1. The petitioner Surendra Kumar Patel applies under Articles 226 and 227 of the Constitution, for the grant of a writ in the nature of Certiorari for quashing Order No. 6 passed by the Registrar, Jabalpur University, dated 15th April 1968, debarring him from all examinations of the Jabalpur University for the years 1968 and 1969, including that of Diploma in Teaching, and for a writ in the nature of Mandamus directing the University authorities to permit him to appear at that examination to be held in or about March 1969.
2. The relevant facts are these. The petitioner, who is a teacher in the Primary School at Mouza Khudawal in Tahsil Sihora, was admitted on 2nd August 1966 into the Prantiya Shikshan Mahavidyalaya, Jabalpur as a trainee candidate for the Diploma in Teaching course. While he was pursuing that course of studies, he applied to the University for permission to appear 'as a teacher candidate' at the Final examination for the degree of Bachelor of Arts (T.D.C.), which was to be held in March 1967, but his application was not granted, and he, accordingly, filed Miscellaneous Petition No. 130 of 1967, Surendra Kumar Patel v. University of Jabalpur against the University of Jabalpur, for an appropriate writ, direction or order under Article 226 of the Constitution. During the pendency of those proceedings, an ad interim writ was issued by this Court, directing the University authorities to admit the petitioner to the Bachelor of Arts (T.D.C.) Examination held in March 1967, subject to the condition that his result would not be declared until the disposal of the petition. In that petition this Court held on 11-9-1967 that the University authorities were justified in rejecting the application of the petitioner for permission to appear at the Final examination for the degree of Bachelor of Arts held in March 1967, on the ground that on his admission to the Prantiya Shikshan Mahavidyalaya as a student, he ceased to be a teacher and was, therefore, not eligible to appear in that examination 'as a teacher in a recognised institution'. Eventually, with the disposal of that petition, the result of the petitioner was withheld and his examination was cancelled by the University authorities. Nevertheless, the petitioner continued his studies in the Prantiya Shikshan Mahavidyalaya, and duly filled in his application form for admission as a regular student at the Diploma in Teaching Examination which was to be held from 15th April 1968, but when he approached the authorities on the day prior, he was informed that his Admission Card would not be issued because he had been debarred by the University from appearing at any of its examinations for a period of three years, on a charge of having used unfair means at the Final examination for the degree of Bachelor of Arts (T. D. C.) held in March 1967. The petitioner immediately presented an application in writing to the Registrar of the University, making a request to grant him a provisional Admission Card but the authorities abstained from taking a decision, and the petitioner filed Miscellaneous Petition No. 154 of 1968, Surendra Kumar Patel v. The University of Jabalpur for an appropriate direction under Article 226 of the Constitution. During the pendency of that petition, the petitioner was, however, served with the impugned Order No. 6 dated 15th April 1968, and as a result he withdrew that petition with leave to file a fresh petition for challenging the validity of that order.
3. The University and its Registrar have in their return asserted that the petitioner was caught red-handed while copying during the Final Bachelor of Arts (T.D.C.) Examination, 1967, in General English, Paper II, held on 23rd March 1967. The report of the Invigilator who caught him using unfair means was that:
'Two leaves torn out of a printed book were found on the desk of the examinee concealed under his answer book. He was using the leaves for writing his answers. The examinee refused to take second answer book. He also refused to give any statement and went out of the Examination Hall.'
That document was attested lay 2 other Invigilators who had witnessed the incident. The Officer-in-charge of the University Examinations Centre, Mahakoshal Arts Mahavidyalaya from where the petitioner was appearing, duly certified that the Invigilator's Report was correct The University authorities have further alleged in their return that on 28th March 1967 the Officer-in-charge sent the answer book in question along with 2 printed leaves found concealed thereunder, to Prof. B.N. Deb of the Allahabad University, the examiner of General English, Paper II, for valuation and that Prot Deb made the following report:
'Badly copied and not intelligibly enough either.'
