M.L. Chaturvedi, J.
1. This writ petition and six others, connected with it, arise out of the unseemly incidents which happened in the Banaras Hindu University in the autumn of last year. As a consequence number of students were awarded punishments of fine, rustication and expulsion, and these writ petitions are from students, who have either been rusticated or expelled from the University. The points that arise for decision in all these writ petitions are the same and the writ petitions can consequently be conveniently disposed of by a common judgment. While referring to particular facts. I shall refer to the facts of the case of Writ Petition No. 356 of 1959, Rana Pratap Singh v. Deputy Registrar, Banaras Hindu University and others.
2. Rana Pratap Singh petitioner was a student of B. A. Final class of the University. He received a letter dated the 29th October 1958, which contained three charges against him and direction to show cause why disciplinary action should not be taken against him by the University authorities. He was asked to submit his explanation within five days of the receipt of the letter. The petitioner submitted his explanation to the Chief Proctor, a copy of which has been filed and marked annexure B. In his explanation the petitioner denied the correctness of all the charges framed against him.
Meetings of the Standing Committee of the Academic Council were held on the 25th November 1958 and some subsequent dates. It is admitted that the students were not required to be present at these meetings and on the 4th December 1958 a letter was sent to the petitioner intimating to him the fact that the Standing; Committee had rusticated him for a period of two years with effect from the 25th November 1958, for misconduct and indiscipline. It appears that the order rusticating the petitioner was circulated to all Registrars of the Universities situate within the territories of the Indian Union.
The present petition was filed on the 4th February 1959 with the prayers that a writ in the nature of certiorari be issued asking the respondents to bring up the record of the case before this Court so that the order dated the 4th December 1958 may be quashed, and that a writ in the nature of mandamus be issued commanding the respondents not to interfere with the petitioner's pursuit of his academic career in the Banaras Hindu University.
3. A number of averments have been made in affidavit, filed alone with the writ petition, which have been denied in the counter-affidavit filed on behalf of the respondents and have been reiterated in the rejoinder affidavit. But most of those facts are not relevant for the consideration of the points which have been clearly and succinctly placed before me by Mr. S. N. Dwivedi, learned counsel for the petitioner. Mr. Dwivedi has urged that the Standing Committee of the Academic Council had no power to pass the impugned orders of punishment against the petitioners and it was only the Academic Council which could have passed such orders. His second submission is that even the Standing Committee has not applied its own mind to the question of the guilt of the students whom it punished and meted out the punishments because another Committee appointed by the Vice-Chancellor had found the students, including the petitioners, guilty of the commission of the acts for which they were charged,
4. Mr. Gopi Nath Kunzru, learned counsel for the respondents, has countered the above submissions and has further urged that the writ petitions should be dismissed because other suitable 'remedies were open to the petitioners, which they failed to avail of. These remedies are said to be representations to the Academic Council and to the Visitor of the University, namely, the President of the Union of India. It has also been contended that punishments have been imposed on students of the University and the matter being of a domestic nature, the Court should not interfere. I shall now proceed to consider the points in the order in which I have, mentioned them above.
5. The first point urged by the learned counsel for the petitioner is that the Standing Committee of the Academic Council (hereinafter called the Standing Committee) had no power or authority to punish the students of the University. I think this contention of the learned counsel has force. The Banaras Hindu University Act was passed in 1915 and was substantially amended in 1922, 1930 and 1951. Reference need only be made to -some of the amendments introduced by the Amending Act of 1951 (Act No. LV of 1951). Before this amendment, the Governor General of India was to be the Lord Rector of the University and the Lt.-Governor of the United Provinces of Agra and Oudh as the Visitor.
By the Amendment Act of 1951, the Visitor of the University was to be the President of the Union of India and the Governor of the State of Uttar Pradesh the Chief Rector, vide Sections 5 and 6 of the Act. Some changes were made in the designations of the Officers and the Authorities of the University mentioned in Section 7, but it does not appear to be necessary at this stage to refer to the previous Officers and Authorities. It is sufficient to refer to only some of the Authorities mentioned in the amended Section 7.
They are the Court, the Executive Council, the Academic Council and the Standing Committee of the Academic Council. The Court is the supreme governing body of the University and has all the powers of the University not otherwise provided for by the Act or the Statutes. The Executive Council is the chief executive body of the University and it has to exercise such powers and perform such duties as may be vested in it by the Statutes. The powers of the Academic Council are mentioned in Section 11 of the Act, which is as follows:--
'The Academic Council shall be the academic body of the University and, subject to the Act, the Statutes and Ordinances, shall have charge of the organization of instruction in the University and the Colleges, the courses of study and the examination and discipline of students and the conferment of ordinary and honorary degrees.'
The powers of the Standing Committee are mentioned in Section 12, which might also be quoted:
'There shall be a Standing Committee of the Academic Council which shall exercise such powers and perform such duties as may be vested in it by the Statutes.'
6. A reading of the above two sections would show that amongst other matters the discipline of the students has been committed to the charge of the Academic Council. The Standing Committee of the Council is to have only such powers as may be vested in it by the Statutes. The Act itself confers no power of any kind on the Standing Committee. The important question, therefore, is whether the Standing Committee has been conferred powers in the matter of discipline of the students. In order to find those powers, we have to go to the Statutes.
