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Brajendra Maharana and ors. Vs. the Utkal University - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberO.J.C. Nos. 763, 764, 824 to 826 and 827 of 1975
Judge
Reported inAIR1976Ori25
ActsConstitution of India - Article 226
AppellantBrajendra Maharana and ors.
RespondentThe Utkal University
Appellant AdvocateA. Das, Adv.
Respondent AdvocateS.C. Mohapatra and ;Sankarsan Rath, Advs.
DispositionPetitions dismissed
Cases ReferredUniversity of Ceylon v. Fernando
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....mohanti, j. 1. these writ petitions under articles 226 and 227 of the constitution of india have been filed by six students of the christ college, cuttack for quashing the notification no. ec-ii (pub)/627/75 dated 20th february, 1975 (annexure 4) issued by the utkal university cancelling the results of the petitioners in the second bachelor of arts examination of 1974 on the ground that they had resorted to unfair means. 2. as common questions of law and fact are involved in these writ petitions they have been heard together and will be disposed of by this common judgment. 3. the broad facts which are almost identical and are also not in dispute are these: the petitioners appeared at the second b. a. examination for the year 1974 from the christ college centre. dr. s. n. choudhuy, m. a.,.....
Judgment:

Mohanti, J.

1. These writ petitions under Articles 226 and 227 of the Constitution of India have been filed by six students of the Christ College, Cuttack for quashing the Notification No. EC-II (pub)/627/75 dated 20th February, 1975 (Annexure 4) issued by the Utkal University cancelling the results of the petitioners in the Second Bachelor of Arts Examination of 1974 on the ground that they had resorted to unfair means.

2. As common questions of law and fact are involved in these writ petitions they have been heard together and will be disposed of by this common judgment.

3. The broad facts which are almost identical and are also not in dispute are these:

The petitioners appeared at the Second B. A. Examination for the year 1974 from the Christ College Centre. Dr. S. N. Choudhuy, M. A., Ph. D. (Utkal) who is the Reader in History of Kendrapara College was the Examiner in History Paper II. He reported that the answers given by the petitioners to some of the questions in their answer books were indentical. The Board of Conducting Examiners agreed to the report of Dr. Choudhury. Then charges of malpractice were framed against the petitioners and the matter was referred to the Discipline Committee constituted by the University, The petitioners filed show-cause to the charges and the Discipline Committee on a consideration of the same recorded the finding: 'Identically established in the light of the report of the C. B. and further scrutiny of the scripts by the Committee' and recommended for cancellation of the results of the examination. The recommendation was accepted by the Administrator exercising the powers of the Syndicate. Accordingly, the impugned notification was issued.

4. The petitioners repudiated the allegations levelled against them and asserted that they have never indulged in unfair means. They contended that they were not given reasonable opportunity to defend themselves and that there was no observance of the principles of natural justice. The enquiry was tainted with mala fides and the decision for cancellation of the result is based on no evidence.

5. The University while denying the allegations made in the writ petitions maintained that adequate reasonable opportunity had been given to the petitioners to meet the case and there has been no violation of the principles of natural justice. The Examiner reported the malpractice which on independent examination by the Board of Conducting Examiners was also found to be correct. On the basis of the report of the Board, the petitioners were called upon to show cause why disciplinary action should not be taken against them. The extracts of the reports of the Examiner and the Board were supplied to the petitioners along with the show cause notice. In the notice dated 11-2-1975 the petitioners were intimated that the Discipline Committee would hold the enquiry on 19-2-1975 and that the petitioners might offer any defence as they thought fit. The petitioners, though present at the enquiry, remained content with a mere denial of the charge. They did not examine any witness or produce any document in support of their explanations. They did not also ask for time to adduce any evidence. The enquiry was conducted bona fide and the members of the Discipline Committee had no axe to grind against the petitioners. Two of the members of the Discipline Committee, viz. Dr. G. Misra and Dr. L. K. Mohapatra are eminent educationists and have long experience as University examiners. The Administrator is a highly qualified man and he was a Revenue Divisional Commissioner before he joined the University, On a careful consideration of the answer papers the Discipline Committee came to the finding that the answers to some of the questions given by the petitioners were identical and the Administrator who is vested with the powers of the Syndicate accepted their recommendations and decided to cancel the results of the examination. The Discipline Committee is only a quasi-judicial tribunal and it has fairly assessed the materials on the record. The Syndicate is the controller of the examinations and the Administrator exercising the powers of the Syndicate has taken the decision to cancel the result of the examinations. His decision cannot be interfered with.

