Jagdish Sahai, J.
1. The following question has been referred to us by the Division Bench hearing Special Appeal No. 682 of 1964 which is directed against the judgment of S. N. Ivedi, J., dated 20-8-1964 dismissing Writ Petition No. 5718 of 1968 filed by the appoint Gajadhar Prasad (hereinafter referred to as the appellant):
'Whether the Vice-Chancellor of the Allahabad University is required to perform quasi Judicial functions in inflicting punishments uponstudents for breach of discipline ?'
2. By means of an order, dated 2-12-1963 the Vice-Chancellor of the Allahabad University (Dr. Balbhadra Prasad) expelled the appellant from the University with immediate effect' ana ordered that he be not admitted to any class or examination of the University in future. One of the submissions made before the Division Bench was that the appellant had not been heard before the order mentioned above was passed against him. It is under these circumstances that the question arose whether the Vice-Chancellor performed purely administrative functions in inflicting punishments upon students for breach of discipline or is required to perform quasi judicial functions.
3. Section 12 (4) of the Allahabad University Act (hereinafter referred to as the Act) reads:--
'The Vice-Chancellor shall exercise general control over the affairs of the University andshall be responsible for the due maintenance of discipline therein.'
Chapter XX of the Statutes deals with discipline and reads:--
'The Vice-Chancellor shall be responsible for maintaining discipline in the University and he shall have all powers necessary for the purpose.'
These are the only provisions dealing with discipline in the University and the power of the Vice-Chancellor to inflict punishment on students. The Act, the Statutes, the Ordinances and the Regulations do not expressly provide for calling for an explanation and hearing a student before inflicting punishment upon him nor do they provide the procedure required to be followed by the Vice-Chancellor in such a matter. Actually, it is nowhere expressly stated that the Vice-Chancellor can punish a student. The power to punish is inferred from the words 'and he shall nave all powers necessary for the purpose' occurring in Chapter XX of the statutes and from the requirement of that statute as also of Section 12 (4) of the Act that the Vice-Chancellor shall be responsible for the due maintenance of discipline in the University.
4. The Allahabad University, like other Universities, is an educational institution. Its primary function is to teach students and conduct examinations. Such power to punish its Students as the Vice-Chancellor has is to secure smooth and proper running of the University. As is clear from the language of Section 12 (4) of the Act and Chapter XX of the statutes punishment can only be inflicted upon a student if he nas breached the discipline of the University and for no other reason. The punishmentpowers of the Vice-Chancellor must be judged in the setting of Section 6 of the Act which expressly provides that the University is open to all and ensures that no one would arbitrarily be deprived of the right to study in the University and the settled law that the right to receive education is a basic right in a democracy: (see S.M.N. Tripathi v. Dy. Inspector-General of Police : AIR1964All540 . The Vice-Chancellor cannot remove a student from the rolls of the University only because in his subjective opinion the student is an undesirable person or that he does not like the student. Clause 22 of the statutes provides that 'the Dean of the student welfare shall be consulted by the Vice-Chancellor before taking action against a student on disciplinary grounds'. Consultation with the Dean of student welfare is thus imperative and to that extent the Vice-Chancellor cannot act unilaterally. Clause 8 of the statutes deals with the appointment of the Proctor and Assistant Proctors and provides that the Vice-Chancellor may
'take from the Dean of the student welfare and the Proctor such assistance as he might consider necessary.'
Clause 31 (a) of the statutes provides that
'the Proctor shall assist the Vice-Chancellor in the exercise of his disciplinary authority in respect of the students of the University and shall also exorcise such powers and perform such duties in respect of discipline as may be assigned to him by the Vice-Chancellor in this behalf.'
That being the statutory position, the question to consider is whether the Vice-Chancellor, while punishing a student, has to perform an administrative or a quasi judicial act. As pointed out earlier, there is no express provision on the point. Generally a statute does not provide, in so many words, that the authority passing the order is required to act judicially. That can only
'be inferred from the express provisions of the statute in the first instance in each case and no circumstances alone will be determinative of the question. The inference whether an authority acting under a statute, where it is silent, has a duly to act judicially will depend upon the express provisions of the statute read along with the nature of the rights affected, the manner oi disposal provided, the objective criterion, if any, to be adopted, the effect of the decision on the persons affected and other-indicia-afforded by the statute.' See Board of High School and Intermediate Education v. Ghanshyam Das Gupta : AIR1962SC1110 .
In the process of deciding whether or not to punish a student, and if to punish, what punishment to award, the Vice-Chancellor cannot avoid objective determination of certain facts. It is only when he is fully satisfied that those facts have been established that he ran proceed to punish the student.
5. There can be no escape from the conclusion that whether or not a student has breached the discipline of the University can only be decided objectively on the basis of the material available and is not capable of being determined on the subjective opinion of the Vice-Chancellor. Breach of discipline involves misconduct of some kind. How can the Vice-Chancellor determine whether or not a student is guilty of misconduct unless he has before him material in support of the alleged misconduct and until he has examined that material and satisfied himself that the same is trustworthy and sufficient to enable him to hold the student guilty of the misconduct charged. It is thus clear that the Vice-Chancellor can carry out his duty of deciding whether or not the student is guilty of misconduct only by judging the material in his possession and it is equally clear that he would not be able to discharge this duty properly and fairly or decide the matter justly without hearing the student.
As was pointed out by their Lordships in : AIR1962SC1110 (supra), in some cases, the misconduct attributed to the student may be of a very serious nature, 'for example impersonation, commission of fraud and perjury'. It may be assault on a teacher or a fellow student or theft. The Vice-Chancellor's
'decision in matters of such seriousness may even lead in some cases to the prosecution of the student in Courts'.