Section 17 of the Act contains the provisions with respect to the framing of the Statutes and the matters which may be provided for by the Statutes. Some of these matters are mentioned in Clause (a) of Sub-section (1) of Section 17, namely, the constitution, powers and duties of the Court, the Executive Council, the Academic Council, the Finance Committee and such other bodies. It would thus appear that the Statutes are to provide for the constitution, powers and duties of all the important Authorities of the University mentioned in Section 7.
The first Statutes were to be those set out in Schedule I of the Act. The Court was given the power to make new or additional Statutes or to amend or repeal the existing ones. The Executive Council could propose the draft of any Statutes and the Court could approve such draft, reject it or return it to the Executive Council. The Members of the Court could also propose the framing of the Statutes. But the important safeguard to be noted is that every new Statute or proposed additions to the existing Statutes or any amendment or repeal of them required the previous approval of the Visitor who had full authority to sanction the Statute, to disallow it or to remit it for further consideration.
7. As already stated, the Act put the subject of the discipline of the students in charge of the Academic Council, and the Standing Committee of the Academic Council had only those powers which were to be conferred upon it by the Statutes. I have, therefore, to see whether there is any Statute which conferred a power on the Standing Committee to take disciplinary action against the students of the University. The only Statute which the learned counsel for the respondents was able to point out in this connection was Clause (x) of Statute No. 22. Statute No. 22 says that the duties of the Standing Committee of the Academic Council shall be, subject to the revision and control of the Academic Council,
'(x) to perform all such duties and to do all such acts, as may be necessary for the carrying out of the decisions and directions of the Academic Council and to perform all such functions as may be delegated to it by the Academic Council under the Act, the Statutes or the Ordinances.'
8. This clause imposes a duty upon the Standing Committee to do all such acts as may be necessary for the carrying out of the decisions and directions of the Academic Council. It has also to perform all such functions as may be delegated to it by the Academic Council under the Act, the Statutes or the Ordinances. The learned counsel for the respondents argued, if I understood him correctly, that the first part of the clause imposes on the Standing Committee a duty to carry out the decisions and directions of the Academic Council and, therefore, this clause confers on the Standing Committee to perform all the functions of the Academic Council.
I am unable to agree with, the contention of the learned counsel that the first part of Clause (x) can be so interpreted as to mean that the Standing Committee has been given all the powers of the Academic Council under the clause. If the Academic Council gives any directions or decisions, it is the duty of the Standing Committee to carry out those directions and decisions, but the power of issuing directions and arriving at the decisions is the power which vests in the Academic Council and not in the Standing Committee.
The Standing Committee is to carry out the decisions and directions already given by the Academic Council. The proposition enunciated above appears to me to be an obvious one. It is not disputed that the Academic Council has arrived at no decision nor given any direction to the Standing Committee to consider the question of taking disciplinary action against the petitioner. In going into that matter, the Standing Committee was not carrying out any decision or direction of the Academic Council.
9. Coming to the second part of Clause (x) the Standing Committee has been imposed a duty of performing all such functions as may be delegated to it by the Academic Council under the Act, the Statutes or the Ordinances. It is again not disputed that the Academic Council had not delegated to the Standing Committee any power to take disciplinary action against the students of the University by any Ordinances which may have been framed.
Such delegation has clearly not been made by any provisions of the Act or by any of the Statutes framed under the Act. There is a power of delegation conferred on the Academic Council by the latter part of Clause (x) of Statute No. 22, but the Academic Council, since its constitution in 1951, had admittedly not framed any Ordinance delegating any such power on the Standing Committee. It would thus appear that as far as the Banaras Hindu University Act, as amended in 1951, is concerned, there is no power in the Standing Committee to take any disciplinary action against the students of the University. The Act has conferred the power on the Academic Council (Section -11). There is no Statute framed conferring that power on the Standing Committee. Neither has any Ordinance been framed after 1951 delegating any such power to the Standing Committee.
10. The learned counsel for the respondents tried to support the action of the Standing Committee on the strength of a resolution passed by the Senate of the University in 1937. It may be stated here that the predecessor of the present Academic Council was the Senate (before the Amendment Act, 1951, came into force) and the predecessor of the Standing Committee was called the Syndicate. The Ordinances were previously called Regulations, but there was no equivalent of the present Regulations in the Act before its amendment in 1951.
11. In paragraph 11 of the counter-affidavit, filed on behalf of the respondents, it is stated that the power was delegated on the Standing Committee of the Academic Council (meaning the Syndicate) by means of a resolution a copy of which has been filed and marked annexure 5. The proceedings of the Senate, bearing the date the 10th April 1937, are to the effect that the rules of discipline as drafted by the Syndicate were read and it was then resolved that the rules as recommended by the Syndicate be substituted for the existing rules. Seven rules are mentioned in annexure 5 and a reading of those rules, particularly Rules 1 and 5, clearly shows that the Syndicate was purported to be given the power to take disciplinary steps against a student when it considered it necessary to do so.
The present equivalent of the Syndicate is the Standing Committee and, though the constitution of these two bodies has materially changed, I am (inclined to take the view that the Syndicate should be treated as the predecessor of the present Standing Committee. Two questions arise with respect to the above resolution. The first question is whether the above resolution could legally delegate the power to the Syndicate, and the second is whether the resolution survived the amendments made in the Act by the amending Act of 1951.
