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Syed Mash-hood Ali ors. Vs. the Secretary, Board of Secondary Education Government of Andhra Pradesh, Hyderabad and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 523, 527 and 540 of 1960
Judge
Reported inAIR1962AP187
AppellantSyed Mash-hood Ali ors.
RespondentThe Secretary, Board of Secondary Education Government of Andhra Pradesh, Hyderabad and anr.
Appellant AdvocateD.M. Deshmukh, ;K.V. Sarma, ;S.K Rishnamurthi, ;Jalil Ahmed, ;Sardar Alil Khan and ;Mirza Munwar Ali Baig, Advs.
Respondent AdvocateGovt. Pleader
Excerpt:
.....examiners concerned were. after considering the explanations was satisfied about the guilt of the petitioners and so imposed the punishment of cancellation of their examination and debarring them for one year. ' i may also quote briefly from two other decisions of this house which indicate what is the duty of what are called 'administrative tribunal',not, perhaps, very happily because the word 'tribunal' suggests a court of law and a litigation, whereas what is meant may better be described as the duty of a body charged by statute with a duty of a body charged by statute with a duty of deciding. ..it will, i suppose, usually be of an administrative kind, but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. i need not add that in..........was 9790; the petitioner in w. p. no. 527/60 is alam ali khan and his roll number was 9820. the writ petitioners will be referred to hereinafter as the 1st, 2nd, and 3rd petitioner respectively.(2) the order by which the punishment was awarded to the petitioner was made on 1-7-1960 and it was in the following terms:'sub : h. s. c. public examination march april 1960 - alleged malpractice by certain candidates - orders passed.as the candidates whose roll numbers are furnished hereunder had recourse to malpractice during the h. s. c. examination march/april 1960, the commissioner for government examinations. andhra pradesh, hyderabad, has ordered that their marks in all the subjects at the public examination of march/april 1960 should be cancelled and that they should further be.....
Judgment:
ORDER

(1) These three writ petitions arise out of the action taken by the Commissioner for Government Examination, Andhra Pradesh, in cancelling the marks obtained by the petitioners in all the subjects at the H.S.C. Public Examination of March 1961. The action was taken on the ground that the three petitioners had indulged in malpractices during the said examination. These three writ petitions can be disposed of by a common judgment as the facts are similar and the question of law that arises is the same. In W.P. No. 523/60 the petitioner is Syed Mashhood Ali and his roll number at the examination was 9790; the petitioner in W. P. No. 527/60 is Alam Ali Khan and his roll number was 9820. The writ petitioners will be referred to hereinafter as the 1st, 2nd, and 3rd petitioner respectively.

(2) The order by which the punishment was awarded to the petitioner was made on 1-7-1960 and it was in the following terms:

'Sub : H. S. C. Public Examination March April 1960 - Alleged malpractice by certain candidates - Orders passed.

As the candidates whose roll numbers are furnished hereunder had recourse to malpractice during the H. S. C. Examination March/April 1960, the Commissioner for Government Examinations. Andhra Pradesh, Hyderabad, has ordered that their marks in all the subjects at the Public Examination of March/April 1960 should be cancelled and that they should further be debarred from appearing for one year i.e., two examinations October, 1960 and March 1961. The candidates may be informed accordingly.'

The roll number of the three petitioners were among those appended to the above order.

(3) In these writ petitions the 1st petitioner seeks a writ of certiorari or any other writ to quash the above order and also a writ of mandamus directing the Secretary to the Board of Secondary Education, Government of Andhra Pradesh, to announce his result in the examination. The 2nd petitioner seeks a writ of certiorari or any other appropriate writ to quash the said order, while the 3rd petitioner seeks a writ of mandamus directing the Commissioner for Government Examinations and the Secretary to the Board of Secondary Education to forbear from giving effect to the said order.

(4) The facts culminating in the impugned order may be briefly stated : The three petitioners were students of the Government Multi-purpose High School, Chanchalguda. They appeared for the School, Chanchalguda. They appeared for the H.S.C. Public Examination held in March/April 1960 and took the examination at the All Saints High School Hyderabad which was one of the centers for the examination. At that centres , 800 candidates of nine different High Schools and also private candidates sat for the examination. The first petitioner's name was registered for six compulsory subjects and one optional subjects and he took the examination in all the seven subjects. The examination was held from 31st March to 8th April 1960. The 1st petitioner was seated in Room No. 11 where 22 candidates were examined including the petitioner and the candidates with roll number 9791 was his immediate neighbour.