Considering the serious consequences to the student and the serious nature of the misconduct which the Vice-Chancellor may find in some cases it must be held that the Vice-Chancellor is required to act judicially. The view I am taking finds full support from : AIR1962SC1110 (supra). It is true that there is no Us in the present case in the sense that there are not two contesting parties before the Vice-Chancellor and the matter rests between him and the student but in view of the nature of the duty to be performed by the Vice-Chancellor and the serious consequences that may befall the student, it cannot but be held that the Vice-Chancellor has to act judicially. As was pointed out by Das, J. In Province of Bombay v. Khushaldas S. Advani. : 1SCR621 , the mere fact that there are no two parties would not necessarily render the duly to be performed, administrative. Das, J. observed as follows:--
'The principles as 1 apprehend are;
(ii) 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.
In other words, while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi judicial act if the authority is nevertheless required by the statute to act judicially,'
In : AIR1962SC1110 (supra) the same view was reiterated and the passage extracted above relied upon.
6. The fact that the law clearly provides for assistance to the Vice-Chancellor from the Dean of students welfare and the proctor in disciplinary proceedings against a student clearly shows that some sort of an investigation is contemplated and the circumstance that the law is imperative that the Vice-Chancellor shall consult the Dean of the students welfare olearly implies that there must be material on the basis of which a consultation is possible. An investigation being implied and there being an express provision for consultation, it is implicit that the student should be heard before action is taken against him for otherwise the investigation will be a farce and the consultation a mockery of the provision.
7. Mr. G. P. Singh, who has appeared for the University, has contended that : AIR1962SC1110 (supra) is distinguishable on the ground that in that case the Supreme Court had to consider the statutory provisions governing the Board of High School and Intermediate Education and not the provisions applicable to the Allahabad University. No two cases can be on exactly the same facts. The decision in Ghanshyam Das's case : AIR1962SC1110 , lays down the tests which would determine whether or not an authority has to act judicially. That was also a case where there was no lis in the sense that there were only two parties, i.e., the examinee and the Board and there was no express provision requiring the authority to act judicially. The two factors on which that decision rests, i.e., (1) the authority in performing its duties had, because of the very nature of the duty, to judge materials, and (2) the consequences to the examinee could be very serious, exist in the present case also. I can find no ground to distinguish Ghanshyam Das's case : AIR1962SC1110 from the one before us. In fact, ever since : AIR1962SC1110 has been decided by the Supreme Court, the principles enunciated in that case have been the basis of decisions in all cases where there was a dispute similar to one before us between students or examinees on the one hand and the Universities on the other.
8. in R. Nagalingam v. University of Madras, : AIR1963Mad31 the examination of a student had been cancelled and he had been debarred from undergoing course of studies for two years and appearing in an examination during that period by the Madras University. Relying upon : AIR1962SC1110 (supra), the single Judge of the Madras High Court held that the authority had to act judicially and quashed the impugned order. The same view was taken by that Court in E.V. Kumar v. University of Madras : AIR1964Mad460 . In Ajit Singh v. Ranchi University : AIR1964Pat291 an order of the Ranchi University was quashed by the Patna High Court, following : AIR1962SC1110 (supra).
9. in Ramesh Kapur v. Punjab University , Ram Chandra Singh v. Punjab University and Karamjit Kaur v. Punjab University, AIR 1964 Punj 327, following : AIR1962SC1110 , thePunjab High Court held that the University had to act judicially.
10. in all these cases, the statutory provisions were different from those in : AIR1962SC1110 (supra) and yet the High Courts concerned held that the matter stood concluded by the Supreme Court decision in Ghanshyam Das's case : AIR1962SC1110 .
11. Dipa Pal v. University of Calcutta : AIR1952Cal594 was approved by the Supreme Court in Ghanshyam Das's case, : AIR1962SC1110 . The Calcutta High Court held in that case that the functions performed by the Calcutta University were quasi judicial because the decision of the University authorities affected not only the rights of the petitioner as an examinee but also her right to reputation. In University of Ceylon v. Fernando, (1960) 1 All ER 631, the Privy Council held that the
'authority concerned must do its best to act justly, and to reach just ends by just means. If a statute prescribes the means, it must employ them. If it is left without express guidance it must still act honestly and by honest means'.
These cases also support the view that I am taking.
12. Mr. G. P. Singh placed reliance upon Jogendra Rai Kishore v. University of Allahabad : AIR1956All503 where a Division Bench held that :--
'It is, therefore, clear from a perusal of these provisions that the Vice-Chancellor is the executive head of the University and is primarily responsible for the maintenance of discipline among the students of the University. For the purpose of maintaining discipline he is possessed of all the necessary powers.... There is nothing in the statute which casts any duty upon the Vice-Chancellor to act judicially. .....'
The decision rests on the circumstance that there was no provision in the statute casting 'any duty upon the Vice-Chancellor to act judicially'. As was pointed out in Ghanshyam Das's case, AIR 1962 All 1110 by the Supreme Court,
'the statute is not likely to provide in so many words that the authority passing the order is required to act judicially'
and that it has got to be inferred from the express provision of the statute and other circumstances as to whether or not the authority has to act judicially. The Division Bench deciding Jogendra Rai's case : AIR1956All503 (supra) did not consider the question that a right of hearing is implicit in the nature of the proceedings which the Vice-Chancellor has to take before punishing a student.
13. The next case on which Mr. Singh placed reliance is Keshab Chandra v. Inspector of Schools : AIR1953All623 where it was held as follows:--
'To hold that a student has a legal right to come to a Court of law and require the head of the institution to justify his action where he has meted out some punishment or taken any disciplinary action will be subversive of all discipline in the schools and colleges . . this Court will not interfere in the internal autonomy of educational institutions.'
Since that case was decided, a lot of case law, including the decisions of the Supreme Court has developed on the point and the consideration that interference by the High Court 'will be subversive of all discipline in the schools and colleges' cannot justify ignoring the statutory provisions and seeing to it that the University and the school authorities act within the limits of their power. Besides, writ in Keshab Chandra's case : AIR1953All623 was refused not on the ground that the Court was not competent to issue it, but on the ground that the Court would not like to interfere in such matters.
