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Harinarayan Bohidar Vs. the Sambalpur University - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 700 of 1970
Judge
Reported inAIR1972Ori56
AppellantHarinarayan Bohidar
RespondentThe Sambalpur University
Appellant AdvocateK.C.J. Ray, Adv.
Respondent AdvocateR.K. Mohapatra, Adv.
DispositionPetition dismissed
Cases ReferredLekhram Saini v. Union of India. That
Excerpt:
.....servant, if the conditions of the constitutional protection have been complied with, is not justiciable. on the other- hand, an order based on several grounds some of which -are found tobe non-existent or irrelevant, can be sustained if the court is satisfied that the authority would have passed the order on the basis of the other relevant and existing grounds, and the exclusion of the irrelevant or non-existent grounds could not have affected the ultimate opinion or decision. ' 9. we are clearly of opinion ,that the principle laid down in air 1963 sc 779 and air 1967 sc 1353 applies fully to the case of an enquiry made by the university in a disciplinary proceeding against the student. but for reasons already given we are unable to accept this as laying down good law......was asked to explain the charges against him; and he admitted the possession of the incriminating material. annexure b to the counter-affidavit supports the version of the deputy registrar. it contains the endorsement of sri k.c. patnaik, vice-chancellor. we reject the assertion in the writ application that the petitioner was not given reasonable opportunity to explain the charges by the malpractice committee.4. it is, however, to be noted that in the charge-sheet (annexure a to the writ application) no charge was framed to the effect that the petitioner actually used the incriminating material in answering the logic paper. there is no averment in the counter-affidavit that the petitioner's answer paper in logic was actually compared in his presence by the malpractice committee with the.....
Judgment:

G.K. Misra, C.J.

1. The petitioner was a candidate at the Pre-University Examination of the Sambalpur University held in the month of April, 1970 and was appearing in the examination for logic at the Gangadhar Meher College Centre. The result of the examination of the petitioner was cancelled and he was debarred by the University from appearing in any examination prior to the second examination of 1971 on the ground that he took recourse to unfair means in the examination. The petitioner's grievance is that no reasonable opportunity was given to him for explaining the charges and though the charges were not established by any acceptable evidence, the punishment was imposed. The opposite party's case is that the charges were duly proved and the petitioner was given reasonable opportunity of explaining the charges.

2. Annexure A to the writ application, dated 2nd of June, 1970, was served on the petitioner. It runs thus:

'From

Dr. R.N. Misra, M.Sc. Ph.D.,

Deputy Registrar,

To

Sri Harinarayan Bohidar,

s/o. Sri Dayasagar Bohidar,

Mohantyapara, Sambalpur.

Roll No. 1646

It has been reported by the Centre Superintendent/G.M. College -------- Centre, Sambalpur that you have adopted unfair means at the Annual Pre-University Examination, 1970 in respect of Logic Paper on 8-4-70. In this connection I am directed to say that the following charges have been made against you.

1. While the Annual Pre-University Examination, 1970 was in progress at the above Centre you were found in possession of an incriminating paper (pages 57 and 58 from Modern Bharati P. U. Test paper)which you brought into the Examination Hall with evident intention of copying from it. You were wanted before the commencement of the Examination not to bring any paper other than your Admit Card into the Examination Hall.

2. You refused to give a statement.

You have..... Examination Hall.You are directed to explain in writing the charges made against you and send your explanation so as to reach the Deputy Registrar by 15-6-70.

Your case will be considered by the University on 16-6-70 at 8 A.M. If you want to appear in person and represent your case at the time of enquiry you can express your desire to do so in your explanation. (No T.A., C.A. or D.A. will be given by the University).

If no reply is received from you by the above date in the office of the undersigned, it will be taken for granted that you have nothing to say in defence and the matter will be disposed of and order passed ex parte.

A copy of the report of the Invigilator/Centre Superintendent is enclosed herewith for your reference.

Sd/- Illegible 2-6-70.'

It is conceded by the learned Advocates for both sides that the second charge that the petitioner refused to give a statement is irrelevant. On that charge he cannot be and in fact has not been punished. The first charge is that he was found in possession of an incriminating paper which he had brought into the examination hall with the evident intention of copying from it. There is no charge that he actually used the incriminating material in answering the logic paper. Along with Annexure 4, a copy or the report of the Centre Superintendent (Annexure A-1) was given to the petitioner. Another report (Annexure A-2) which was also given along with the charge-sheet is not relevant as on its basis no finding has been given. In Annexure A-1 the Centre Superintendent in column 6 recorded the process of detection. He said that while passing by the side of the candidate he found the incriminating material under his question paper. In column 7 he stated that he did not find the candidate using the material.