12. In order to deal with the first question it is necessary to make a reference to some further sections and regulations of the unamended Act, Like the amended Act, under Section 11 of the unamended one the Senate was to be in charge of the discipline of students. Similarly, under Section 12 the Syndicate was to be the executive body of the Senate and was to exercise such powers and perform such duties as might have been vested in it by the Statutes. It would thus appear that under the unamended Act also the powers of the Syndicate were confined to the powers conferred upon it by the Statutes.
The unamended Statute No. 22 did not contain any provision like the second part of Clause (x) of the new Statute No. 22. In other words, there was no specific power conferred by the Statutes on the Senate to delegate its functions to the Syndicate, apart from those which already stood delegated by the Statutes. The equivalent of present Clause (x) of Statute No. 22 was Clause (ix) of the unamended Statute. This clause is in the following words:
'(ix) to perform all such duties and to do all such acts, as may foe necessary for the proper carrying out of the provisions of the Act, and the Statutes and Regulations or the resolutions of the Senate.'
13. A reading of the above clause would show that the duty imposed on the Syndicate by the above clause was to do all acts necessary for the proper carrying out of the provisions of the Act, and the Statutes and Regulations or the resolutions of the Senate, but the clause never permitted the delegation of any further powers other than those delegated by the Statutes themselves. The Syndicate being the executive was imposed with the duty to do all necessary acts for the proper carrying out of the provisions of the Act, and the Statutes, Regulations and the resolutions of the Senate. But it is obvious that the Regulations and resolutiong must be those which the Authorities framing or passing them were authorised to frame or pass.
In other words, the above clause could only have contemplated the performance of such acts by the Syndicate which the Act and the Statutes provided or which were provided for in duly framed Regulations and resolutions. The Act cast a duty on the Senate to be in charge of the discipline of the students and it may further be stated that, if the Statutes conferred any such power on the Syndicate, the Syndicate would certainly possess that power because of the provisions of Section 12 of the Act. But the power contained in clause (ix) of Statute No. 22 is only a power or duty of carrying out the Regulations and resolutions which the Act authorised.
14. This takes me to the question whether the Syndicate was duly delegated disciplinary powers in respect of students of the University by the Regulations or by the resolutions of the Senate. The learned counsel for the respondents relied on the provisions of Section 18(1)(d) of the Act, which said that the Regulations could provide, amongst other matters, for the discipline to be enforced in regard to the graduates and under-graduates. The learned counsel for the respondents urged that the above clause made it possible that the disciplinary powers be conferred on the Syndicate by the Regulations framed under Section 18.
I do not agree with the contention. Section 12 of the Act made it clear that the powers of the Syndicate would foe those which were conferred upon it by the Statutes and it made no mention of the Regulations at all. It appears that the scheme of the Act was to confer power on the Authorities by the Act and by the Statutes, which were framed or were to be framed under the Act. The object of framing Regulations must have been to provide rules for the conduct or exercise of the powers already conferred on the different Authorities.
The Regulations were intended to provide for the procedure that was to be followed in carrying out the provisions of the Act and of the Statutes. They were not intended to confer power not conferred by the Act or by the Statutes. I need not pursue this matter further because it appears to me to be clear that the resolution of the 10th April 1937 was, in fact, not, nor was it intended to be, a Regulation. Section 18 of the Act provided that the Senate could make new or additional Regulations or amend or repeal old ones. But Sub-section (5) of Section 18 made it clear that all new Regulations or additions to the old ones or amendments or repeals to Regulations required the previous approval of the Visitor, who had full right to sanction, disallow or remit the proposals for further consideration.
The resolution of the 10th April 1937 does not make any mention of the approval of the Visitor to the draft of rules mentioned therein, nor are the new rules called Regulations by the resolution itself. The resolution says that the changes in the rules were, as recommended by the Syndicate, to be substituted for the existing rules. Before that it is stated that the rules of discipline had been redrafted by the Syndicate under the resolution named therein, but there is no mention of any approval of the Visitor having been obtained.
15. In the Calendar of the University for the year 1937-38 the Regulations and the Rules are separately printed. The Regulations begin at page 49 and continue up to page 168. The contents of the resolution of the 10th April 1937 did not find any place in the Regulations printed in the Calendar. The Rules began at page 169 and the rules framed under the resolution dated the 10th April 1937 are to be found at page 188 of the Calendar, The University thus never thought that this resolution framed any Regulations. It, therefore, appears that no approval of the Visitor was sought to the rules framed under the resolution of the 10th April 1937. These rules, therefore, cannot be given the status of Regulations.
16. There can be no doubt that on the 10th April 1937 the Syndicate (sic) did pass a resolution conferring powers on the Syndicate to take disciplinary steps against the graduates and under-graduates, but no power was conferred on the Senate by the Act or by Clause (ix) of the unamended Statute No. 22 or any other Statute delegating its functions to the Syndicate. Clause (x) of Statute No. 22, as amended in 1951, has added in the second part of the clause words - to the effect that the Standing Committee is to perform such functions as may be delegated to it by the Academic Council.
