed that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially. It has further been observed that the Examinations Committee of the Board of High School and Intermediate Education, U. P., appointed under Section 13, U. P. Intermediate Education Act 2 of 1921, when it exercises its powers under that Act in dealing with cases of examinees using unfair means in examination halls is acting quasi-judicially and the principles of natural justice which require that the other party, namely, the examinee must be heard, will apply to the proceedings before the Committee. Though there was nothing express one way or the other in the Act or the Regulations casting a duty on the Committee to act judicially, the manner of the disposal based as it must be on materials placed before it, and the serious effects of the decision of the Committee on the examinee concerned, must lead to the conclusion that a duty is cast on the Committee to act judicially in that matter, particularly as it has to decide objectively certain facts which may seriously affect the rights and careers of examinees, before it can take any action in the exercise of its powers.

8. The same principle was reiterated in Principal, Patna College v. K. S. Raman, AIR 1966 SC 707, where it has been observed : 'that in dealing with matters relating to orders passed by authorities of educational institutions the High Court should normally be very slow to pass ex parte interim orders under Article 226 of the Constitution because matters falling within the jurisdiction of the educational authorities should normally be left to their decision, and the High Court should interfere with them only when it thinks it must do so in the interest of justice.' In Board, of High School and Intermediate Education, U. P. Allahabad v. Bagleshwar Prasad, AIR 1966 SC 875, it has been reiterated 'that an order passed by a Tribunal holding a quasi-judicial enquiry which is not supported by any evidence, is an order which is erroneous on the face of it and as such, is liable to be quashed by the High Court in exercise of its high prerogative jurisdiction to issue a writ under Article 226.' In dealing with writ petitions against the orders of the Universities or Education Boards, cancelling the examination results of candidates, it is necessary to bear in mind that education institutions like the Universities or the Boards, set up enquiry Committees to deal with the problem posed by the adoption of unfair means by candidates, and normally it is within the jurisdiction of such domestic tribunals to decide all relevant questions in the light of the evidence adduced before them. In the matter of adaption of unfair means, direct evidence may sometimes be available, but cases may arise where direct evidence is not available and the question will have to be considered in the light of probabilities and circumstantial evidence. This problem which educational institutions have to face from time to time is a serious problem and unless there is justification to do so, Courts should be slow to interfere with the decisions of domestic Tribunals appointed by educational bodies like the Universities. In dealing with the validity of the impugned orders passed by Universities under Article 226, the High Court is not sitting in appeal over the decision; in question its jurisdiction is limited and though it is true that if the impugned order is not supported by any evidence at all, the High Court would be justified to quash that order. But the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify the said conclusion. Enquiries held by domestic Tribunals in such cases must, no doubt, be fair and students against whom charges are framed must be given adequate opportunities to defend themselves, and in holding such enquiries, the Tribunals must scrupulously follow rules of natural justice, but it would not be reasonable to import into these enquiries all considerations which govern criminal trials in ordinary courts at law, Where no animus is suggested and no mala fides have been pleaded and the enquiry has been fair and the student has had an opportunity of making his defence, the High Court will not be justified in interfering with the order passed against the student cancelling his examination result.

9. The above principles have consistently been followed by their Lordships of the Supreme Court in Prem Prakash Kaluniya v. The Punjab University, AIR 1972 SC 1408. There a charge against the examinee was of copying at the examination. It was held that the examinee must be adequately informed of the case he had to meet and be given a full opportunity of meeting it. As to what the extent and content of that information should or ought to be would depend on the facts of each case.

10. In Gauhati University v. Paban Rajkonwar, 1070 Aasam LR (SC) 1, where the candidate was debarred from appearing at University Examination and in answer to show cause notice alleging use of unfair means at the examination, the candidate desired that his examination answer scripts be sent to the handwriting expert and the expert reported against him and in an application under Article 226 the High Court set aside the action taken by the University after perusal of the expert's report. On appeal, the Supreme Court did not agree with the conclusion of the High Court that the report of the handwriting expert completely absolved the candidate, and remanded the case for report as to whether the order of the Executive Council was vitiated, because the report of the Handwriting Expert had not been supplied or shown to the respondent by the Scrutiny Committee. On receipt of the report from the High Court that the report was shown to the respondent by the Scrutiny Committee, the Supreme Court held that the candidate had not been denied any opportunity to establish his innocence and that the principles of natural justice had been followed by the University; that the University was entitled to come to the conclusion it did; and that there was no material to show that the order of the University was vindictive.