Rule No. 4 for the guidance of candidates as given in Annexure B to the writ application is to the effect that candidates should not have in their possession while in the examination hall any book or paper printed or manuscript, even if they are unconnected with the subject of the examination. By Annexure C dated 29th of June, 1970 the petitioner was punished and the penalty imposed was that the result of the examination was cancelled and he was debarred from appearing at any examination prior to the second examination of 1971.

In response to the charge-sheet the petitioner submitted his explanation (Annexure A to the counter-affidavit). In paragraph 2 thereof he stated thus:

'The alleged incriminating materialfell on me in folded form probably whilepassing from one to other on my frontside. Thus out of inquisitiveness, whileI was just going through it, instantly, theInvigilator came and took away the samefrom me. Neither I could know the contents therein nor I used it in the examination xxx'.

Annexure B to the counter-affidavit is the extract of the entry relating to the petitioner in proceedings Register of the Examination Discipline Committee. In column 7 thereof the remarks of the Conducting Board dated 9-6-70 are to the following effect:

'Portion of the incriminating material marked in red pencil of Q. 7 has been copied by the candidate.'

Col. 8 contains the statement of the candidate and the conclusion of the Committee as recorded by Sri K.C. Patnaik, Vice-Chancellor, on 16-6-70. The entry runs thus:

'Appeared in person. Admit possession. Utilisation proved.'

Col. 8 shows that the petitioner actually appeared in person before the Malpractice Committee on 16-6-70. He admitted possession of the incriminating material. Column 10 shows that recommendations of the Malpractice Committee were approved by the Syndicate.

3. By Annexure A to the writ application the University intimated the petitioner to appear in person and represent his case at the enquiry at 8 a.m. on 16-6-70. In paragraphs 10 to 13 of the writ application the petitioner admits that he was present within the University premises at 8 a.m. on 16-6-70 and that at 8-30 a.m. the Vice-Chancellor and the two other members of the Malpractice Committee came to the University Office. The petitioner was asked by the Deputy Registrar to sign a book in token of his presence in the office but he was neither called inside the room nor asked any question or given any opportunity to explain the charges. These averments are denied by the Deputy Registrar in paragraph 8 of the counter-affidavit wherein he asserts that the petitioner appeared personally before the members of the Examination Discipline Committee; he was asked to explain the charges against him; and he admitted the possession of the incriminating material. Annexure B to the counter-affidavit supports the version of the Deputy Registrar. It contains the endorsement of Sri K.C. Patnaik, Vice-Chancellor. We reject the assertion in the writ application that the petitioner was not given reasonable opportunity to explain the charges by the Malpractice Committee.

4. It is, however, to be noted that in the charge-sheet (Annexure A to the writ application) no charge was framed to the effect that the petitioner actually used the incriminating material in answering the logic paper. There is no averment in the counter-affidavit that the petitioner's answer paper in logic was actually compared in his presence by the Malpractice Committee with the incriminating material and he was asked to explain how they tallied though it was stated that such a comparison was made by the Conducting Board behind the petitioner. In that view of the matter the entry in column 8 of Annexure B to the counter-affidavit that utilisation was proved was on the basis of the opinion of the Conducting Board and not on the basis of examination by the Malpractice Committee in the presence of the petitioner. We are of opinion that it would be unfair to accept the finding that in fact the incriminating material was used. Such a finding was arrived at without the framing of a charge and without reasonable opportunity being given to the petitioner to explain the allegation against him.

5. Thus the only charge proved against the petitioner is that he was in possession of the incriminating material. He was given reasonable opportunity of appearing before the Malpractice Committee to explain that charge and after hearing him the ultimate conclusion that he was in possession of the incriminating material was reached. The contention of the petitioner that in arriving at such a conclusion no reasonable opportunity was given to him must be rejected.

8. That apart, in his explanation the petitioner admitted that he was in possession of the incriminating material. He tried to explain it by saying that the incriminating material fell on him in folded form probably while passing from one candidate to the other on his front side. Assuming that it is correct, he should not have inquisitiveness of taking possession of the paper and going through it when the Invigilator took away the same from him. If any other paper was thrown at his desk or fell near him he should not have picked up the same. The manner in which the incriminating material came to his possession is irrelevant. The fact of possession is itself incriminating.

Law is now well settled that where the ultimate conclusion is based on admission, absence of reasonable opportunity does not vitiate the finding (see AIR 1967 Orissa 26 (para. 8), Somnatn Sahu v. State of Orissa; AIR 1970 SC 679 (para. 9), State of U.P. v. Om Prakash Gupta and (1971) 1 SCC 1 (para. 5) = (AIR 1972 SC 32), Channabasappa Basappa Happali v. The State of Mysore.)