But no such words are to be found in clause (ix) of the unamended Statute No. 22. The only functions then of the Syndicate were as mentioned in other clauses of Statute No. 22, and by Clause (ix) the duty assigned to the Syndicate was to carry out the provisions of the Act, the Statutes. Regulations and resolutions. But it is obvious that the resolutions which the Syndicate was expected to carry out were resolutions which the Authority which passed them had the power to do so. No power to take disciplinary action against the students could be conferred on the Syndicate by any resolution of the Senate. The resolution of the 10th April 1937, therefore, to my mind, contained rules which were ultra vires the Senate.
17. Further, no resolution adopting such rules could have any effect after the coming into force of the Amendment Act of 1951. The Senate and the Syndicate ceased to exist and Section 16 of Amending Act does not purport to save any resolutions of the Senate or the rules made by it. It mentions only Statutes and Ordinances (previously called Regulations). By way of analogy I may mention the case of Sir Iqball Ahmad v. Allahabad High Court Bench AIR 1950 F.C. 71 in which the list of Advocates prepared by the Bar Council of the old Allahabad High Court was held to be no longer in force after the Amalgamation of the Allahabad High Court and Lucknow Chief Court in 1948.
18. I consequently answer the first point in favour of the petitioners and hold that the old Senate or the new Standing Committee never had any authority to take any disciplinary action against the students of the University. That power previously vested in the Senate and it now vests in the Academic Council of the University.
19. In the Act and the Statutes as printed in 1956 and in 1957, there is to be found an additional clause in Statute No. 22. It is numbered as Clause (x) and it is to the effect that subject to the Act, the Statutes and the Ordinances', the Standing Committee was to be responsible for the maintenance of discipline among the students of the University. This clause is not to be found in the 1958 edition of the University Calendar, Part I.
On the other hand, Clause (x) is given, in the words, already quoted above, which in the printsof 1956 and 1957 was numbered as Clause (xi). The disputed Clause (x) purports to have been introducedunder a letter of the Government dated the 29th March 1956. This clause disappeared from theStatutes as printed in the University Calendar of 1958. Instead of 11 clauses there are only 10 clauses,the previous Clause (xi) having been renumbered as Clause (x) and the previous Clause (x) having disappeared altogether.
20. The learned counsel for the respondents did not initially place any reliance on the disputed Clause (x), but when in the course of arguments the existence of the clause was discovered in the Act as printed by the University in 1957, the learned counsel wanted to urge that the said clause conferred the necessary power on the Standing Committee. He was not able to explain how this clause disappeared from the Calendar of 1958. A look at page 17 of the Calendar shows that numerous letters concerning amendments of the Statutes were received from the Government from time to time.
After 29th March 1956 the Government issued letters dated the 16th July 1956, 8th December 1956, 27th August 1957 and 18th September 1957. The learned counsel for the respondents was asked to brine before the Court all those letters in order to clarify the position whether Clause (x) still continues to form part of Statute No. 22.
21. Copies of Government letters, mentioned above, and a copy of the proceedings of a meeting of the Court of the University held on 29th April 1956 have been filed by the learned counsel for the respondents and accented as correct by Sri S. N. Dvivedi, learned counsel for the petitioners. These papers, to my mind, clarify the position. The Court bad passed a resolution in 1954 proposing the insertion of the disputed Clause (x) in Statute No, 22 and altering the number of previous Clause (x) as Clause (xi).
Under Section 17 the Court is authorised to frame or amend Statutes, but under Sub-section (7) of that section, every Statute and every addition requires the previous approval of the Visitor who has full authority to sanction the amendment or to disallow it. The proposals were, therefore, submitted to the Visitor and in the letter dated the 29th March 1956 it has been stated which amendments or additions were approved, which were not approved and which were remitted for reconsideration.
They are mentioned in paragraphs (i), (ii) and (iii) respectively. Para (i) mentions the amendments which were approved including the one in Statute No. 22 (i), but in para (ii) of the letter it is clearly stated that the proposed amendments to Statutes Nos. 17 and 22(x) were disallowed. This would make it clear that the Visitor disallowed the proposed amendment which was for the introduction of the disputed Clause (x). A few days after the receipt of this letter, the annual meeting of the Court was held on 29th April 1956, as already mentioned.
A reading of the first paragraph of the proceedings printed at page 53 shows that the pro-Vice-Chancellor of the University somehow got the wrong impression that the proposed addition of Clause (x) had been accepted by the Visitor, though with regard to certain others it was said they had not been accepted. In the meeting the Court proceeded on the assumption that the amendment in question had been accepted, and they accordingly passed a resolution stating that the said amendment had been accepted by the Visitor (page 166 of the proceedings). Sri G. N. Kunzru moved the Court that a letter be sent to the Visitor to reconsider his decision concerning the refusal to accept some of the proposed amendments, and a letter appears to have been sent to the Visitor, but a copy of it has not been filed.
The Deputy Secretary to Government sent a reply by his letter dated 18th April 1957, the purport of which is that, after a careful consideration at the University's request for reconsideration of the acceptance of the recommendations regarding amendments to Statutes made by the Court, the President in his capacity as Visitor of the University regretted that he could not alter his decision which had already been communicated to the University.