14. Another case of this Court, on which Mr. Singh relied, is Ramesh Chandra Chaube v. Principal, B. B. I. College : AIR1953All90 where it was observed :--
'There is a tendency of indiscipline in thestudent community and it would be subversiveof discipline if this Court were to interfere withthe action taken by the heads of institutions in the intevests of discipline . . There is noguarantee in the Constitution that if a student is studying in any institution then ho has aright to continue his education in that particularinstitution, even though he may not be acceptable to the authorities of the institution.'
With great respecf to the learned Judges whodecided it, no reasons have been given for theview taken in this ease. In my judgment, thedecision is not correct. The considerationswhich are relevant and important and whichfound favour with the Supreme Court do notappear to have boon placed before the Benchhearing the ease.
15. in any case, none of the three Allahabad cases cited above by Mr. Singh can be considered to be good law in view of the decision of the Supreme Court in Ghanshyam Das's case. : AIR1962SC1110 (supra).
16. The last Allahabad case on which Mr. Singh relied is : AIR1964All540 (supra). In my judgment, that case has no application to the facts before us. It was not a case of a student or an examinee in an educational institution or a University but was that of a police cadet who was expelled from the Police College under the orders of the Principal who is a Deputy Inspector-General of Police. That decision is based on its own facts.
17. Mr. Singh then cited Board of High School and Intermediate Education, U. P. v. Bagleshwar Prasad : 1SCR20 . In my judgment that decision does not support the case of the University that the Vice-Chancellor, while punishing a student, performs administrative and not quasi judicial functions. Actually the Supreme Court held that;
'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, we think not be reasonable to import into these enquiries all considerations which govern criminal trials in ordinary Courts of law.
The decision, therefore, supports the submission made on behalf of the appellant that the Vice-Chancellor has to act judicially, and that the appellant is entitled to adequate opportunity to defend himself.
18. in the end, Mr. Singh relied upon Bhagwan v. Ram Chand : 3SCR218 . That was a case under the U. P. (Temporary) Control of Rent and Eviction Act and their Lordships had to consider the question whether in proceedings under Section 7-F of that Act, before the State Government, the principles of natural justice applied and the parties were entitled to a reasonable opportunity of being heard. Their Lordships held that they were so entitled. I can find nothing in that case which may support the submissions made by Mr. Singh.
19. I would like to point out that the argument that the head of an educational institution has an absolute discretion, so far as disciplinary action against the boys was concerned, was rejected in Hutt v. Governors of Haileybury College, (1888) 4 TLR 623 where Field, J. observed:
'Such a power would be for loo great and dangerous, viz., that any boy at school be liable to be branded for life by expulsion simply because a master, on his sole authority and discretion, however distinguished he may be, had come to the conclusion that such a course was necessary for the well being of his school. Such absolute discretion can never be permitted.'
A is is apparent irom the note of the Editor in Fitzgerald v. Northcote, (1865) 176 ER 734,
'the Courts rather lean against an arbitrary discretionary power of removal or expulsion, and it is only yielded to where expressly conferred by a founder. In such a case, no doubt where the trustees have, by the foundation, the power to remove at their discretion, they may remove without assigning any reason, if they do not act from corrupt or improper motives. But where there is not such a power and the power is to remove for neglect, misbehaviour or other good cause, the trustees have not a power of arbitrary dismissal; but only for just cause, which they are bound to exercise in a mode of proceeding according to principles of right, and to general rules applicable to the administration of justice by the Law of England'.
This view was accepted by the Orissa High Court in Ramesh Chandra Sahu v. N. Padhy, : AIR1959Ori196 .
20. The Allahabad University is a public institution run mostly by Government funds. There is nothing in the Act, the Statute, the Ordinances and the Regulations expressly or by necessary implication conferring on the Vice-chancellor the power to punish a student without giving an opportunity of being heard.
21. Having given the matter my anxious consideration, I answer the question referred to us by saying that the Vice-Chancellor of the Allahabad University is required to perform quasi judicial functions in inflicting punishments upon students for breach of discipline. I would direct that the costs should abide the result.
R.S. Pathak, J.
22. I agree with my brother Jagdish Sahai. The power exercised here by the Vice-Chancellor is a disciplinary power. In the exercise of that power lie expelled the appellant from the University and denied him future admission to any class or examination of the University. The power to do so is referable to Section 12 (4) of the Allahabad University Act, which entrusted to the Vice-Chancellor general control over University affairs and also the responsibility for maintaining discipline in the University. The responsibility in the Vice-Chancellor for maintaining discipline is reiterated in Chap. XX of the Statute and it specifically declares that he shall have all powers necessary for the purpose, in his Cooley Lectures, Prof. Wade has referred to the disciplinary power as 'a power of punishment as well as of control' and emphasises that 'it seems especially necessary that it should be made subject to the fundamental rules of fairness in the manner of its exercise.'. The exercise of a power of punishment necessarily calls for the application of the principles of natural justice. That proposition I think, has now become so well settled as to have become crystalised into a rule of law. A charge is levied against a person of the commission of some misconduct or wrong and that is followed by punishment. Between the charge and the punishment the rule of the law interposes the necessity of an enquiry. That enquiry must enable the person charged not only to know what is the wrong or misconduct alleged against him but also to be heard in his defence. It was pointed out by the Judicial Committee in De Verteuil v. Knaggs, 1918 AC 557 at p. 560: (AIR 1918 PC 67 at p. 69):
'Their Lordships are of opinion that in making such an inquiry there is, apart from special circumstances, a duty of giving to any person against whom the complaint is made a fair opportunity to make any relevant statement which he may desire to bring forward and a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice.'