(5) The 2nd petitioner took the examination in six compulsory subjects and one optional subject. He was seated in Room No.13 where 28 candidates were examined and three other candidates with roll number 9837, 9838 and 9841 were his immediate neighbours in the examination hall.

(6) The 3rd petitioner was seated in another room and his immediate neighbours were candidates bearing roll numbers 9818, 9819 and 9821 to 9825.

(7) For the conduct of the examinations a number of invigilators and one Chief Superintendent were appointed. The examinees, however resorted to violence and malpractices on a large scale. Many candidates are said to have taken forbidden materials into the examination hall and the invigilators detected as many as seven such cases then and there. The situation at this centre during the conduct of the examination became uncontrollable, because the majority of the candidates resorted to malpractices and indulged in acts of rowdyism. They attempted to assault one of the Assistant Superintendents and caused damage to the school building and furniture which was estimated at Rs. 500/-. Consequently, the examination could not be conducted in an orderly manner but with great difficulty, it was completed according to the time-table.

(8) The Chief Superintendent of the centre, by his letter dated 18-4-1960 reported that most of the candidates who appeared at the centre depended for their success on malpractice of one form or another and most of them into the examination hall inspite of strict vigilance. While some were trying to bribe the invigilators seeking their help and some other were trying their best to elicit information from school peons as to who the examiners concerned were. Seven cases of copying with forbidden material were caught red-handed and reported. One of the Assistant Superintendents was attempted to be man-handed and reported. One of the Assistant Superintendents was attempted to be man-handled by the candidates for his strict vigilance and for not yielding to the request of the candidates to allow them to resort to malpractices.

(9) With a view to investigate and probe into the matter certain examiners of the H. S. C. Public Examination were appointed to scrutinise the scripts in each subject of all the candidates who appeared at the All Saints High School Centre and report cases of suspected malpractices on the strength of internal evidence furnished by the scripts. After having gone through the scripts they reported as many as 580 cases of suspected malpractises. The cases of the three petitioners fell in that category.

(10) The reports of the examiners along with the report of the Chief Superintendent together with a copy of the plan of the seating arrangements, were placed before a Body of Experts known as Select Malpractice Committee of the Board of Secondary Education which was appointed to advise the Commissioner for Government Examinations in matter of suspected malpractices. After having examined the 580 cases of suspected malpractices relating to the centre the Committee confirmed the examiners suspicion with regard to 207 cases. The cases of the petitioners were among those 207. The Commissioner for Government Examinations then examined the 207 cases and finally 171 candidates including the three petitioners were punished. In the case of the 1st petitioner, the Select Malpractice Committee reported that he was guilty of copying in Hindi Paper but did not agree with the opinion of the examiner in Elementary Mathematics (Paper-I) that he had copied in that paper also. The Commissioner for Government Examinations agreed with the finding of the Select Malpractice Committee. The 1st petitioner's neighbour bearing roll Number 9791 was similarly found to have copied in the Hindi Paper.

(11) The same procedure was followed with regard to the 2nd petitioner also. The Select Malpractice Committee reached the conclusion that he and his neighbours had been guilty of copying in Telugu (Second Language). With this finding , the Commissioner for Government Examinations agreed. The 2nd petitioner's answer papers are said to have revealed that he had copied the answer for question No. VII in the Telugu paper as also several other answers.

(12) Similarly the 3rd petitioner was found to have copied in two subjects - Telugu (Second Language) and Hindi. With regard to the former, his answer to question No. VII contained similar mistakes as in the answers given by candidates bearing roll Nos. 9818,9819 and 9821 to 9825. In the Hindi paper he is said to have copied answers to question No.VIII and the other guilty party was the candidate bearing roll No. 9821.

(13) It appears from the counter-affidavit filled by the Commissioner for Government Examination that explanations were called for from the delinquent candidates as to why action should not be taken against them for acts of indiscipline and rowdyism and also for alleged copying. Explanations were called for through the Head-master of the concerned High School. It is said that the Head-master of the Chenchelguda High School had obtained the explanations of the petitioners and submitted them to the Commissioner for Government Examinations. After considering the explanations was satisfied about the guilt of the petitioners and so imposed the punishment of cancellation of their examination and debarring them for one year.