22. It is thus clear that the visitor had refused to accept the introduction of the disputed Clause (x) in Statute No. 22, but in the resolution of the court it found a place because of the mistake committed by the Pro-Vice Chancellor in noting the number of Statutes the amendments to which were accepted. He wrongly included Clause (x) among the Statutes which had been sanctioned. This mistake appears to have been discovered when the Calendar for 1958 was prepared by the University, and the Calendar very rightly does not make any mention of the disputed Clause (x) as one of the Statutes of the University. This mistake may have been a clerical or an accidental one, but I think it is clear that the Pro-Vice Chancellor did commit a mistake.
23. As it now transpires, the mistake was on a very vital point, namely, the delegation of power on the Standing Committee of the Academic Council to take disciplinary action against the students of the University. The Visitor did not want the Standing Committee to have that jurisdiction and what we find is that it is the Standing Committee which has taken disciplinary action against the students.
24. I now come to the second point urged by the learned counsel for the petitioner, which is to the effect that the Standing Committee never applied its mind to the question of the guilt of the petitioners and had meted out punishments to them because another Committee appointed by the Vice Chancellor had found these petitioners to be guilty. This point was not taken in the writ petition as framed, and it struck the learned counsel after the perusal of the resolution of the Standing Committee punishing the students, a copy of which was filed along with the counter affidavit and marked annexure I.
The point was then taken in the rejoinder affidavit. I accordingly permitted the respondents to adduce such evidence as they liked in order to meet the point. The learned counsel for the respondents filed two affidavits by two members of the Standing Committee in order to controvert the contention of the learned counsel for the petitioner.
25. From a reading of annexure I it appears that the resolution, as passed was only to the effect that some students named therein were expelled from the University, others were rusticated for two years and some others were fined. But what is written before the resolution is of importance and may be quoted in full:
'Considered the following resolution of the Executive Council taken at its meeting held on 27/28th September 1958, concerning disciplinary measures to be taken against the students of the University:--
Resolved that the Standing Committee of the Academic Council be requested to take disciplinary measures against those students who had violated the rules of discipline, law and order in the University campus.
The Standing Committee noted that the cases reported by the Chief Proctor and considered by the Committee appointed by the Vice Chancellor covered those of students who have committed acts of indiscipline and grave misconduct in the period from August 2 to October 7, 1958. The Standing Committee was informed that the explanations of the students concerned had been called and considered by the Committee and that acts of indiscipline committed by the students whose cases are under consideration exclude such acts of indiscipline as were committed after October 7, 1958, and are sub-judice.'
26. To put the matter contained in the quotation in short it appears that the Standing Committee considered the fact that the Executive Council in its resolution had requested the Standing Committee to take disciplinary measures against the students. The Standing Committee, however, noted that the cases reported by the Chief Proctor had already been considered by a committee appointed by the Vice Chancellor himself. The Committee was informed that the explanations of the students had been taken by the Committee appointed by the Vice Chancellor and they had been considered by that Committee.
It is nowhere stated that the Standing Committee itself had considered the cases. On the other hand there is a specific mention of the fact that the Standing Committee had been informed that the Committee appointed by the Vice Chancellor had taken the explanations of the students and had considered them. The Standing Committee does not even say that it had considered the report of the Committee appointed by the Vice Chancellor, and I do not understand why it used the word 'informed,' if the full report of the Committee appointed by the Vice Chancellor was before the Standing Committee. The source of information has not been disclosed, but if the report of the Committee itself had said so, the Standing Committee is not likely to have used the words that it was informed that the explanations of the students had been taken and considered by the Committee appointed by the Vice Chancellor.
27. The learned counsel for the respondents relied on the words 'under consideration,' but these words might refer to a consideration of the question of the appropriate punishment. In the resolution only the names of those students who were expelled, of those who were rusticated and of those who were fined have been mentioned. The Standing Committee was careful enough to say what the resolution of the Executive Council was and also that it had noted that the cases of the students, who had been reported by the Chief Proctor and whose cases were considered by the Committee appointed by the Vice Chancellor, were cases of students who were said to have committed acts of indiscipline during the particular period.
It then, for some reason, said that it was informed that the explanations of the students had been called and considered by the Committee appointed by the Vice Chancellor and that the cases were not with respect to the acts of indiscipline committed after the 7th October 1958. I do not know why it could not further say that it had reconsidered the cases of the said students. The Standing Committee appears to have deliberately avoided saying that it itself considered the cases of the students who were charged with committing acts of indiscipline during a particular period.
28. In the absence of any evidence to the contrary, I would have had no hesitation in holding that a perusal of the document, annexure I, pointed to the conclusion that the Standing Committee itself had not considered the question of the guilt of the individual students and had merely imposed punishment on those already found guilty of the commission of different acts of indiscipline. But I find that a Professor and a Principal of one of the Colleges have sworn affidavits stating that the cases of the petitioners were considered at a meeting held on the 25th November 1958 along with certain other cases, and the deponents were present at the meeting.
Each member of the Standing Committee was given a copy of certain papers, enumerated in paragraph 5 of the supplementary counter-affidavit, which included a copy of the report of the Committee appointed by the Vice Chancellor. The Committee appointed by the Vice Chancellor had classified the offending students into 9 classes, though the Chief Proctor had classified them into 3 classes only. On a consideration of the matter, the Standing Committee accepted the classification made by the Committee appointed by the Vice Chancellor. Paragraph 8 is important and it is in the following words:
'That the Standing Committee of the Academic Council after considering the nature of acts done by each offending student determined whether they were guilty or not and awarded punishment accordingly.'