There can be little doubt that disciplinary action taken against a student can, in certain circumstances, lead to severe results and grievously affect his future. It is not necessary to refer to specific instances. I shall content myself merely by referring to the observations of the Supreme Court in : AIR1962SC1110 , where it was pointed out that the effect of disciplinary action could, in an extreme case, blast the career of a young student for life and could, in any case, attach a serious stigma on him capable of damaging him in later life. It is true that the observations were made in a case somewhat different on the facts than the one before us. It was concerned with a case where a student had been penalised for having adopted unfair means in an examination. To my mind, however, there is no difference in principle when the measure adopted is intended to punish the student for gross misbehaviour and indiscipline. In both cases, before action can be taken, it isnecessary for the authority concerned to inquire into the charge against the student and upon the basis of material obtained during that inquiry to determine whether the charge is established. Although the necessity of an enquiry in itself may not always lead to the conclusion that the process is quasi-judicial calling for tohe application of the principles of natural justice, if the disciplinary action is considered with reference to its consequences upon the student it seems inescapable that the statutory provision vesting that power in the authority implies quasi-judicial functions.
It is not necessary, as was held by the House of Lords in Ridge v. Baldwin, 1964 AC 40, that the statute should contain an express provision requiring the authority to act judicially. That requisite may be discerned, as the Supreme Court pointed out in Ghanshyam Das Gupta's case, : AIR1962SC1110 (supra), from
'the nature of the rights affected, the manner of disposal provided, the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute'.
This was re-emphasised by the Supreme Court in Associated Cement Companies Ltd., Bhupendra Cement Works, Surajpur v. P. N. Sharma, Civil Appeal No. 44 of 1964, dated 9-12-1964: : (1965)ILLJ433SC , where the view expressed by the House of Lords in 1964 AC 40 (supra) was adopted, and reference to that view was also made by the Supreme Court in : 3SCR218 . In Calcutta Dock Labour Board v. Jafar Imam, Civil Appeal No. 569 of 1964, dated 22-3-1965: : 1966CriLJ189 , the Supreme Court again considered the nature of character of the proceeding which a statutory authority or body must adopt in exercising its disciplinary power for the purpose of terminating the employment of its employees, and held that--
'In ascertaining the nature of such proceedings with a view to decide whether the principles of natural justice ought to be followed or not the tests laid down by Lord Reid in 1964 AC 40, and others are not relevant.'
The disciplinary power in that case was exercised for the purpose of terminating the services of the appellant's employees, but the principles underlying the tests apply equally to the case where disciplinary action is taken in other fields. In his excellent discussion on the subject in his 'Judicial Review of Administrative Action' Professor S. A. de Smith refers to a whole range of cases where the exercise of disciplinary authority by ecclesiastical, military, police, medical and other bodies has in various forms of proceedings been characterised as judicial and subjected to review by the Courts.
It is true that it is a very rare case indeed where the Courts in England have held that a quasi-judicial procedure is involved in disciplinary proceedings against school or university students, but in the countries to which the common law has migrated its influence in that field is already being markedly felt. Professor deSmith refers to Sehoonwinkel N. O. v. FoucheN. O., (1954) 4 SA 92 (South Africa) and Fernando v. University of Ceylon, (1957) 58 New LR 265 (Ceylon). The latter case was carried in appeal to the Judicial Committee by the University of Ceylon, and it was not disputed there that an enquiry against a student who was alleged to have acquired knowledge of a passage in one of the examination papers before taking the examination was a quasi-judicial, and not an administrative, proceeding: see (1960) 1 All ER 631.
23. The decision of this Court in : AIR1956All503 , does not, I say with respect, proceed upon a correct view of the law. As my brother Jagdish Sahai has pointed out, the decision of the Supreme Court in Ghanshyam Das Gupta's case : AIR1962SC1110 (supra) has taken a different view altogether, and the Bench which decided Jugendra Raj Kishore's case : AIR1956All503 , did not have the benefit of the Supreme Court decision. As regards the observations of this Court in AIR 1953 AH 623, that a student has no legal right to come to a Court of law and require the head of an institution to justify disciplinary action against the student, that observation was prompted by the reluctance of the Courts to interfere in every case of disciplinary action by educational institutions. Moreover, in that case the Court found that the Principal had not taken any disciplinary action. If this Court can be said to have held in that case, and in : AIR1953All90 , that no petition would lie under Article 226 of the Constitution for redress to a student complaining of disciplinary action, those eases do not, I think, lay down the correct law.
24. I answer the question referred to us in the affirmative.
G. C. Mathur, J.
25. The following question has been referred for opinion to this Full Bench :--
'Whether the Vice-Chancellor of the Allahabad University is required to perform quasi-judicial functions in inflicting punishments upon students for breach of discipline ?'
26. The appellant was a student of the Allahabad University. In the academic session .1963-64 he was a student of the M.A. (Final) (Ancient History) Class of the University and was also preparing for the LL.B. (Previous) Examination as an ex-student. By an order, dated December 2, 1963, the Vice-Chancellor expelled the appellant from the University and directed that he be not admitted to any class or examination of the University in future. Thereupon, the appellant filed C.M. Writ No. 5713 of 1963 in this Court, praying that an order, direction or writ in the nature of certiorari be issued quashing the order of the Vice-Chan-cellor, dated December 2, 1963. By judgment, dated August 20, 1964, Dwivedi, J., dismissed the writ petition. Before the learned Single Judge it was contended on behalf of the University that the disciplinary proceedings before the Vice-Chancellor were not quasi-judicial proceedings and as such principles of natural justice did not apply to them. In support of this contention, two Division Bench decisions of thisCourt reported in Ram Chander Roy v. University of Allahabad, (S) AIR 1956 All 46 and : AIR1956All503 , were relied upon.
The learned Single Judge did not go into the question whether the proceedings before the Vice-Chancellor were quasi-judicial proceedings or not as he was of opinion that, even if they were so, the petitioner had been given an ample opportunity of being heard. Against the judgment of the learned Single Judge the appellant preferred Special Appeal No. 682 of 1964. Before the Bench hearing the appeal, the ques-tion whether the Vice-Chancellor, while taking disciplinary proceedings against a student, was required to act quasi-judicially or not was again raised and reliance was again placed on the above mentioned two decisions. On behalf of the appellant it was contended that these decisions were no longer good law in view of subsequent decisions of the Supreme Court, particularly that reported in : AIR1962SC1110 . Considering the importance of the question raised, the Division Bench considered it proper to refer the question for opinion to a Full Bench.