It is contended that the Christ College Centre from which the petitioners appeared is the most troublesome and indisciplined Centre and that there were several instances of indiscipline created by the candidates appearing from that centre in the past. It was alleged that on 15-4-1974 the candidates along with other students created a lot of disturbances because of strict invigilation and there were instances of stone-throwing, shouting and threat to beat the invigilators. A meeting of the candidates and other students was held on 4th May, 1974 and it was decided that the candidates would flout the discipline of the examination and adopt unfair means to answer the questions in the manner they liked. On 7-5-1974 a large number of students demanded from the Centre Superintendent that the seating arrangement in the upstairs should be cancelled and the same should be made in the ground floor. They also demanded that they should be allowed to adopt unfair means. As the Centre Superintendent did not accede to the demand, the candidates abandoned the examination in the M. I. L. paper. On 8-3-1974 the candidates protested against arrangements for strict invigilation by tearing out the blank answer books supplied to them. They became violent and attempted to distory the confidential papers kept in an iron safe in the Principal's room. The godrej iron safe containing the question papers was removed outside and was broken open and the question papers were thrown out. It is on account or such conduct on the part of the candidates in the first B. A. examination of 1974 that the Centre Superintendent and the Invigilators became terror-stricken and did not venture to report about the malpractice adopted by the candidates in the second B. A. examination of 1974 in which the petitioners appeared.

6. The learned counsel for the petitioners advanced the following contentions:

(1) The finding of the Discipline Committee was not based on any evidence as no adverse conclusion about the use of unfair means could be reached on the solitary circumstance that their answers to some of the questions were similar.

(2) The procedure adopted by the Discipline Committee violated the principles of natural justice inasmuch as:

(a) neither the Centre Superintendent and the Invigilator were examined nor their reports were produced,

(b) the answer books were not made available to the petitioners,

(c) the chart showing the seating arrangement at the examination hall was not produced.

(d) the petitioners were not given an opportunity to cross-examine the Examiner who had reported about similarity of the answers.

7. At the outset it will be profitable to notice some authoritative decisions which have bearing on the points raised before us. In AIR 1962 SC 1110 (Board of High School and Intermediate Education, U. P. Allahabad v. Ghanshyam Das Gupta) their Lordships held that the Examination Committee, while dealing with the cases of examinees using unfair means in examination hall, acts quasi-judicially and the principles of natural justice apply to the proceedings before it. In that case no notice was at all given to the delinquent-examinee and therefore the order cancelling the examination was quashed.

In AIR 1966 SC 875 (Board of High School and Intermediate Education, U. P. Allahabad v. Bagleshwar Prasad) it was held that the Enquiry Committee set up by the Education Board to enquire into unfair means adopted by the examinees at a particular examination has to decide all relevant questions in the light of evidence adduced before them. It was pointed out that direct evidence in such cases might not be available and the question will have to be considered in the light of the probabilities and circumstantial evidence. Their Lordships, also pointed out that the problem which the educational institutions have to face from time to time is a serious problem and the court should be slow to interfere with the decision of the domestic tribunals.

In AIR 1969 SC 198 (Suresh Koshy George v. University of Kerala) it was held as follows :

'.......... The rules of natural justice are not embodied rules. The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions.'

Their Lordships also referred to the observations of Lord Harman, J. in the case of Byrne v. Kinematograph Renters Society Ltd. (1958) 2 All ER 579 which are as follows:

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

In AIR 1970 SC 1269 (The Bihar School Examination Board v. Subhas Chandra Sinha) facts were of course different but the proposition of law laid down by their Lordships is clearly applicable to the facts of the present case. There was mass copying by the candidates of a particular centre It was not considered necessary to give specific charges to each of the delinquent-examinee and the examination as a whole was cancelled. Their Lordships observed that the University is responsible for its standards and the conduct of examinations. It cannot hold a detailed quasi-judicial inquiry with a right to its alumni to plead and lead evidence etc. before the results are withheld or the examinations cancelled. If there is sufficient material on which it can be demonstrated that the University was right in its conclusion that the examinations ought to be cancelled then academic standards require that the University's appreciation of the problem must be respected. It would not do for the court to say that you should have examined all the candidates or even their representatives with a view to ascertaining whether they had received assistance or not. To do this would encourage indiscipline if not also perjury.

In AIR 1972 SC 1408 (Prem Prakash v. Punjab University) their Lordships observed;

'The examinee can ask for more information or details with regard to the material or evidence which may be sought to be used against him and normally if he makes a request in that behalf, the University authorities, in order to 'Inform him adequately of the case he has to meet, would supply him the necessary particulars or details of the evidence. In the very nature of filings no hard and fast rule can be laid down and so long as the Court is satisfied that the opportunity which was afforded to the examinee was adequate and sufficient it will not interfere with any orders prejudicial to him which may have been made by the University authorities.