The language is somewhat curious, inasmuch as it is said that the Standing Committee considered the question of guilt of the students after considering the nature of acts done by each offending student. What it shows is that the Standing Committee first looked into the nature of acts already found to have been committed by each student and then determined whether that nature of act would make him guilty of the commission of an act of indiscipline or not. The consideration of the question of the student being guilty appears to have been confined to a consideration of the question whether the nature of the act which the student was already found by the Committee appointed by the Vice Chancellor to have committed, was one which made him guilty of misconduct and indiscipline. It is not stated that the Standing Committee itself went into the evidence against each, student, looked into his explanation and then arrived at its own conclusion that the student had been proved to have participated in the commission of a particular act.
29. I am conscious of the fact that it might be said that I am scrutinising the language used in para 8 rather too closely. But I think a close scrutiny of the language used in para 8 of the affidavit is justified because of the contents of the minute recorded by the Standing Committee itself and because of the fact that this affidavit was drafted and filed after the learned counsel for the petitioner had closed his arguments, and the learned counsel for the respondents had made his own submissions as to the interpretation of the minutes.
It was known when the affidavit was drafted that the question for decision was whether the Standing Committee itself had considered the evidence against each particular student and had arrived at its own conclusion regarding the participation of the petitioners in the alleged subversive acts. While doing so the Standing Committee could have taken into consideration the report of the Proctor and the report of the Committee appointed by the Vice Chancellor but it had to apply its own mind to the proof of the commission of the particular act or acts imputed to the petitioners. The manner in which para 8 of the affidavit is worded does not satisfy me that the Standing Committee itself considered the question of the petitioners having themselves participated in the commission of the different acts of indiscipline.
30. I consequently decide this point also in favour of the petitioners and hold that the Standing Committee did not apply its mind to a consideration of the question whether the petitioners had been proved to have committed the particular acts of indiscipline imputed to them. Assuming that the Standing Committee was authorised to take disciplinary measures against the students, it appears that it failed to perform its duty.
31. I now come to the additional points raised by the learned counsel for the respondents. The first of these was that the petitioners had other remedies open to them which they failed to avail of. It is said that they could have sent representations to the Academic Council and also to the Visitor of the University. It is true that the Standing Committee is the executive of the Academic Council and, according to Statute No. 22, the duties bf the Standing Committee are subject to revision and control of the Academic Council,
It is also true that by Sub-section (7) of Section 5 of the Act the Visitor has been authorised to annul I any proceeding of the University. But the question for consideration is whether the above provisions confer any right on the petitioners to take the matter to the Academic Council and the Visitor, or whether they merely confer certain powers on the above Authorities to act if and when they so considered it desirable. This question has to be decided on the language of the particular provisions of law.
To my mind, the language of Statute No. 22 and of Sub-section (7) of Section 5 of the Act can be interpreted only to mean that wide powers had been conferred on the above Authorities, but neither the Statute nor the sub-section conferred any right on the students to take their cases to these Authorities. It is open to the Authorities to say that they would refuse to enter into the question whether the Standing Committee had acted rightly or wrongly or had the power to impose the punishment. It was in the absolute discretion of these Authorities to entertain the representations or to refuse to look into them. As such, they could not be said to afford an adequate remedy to the petitioners justifying the rejection of the writ petitions on this ground.
32. A similar question arose for decision in the case of Brij Kishore v. Rent Control and Eviction Officer : AIR1954All428 . Section 7F of the U.P. (Temporary) Control of Rent and Eviction Act authorises the State Government to set aside certain orders passed by the District Magistrate and the Commissioner. The petitioner in that case had not filed any application under Section 7F before filing the writ petition, and an objection was raised that the petitioner had not pursued the remedy which was open to him. This contention of the respondent in that case was rejected by a Division Bench of this Court on the ground that Section 7F of the Act did not
'afford any alternative remedy to the applicant. The applicants have not been given any right to approach the State Government to revise the order passed by the Rent Control and Eviction Officer. This section just empowers the State Government to call for the record and make suitable orders. The applicants, therefore, cannot approach the State Government by way of appeal or revision against the order of the Rent Control and Eviction Officer.'
33. The case of G. A. Natesan, In re, AIR 1918 Mad 763, was a case in which Mr. Natesan, a Fellow of the University, had protested against certain resolutions passed by the Senate. In the course of the elaborate judgment (if I may say so with respect) the learned Judges also referred to the objection that Mr. Natesan had got other remedy which he had not pursued. They Overruled the objection on the ground that mandamus could be refused only if another equally convenient, speedy, beneficial and effectual remedy was open to the applicant. They then held:--
'.......... ....by remedy is meant, not a remedy by act of the party, but remedium juris or 'some specific legal remedy or a legal right''.
The learned Judges then referred to a number of English cases on which they relied for the above proposition. Following the principle laid down in this case it is clear that the petitioner has had no specific legal remedy or a legal right to approach the Academic Council or the Visitor.