The University Authorities have stated that their action in debarring the petitioner was neither mala fide nor arbitrary or capricious as alleged, but was a decision honestly reached in the circumstances of the case. Apart from this, the allegation that he was not given an opportunity to explain his conduct has been duly controverted. It is specifically averred that the Invigilator had asked the petitioner to furnish his explanation, if any, on the spot after he was caught red-handed while copying, but he refused to make any statement and, instead, walked out of the Examination hall. All these allegations must be accepted as true in the absence of any counter-affidavit on the part of the petitioner controverting them. In other words, the University authorities assert that there was no violation of any rules of natural justice. As regards the powers of the Executive Council to debar the petitioner from taking any or all University Examinations for a particular period, it has been asserted that it had all the powers.
4. The argument advanced by the learned counsel for the petitioner was briefly, that:
(i) the action taken by the University In debarring the petitioner from University Examinations to be held in 1968 and 1969 for alleged use of unfair means, was in violation of the rules of natural justice as he was neither afforded an opportunity of furnishing any explanation nor the right of a hearing; and
(ii) even if it were held that no question of any enquiry or Investigation upon notice arises in a case where the breach of discipline or malpractice is detected in the Examination hall itself, the order of the University for debarring the petitioner from appearing at the Diploma in Teaching Examinations, 1968 and 1969, was arbitrary and in excess of its powers under Ordinance No. 75, Article 3, framed under the Jabalpur University Act, 1956 (XXII of 1956) and, therefore, void and legally inoperative.
5. Before we deal with the contentions raised at the hearing. It may be pertinent to refer to the relevant provisions of the Jabalpur University Act. By, Section 3, the University is constituted. The University is given the powers described in Sections 4 to 6. Section 25 specifies the different authorities of the University. One of such authorities is the Executive Council which by Section 25, is the executive body of the University, having the powers and duties mentioned in Section 26. Amongst other functions, St is the duty of the Executive Council under Section 26, Clauses (n) and (p), (i) to publish the results of the University Examinations, and (ii) subject to the powers conferred on the other authorities, to regulate and determine and administer all matters concerning the University and, to this end, exercise such other powers and perform such other duties, as may be conferred or imposed on it. Under Section 27 (1-a), the Academic Council is to make all arrangements for (i) the conduct of examinations, (ii) the preparation of results of such examinations, and (iii) the reporting of such results to the Executive Council for their publication. Section 36, Clause (viii), provides that subject to the provisions of the Act and the Statutes, the Ordinances may provide for the 'conduct of examinations', and Clause (ix) provides for the 'maintenance of discipline' among the students of the University. The Registrar, by its Statute No. 5 framed under Section 35, is the Ex Officio Secretary of the Executive Council and the Academic Council.
Ordinance No. 75 relates to 'Exclusion of candidates from University Examinations for using unfair means at the Examination' and consists of 3 Articles. The validity or otherwise of the action taken by the University authorities depends on a true construction of its provisions, which read:
'1. In the examination Hall the candidates shall be under the disciplinary control of the Officer-in-charge of the Centre and they shall obey his instructions. In the event of a candidate disobeying the instructions of the Officer-in-charge of the examination, the candidate may be excluded from that day's examination and if he persists in misbehaviour, he may be excluded from the rest of the examination by the Officer-in-charge of the Centre.
2. If a candidate is found guilty of using or attempting to use unfair means or if found in possession of unfair means at an examination, or a report is made as to any candidate or candidates having copied either from some book or notes or from the answers of another candidate or candidates or in any other manner, such candidate or candidates may be excluded by the Registrar of the University from appearing at the examination of the University on a particular day and/or subsequent days of the examination.
3. Provided that in all such cases a full report of each case shall be sent to the University and the Executive Council may, according to the gravity of the offence, further punish a candidate by cancelling his examination and/or debarring him from appearing at the Examination of the University for one or more years.'
