R.N. Misra, C.J.
1. This application under Article of the Constitution calls in question the punishment imposed on the petitioner on the allegation of malpractice by the Orissa University of Agriculture & Technology (hereafter referred to as the 'O. U. A. T.') under Annexure-12.
2. Petitioner sat at the final B. V. Sc. the A. H. Examination, 8th Semester, held by the O. U. A. T. One of his papers, being 'Fish Disease and Sanitation', was scheduled for the second sitting on 8-6-1979 from 3 P. M. to 5 P.M. One Dr. Maheswar Misra, Professor and Head of the Department of Animal Production was the Senior Invigilator. On 14th of June. 1979, Petitioner received notice from the Dean of the Faculty of Veterinary Science and Animal Husbandry, to show cause against a complaint made by Dr. Misra and an extract of the report was enclosed to the notice. Petitioner submitted his explanation on 19-6-1979 denying the allegations and explaining the background in which Dr. Misra had made false allegations. Petitioner received an intimation communicating the order dated 18-11-1979, from the Registrar of O. U. A. T., to the effect that petitioner's results of the Final Semester of 1978-79 stood cancelled and petitioner was deemed to have failed in all the courses of the 8th Semester and was debarred from registering till the corresponding Semester of the next academic session 1979-80. Petitioner filed a writ application before this Court in O. J. C. No. 1697 of1979. During the pendency of the said application, the impugned order was withdrawn by notification dated 14-1-1980. On 15-1-1980, the writ application was dismissed as having become infruc-tuous. The Academic Council set up a Board consisting of one of the Deans and two Professors for conducting an inquiry into the alleged misconduct of the petitioner and one Srinivas Das. Petitioner was served with a notice from the said Committee through its convener to show cause and petitioner in terms of Annexure-8 dated 5-3-1980, showed cause denying the allegations, pointing out the mala fides of Dr. Misra and also challenging the competency of the Committee to examine the matter. The matter was enquired into, Dr. Pani the then Dean and Dr. Misra were examined. On 11th of November, 1980, the following order was communicated to the petitioner:--
'Results of the final, 8th semester examination, 1978-79 stand cancelled. He is deemed to have failed in all the courses of 8th semester and is debarred from registering till the corresponding semester of the next acadmic session 1980-81.'
This notification cancelling the petitioner's results and debarring him from registering again until end of academic session 1980-81 has been called in question in this writ application.
3. The University and its Dean have filed a common counter affidavit while Dr. Misra who has been impleaded as opposite party No. 3 has filed a separate counter affidavit. It may be pointed out that Dr. Pani who was then Dean was no more there and has been replaced by Dr. J. N. Mohanty. In the counter-affidavits, the allegations against the petitioner have been highlighted and it has been pleaded that the petitioner had not only committed malpractice at the examination but had also grossly misbehaved with Dr. Misra who was the senior invigilator when he had obstructed the petitioner from committing malpractice,
4. We are fully cognisant of the undisciplined conduct existing in educational institutions in this country. This is a phenomenon which is common more or less to every institution. Conducting fair examination in the traditional method hag become almost impossible. We are also cognisant of the fact that Court's jurisdiction is not appellate and if there be a fair determination at the dispute in the hands of the body consisting of Professors, the Court should not ordinarily disturb the action taken in the field of maintaining discipline and' order.
5. Yet, on the facts of this case, we are of the view that the impugned order should not be sustained. Though Mr. Rath for the opposite parties has strenuously contended that Dr. Misra acted fairly, having gone through the materials placed before us, we have a feeling that the petitioner has been a victim of what appears to be a dispute between Dr. Pani, the then Dean and Dr. Misra who was then Professor and Head of the Department of Animal Production. There is no dispute that under the Statutes of the University the Academic Council is the body responsible for maintenance of discipline and theCouncil is entitled to function through a Committee, as has been done in the instant case. The Semester Regulations framed under proper authority specifically deal with malpractice in examination, Regulation 37 provides :--
'The case of malpractice in the Semester examinations shall be dealt with as indicated below :
(a) The Dean of the College in which the student is registered shall be responsible for dealing with all cases of use of unfair means in the semester tests and examinations.
(b) The teacher concerned shall report to the Dean on the day of occurrence of each case of unfair means with full details of the evidence and explanation of the student concerned, if any.
(c) The Dean shall take appropriate action and the penalty may be as indicated below :
(i) Students found in possession of incriminating paper or material during a quiz, periodical test, practical or final examination shall be given zero in that course.
(ii) Students found using unfair means in any of the examinations shall be deemed to have failed in all the courses of the Semester and shall be debarred from registering till the corresponding semester of the next academic session in which he is deemed to have failed.
(iii) Due weight shall be given to the report of the Invigilator in deciding suchmalpractice cases.
(iv) In regard to any other offence of serious nature by a student pertaining to the examination, the Dean of the College shall report the matter together with all material evidence to the Registrar and the matter shall then be dealt with by the Academic Council.' From these provisions it is clear that the Dean is the prescribed functional authority to deal with cases of malpractice. It is only when offences of serious nature not covered by Clauses (a) and (c) take place that the Dean has to report and the matter has to be handled by the Academic Council.