34. The learned counsel for the respondents relied on an English case, R. v. Dunsheath, 1950-2 All ER 741. In this case 50 members of the Convocation of the University wanted the Chairman to summon an extraordinary meeting of the Convocation to discuss the refusal of a school, connected with the University, to re-employ one of its teachers. The Chairman refused to call the meeting and a motion was then made before the King's Bench Division for the issue of an order of mandamus. The Bench refused to issue the mandamus on the ground that the question was one of a domestic nature. Their Lordships remarked that the Visitor had extensive powers, but if he refused to act, a mandamus might go to the Visitor calling upon him to act, but that was a different matter.
After considering certain provisions of the relevant Statutes, their Lordships held that the! question was essentially for consideration by the Visitor, as it was within the Visitatorial jurisdiction of His Majesty in Council. Consequently the mandamus was refused. It is well known that the position of the Universities generally in England is a peculiar one and the Visitor has been exercising necessary functions.
35. In Holdsworth's History of English Law, Vol. 9, at page 58, there is a quotation from the decision of Chief Justice Holt in the case of Philips v. Bury, which runs as follows:
''The office of Visitor by the Common Law is to judge according to the Statutes of the College, to expel or deprive upon just occasions and to hear appeals of course. And from him, and him only, the party grieved ought to have redness; and in ' him the founder hath reposed so entire confidence that he will administer justice impartially, that his determinations are final and examinable in no other Court whatsoever.'
36.In Halsbury's Laws of England, 3rd Edition, Vol. 13 there is a passage at page 709, which somewhat clarifies the position. It is as follows:--
'Other Universities are likewise visitable, the crown usually 'being the Visitor in the case of those incorporated by modern Charter. Where there is a Visitor the Court will not interfere in any matter within the Visitor's province, and especially is this so in the case of educational bodies such as Colleges and Universities.'
37. The same subject had been dealt with under the heading of 'Jurisdiction over Charities' at page 408, in Vol. 4 of the 3rd Edition of Halsbury's Laws of England. At page 409 it is said,
'The Tribunal of the Visitor is forum domesticum, in other words the Court of the founder, its jurisdiction being derived from the right of the founder to determine concerning his own creation.
A Visitor is not a Court, but rather an arbitrator under certain directions; and his decision on matters within his jurisdiction is final, and not subject to review by the High Court.'
38. It appears that in England the Visitor does exercise his powers whenever occasion arises and the Courts do not interfere in the matter at all unless the Visitor refuses to act in which case a mandamus may be issued to the Visitor to deal with the matter. In India the position is very different. If the Academic Council or the Visitor had refused to go into the cases of the petitioners, no Court could have issued a mandamus to either of the above Authorities to decide the cases for the simple reason that the Statute does not cast any duty upon them to deal with such matters, but only confers a discretion which they may or may not exercise.
39. For the above reasons I think that the language of Section 5(7) of the Act and of Statute No. 22 do not provide for any remedies to the students which might justify the rejection of the writ petitions.
40. The last point argued by the learned counsel for the respondents is that it is a disciplinary matter and it concerns the University and its students and this Court, therefore, should not interfere with the orders passed by the University Authorities. This question has been troubling me since the time the hearing of the writ petitions started. My own inclination has been generally not to interfere with orders passed by the University Authorities in order to maintain discipline in the Universities or Colleges.
After giving the matter my most careful consideration I have come to the conclusion that these are cases in which the proper exercise of discretion would be to interfere. According to the findings recorded by me above, the petitioners have been meted out punishments of rustication and expulsion. Copies of the orders passed against the petitioners, have been circulated to the Registrars of all the Universities in the Indian Union. The petitioners, under the circumstances, are likely to find the doors of all the Universities shut against them.
Their educational careers have come to an end and it is obvious that this is going to affect their future lives. I do not say that in these cases the authorities have not acted with the best of motives, but the Act has imposed a duty on the Academic Council itself to deal with disciplinary matters. The petitioners say that the matter was mooted before the Academic Council, but this is denied on behalf of the respondents. In any case, the only body which was authorised to deal with the matter has not done so. On the other hand, a similar body, which had no jurisdiction in the matter, has purported to mete out punishments to the petitioners.
I have come to the conclusion that even this similar body did not apply its own mind to a consideration of the question whether the petitioners bad actually participated in the commission of the subversive act. For that decision the smaller body relied on the findings of another committee appointed by the Vice Chancellor, whereas the Executive Council by its resolution had imposed the task on the Standing Committee. I think it is in the interest of the University itself that the matter should be disposed of as quickly as possible.
41. If the legal position is as I think it to be and if I dismiss these writ petitions, the obvious consequence would be that the petitioners would run to the regular civil courts. The prolonged proceedings before those courts excluding examination and cross-examination of witnesses would be resorted to and feelings are bound to be accentuated. The position would certainly be very much worse if the suits are filed in the civil courts at Banaras and the civil Courts proceed to try them in the regular course. There is a possibility of scores of such suits being instituted and the proceedings being prolonged for years.
There can be no doubt that substantial questions of law do arise and, where this is the position. I cannot expect the students to sit quietly at their homes and submit to the orders of expulsion and rustication, copies of which have been sent to all the Universities. I think the sooner this matter is finally disposed of the better it is for all concerned.