(14) The main contention on behalf of the petitioners is that they had not been told with any degree of preciseness what the charges against them were with the result that they have not had a full and fair opportunity to make their representations and satisfy the authorities that they were not guilty of any malpractice. It is not disputed before me - and in my opinion it cannot be disputed - that the Select Malpractice Committee and the commissioner for Government Examinations when conducting enquires into cases of alleged malpractice at examining exercise quasijudicial functions notwithstanding that they are administrative bodies. (See Ceylon University v. Fernado, (1960) 1 WLR 223). That being so and in the absence of any prescribed procedure, it is incumbent on them to observe the principles of natural justice in conducting such enquires. Therefore the crucial issue in these cases resolves itself into the question whether the enquires against the petitioners were conducted with due regard to the rules of natural justice. These rules have been defined in varying languages in a large number of cases. In this condition it will be useful to extract a passage from the speech of Lord Wright in the case of General Council Of Medical Education and Registration of United Kingdom v. Spackman 1943 AC 627 (640), wherein reference was made to several important decisions bearing on the topic;

''Natural Justice' seems to be used in contrast with any formal or technical rule of law or procedure. Some light on what it connotes may be got from the authorities, to certain of which I now refer. Thus Spackman v. Plumstead Board of Works, (1885) 10 AC 229, was a case of administrative decision in a matter of local Government. Under the relevant Act an architect's certificate was made conclusive for fixing a general line for buildings. The Earl of Selborne L. C., made some general observation. He said that : 'No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the 'substantial requirements of justice' shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to 'the essence of justice.' I have italicized (here into') the two phrases which the Earl of Selborne seems to me to use as meaning what is generally meant by 'natural justice.' He adds that 'this is a matter not of a kind requiring form, not of a kind requiring litigation at all, but requiring only that the parties should have an opportunity of submitting to the person by whose decision they are to be bound such considerations as in their judgment ought to be brought before him.' I may also quote briefly from two other decisions of this House which indicate what is the duty of what are called 'administrative tribunal', not, perhaps, very happily because the word 'tribunal' suggests a court of law and a litigation, whereas what is meant may better be described as the duty of a body charged by statute with a duty of a body charged by statute with a duty of deciding. I quote first the language of Lord Loreburn L. C. in Board of Education v. Rice, 1911 AC 179 (182). He said: 'Comparatively recent statutes have extended if they havenot orginated the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds.... It will, I suppose, usually be of an administrative kind, but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view.

The Board is in the nature of the arbitral tribunal, and a court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the court is satisfied either that the board have not acted judicially in the way I have described or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari.Lord Loreburn had just expressly observed that the board 'can obtain information in any way they think best, always giving a fair opportunity to those who are parties to the controversy for correcting or contradicting any relevant statement prejudicial to their view. 'The words 'fair'and 'relevant' are to be noted. If this statement is applicable to an 'administrative tribunal' it must, in my opinion be applicable to the proceedings of the council which may not inaptly be described as a professional tribunal like so many other similar professional bodies which are invested by statute for grave reasons of public policy with disciplinary powers over members of the profession.'

'In Local Government Board V. Arlidge, 1915 AC 120 the same general principles were applied and the language of Lord Loreburn in 1911 AC 179, was approved. The case raised the issue whether respondent had a fair hearing. In the public inquiry which had been held in accordance with the statute, he and his witnesses had been heard orally but after the inquiry the board's inspector submitted his report to the board who decided the matter after considering the facts and evidence given at the inquiry and the inspector's report.

The respondent claimed that he should have seen the report and been heard orally by the officer of the board who actually decided it. He had been offered the opportunity of submitting a written further statement but had not availed himself of it. This House reversing the majority of the Court of Appeal, Hamilton L. I. dissenting held that Parliament must have intended that the ordinary procedure of the board, which was the deciding body would be followed (as they held it had been) and that the work of decision had been done judicially and fairly in the sense indicated by Lord Loreburn. Viscount Haldane, L. C. said (1915 AC 120 (132)): 'When the duty of deciding an appeal is imposed those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. But it does not follow that the procedure of every such tribunal must be the same.'

(15)Then at page 644 of the report the following passage appears:

'In R. V. Local Government Board, Ex parte Arlidge, (1914) 1 KB 160 (199) Hamilton, L. J. described the phrase 'contrary to natural justice' as an expression 'sadly lacking in precision'. So it may be and perhaps it is not desirable to attempt to force it into any procrustean bed, but the statement which I have quoted may atleast, be taken to emphasize the essential requirement that the tribunal shouls be impartial and that the medical practitioner who is impugned should be given a full and fair opportunity of being heard. These are conditions of the validity of any decision enunciated by the council.... If the principles of natural justice are violated in respect of any decision it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to the no decision.'