27. The importance of deciding whether a statutory tribunal or authority is required to act quasi-judicially or not is that, in the former case, its orders are liable to control by certiorari if it purports to act without jurisdiction or in excess of it or in violation of the principles of natural justice or commits any error of law apparent on the face of the record. The writ or certiorari is a well known ancient high prerogative writ that used to be issued by the Courts of the King's Bench to correct the errors of inferior Courts strictly so called. Gradually, the scope of these writs came to be enlarged so as to enable the superior Courts to exercise control over various bodies which were not, strictly speaking, Courts at all but which were by statute, vested with powers and duties that resembled those that were vested in the ordinary inferior Courts.
28. in the King v. The Electricity Commrs., 1924-1 KB 171, Atkin, L. J. has laid down the following test for determining when a statutory body or authority is subject to the writ of certiorari :--
'Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject, to the controlling jurisdiction of the King's Bench Division exercised in these writs'
The Supreme Court has, in : 1SCR621 , considered at length the question as to wheii and in what circumstances administrative or executive authorities are required to act in a quasi-judicial manner. S. R. Das, J. fas he then was) laid down the following tests :--
'(1) That if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis andprima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and
2. 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.'
In several subsequent decisions, the Supreme Court has approved and applied these tests.
29. The question, therefore, which has to be considered, is whether, in the present case, any one of these tests is applicable and is satisfied. There can be no doubt that, when the Vice-Chancellor proceeds to take disciplinary action against a student, he performs an administrative function. If any one of the above two tests is found to be applicable to the exercise of his functions by the Vice-Chancellor, it must be held that he is required to act quasi-judicially. It has not been contended before us, nor could it be properly contended, that any lis or contest between two parties exists or comes into being when the Vice-Chancellor takes disciplinary action against a student. The first of the above two tests is not applicable to these proceedings at all. In order to determine whether the second test is applicable and whether the Vice-Chancellor has a duty to act quasi-judicially, the provisions of the relevant statutes have to be examined.
30. The powers of the Vice-Chancellor are to be gathered from the Allahabad University Act, 1921, and from the statutes framed under that Act. The relevant provisions are set down below :--
'Section 12(2)--It shall be the duty of the Vice-Chancellor to ensure that faithful observance of the provisions of this Act, the Statutes and the Ordinances and he shall, without prejudice to the powers of the Chancellor under Section 42, possess all such powers as may be necessary in that behalf.
Section 12 (4)--The Vice-Chancellor shall exercise general control over the affairs of the University and shall be responsible for the due maintenance of discipline therein.
Clause (8) of the Statute--Powers--The Vice-Chancellor shall, where the power in this regard has been delegated by the Executive Council, appoint the Proctor and such number of Assistant Proctors as might be necessary. The appointment of the Assistant Proctor shall be made in consultation with the Proctor. The Vice-Chancellor shall, in exercise of his powers and the discharge of his duties under Section 12 (4) of the Act, take such assistance from the Dean of Student Welfare and the Proctor as he might consider necessary.
Clause (22) of the Statute--The Dean of Student Welfare shall be consulted by the Vice-Chancellor before taking action against a student on disciplinary grounds.
Clause (31) of the Statute--31 (a)--The Proctor shall be appointed from amongst the teachers of the University by the Executive Council on the recommendation of the Vice-Chancellor or by the Vice-Chancellor where the power of appointment in this regard has been delegated to him by the Executive Council. The Proctor shall assist the Vice-Chancellor in the exercise of his disciplinary authority in respect of students of the University, and shall also exercise such powers and perform such duties in respect of discipline as may be assigned to him by the Vice-Chancellor in this behalf.
31 (b)--The number of Assistant Proctors who will assist the Proctor shall be fixed by the Executive Council from time to time but shall not exceed eight.
31 (c)--The Assistant Proctors shall be appointed by the Executive Council or by the Vice-Chancellor, where the power in this regard has been delegated to him by the Executive Council, from amongst the teachers of the University after considering the recommendation of the Proctor.
Chapter XX of the Statute--Discipline--The Vice-Chancellor shall be responsible for maintaining discipline in the University and he shall have all powers necessary for the purpose.'
31. The Act and Statutes do not, in so many words, provide that the Vice-Chancellor is required to act quasi-judicially when exercising his powers of taking disciplinary action against students. The duty to act judicially, if any, can only be inferred from the express provisions of the Act and Statutes. The provisions set out above do not lay down the procedure to be followed in taking disciplinary action; they do not require the Vice-Chancellor to find the existence of any particular facts before punishing any student; they do not lay down the punishments that may be imposed by the Vice-Chancellor; nor do they prescribe the conditions under which any particular punishment may be inflicted. What is the procedure to be followed, what are the acts which amount to indiscipline and what is the nature and quantum of punishment that may be imposed in a particular case are all matters which nave been left to the discretion of the Vice-Chancellor. In these circumstances, it is difficult to say that the Act and the Statutes require the Vice-Chancellor to act quasi-judicially in proceedings for disciplinary action.
32. it is contended by the appellant that the very nature of the power conferred upon the Vice-Chancellor is such that it can only be exercised quasi-judicially. It is said that the Vice-Chancellor must objectively decide whether a student, against whom action is proposed to be taken, has done something or omitted to do something which amounts to an act of indiscipline, and that, if the Vice-Chancellor makes an order against a student it is likely to have very serious consequences for him. From these two factoRs. we are asked to infer that the Vice-Chancellor is required to act quasi-judicially. In my opinion, these factors are not sufficient to enable one to draw such an inference. It is well settled by the decisions of the SupremeCourt that merely because an authority has to determine some question of fact and that such determination affects the rights of persons, its decision is not quasi-judicial unless there is a further duty upon the authority to act judicially.