It was also observed : 'A good deal of emphasis had been laid on the answers which were given by the two candidates and our attention had been invited to the discrepancies between the details of the answers contained in the two answer books............ These, however, are matters on which the Court cannot entertain a petition under Article 226. It was for the Standing Committee to arrive at its own conclusion on the evidence before it and the same cannot be re-examined except on very limited grounds which have not been established. .........'

In (1972) 38 Cut LT 349 = (AIR 1972 Orissa 224) (FB) (Pramila Dei v. Secy. Board of Secondary Education, Orissa, Cuttack) a Full Bench of this Court on a review of several decisions on the subject laid down as follows:

''(i) The proceeding against an examinee on a charge of malpractice is a quasi-judicial proceeding. It affects his future and if any adverse view is taken by the disciplinary authority it might blast his career. Though the proceeding is administrative it is quasi-judicial in nature inasmuch as the career of the examinee is in issue.

(ii) Where there are statutory or codified rules the; quasi-judicial proceeding will be enquired into in conformity with those rules.

(iii) Where there are no such rules the principles of natural justice will be followed in making the enquiry keeping in view the fact that it involves the determination of a vital question integrally connected with the rights of the examinee.

(iv) In making such enquiry the authority might have to ascertain both facts and law.

(v) In doing so it must act in good faith.

(vi) The authority must fairly listen to both sides.

XXX XXX XXX The next question for consideration is whether the enquiring authority has any further duty in the matter of enquiry after charges are supplied, explanation is obtained and it listens to the parties in good faith. In other words, is it bound to follow any other requirements besides the aforesaid three elements? Clearly the enquiry is not in the nature of a criminal trial. The authority has no power to administer oath unless there is a codified rule to that effect. It need not examine any witness. It can obtain information in any way it thinks best; but if the information is so obtained the examinee must be given fair opportunity of correcting or contradicting any relevant statement prejudicial to his views. It follows as a necessary corollary that if the examinee wants any material to be produced or to cross-examine any witness, then the authority must make those materials or witness available. The authority has, however, no duty to suo motu examine oral evidence or give opportunity for cross-examination. If the delinquent as a part of his defence demands that witnesses reporting against him are to be cross-examined by him refusal thereof would amount to denial of reasonable opportunity.

It is also to be further remembered that in exercise of the Writ jurisdiction under Articles 226 and 227 of the Constitution over the decision of the educational authority the High Court does not function as a Court of appeal. It cannot look into the question of sufficiency or propriety of the evidence. It cannot interfere with the finding of that authority unless the same is based on no evidence or is based on evidence on which a reasonable person cannot hold the delinquent guilty.'

8. A consideration of the principles laid down in the above decisions leads us to the following conclusions:

(1) The enquiry before the domestic tribunals in the matter of adoption of unfair means by examinees is of a quasi-judicial character and has to be undertaken in accordance with the principles of natural justice.

(2) The essential principles of natural justice that are to be followed by an authority dealing with a case of the present nature are as follows :

(a) The person affected shall be apprised of the charges of unfair means.

(b) he must be given an opportunity to make a representation and to explain the circumstances appearing against him; and

(c) the authority conducting the proceedings must not be biased and should act in good faith.

(3) Rules of natural justice not being embodied rules, it is open to the authority oncerned to evolve its own procedure for acquainting the person concerned with the charges and the material on which they are founded, and also for affording him an opportunity of explaining those charges. The procedure will necessarily vary with the facts, circumstances and nature of the case, constitution of the authority dealing with it and the rules under which it functions.

(4) A delinquent-examinee can ask for more information and details with regard to the material or evidence which is sought to be used against him. If he does not ask for further information, he cannot make a grievance out of it, unless it is shown that any prejudice has been caused on account of the procedure adopted.

(5) Enquiries conducted by quasi-judicial tribunals cannot be equated to the trials in ordinary courts of law.

(6) Where direct evidence of adoption unfair means is not available, the question will have to be considered in the light of probabilities and circumstantial evidence.

(7) In dealing with the validity of the orders passed by the University authorities the High Court does not sit in appeal over the decision of the authority concerned. Its jurisdiction is limited. If the order in question is not supported by any evidence at all the High Court may interfere; but the conclusion that the impugned order is not supported by evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify that conclusion.