(16) One another judgment which may be usefully referred to on the general statement as to the requirements of natural is that of Harman, J. (as he then was) in Byrne V. Kinematograph Renters Society Ltd., (1958) 1 WLR 762 (784). The learned Judge said this:

'What then are the requirements of natural justice in a case of this kind First I think that the person accused should know the nature of the accusation made; secondly that he should be given an opportunity to state his case; and thirdly of course, that the tribunal should act in good faith. I do not myself think that there really is anything more'.

(17) In the present cases, there cannot be the slightest doubt that the authorities have acted in good faith and to the best of their judgment in the interests of student - discipline. But the real question is whether the enquiries conducted by the authorities against the petitioners were in accordance with the requirements of natural justice; in other words were the petitioners given a reasonable opportunity of meeting the charges levelled against them? A reasonable opportunity means an adequate opportunity and this pre-supposes that the person against whom a charge is levelled should be told with sufficient particularity and preciseness what the charge is and what the allegations are on which the charge is based. It must be remembered that in these cases the petitioners were not caught in the act of copying and the subsequent scrutiny of the scripts was not done in their presence. The Head-master of the petitioners' High School was directed to obtain the explanations of the petitioners. But it would appear that the petitioners were told was that they in common with a large number of other candidates had indulged in acts of violence and that they had also resorted to copying. 'Malpractice' was, however the gravamen of the accusation. But none of the petitioners was informed in what subject and in what answer vague and indefinite charges and their explanations were bare denials.

The 1st petitioner stated :

'I declare that I have not copied in the examination hall. Nor did I do any action which brings bad name to the school; nor have I taken part in destroying the furniture.'

The 2nd petitioner gave the following explanation:

'I have not committed any mischief in the examination hall nor broken the furniture not tried to make fun of the teacher.'

Similarly the 3rd petitioner gave the following statement :

'I declare that I have not copied in any paper in the examination hall. Nor have I caused any kind of loss to the furniture. I have not given trouble to the invilators. Nor did I commit any action which would bring bad name to the school'.

(18) Thus the explanations offered by the petitioners were as nebulous as the accusations they were asked to meet. The petitioners were not informed in what paper or papers and in what manner they had copied or aided others in copying. Each of them should have been told that he had copied in a particular subject and that his answer to a particulars question contained the same mistakes were. In the absence of such particulars it cannot be said that the petitioners had been adequately informed of the case they had to meet and given an adequate opportunity of meeting it. In other words, to adapt the vital condition postulated by Lord Loreburn in 1911 AC 179 to the present cases, a fair opportunity had not been given to the present cases a fair opportunity had not been given to the petitioners to correct lor contradict any relevant statement to their prejudice. On this ground alone these writ petitions have to be allowed to this extent namely that in each of these cases a writ of mandamus will issue to the Commissioner for Government Examinations Andhra Pradesh, Hyderabad to for -bear from giving effect to the impugned order dated 1-7-1960 by which the marks of each of the petitioners were cancelled and he was debarred from appearing for H. S. C. Public Examination for one year. This is not to say that on the internal evidence furnished by the scripts the conclusion reached by the authorities is not correct; that is a matter within their exclusive jurisdiction. It is not the province of this Court to go into that question.

All that I have held is that the procedure adopted by the authorities has not satisfied the requirements of natural justice. It is, however open to the authorities to hold a fresh enquiry in each of these cases apprise the candidate concerned of the exact charged he has to meet, furnish him with detailed particulars of the alleged malpractice and, after considering his explanation take such action as they deem fit. It is true all this may cause some inconvenience but in matters like this which entail serious consequences to the students affected, it is much more inconvenient to adopt the facile formula that the end justifies the means. As was pointed out by Lord Atkin in a telling dictum in 1943 AC 627(638). 'Convenience and justice are often not on speaking terms.'

(19) The further relief asked for by the 1st petitioner viz. that a writ of mandamus should issue directing the Secretary to the Board of Secondary Education to publish his result in the H. S. C. Public Examination held in March -April 1960 cannot obviously be granted.

(20) The writ petitions are accordingly allowed to the extent indicated above; but there will be no order as to costs in any of these cases.

(21) Order accordingly.


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