6. The Executive Council of a University, though an administrative body, functions quasi-judicially when it is asked to consider the question of malpractice committed by a candidate at an examination held by the University, All the English authorities on the subject right from Dr. Bentley's case, (1723) 92 ER 818 to the decision of the Privy Council in University of Ceylon v. Fernando (1960) 1 All ER 631 necessarily imply that where misconduct is alleged against a student, there must be an enquiry and the student must get an opportunity to have his say and establish his innocence. A review of the Indian decisions would, however, show that there was a divergence of view among the various High Courts on the question, namely, whether an order of expulsion or rustication by a head of an educational institution against an offending pupil is a quasi-judicial or an administrative act. That conflict has now been set at rest by their Lordships of the Supreme Court in their recent decisions. The majority view of the different High Courts in India appears to be now based on the dicta of H.K. Bose, J., in Dipa Pal v. University of Calcutta. AIR 1952 Cal 594 and K. C. Das Gupta and Lahiri, JJ., in B.C. Das Gupta v. Bijoyranjan Rakshit, AIR 1953 Cal 212, holding that it is a quasi-judicial function and this view must now be taken to be the law governing the subject on account of the seal of imprimatur which these decisions have received from their Lordships of the Supreme Court in their decision in Board of High School and Intermediate Examinations v. Ghanshyamdas Gupta, AIR 1962 SC 1110, stating that when an examinee has used unfair means, or, has committed fraud, or, is guilty of moral offence, or, indiscipline, the principles of natural justice require that the delinquent examinee should not be condemned unheard.
The decision in Local Government Board v. Arlidge, 1915 AC 120 (HL), relating to the extent and content of the opportunity which should be afforded for complying with the principles of natural justice, and certain other cases were discussed in the Judicial Committee of the Privy Council in (1960) 1 All ER 631. In that case the Vice-Chancellor of the University of Ceylon appointed a Commission of inquiry consisting of himself and two others to assist him in inquiring Into certain allegations which had been made by B, a woman student, and which, if they were true, were explicable only on the footing that F, a student, who was taking a University examination, had acquired knowledge of a German passage in one of the examination papers before taking the examination. F was informed by the Vice-Chancellor of the purport of the allegation against him and was asked to attend the Commission of inquiry which had been appointed. When F attended the hearing before the Commission, it was made clear to him, so it was found by the Court, what the charge was, and he was given an opportunity to state his case. When other witnesses including B gave evidence before the Commission, F was not present. F did not ask for any opportunity to be given to him to question any of those witnesses. The Commission found the allegation against F to be true and reported accordingly. He was suspended indefinitely from all University examinations. F brought an action against the University for a declaration that the decision was null and void and the inquiry had not been conducted in accordance with the principles of natural justice and succeeded in the Supreme Court of Ceylon. On appeal, the main contention raised before the Privy Council resolved itself into the question whether the inquiry had been conducted by the Commission with due regard to the rights accorded by the principles of natural justice. After referring to Arlidge's case, 1915 AC 120 (HL) (Supra), Lord Jenkins, who delivered the judgment of the Board, repelled the contention that there had been violation of the requirements of natural justice since B and the other witnesses had not been questioned in the presence of the plaintiff who consequently was not able to question them on the statements they made. In the opinion of their Lord-ships, it was open to the Vice-Chancellor when the alleged offence was brought to his notice to obtain information about it in any way he thought best and the plaintiff had to be adequately informed of the case he had to meet and given an opportunity of meeting it. After finding in favour of the defendant University on these points, their Lordships stated that they could not regard the omission of an opportunity to the plaintiff to question B, or, in other words, to tender her an opportunity unasked for, for cross-examination, as sufficient to invalidate the proceedings. The two essential requirements, according to their Lordships of the Privy Council, are that (i) a person should have been informed of the case he has to meet, and (ii) he should be afforded an equally adequate opportunity of stating or presenting his case. Since it was found that these conditions had been satisfied although certain statements had been recorded in the absence of F and he had no opportunity of putting any question in cross-examination to the witnesses, it was held that the requirements of natural justice had been fulfilled. Applying those principles to the present case, it has not been shown that the opportunity afforded to the petitioner had fallen short of those requirements.