42. The learned counsel for the petitioners drew my attention to some cases to which I shall presently refer, but I may point out that none of those cases is such where it was found that the Authority which had imposed the punishment had no power to do so and still the Courts may have refused to interfere.
43. In the case of Ex parte Fry 1954-2 All ELR. 118, the Court refused to interfere with an order passed against a fireman who had been cautioned for refusal to clean the uniform of an officer. It was held that the Court would not interfere by an order of certiorari with the exercise of a disciplinary power in a service such as a service in Fire Brigade. One distinction between that case and the instant case is that the main relief in the instant case was for the issue of a writ of mandamus while in the English case it was for the issue of certiorari. Further the learned Judges remarked that the fireman should have obeyed the order and then taken such steps as he might have been advised.
44. Similar questions have arisen in this Court also and reference may first be made to the case of Keshab Chandra v. Inspector of Schools : AIR1953All623 . The learned Judges observed that it was not possible to hold that students had a legal right to come to a court of law and required the head of the institution to justify his action of meting out punishments to the students, as this would be subversive of all discipline in schools and colleges.
But after making those observations the learned Judges did interfere with the order of the Inspector of Schools imposing punishment upon the petitioner in that case on the ground that the Inspector of Schools had no jurisdiction to pass the order. They remarked that no action had been taken by the Principal of the school, but it had been taken by the Inspector of Schools. The observations thus were merely obiter ,dicta.
45. In the case of Ram Chander Roy v. University of Allahabad (S) AIR 1956 All. 46, the learned Judges made observations somewhat different from those made, in the case of Keshab Chandra : AIR1953All623 . They said that the High Court would not exercise the functions of an appellate court or of a supervisory body for purposes of scrutinising the appropriateness of the order passed by the Vice-Chancellor and that in matters of discipline of educational institutions the High Court would not exercise its powers under Article 226 of the Constitution until some legal right of students had been violated.
They went in detail into the question whether the Vice-Chancellor had the power to mete out the punishment and they decided that question in favour of the Vice-Chancellor, They did not say that they would not go into the question of the jurisdiction of the Vice-Chancellor because it was a disciplinary matter arising between the Vice-Chancellor and the students of the University.
46. The case of Ghanshyam Das v. Board of High School and Intermediate Education, U. P. Allahabad : AIR1956All539 , might be distinguished on the ground that the Intermediate Board was merely an examining body, and the principle of domestic forum applied to educational institutions did not apply to orders passed by an examining body. In that case, after a difference of opinion between the Judges hearing the case, the matter was referred to a third Judge, and the third Judge was of the opinion that a writ of mandamus should be issued directing the Intermediate Board to forbear from enforcing the resolution punishing the student.
47. The Bombay High Court in the case of Nanik Dharam Das v. Maharaja Sayaji Rao University, Baroda : AIR1957Bom246 , held that in holding examinations and in imposing punishments for misconduct the University was acting as an administrative body. If the University was satisfied that the student had been guilty of misconduct, the civil court was not competent to enter upon an investigation of the matter and hold that the evidence before the University was insufficient to hold the misconduct proved. No question of jurisdiction arose in that case and the decision docs not help the respondents.
48. The same appears to be the position with respect to a case decided by their Lordships of the Supreme Court and reported in Vice-Chancellor, Utkal University v. S. K. Ghosh : 1SCR883 . The observations made in this case only are to the effect that the High Court and the Supreme Court) could not act as Courts of appeal and consider and examine the facts for themselves. They could not substitute their own wisdom and discretion for that of the persons to whose judgment the matter was entrusted by law. The University Authorities were held to have acted honestly as reasonable and responsible men confronted with an urgent situation and this was not the sort of case in which a mandamus would be justified. That again was not a case where it was found that the Authority imposing the punishment had no jurisdiction to do so.
49. On the other hand, in a well considered judgment (if I may say so with respect) the High Court of Orissa in the case of Surendra Mohan v. Gopal Chandra : AIR1952Ori359 , laid down that speaking generally the principles applicable to Courts of Justice were not applicable to domestic Tribunals and the jurisdiction of courts in regard to Tribunals was of an extremely limited nature.
The only grounds on which the Court mightinterfere were lack of jurisdiction, absence of good faith and disregard of principles of natural justice. The Orissa case was not a case where any student had been punished by the University, and the dispute was between the members of the University themselves, but lack of jurisdiction has been generally considered to be a good ground for interference, and it is for this reason that an order without jurisdiction is a nullity. Whenever any matter comes before any Court of law, the Court has to disregard it completely as being non-existent.
50. The last question is what is the relief which I should grant to the petitioners. I do not think that I can issue a writ of certiorari quashing the proceedings which culminated in the impugned order, because the proceedings were of an administrative nature, and I do not think that they can be said to be either judicial or quasi-judicial in character. The first prayer in the petition has, therefore, to be refused, though my finding is that the impugned order is without jurisdiction and a nullity. But the second prayer may be granted in a modified form.
51. I accordingly allow the writ petitions and order that writs of mandamus be issued directing the respondents not to enforce the resolution of the Standing Committee passed on the 25th November 1958 and the subsequent orders based upon that resolution, as far as the petitioners are concerned.
52. In the circumstances of the cases, I order that the parties bear their own costs.