Lord Hewart, C. J. has observed in Rex v. Legislative Committee of the Church Assembly, 1928-1 KB 411, as follows:--
'In order that a body may satisfy the required test, it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be superadded to that characteristic the further characteristic that the body was the duty to aot judicially.'
The above passage was quoted with approval by Lord Radcliffe in delivering the judgment of the Privy Council in Nakkuda Ali v. M. F. de S Jayaratne, 1951 AC 66. This view was accepted and followed by the Supreme Court in : 1SCR621 , as will appear from the following observations made by the learned Judges constituting the Bench in that case :--
Kania, C. J. (with whom Patanjali Shastri, J. agreed) at p. 225--
'The respondent's argument that whenever there is a determination of a fact which affects the rights of parties, the decision is quasi-judicial, does not appear to be sound....................................................
It is broadly stated that when the fact has to be determined by an objective test and when that decision affects rights of some one, the decision or act is quasi-judicial. This last statement overlooks the aspect that every decision of the executive generally is a decision of fact and in most cases affects the rights of some one or the other. Because an executive authority has to determine certain objective facts as a preliminary step in the discharge of an executive function, it does not follow that it must determine those facts judicially. When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari.'
Fazl Ali, J., at p. 229--
'The mere fact that an executive authority has to decide something does not make the decision judicial. It is the manner in which the decision has to be arrived at which makes the difference, and the real test is: is there any duty to decide judicially'.
Mahajan, J., approved the following observations of the Bombay High Court:--
'In other words, the duty cast must not only be to determine and decide a question, but there must also be a duty to determine or decide that fact judicially.'
S. R. Das, I., at p. 257--
'....... the two kinds of acts have manycommon features. Thus a person entrusted to do an administrative act has often to determine questions of fact to enable him to exercise his power. He has to consider facts and circum-stances and to weigh pros and cons in his mind before he makes up his mind to exercise his power just as a person exercising a judicial or quasi-judicial function has to do. Both have to act in good faith. A good and valid administrative or executive act may well be and is frequently made dependent by the Legislature upon a condition or contingency which may involve a question of fact, but the question of fulfilment of which may, nevertheless, be left to the subjective opinion or satisfaction of the executive authority, as was done in the several ordinances, regulations and enactments considered and construed in the several cases referred to above. The first two items of the definition given by Atkin, L. J. may be equally applicable to an administrative act. The real test which distinguishes a quasi-judicial act from an administrative act is the third item in Atkin, L. J.'s definition, namely, the duty to act Judicially.'
33-34. The case of Radeshyam Khare v. Slate of Madhya Pradesh : 1SCR1440 , again, very clearly establishes that merely because an administrative authority is required to determine some question of fact which affects the rights of otheRs. the decision cannot be said to be quasi-judicial. In that case, the State Government had passed an order under Section 53-A of the C. P. and Berar Municipalities Act appointing a servant of the Government as Executive Officer of the Municipal Committee of Dhantari. Section 53-A reads as follows:-
'53-A (1)--If a committee is not competent to perform the duties imposed on it or undertaken by it by or under this Act or any other enactment for the time being in force and the State Government considers that a general improvement in the administration of the municipality is likely to be secured by the appointment of a servant of the Government as the executive officer of the committee, the State Government may by an order stating the reasons therefor published in the gazette, appoint such servant as the executive officer of the committee for such period not exceeding eighteen months as may be specified in such order.'
it was contended before the Supreme Court that, in making an order under Section 53-A the State Government was required to act quasi-jtidicially as the statute cast upon it three duties, namely,--
(1) to determine the jurisdictional fact whether the Municipal Committee was not competent to perform the duties imposed upon it:
(2) to come to a decision that a general improvement in the administration of the Municipality was likely to be secured by the appointment of a servant of the Government; and
(3) to state the reasons for its order. The majority of the Judges constituting the Bench in that case came to the conclusion that the State Government was not required to act quasi-judicialiy in spite of the above mentioned three duties cast upon it by the statute.
S. R. Das, C. J. affirmed the views expressed by him in Advani's case : 1SCR621 , quoted above and observed:--
'The argument is that the first requirement is the finding of fact which may be called a jurisdictional fact, so that the power under Section 53-A can only be exercised when that jurisdictional fact is established to exist. The determination of the existence of that jurisdictional fact, it is contended, is not left to the subjective opinion of the State Government and that although the ultimate act is an administrative one, the State Government must, at the preliminary stage of determining the jurisdictional fact, act judicially and determine it objectively, that is to say, in a quasi-judicial way. It is assumed that whenever there has to be a determination of a fact which affects the rights of the parties, the decision must be a quasi-judicial decision, so as to be liable to be corrected by a writ of certiorari.'
Kapur, J., also held that the State Government was not required to act quasi-judicially and observed:
'When, under Section 53-A, the State Government appoints an Executive Officer which act it considers likely to improve the general administration of the municipality, it does not take two decisions, one objective as to the in-competency of the administration of the municipality and the other subjective as to the action likely to improve the administration. The decision is only one. The State Government is the sole Judge of both matteRs. namely, of the incompetency and the remedy needed. Both are parts of one integrated whole, a decision taken in the exercise of the administrative functions of the State Government and admits of no element of judicial process...........................................
Besides, the mere requirement of giving reasons would not change what was an administrative body into a judicial body or an administrative decision into a judicial or quasi-judicial determination.'
If, in Radeshyam Khare's case : 1SCR1440 , where the statute itself cast a duty upon the State Government to determine a jurisdictional fact where the decision affected the Municipal Committee, the Supreme Court held that the State Government was not required to act quasi-judicially, it cannot be said in the present case where the statutes does not cast any duty upon the Vice-Chancellor to determine any particular question of fact that he is required to act quasi-judicially.