8. We fully appreciate that their Lordships in Ghanshyamdas Gupta's case, AIR 1962 SC 1110 (supra) were concerned in interpreting the requirements of the Regulations framed under Section 15 of the U. P. Intermediate Education Act, 1921, which made it incumbent on the Board of High School and Intermediate Examinations, to appoint an Examinations Committee to deal with exclusion of candidates from its examinations for having used unfair means. Now, Ordinance No. 75 of the Jabalpur University also deals with the same subject, although the mode of dealing with the candidates guilty of using unfair means in the Examination hall may be different. There is, therefore, no reason why the principles enunciated therein should not be applicable here. In Board of High School and Intermediate Education v. Bageshwar Prasad, AIR 1966 SC 875, the decision of their Lordships again postulated that the functions of an Enquiry Committee set up by the Board were of a quasi-judicial nature. Though in that case, their Lordships deprecated the tendency of some of the High Courts to interfere with the orders of the University or Education Boards cancelling the examination results of candidates who either were declared to have passed or were found to have adopted unfair means, their Lordships indicated that such interference was called for when any mala fides or animus on the part of the authorities was made out or it was shown that the enquiry as held was not fair or that the candidate concerned had no opportunity of making his defence.
9. In view of these pronouncements of their Lordships, it is not necessary for us to advert to the decisions of the other High Courts in India, Ramesh Chandra Chaube v. Principal, Bipin Bihari Intermediate College, Jhansi, AIR 1953 All 90; Laxmi Narayan Acharya v. Lt. Col. C.B. Mahajan, AIR 1955 All 534; Ram Chander Roy v. University of Allahabad, AIR 1956 All 46; Jogendra Raj Kishore v. University of Allahabad, AIR 1956 All 503; Ghanshyamdas Gupta v. Board of High School and Intermediate Education, Allahabad, AIR 1956 AH 539; Son Pal Gupta v. University of Agra, AIR 1958 All 792; Sri Calcutta Singh v. Registrar, Banaras Hindu University, AIR 1960 All 642; Wasim Ahmed Khan v. Secretary, Board of High School and Intermediate Education, Allahabad. AIR 1961 All 290; Mukund Madhav Singh v. Agra University, AIR 1961 All 301; Chittra Srivastava v. Board of High School and Intermediate Education, U.P. AIR 1963 All 41; K. Ch. Jagannadha Rao v. Secretary, Board of Secondary Education, A. P., AIR 1961 Andh Pra 46; Nanik Dharmadas Vazirani v. Maharaja Sayyajirao University, Baroda, AIR 1957 Bom 246; Patel Gandalal v. State of Gujarat, AIR 1963 Guj 50; C.B. Sekkilar v. R. Krishnamoorthy, AIR 1952 Mad 151: E.V. Kumarv. University of Madras AIR 1964 Mad 460; L. Nagaraj v. University of Mysore, AIR 1961 Mys 164; Sadhuram Hardwarilal v. Principal, Rajendra College, AIR 1954 Pepsu 151; Ajit Singh v. Ranchi University, AIR 1964 Pat 291; Ram Chander Singh v. Punjab University, AIR 1963 Punj 480; Karamjit Kaur v. Punjab University, AIR 1964 Punj 327; Harbans Singh Nirmal v. Punjab University, AIR 1964 Punj 456; Ramesh Kapur v. Punjab University. AIR 1965 Punj 120; Suresh Kumar v. Punjab University, AIR 1966 Punj 152 and Joseph Mundassery v. Manager, St. Thomas College, Trichur, AIR 1954 TC 199. Suffice it to say that this Court had, on two different occasions, to deal with this subject but unfortunately its views have been somewhat conflicting. In Pyarelal Sharma v. University of Sagar, AIR 1961 Madh Pra 356, Dixit, C. J. and Pandey, J., held that the function was of an administrative nature and, therefore, it was not obligatory for the University concerned to give a hearing to an examinee, found to have used unfair means. A discordant note has, however, been struck by Newaskar and Tare JJ., in Rajendra Kumar v. Vice-Chancellor, Vikram University, AIR 1966 Madh Pra 136. In that case, notwithstanding that there was no provision in the Vikram University Act, 1955 making it necessary for the Results Committee constituted by the Syndicate, to call for an explanation from the candidate and give him an opportunity of hearing, it was held by this Court that it was implicit in the provision that the Committee must be satisfied, that the candidate had, in fact, used unfair means at the examination, and it was, thus, the duty of that Committee to decide objectively and, therefore, to act in a quasi-judicial manner, i.e., after Riving a fair opportunity to the offending candidate to state his case and, if necessary, to prove his innocence.
