B.R. James, J.
1. This petition by Shiva Vikash Trivedi under Article 226 of the Constitution seeks the quashing of an order of the Executive Council of the University of Allahabad cancelling the result of the petitioner's LL.B. (Previous) Examination of 1957 and! debarring him from the Examination of 1958 on the ground of using unfair means in the Examination of 1957.
2. It is common ground that the petitioner appeared as an ex-student at the LL.B. (Previous) Examination of the University in 1957, and the Examination was held in April of that year. He was given a seat in the vicinity of a bamboo lattice (tat-tar) in the verandah of the Physics Department. On the 25th April while the Examination was in progress two pieces of paper containing notes on law in his hand writing were found below his Examination desk. The invigilator, Assistant Professor R.S. Gupta, detected them, and after a preliminary questioning recorded the petitioner's replies on a typed sheet of paper. Thereafter, the Executive Council after considering the petitioner's replies aforesaid and the remarks of Mr. Gupta and the Head Invigilator on the incident, held that the petitioner had used unfair means in his Examination and thereupon passed the) order which is now impugned.
3. The petitioner's contention is that neitherthe 'University' nor the Vice-Chancellor questionedhim on the matter but instead passed the impugnedorder without giving him a chance of explaining,hence the order has been passed contrary to the rulesof natural justice.
4. The contention is devoid of force. The rule of natural justice merely requires that no person shall be condemned unheard. In a case like the present it nowhere requires any questioning of the offending examinee by the 'University' or the Executive Council; it is sufficient for the University's agent or delegate on the spot, Mr. Gupta in this case, to give him a reasonable opportunity of explaining his position. That Mr. Gupta did so in the instant case should not admit of any doubt. The original paper on which he took the petitioner's explanation has been produced before me, and Annexure 'A' is its true copy. Apart from the relevant particulars it contains the following questions :
'(1) Were the things mentioned above recovered from you?
(a) Whether they were recovered from your person?
(b) Whether they were recovered from your desk or seat.
2. Why did you keep these articles with you?
3. Whether you had taken any help from them?
4. Whether you have to say anything else?'
Against each of these questions is an answer by the petitioner in his own handwriting and duly signed y him. Below it under the heading 'Report of the Invigilator' is the following remark by Mr. Gupta:
'I found the two hand-written pages below the desk. On enquiry the candidate asked pardon by saying that the wind had blown them there. He was excused for this type of offence once two days ago. I take special precaution to see that no loose papers are to be found near the seats of the candidates'.
Following Mr. Gupta's report is the following report by the Head Invigilator :
'I confirm all that Sri R.S. Gupta has written above. We had excused him with a warning two days ago for an identical offence believing his explanation to be genuine.'
In the face of these documents it passes understanding how the petitioner has the temerity to pretend that he was given no opportunity of answering the charge. There is also on the record an affidavit by the Confidential Assistant of the Vice-Chancellor or the University to the effect that he was present at the meeting of the Executive Council when the petitioner's case was considered and that the Council 'read and deliberated over the explanation given by him and unanimously considered the explanation given by him as unsatisfactory'.
5. I should like to emphasise that I am aware of no rule of natural justice which enjoins a procedure like that laid down, for example, in Article 311 of the Constitution, namely that there should be two show-cause notices issued to the offender, one against the charges against him and other against the punishment proposed. Nor is there any warrant for the view that it is only that authority which possesses the power to punish that should be the one to issue the show-cause notice or take the explanation; it is enough for that authority to merely apply its mind to an examination of the explanation furnished to its agent or delegate. In the case in hand this is precisely what was done.
6. Relying on the decision in Jai Prakash Sharma v. The Registrar, Roorkee University, 1957 All LJ 213 the petitioner's learned counsel has submitted that in circumstances similar to those of the instant case the Hon'ble Mr. Justice Mehrotra quashed an order by which a candidate's examination had been cancelled. A reading of the judgment shows that, in holding that the rule of natural justice had been violated by not giving the candidate an opportunity to explain his conduct, Mehrotra J., purported to follow the decision in Ghanshyam Das Gupta v. Board of High School and Intermediate Education, (S) AIR 1956 All, 539, a decision by three Hon'ble judges of this Court.
With great respect to Mehrotra, J., I feel bound to remark that he has misread their Lordshirjs' judgments. In the case before their Lordships no opportunity at all had been given to the candidates to explain their conduct; they had been punished solely on the basis of an ex parte enquiry madeagainst them. It was in these circunstances that two of the Hon'ble Judges held that the rule of natural justice had been contravened inasmuch as the candidates were given no opportunity of meeting the charges against them, while the third was of a contrary opinion. Consequently I feel that my reluctance in following Mehrotra, J.'s views in Jai Prakash Sharma's case 1957 All LJ 213 is justified.
7. The petitioner's learned counsel has argued that there is nothing to show that in answering his Examination paper he used the notes detected by Mr. Gupta. Strictly speaking, this should be outside the purview of proceedings under Article 226, but I have agreed to consider it inasmuch as learned counsel has strenuously argued that the petitioner's career would be totally spoiled if his present punishment is allowed to stand. Rule 10 of the Rules framed by the University for the guidance of candidate (which Rules are binding on all examinees) reads thus :
'Candidate who after entering the Examination hall are in possession of any book, manuscript or other article from which they might derive irregular assistance or who copy from the papers of any other candidate or permit their own papers to be copied or give or attempt to give or obtain or attempt to obtain irregular assistance of any description are liable to be treated as disqualified and to be excluded from any subsequent University Examination'.
Actual user of the notes by the petitioner was therefore not necessary; he was liable to be disqualified merely for taking those notes into the hall, for-it cannot be denied that they might have assisted him in deriving irregular assistance in answering his question paper.
8. The petitioner has attempted the explanation that in his haste he had thrust the notes into the lattice and that the wind had blown them under his seat where they were discovered by Mr. Gupta. In the first place, he had no business to take the notes into the Examination Hall if he felt the necessity of using them for a last-moment study he was bound to leave them outside before he entered the hall. Secondly, it is clear from Mr. Gupta's counter-affidavit that the sheets containing the notes were devoid of creases, proving thereby that they were never folded up or thrust into the lattice. Thirdly, the fact that the petitioner had been caught two days earlier indulging in similar dishonesty totally precludes accident and establishes design on his part. Consequently his guilt does not admit of any doubt.
9. In these circumstances I have no hesitation in upholding the order of the Executive Council punishing him in the manner that it has done. This petition therefore fails and is dismissed with costs.