In the last case their Lordships observed thus:

'Under the English Law, a plea of guilty has to be unequivocal and the Court must ask the person and if the plea of guilty is qualified the Court must not enter a plea of guilty, but one of not guilty. The police constable here was not on his trial for a criminal offence. It was a departmental enquiry, on facts of which due notice was given to him. He admitted the facts. In fact his counsel argued before us that he admitted the facts but not his guilt. When he admitted the facts, he was guilty. The facts speak for themselves. It was a clear case of indiscipline and nothing less. XX XX

The petitioner himself admitted as being in possession of the incriminating material. The charge is therefore fully established,

7. Mr. K.C. J. Ray next contends that the penalty imposed was based on two findings: (i) the petitioner was in possession of the incriminating material and (ii) in fact, he used the incriminating material in his answer book; and as the second finding has been vacated the penalty itself must be quashed and the case must be remanded to the opposite party for reconsideration of the quantum of penalty.

In support of his contention he places reliance on AIR 1966 SC 740, Ram Manohar Lohia v. The State of Bihar, wherein under the Defence of India Rules, 1962 their Lordships held that if one of the grounds of satisfaction of the detaining authority fails the entire order is liable to be quashed. This decision is of no assistance in a case of the present nature wherein the petitioner is entitled to an enquiry in which principles of natural justice are to be observed. Preventive detention is a detention without trial. The detaining authority passes the order of detention in his subjective satisfaction on various grounds. If one of the grounds fails it is difficult to determine how the subjective satisfaction of the detaining authority would have been affected. It is on that principle that if one of the grounds fails the detention order is quashed in its entirety.

8. The true principle applicable to the present case is the one that is applicable to an enquiry under Article 311(2) of the Constitution, In AIR 1963 SC 779, State of Orissa v. Bidyabhushan Mohapatra, their Lordships observed thus:

'But the Court in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, are not justiciable; nor is the penalty open to review by the Court. If the High Court is satisfied that if some but not all of the findings of the Tribunal were'unassailable', the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice. The High Court was, in our judgment, in error in directing the Governor of Orissa to reconsider the question.'

This decision has been consistently followed in AIR 1967 SC 1353, State of Maha-rashtra v. Babulal Kriparam Takkamore; AIR 1969 SC 966, Railway Board, New Delhi v. Niranjan Singh; AIR 1970 SC 679; AIR 1964 Orissa 241, Dr. Jnanedra Nath Das v. State of Orissa and AIR 1967 Orissa 26.

Amongst these decisions, AIR 1967 SC 1353 requires special mention. In that case in the opinion of the State Government the Corporation of the City of Nagpur was not competent to perform the uties imposed upon it by or under the City of Nagpur Corporation Act, 1948 (C.P. and Berar Act, II of 1950). The opinion was based on two grounds, one of which was relevant and the other irrelevant. Both the grounds were mentioned in the show cause notice. Their Lordships held that the fact that the first ground mentioned in the order was found not to exist and was irrelevant, does not affect the order. After referring to various authorities under different provisions, one of which was AIR 1957 SC 164, Dwarka Das Bhatia v. State of Jammu and Kashmir relating to preventive detention, their Lordships summed up their conclusion thus:

'The principle underlying these decisions appears to be this. An administrative or quasi-judicial order based on several grounds, all taken together cannot be sustained if it be found that some of the grounds are non-existent or irrelevant, and there is nothing to show that the authority would have passed the order on the basis of the other relevant and existing grounds. On the other- hand, an order based on several grounds some of which -are found tobe non-existent or irrelevant, can be sustained if the Court is satisfied that the authority would have passed the order on the basis of the other relevant and existing grounds, and the exclusion of the irrelevant or non-existent grounds could not have affected the ultimate opinion or decision.'

9. We are clearly of opinion , that the principle laid down in AIR 1963 SC 779 and AIR 1967 SC 1353 applies fully to the case of an enquiry made by the University in a disciplinary proceeding against the student.

The impugned penalty could be imposed on the petitioner by the opposite party even on the basis of the finding that he was in possession of the incriminating material.

10. Mr. K.C. J. Ray places reliance on a Single Bench decision of the Rajasthan High Court in (1969) 1 LLJ 382 (Raj), Lekhram Saini v. Union of India. That decision supports his contention. But for reasons already given we are unable to accept this as laying down good law. It has not taken into consideration the various Supreme Court decisions referred to by us and has stated the proposition too broadly.

11. On the aforesaid analysis, there is no merit in this writ application. It is accordingly dismissed but in the circumstances without costs.

S.K. Ray, J.

12. I agree.


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