10. We do not think it necessary to go into this vexed question any further, for reasons we shall presently state. Even assuming that in respect of such administrative acts, the rules of natural justice embodied in the maxim 'audi alteram partem' should be complied with, we are fully satisfied that requirements of the rules of natural justice were fulfilled in this particular case. In Dipa Pal's case, AIR 1952 Cal 594 (supra) H.K. Bose, J., drew a distinction between (i) cases where the misconduct was discovered in the Examination hall itself by the Invigilators, and (ii) cases where it was detected in the checking of answers submitted by the examinee, in these words:
'In cases where breaches of discipline are detected by the Invigilators or other officers present in the examination hall and candidates concerned are expelled from the hall or are otherwise dealt with, question of any enquiry or investigation upon notice to the candidates may not arise. But where no case of breach of discipline is actually detected but subsequently upon examination of the answer papers the examiners come to entertain suspicion about adoption of unfair means by particular candidate or candidates and the Examination Board has to consider such cases and come to a determination as to the nature of the offence committed and has to apportion the penalty which can properly be inflicted upon the delinquents, it is only fit and proper that the party arraigned should have an opportunity to defend himself and to offer an explanation, if any. To brand a candidate with the stigma of adoption of unfair means at the examination or in other words finding him or her guilty of dishonest or misconduct and thereby causing an irreparable in-jury to the character and reputation of such candidate, without giving him or her any opportunity to explain is contrary to all notions of justice and good sense.'
We are aware that Shah J., in AIR 1957 Bom 246 did not agree with this view, and held that there was no justification for making a distinction of this kind. That was because of the learned Judge's decision in that case that, expulsion of a candidate for misconduct in an examination was an administrative function, and there was, therefore, no obligation on the part of the University authorities to give any opportunity of hearing to the examinee before imposing a penalty upon him. That decision can no longer be regarded as laying down good law, in view of the later decisions of their Lordships of the Supreme Court referred to earlier.
11. In Dipa Pal's case. AIR 1952 Cal 594 (Supra), which now has the approval of their Lordships of the Supreme Court it was recognised by H.K. Bose, J., that: where breaches of discipline are detected by the Invigilators or other officers present in the Examination hall itself and the candidates concerned are expelled from the hall or otherwise dealt with, the question of enquiry may not arise. Now, in the present case, the report of the Invigilator clearly shows that the petitioner was caught red-handed while using unfair means, that he was asked to furnish an explanation which he refused to give, and that, he instead walked out of the Examination hall. Under Ordinance No. 75, Article 1, the petitioner was under the disciplinary control of the Officer-in-charge and it must be assumed that he was 'excluded from the day's examination' when his answer book was seized along with the 2 printed leaves from which he was copying. In view of the ad interim writ issued by this Court, the Officer-in-charge could not have excluded him from the rest of the examination and that would have been tantamount to a possible breach of the direction that he should be permitted to appear at the Final Examination for the degree of Bachelor of Arts (T.D.C.), 1967. Assuming that the present case falls within Article 2, then the seizure of the answer book in question upon detection of use of unfair means would amount to the exclusion of the petitioner by the Registrar 'from appearing at the examination on a particular day', i.e., 23rd March 1967. The requirements of Article 3 are admittedly met, as there is no dispute that a report of the case was sent to the University because the Executive Council ultimately passed resolution accepting the report of the Committee appointed by the 'Vice-Chancellor to scrutinise cases of similar use of unfair means by the candidates at the University Examinations of that year.