35. Learned counsel for the appellant placed reliance upon the decision of Lord Reid in, 1964 AC 40, wherein Lord Reid has disapproved of the observations of Lord Hewart quoted above and the decision of the Privy Council in Nakkuda Ali's case, 1951 AC 66, and has expressed the view that from the very nature of the power conferred upon an administrative body it can be inferred that it is required to act quasi-judicially without there being 'superadded a duty to act judicially. In that case. Ridge, who was the Chief Constable of Brighton, was dismissed by the Watch Com-mittee under Section 191 (4) of the Municipal Corporations Act, 1882, without being given an opportunity of being heard. This section provided that the Watch Committee may, at any time, suspend and dismiss any borough constable whom they may think negligent in the discharge of his duty or otherwise unfit for the same. Ridge contended that the Watch Committee was required to act quasi-judicially and its order passed without affording him an opportunity of being heard was liable to be quashed by a writ of certiorari. Certain regulations framed under the Police Act, 1919, which were held to be applicable, provided a detailed procedure for taking action against Chief Constables for disciplinary offences. Lord Reid was of the opinion that the nature of the power exercised under Section 191 (4) itself indicated that the Watch Committee was to act quasi-judicially. Lord Evershed disagreed on this point with Lord Reid. Lord Morris of Borth-y-Gest, Lord Hodson and Lord Devlin were of the view that the regulations had not been complied with and the dismissal was bad on that account. The decision as a whole is not an authority for the proposition that where no duty to act quasi-judicially is cast upon the authority by the statute even then from the very nature of the power conferred the Courts can infer that the authority is to act quasi-judicially.
In any case, I am bound by the decisions of the Supreme Court in the cases oi: Khushal-das S. Advani : 1SCR621 and Radeshyam Khare's : 1SCR1440 , and by the observations made in those two cases. Gajendragadkar, C. J. made a reference to the case of : (1965)ILLJ433SC , and observed thus:--
'In other words, according to Lord Reid's judgment, the necessity to follow judicial procedure and observe the principles of natural justice flows from the nature of the decision which the watch committee had been authorised to reach under Section 191 (4). It would thus be seen that the area where the principles of natural justice have to be followed and judicial approach has to be adopted, has become wider and, consequently, the horizon of the writ jurisdiction has been extended in a corresponding measure. In dealing with questions as to whether any impugned orders could be revised under Article 226 of the Constitution, the test prescribed by Lord Reid in this judgment may afford considerable assistance.'
The question before the Supreme Court in that case was whether the State Government, exercising its appellate powers under Rules 6 (5) and 6 (6) of the Punjab Welfare Officers (Recruitment and Conditions of Service) Rules, was a 'tribunal within the meaning of Article 136(1) of the Constitution, The Supreme Court held that, when the State Government was hearing the appeal, there was, before it, a lis or contest between parties and came to the conclusion that the State Government, exercising powers under Rules 6 (5) and 6 (6), was a 'tribunal' as contemplated by Article 136. The question, which we have to answer, did not arise before theSupreme Court in that case and the observations of the learned Chief Justice quoted above do not, in my opinion, lay down any new principle or test different from that laid down in Advani's : 1SCR621 and Rade-shyam Khare's AIR 1959 SC 109: 1959 SCR 1440 cases.
36. in Calcutta Dock Labour Board v. Jaffar Imam : 1966CriLJ189 , the Supreme Court again made reference to the decision of Lord Reid in 1964 AC 40. In this case, the question that arose for consideration was whether the Calcutta Dock Labour Board, in exercising its powers to dismiss a dock worker under Clause 36 (2) of the Scheme made by the Central Government under the Dock Workers (Regulation of Employment) Act, 1948, was required to observe principles of natural justice or not. It may be mentioned that Clause 36(3) lays down that, before any action is taken under Clause 36 (2), the person concerned shall be given an opportunity to show cause why the proposed action should not be taken against him. Clause 36 (2) empowers the Board to take action against a registered dock worker in the reserve pool who is available for work and fails to comply with any of the provisions of the Scheme or does any act of indiscipline or misconduct and enumerates several punishments that may be inflicted. Clauses 38 and 39 provide for appeals against orders of the Board.
In this case, the Supreme Court observed:--
'There can be no doubt that when the appellant purports to exercise its authority to terminate the employment of its employees such as the respondents in the present case, it is exercising authority and power of a quasi-judicial character. In case where a statutory body or authority is empowered to terminate the employment of its employees, the said authority or body cannot be heard to say that it will exercise powers without due regard to the principles of natural justice. The nature or the character of the proceedings which such a statutory authority or body must adopt in exercising its disciplinary power for the purpose of terminating the employment of its employees, has been recently considered by this Court in several cases, vide : (1965)ILLJ433SC and (Civil Appeal No. 764 of 1964, dated 1-3-1965: : 3SCR218 and it has been held that in ascertaining the nature of such proceedings with a view to decide whether the principles of natural justice ought to be followed or not, the tests laid down by Lord Reid in 1964 AC 40 are relevant in view of these decisions, Sri Sen has not disputed this position and we think, rightly.'
This case lays down firstly, that, in taking disciplinary action against a dock worker, the Board has to act quasi judicially and, secondly, that, in determining whether an authority has to follow principles of natural Justice, the tests kid down by Lord Reid in 1964 AC 40 are relevant. There can be no doubt that from the nature of the power conferred upon an administrative body it can be inferred that itis required to observe principles of natural justice. Lord Hodson has observed in 1964 AC 40 that where a statute confers power to take action against a subject for misconduct, the authority exercising the power must observe principles of natural justice otherwise it will result in denial of justice. It is well settled that even where a statutory authority acts in a purely administrative capacity, it must act fairly; and when its action is likely to seriously affect the rights of otheRs. it must observe principles of natural justice. But merely because an authority must observe principles of natural justice, it does not necessarily follow that it has to act quasi judicially also. In this reference, we have not to decide whether the Vice Chancellor has to observe principles of natural justice or not but whether he is required to act quasi judicially. The decision of the Supreme Court in this case, in my opinion, does not lay down that simply because an authority is empowered to take disciplinary action, it must necessarily act quasi judicially.