(8) It is primarily for the University authorities to come to a decision after taking into consideration the explanations submitted by the delinquent examinees and other circumstances. High Court would not ordinarily interfere with the decision if it is based upon relevant considerations and is arrived at after affording adequate opportunity to the candidates concerned.

9. Keeping the aforesaid principles on view we would proceed to examine the contentious raised before us.

10. On a careful consideration of the materials on record we are of the opinion that there is no substance in the argument that the principles of natural justice have been violated. The petitioners were informed of the charge levelled against them before commencement of the enquiry. They were also given another opportunity of personal hearing. Particulars of the unfair means were specified in the charge (vide Annexure 1). Extracts from the reports of the Examiner and the Board of Conducting Examiners were supplied to the petitioners along with the charge. In the second notice (Annexure 2) the petitioners were informed that the enquiry would be held on 19-2-1975 at 10.20 A. M. in the University office and that if they so desired they might remain present during the enquiry and offer any further defence. The petitioners submitted explanations to the show cause notice and attended the enquiry. From the records of proceeding which were made available to us during tae hearing, it appears that the petitioners merely denied the charges and, did not produce any evidence in support of their defence. They did not also ask for time to produce evidence. We have not the slightest doubt that the enquiry was conducted in absolute good faith. No animus is suggested against any member of the Board of Conducting Examiners or the Discipline Committee. The members of the Discipline Committee besides considering the report of the Board of Conducting Examiners scrutinised the answer books themselves and were satisfied about the similarity of the answers given by the petitioners in their answer books.

On the question of non-observance of the principles of natural justice the first complaint of the petitioners is that neither the reports of the Superintendent and the Invigilator were produced nor they were examined at the enquiry. It is to be noted in this connection that the Centre Superintendent and the Invigilators had not submitted any report about the malpractice. It was therefore not necessary for the Discipline Committee to examine them suo motu. If the petitioners wanted to establish their defence by the evidence of the Centre Superintendent and the Invigilator they should have moved the Discipline Committee to secure the attendance of the Centre Superintendent and the Invigilator for examination. The grievance made by the petitioners at this stage appears to be an afterthought. It is averred in the counter affidavit of the opposite party that on account of disturbance and indiscipline created by the candidates the Centre Superintendent and the Invigilators became terror-stricken and did not venture to report about the malpractice. A number of instances of indiscipline have been cited in the counter affidavit. It is clear in the present case that an extraordinary situation had arisen in the Christ College centre during the period in question. Any action taken by the Centre Superintendent or the Invigilators against the candidates at the examination hall might have tended further to endanger; the interests of discipline. Since there were repeated disturbances in this particular centre, a fact about which there does not appear any controversy, the mere absence of reports by the Centre Superintendent and the Invigilators cannot exonerate the petitioners.

11. The second complaint is that the answer books were not made available to the petitioners during the enquiry. There is no rule under which the petitioners were entitled to see the answer books. The principles of natural Justice do not require that the answer books should be shown to the delinquent examinee. They merely require the affording of an opportunity to explain or meet the charges. This requirement was fully satisfied in the present case. Moreover, in view of the nature of plea taken by the petitioners it cannot be said that they have been prejudiced by non-disclosure of the answer books. Similarity of the answers to the questions as mentioned in the charges is not disputed by the petitioners. The common plea of all the petitioners is that they prepared from the book 'B. A. History in the form of question answer' written by Shri Nabakishore Karmee, the Professor of History of the Christ College and the class notes dictated by him. Their contention is that as they prepared from a common source, the answers became similar.

12. The third complaint is that the chart showing the seating arrangement in the examination hall was not produced at the enquiry. The opposite party's contention is that as the chart was not available with the University it could not be produced at the time of hearing. It appears that the petitioners did not move the Discipline Committee for production of the chart at the time of enquiry. So it hardly lies in their mouths to make a grievance for its non-production at this stage. Having regard to the nature of the plea taken by the petitioners we do not think that they were prejudiced in any way by non-production of the chart at the time of enquiry.

13. The fourth complaint of the petitioners is that they were not given an opportunity to cross-examine Dr. Choudhury who had reported about similarity of the answers. It appears that though some of the petitioners made a request in their explanations submitted to the Deputy Registrar of the University for an opportunity to cross-examine the Examiner, no such request was made to the Discipline Committee at the time of enquiry. From the record of proceedings of the Discipline Committee, it appears that the petitioners never asked for summoning of the Examiner. The counter affidavit filed on behalf of the University is clear on the point and no reason has been assigned to doubt the averments made therein. It seems to us settled in law that it is not open to a petitioner to complain of the omission to produce a witness if he has not applied for the production of that witness. The question was considered by the Privy Council in University of Ceylon v. Fernando: (1960) 1 All ER 631. The entire case against the petitioner there turned upon the testimony of one Miss, Balasingham. She was not produced during the enquiry proceedings. A contention was raised that the proceedings contravened the principles of natural justice because of the omission to produce her. Repelling the contention the Judicial Committee observed: 'This might have been more formidable objection if the plaintiff had asked to be allowed to question Miss. Balasingham and) his request had been refused.' This view has been affirmed by the Supreme Court in AIR 1969 SC 198. We are of opinion that this contention is without any substance.