12. We would like to emphasise that our decision that the petitioner had due opportunity of explaining his conduct at the examination in this particular case turns on its own peculiar facts. Nothing that we have stated above should be taken as the view of this Court laying down generally the nature of enquiry contemplated under the rules of natural justice, against delinquent examinees charged with having used unfair means, or having committed fraud, or found guilty of moral turpitude, or, indiscipline. Nor have we intended to lay down the stage at which the examinee should be given a hearing. There is no invariable standard of the reasonableness of an enquiry. The rules of natural justice must vary with varying circumstances, and the question whether the person concerned, had a reasonable opportunity must depend upon the facts of each particular case. Nevertheless, we would like to stress that the type of opportunity the petitioner had, may not suffice in all circumstances. That is because of the peculiar atmosphere of an Examination hall, when an examination is in actual progress which keeps the students in a state of tension or anxiety, the temptations to which they may conceivably lay themselves open of seeking some source of assistance to their memory to be able to answer the questions fully and correctly and the mental attitude of the Invigilators or supervisors which cannot but be coloured to some extent, at least, by the natural human difficulty of completely clearing an attitude of vigilance from a trace of suspicion may in some cases lead to a consequence in which a really innocent student may appear like a culprit. This possibility taken along with the fact that in such circumstances an Invigilator exercising the powers of the Syndicate or the Executive Council may at once expel a student from the Examination hall, places upon the Invigilator the heavy responsibility of approaching to such cases with a calm and dispassionate attitude and affording the suspected student a full and fair opportunity of dispelling the suspicion. We expect that the University will bear these observations in mind while dealing with such cases, and adopt a humane approach with sympathy and understanding because an unnecessarily harsh and rigid application of its disciplinary powers may sometime blast the entire future of an otherwise promising young man. The University authorities must, therefore, also take all these factors into consideration, including any mitigating circumstances present, while inflicting a punishment.
13. That brings us to the only other question urged, namely, whether the action of the University authorities was in excess of their powers under Article 3 of Ordinance No. 75. On a true construction of that provision, we are dearly of the view that the contention of the learned counsel for the petitioner on this question, is well founded and must be accepted. That Article reads:
'3. Provided that in all such cases afull report of each case shall be sent tothe University and the ExecutiveCouncil may, according to the gravity ofthe offence, further punish a candidateby cancelling his examination and/ordebarring him from appearing at 'the'Examination of the University for oneor more years.' (Underlining (here in' ' - Ed.) is ours).
Now, the language employed therein, 'by cancelling his examination', and/or, 'debarring him from appearing at 'the' Examination of the University', for one or more years, clearly defines the nature of the disciplinary powers which the University has. The use of the word 'the' can be interpreted in no other manner than as implying a curtailment of the power of expulsion of candidates using unfair means. The power of debarring such candidates at future examinations is only in relation to 'the examination' in which he had used unfair means. The petitioner apparently had used unfair means at the Final examination for the degree of Bachelor of Arts (T.D.C.), 1967 and, therefore, under Article 3 of Ordinance No. 75, the University authorities had only the power to debar him from appearing at that examination for one or more subsequent years but they had no authority to debar the petitioner from taking the Diploma in Teaching Examinations, 1968 or 1969. The impugned Order No. 6 passed by the Registrar, Jabalpur University must, therefore, be struck down as being wholly without jurisdiction in so far as it affects his right to appear at the Diploma in Teaching Examination, 1969.
14. For the foregoing reasons, the petition succeeds and is allowed. We, accordingly direct that a writ of certiorari be issued quashing the impugned Order No. 6 passed by the Registrar of the Jabalpur University, dated 15th April 1968 in so far as it affects the petitioner's right to appear at the Diploma in Teaching Examination, 1969, and further that a writ in the nature of Mandamus be issued against the University of Jabalpur and its authorities, directing them to allow the petitioner to appear at that examination. The petitioner shall be entitled to his costs. Hearing fee Rs. 150, if certified. He shall also be entitled to a refund of the outstanding amount of security deposited in these proceedings.