11. In Shri Krishan v. Kurukshetra University, AIR 1976 SC 376 it has been held that once the candidate is allowed to take the examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant had worked itself out and the candidate cannot be refused admission subsequently for any infirmity which should have been looked into before giving the candidate permission to appear.

12. Applying the above principles to the facts of this case, we find that the candidate was duly admitted into the examination and he completed his examination on 5-5-81. The moment he submitted his last answer script and came out of the examination hall, his examination is supposed to have been completed. He is entitled to his result, unless it is cancelled lawfully. If thereafter he commits some insolence even if seemingly related to his examination he may be subjected to other process under the law, but it will be unreasonable to penalise him for such action by cancelling his examination which he duly completed Had he really adopted any. unfair means in the examination hall itself, it would have been open to the invigilator to detect and act according to rules. It would also have been open to the Officer-in-Charge of the Examination to have taken action against him according to rules and report the matter to the University Authority. In the instant case, we do not find from the records that any such steps had been taken. What we find is that after completion of his examination he returned home on 5-5-81. Only on 7th when his father with him appeared before the Principal, he was asked whether any incident of assaulting the invigilator (whose name was wrongly stated) took place at all, and the petitioner denied. From the records it appears that the impugned order is based on the resolution of the Executive Council of the. University dealing with cases of several students. From this resolution also it is not clear whether in case of the petitioner, whose name appears at serial No. 4, there was any allegation of using unfair means.

13. As regards the statement in the affidavit-in-opposition that the petitioner adopted unfair means in the examination while appearing in B.A. Part-II Examination, 1980 on 5-5-81 and he was detected by the invigilator Shri S. K. Chakra-vorty, we find no corroboration in the charge as well as the subsequent communications. The Principal's letter (An-nexure A) did not mention of any such unfair means being adopted by the petitioner. The charge (Annexure B) did not contain any such allegation. The impugned order (Annexure F) also does not state or make any reference to any such unfair means having been adopted, at the examination. We have also perused the original records. There also we do not find any such allegation having been made against the petitioner or of his having been given any opportunity to explain any such charge.

14. In Mohinder Singh Gill v. Chief Election Commr., New Delhi, AIR 1978 SC 851 it has been observed that when a statutory functionary makes an order based on certain grounds, its validity must be judged, by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. 'Orders are not like old wine becoming better as they grow older'. This part of the allegation must, therefore, be held to be non existent.

15. The allegation of the petitioner having adopted unfair means being thus rejected, the next question will be whether the University was justified in cancelling the petitioner's examination and in debarring him from appearing in any examination for the next two years It is expected that while a student is in attendance, he is at liberty to terminate his relation with the University. It does :not follow that the Education Board or the University has the same right. The power to expel a student is an attribute of the Government of a University. Nevertheless by admitting a candidate to an examination by accepting the required fees, a contract between the student and the University is created containing at least two implied conditions : (1) that the examinee shall not be arbitrarily deprived of his examination; and (2) that the examinee will submit himself to reasonable rules and regulations for the breach of which, in a proper case, he may be expelled from the examination. It is well settled that where the Univer-sity acts with discretion in expelling a student from examination for flagrant violation of reasonable examination rules or regulation, their action will not be interfered with or set aside by the Courts.

16. A University stands in loco parentis concerning the physical and moral welfare and mental training of students and with that end may make any rule or regulation for their government or betterment that a parent could for the same purpose.

17. In Nripen Goswami v. Gauhati University, AIR 1967 Assam 5, it has been observed that the Executive Council is the chief administrative body of the University and has the power to cancel the degree of a student or to take disciplinary action under the appropriate provisions of the Act and also the power to maintain discipline of the University.