That an authority, which is empowered to decide some question of fact and whose decision seriously affects the rights of the subject, is not necessarily required to act quasi judicially also appears from another line of decisions of the Supreme Court. In Champaklal Chimanlal Shah v. The Union of India : (1964)ILLJ752SC , it has been held that the Government may, on a report of bad work or misconduct, hold a preliminary inquiry to satisfy itself that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post. Now, in such cases, the Government has to decide whether the employee is guilty of bad work or misconduct and then to take action against him which may seriously affect him, in this case and other cases, the Supreme Court has held that the Government need not give the employee an opportunity of being heard before an order terminating his service or reverting him is passed. It could not, therefore, possibly be argued that the Government was, in such cases, required to act quasi judicially, even though it had to decide a question of fact and to take action which affected the employee.
37. Great reliance was placed by the appellant upon the decision of the Supreme Court in : AIR1962SC1110 . In this case, the question that arose for consideration before the Supreme Court was whether the Examinations Committee of the Board of High School and Intermediate Education, U. P., was required to act quasi judicially when taking action against an examinee. The U. P. Intermediate Education Act, 1921, made no express provisions as to the powers of the committees and the procedure to be adopted by them in carrying out their duties which were left to be provided by regulations.
Rule 1(1) of Chapter VI of the Regulations provides:
'It shall be the duty of the Examinations Committee, subject to sanction and control of the Board,(1) to consider cases whether examinee have concealed any fact or made a false statement in their application forms or a breach of rules and regulations to secure under admission to an examination or used unfair means or committed fraud (including impersonation) at the examination or are guilty of a moral offence or indiscipline and to award penalty which may be one or more of the following:
(1) Withdrawal of certificate of having passed the examination;
(2) cancellation of the examination; and
(3) exclusion from the examination.'
The Examinations Committee had cancelled the results of certain examinees and had debarred them from appearing in the Examination of 1955 without affording them any opportunity of being heard. The Supreme Court was of the view that, in exercising its functions under Regulation 1(1), the Examinations Committee was required to act quasi judicially and, since it had taken action against the examinees without affording them an opportunity of being heard, its orders were quashed. Wanchoo, J., who delivered the judgment of the Court, has referred to the case of Khushaldas S. Advani : 1SCR621 and set out the principles enunciated by Das, J. in that case (already quoted earlier in this judgment) and observed that these principles had been acted upon by the Supreme Court in later cases. Thereafter he observed:
'Now it may be mentioned that the statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference, whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided, the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute. A duty to act judicially may arise in widely different circumstances which it will be impossible and indeed inadvisable to attempt to define exhaustively.'
The observations of Wanchoo, J., upon which the appellant relies, are:
'Though therefore there is 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 this 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 under Rule 1(1).
We are, therefore, of opinion that the Committee, when it exercises its powers under Rule 1(1). is acting quasi judicially and the principles of natural justice which require that the other party, (namely the examinee in this case), must be heard, will apply to the proceedings before the Committee.'
It is contended by the appellant that the nature of the functions exercised by the Vice-Chancellor, when taking disciplinary proceedings against a student, is identical to those exercised by the Examinations Committee taking action against an examinee and, since the Supreme Court has held that the Examinations Committee must act quasi-judicially, it must also be held that the Vice-Chancellor must equally act quasi-judicially. I am unable to agree with this. Wanchoo, J. has approved of the tests laid down by S. R. Das, J. In Advani's case : 1SCR621 and he has applied those tests to the facts of the case before him. He has not laid down any new general principle or test different from or inconsistent with that laid down and followed in the earlier decisions of the Supreme Court. This decision cannot be read as laying down a rule of law that, even where the statute or rules made thereunder do not cast a duty upon an authority to act quasi-judicially, such a duty can be inferred merely from the nature of the powers conferred upon the authority. In the facts and circumstances of that case the Supreme Court was of the view that the Examinations Committee was required to act quasi-judicially. The question cannot be decided merely on the basis of similarity of functions of the Examinations Committee and of the Vice-Chancellor but it has to be decided on the basis of the statutes and rules governing the powers of these two authorities.
The provisions of the regulations made under the Intermediate Education Act regarding exercise of powers by the Examinations Committee are different from those of the Allahabad University Act and the statutes made thereunder relating to the exercise of powers by the Vice-Chancellor. The regulations cast a duty upon the Examinations Committee to take action against an examinee if it finds that certain facts specified in R. 1(1) are established. The Examinations Committee has to determine these facts objectively upon materials placed before it. The nature of the action that may be taken is also specified. On the other hand, the Allahabad University Act and the statutes made thereunder leave the matter of taking disciplinary action against a student entirely to the discretion of the Vice-Chancellor. He is not required to find whether any specified facts are established or not. Even where certain facts are established, no duty is cast upon the Vice-Chancellor to take disciplinary action. The discretion of the Vice-Chancellor is not fettered even in respect of the nature of the disciplinary action which may be taken. Therefore, the decision of the Supreme Court holding that the Examinations Committee was required to act quasi-judicially is not applicable to the present case in view of the very different provisionsof the Act and the statutes which govern the exercise of powers by the Vice-Chancellor.
The facts that the Vice-Chancellor may take assistance of the Proctor and of the Dean of the Students Welfare in the exercise of his disciplinary authority and that the Vice-Chancellor is required by the statutes to consult the Dean of the Students Welfare before taking disciplinary action against a student cannot have any bearing on the question whether the power is to be exercised by him quasi-judicially or not.
38. I have accordingly come to the conclusion that the Vice-Chancellor of the Allahabad University is not required to perform any quasi-judicial function in inflicting punishments upon students for breach of discipline. I would answer the question referred to the Full Bench in the negative.
BY THE COURT
39. In view of the majority opinion thequestion referred to us is answered in theaffirmative and it is held that the Vice-Chancellor of the Allahabad University is requiredto perform quasi-judicial functions in inflictingpunishments upon students for breach of discipline. It is directed that the costs shall abide by the result.