14. From the records produced before us we cannot say that the decision for cancellation of the result of examination was based on no evidence. We have looked into the book written by Shri Karmee, the question of History Paper II and the answer books of the petitioners which were made available to us by the learned counsel for the opposite party during hearing of the writ petitions. We are satisfied on a comparison of answers to question No. 2 given by the petitioners in O. J. C. Nos. 764, 824, 826 and 763 of 1975 with the answer given in the book of Shri Karmee that they are almost indentical. The question No. 2 runs as follows. 'Trace the role of Nurjahan during the rule of Jahangir.' The answer to this question occurs at pages 60 to 63 of the book of Shri Karmee. Normally it is not possible for a candidate to reproduce such a lengthy answer from memory. The language and the manner of writing clearly suggest that the answers were the result of copying. The seat chart (Annexure A) shows that the petitioners in O. J. C. Nos. 764/75 and 824/75 were in the first row, the petitioner in O. J. C. No. 826/75 was in the second row and the petitioner in O. J. C. No. 763/75 was in the third row. In view of the position of the petitioners as shown in the chart it is not unlikely that they received help from each other or took help from a common source.

We also compared the answer of petitioners in O. J. C. Nos. 825/75 and 824/75 (Roll Nos. 732 and 733 respectively) in respect of question No. 8 and found that they tallied word for word. The seat chart (Annexure A) shows that Roll No, 733 was sitting just behind Roll No. 732 in the (first row. It is therefore quite probable that they took help from each other or from a common source in answering question No. 8.

We also compared the answer of petitioner in O. J. C. No. 827/75 bearing Roll No. 1929 with that of another candidate bearing Roll No. 1927 in respect of question No. 8 and found that they are similar. The seat chart (Annexure A) shows that the petitioner in O. J. C. No. 827/75 was sitting just behind the candidate bearing Roll No, 1927 in the fourth row. It is therefore quite probable that they took help from each other or from a common source in answering question No. 8.

15. Having regard to the circumstances and probabilities of the case, it cannot be said that the decision to cancel the results of the petitioners is based, on no evidence. The circumstantial evidence and the probabilities may not be enough for a decision by a court of law. But all considerations which govern trials in a court of law cannot be imported into enquiries held by domestic tribunals. It may well be that if the matter came up before us in appeal we might have taken a different view, but as Indicated earlier, this Court does not act as a court of appeal against the decision of the University authorities. The question whether the candidates had resorted to unfair means is a pure question of fact and the Discipline Committee which consisted, of eminent educationists and experienced Examiners has reached the conclusion after due consideration of all the relevant materials. No mala fides have been proved against the members of the Committee. The enquiry has been fair and the petitioners bad adequate opportunity of making their defence. There has been no violation of the principles of natural justice. We cannot therefore re-assess the evidence for ourselves and substitute our own conclusion, for that of the Discipline Committee however erroneous it may appear to be. It is to be noted in this connection that in AIR 1966 SC 875 the results of respondents 1 and 2 were cancelled by the Board on the basis of the finding of the Enquiry Committee on the solitary circumstance that the respondents had given wrong answers to question No. 4 in precisely the same form in which the said answer had been given by another candidate. Though this was the only circumstance on which the decision was based their Lordships observed that the enquiry had been fair and the respondent had an opportunity of making his defence. On such observations their Lordships reversed the decision of the High Court in allowing the writ petition and in quashing the order of cancellation of the result.

16. The result therefore is that all the writ petitions are dismissed, but in the circumstances without any order as to costs.

17. Before parting with the cases, we cannot but seriously deprecate the conduct of the concerned Invigilators in not submitting a report about adoption of unfair means by the petitioners. It is not sufficient to say that they became terror-stricken by the conduct and behaviour of the candidates in the past. Even if they apprehended danger in taking immediate action for checking malpractice at the examination hall, nothing prevented them from submitting a report to the Centre Superintendent about the malpractice. To say the least, they have failed to discharge the duties entrusted to them.

G.K. Misra, C.J.

18. I agree.


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