18. The problem of maintaining discipline of the University and of penalising examinees for adopting unfair means in University examinations are two different problems. In Abdul Haque Naseem v. Board of Secondary Education, Bhopal, AIR 1966 Madh Pra 228, under Board's Regulation 20 the Results Committee had the power of expelling a candidate from the examination of the paper concerned and to impose on him any other penalty only if the candidate had been found using unfair means or in possession of unauthorised or prohibit-ed articles such as papers, books, notes, etc, in the examination. But the Committee was not competent to impose under that regulation any penalty on an examinee for an alleged rude or objectionable behaviour with the invigilator during the examination that had no connection whatsoever with the use of unfair means or possession of unauthorised or prohibited articles. Under the circumstances it was held that the decision of the Results Committee cancelling the petitioner's result for the 1965 examination and debarring him from appearing at the 1966 examination, based on his insolent behaviour with the invigilator unconnected with any use of unfair means or possession of unauthorised or prohibited articles, could not be sustained as such an act was not punishable under Regulation 20. The same principles will apply to examination rules and regulations of Universities and Boards, unless otherwise provided.

19. It may, therefore, be expected that in the matter of insolent behaviour of an examinee connected with an examination the University may, in appropriate cases, if permitted by its regulations, take action against a student in respect of his examination, but while doing so the University has to scrupulously observe the principles of natural justice giving the examinee an adequate opportunity to state his case and to defend himself. If no opportunity is given it will not be a defence to say that the information was already known to or even emanated from the examinee himself. In S. L. Kapoor v. Jagmohan, AIR 1981 SC 136, it has been observed that 'the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independenty of proof of denial of natural justice is unnecessary. It will come from a person who has denied justice that the person who has been denied justice is not prejudiced'. It has further been observed that the requirements of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. It does not mean that the opportunity need be a 'double opportunity' that is, one opportunity on the factual allegations and another on the proposed penalty. Both may be rolled into one. But the person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. So also in Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818 (843) their Lordships of the Supreme Court reproduced from the judgment of Megarry, J. in John v. Rees, (1970) 1 Ch. 345 at p. 402. : 'As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not, of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change: Nor are those witfi any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.'

20. On the basis of the records of the case, it cannot be said that the petitioner was charged for adopting unfair means, or that he was given adequate opportunity to meet such a charge. He was not furnished a copy of the Principal's report. As regards the allegation of his assault of the invigilator, in face of clear and categorical denial by the petitioner in his cause shown to the charge, it was reasonably necessary consistently with principles of natural justice to institute an enquiry by an appropriate domestic body performing quasi-judicial function, inasmuch as civil right of the petitioner was involved. It is admitted that no such enquiry was held. On the other hand, what is stated is that what was done by the Principal, when the petitioner appeared before him (Principal) with his father gave him the opportunity to defend himself. That was, however, before the charge was intimated to the petitioner and, as such, it can by no means be regarded as an opportunity given to the petitioner to state his case and defend himself against the charge and the proposed penalty. There is, therefore, clear violation of the principles of natural justice, and under the circumstances, even though we are conscious of the state of the law, namely, that the University is empowered to cancel examination and take disciplinary measures in appropriate cases, and that in writ jurisdiction we are not sitting in appeal above the decision of the University; we are constrained to hold that in view of the clear violation of the principles of natural justice, by not affording reasonable opportunity of being heard, the impugned order cancelling the petitioner's examination and debarring him from appearing in examination of the next two years cannot be sustained. We accordingly hold that the impugned order is null and void and quash the order by a writ of certiorari and by a writ of Mandamus we command the University authorities to declare the petitioner's result forthwith; and in case the petitioner is declared to have failed in his examination, he shall be allowed to appear in the ensuing examination. It is stated at the Bar that the next examination is scheduled to be held from 19-3-82. The petitioner shall be allowed to appear in that examination on his payment of necessary fees under the Rules, irrespective of whether the last date for making application to appear is over or not. By our earlier order we directed that the result of the petitioner be sent to this Court under sealed cover. We have received the same as produced by the learned counsel for the University. The same is returned to the learned counsel for the University in the same sealed state to be returned back to the Deputy Registrar (Examination) for doing the needful in compliance with this court's order.

21. The petition is allowed. The Rule Is made absolute. In the facts and circumstances of the case there will be no order as to costs.


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