In the instant case though the alleged malpractice is said to be on 8-6-1979, the report was furnished by the Senior Invigilator on 11-6-1979. Clause (b) of Regulation 37 required the report to befurnished on the same day. Dr. Pani in his report had specifically, stated that, he was available in his office for some lime after the examination was over in the second shift of 8-6-1979. The explanation of Dr. Misra for the delay in furnishing the report is that it was already late in the evening that day and he assumed that the Dean would not be available in his office and as the following two days were holidays, the report was sent on the 11th of June, 1979. The prescription in the Regulation that there should be a contemporaneous report is a healthy one and the policy behind such a provision seems to be, as has rightly been contended before us on behalf of the petitioner, that everything would be fresh and there would be no scope to embellish matters. We do not intend to suggest that Dr. Misra made any attempt of adding to allegations against the petitioner, but since there is a prescription which appears to be wholesome and there is some allegation of the petitioner and Dr. Misra having fallen out, the report should have been made contemporaneously particularly when according to Dr. Misra he had been manhandled by the petitioner and he had been shocked at such treatment. The Dean's report shows :--
'However, since Dr. Misra has not mentioned in his report about explanations of the students, a clarification was sought from him under this office letter No. 29/S/DVC dt. 12-6-1979 about the reason for not reporting the matter to the Dean on the same day although the Dean was present in his office till 8.30 p.m. and also to forward the explanations of the concerned students along with all details of the evidences of the case for further action.'
In reply, Dr. Mishra has stated (.........)
'I did not feel the necessity of immediately contacting the Dean since I did not expect any action from his side that could undo the things done by these students'........Such a statement of Dr. Mishrais officially not acceptable, since irrespective of somebody's liking or confidence on others, in official matters, the recommended official procedures as per regulations have to be followed. This has become a serious flaw in the complaint made by Dr. Mishra. Also, sucha statement of Dr. Mishra clearly indicates his intention,
If the report would have been made on the same day, the Dean could have tried to find out evidence, if any, in support of the complaint made by Dr. Mishra. This could not be done since the complaint was received in the evening of the last date of the examination programme, by which time most of the students had left the college.' The Dean's report further stated:--
'Dr. Mishra, in his above-mentioned letter has stated that Sri Polagobinda Panigrahi (petitioner) was talking with Other students and copying from them. But Dr. Mishra has not reported the names and Adm. numbers of those students. This again, is a flaw in the complaint made by Dr. Mishra, .....
As per the semester regulations, the Invigilator is supposed to report the occurrence of any case of that particular examination only. But by reporting about some incidents of the past few years, Dr. Mishra has gone beyond his jurisdiction as an invigilator and thereby complicated the case to take any action as per provision in the semester regulations.........''
Some of the objections indicated in the Dean's report seem to be germane. Dr. Mishra seemed to be making out allegations against the petitioner with reference to his past conduct and was making an attempt to indicate that the Dean would not take appropriate steps even if a complaint is made. In a complaint about malpractice detected by a senior invigilator on the particular day, there was no room for these historical events, nor was there any scope for Dr. Mishra to throw insinuations against the Dean by saying that the Dean would not have taken any action in the matter. These allegations either by Dr. Mishra or by the Dean go to suggest that relationship between them was not cordial and each was making an attempt to expose the other. It becomes difficult for the University to function with appropriate dignity and status when highly placed Professors working in the University do not maintain mutual respect, understanding, coordination and a sense of loyalty and devotion to the seat oflearning where they unite for a common laudable purpose.
6. There is another aspect which must receive immediate attention. Dr. Mishra was duty bound to bring the matter to the notice of the Dean and it was for the Dean to find out on the allegations made in the report whether it was a matter covered within his domain under Regulation 37 or was required to be reported to the Registrar in terms of Regulation 37 (c) (iv). In the instant case, Dr. Mishra took upon himself the burden of deciding that the matter must go beyond the Dean by addressing his complaint to the Registrar. That probably forced the Dean to send the matter to the Registrar for being handled by the Academic Council instead of he, himself entertaining the complaint to be dealt with at his level. Dr. Mishra should have scrupulously followed the requirements of the Regulation and should not have exhibited any special zeal in a matter of this type.
7. On the materials available, the complaint against the petitioner seems to be one of malpractice and nothing has been shown which would bring it squarely within Regulation 37 (c) (iv). While we have no hesitation in condemning malpractice in examinations without any reservation, we must also equally indicate our disapproval on the part of invigilators and examiners from not conforming to the prescribed code of conduct. If Dr. Mishra had remained content by bringing his complaint before the Dean, the matter would certainly have been handled in accordance with the prescribed procedure. There was no occasion for him to apprehend that the Dean would not do his job. At any rate, until he failed to do his job, it was not for Dr. Mishra to find fault with the Dean since power under the Regulation vests in the Dean to handle the situation.
8. The punishment imposed is in terms of Regulation 37 (c) (ii). We agree with Mr. Rath for the University that from the punishment imposed, we cannot conclusively find that it was not a case under Clause (c) (iv), but one under Clause (c) (ii) of Regulation 37. But as we have already pointed out, since the finding could not indicate any other offence of serious nature, it must follow that it was a case which squarely came underRegulation 37 (c) (ii) and the Academic Council, therefore, imposed the punishment prescribed under Sub-clause (ii), That sub-clause authorised that the punishment shall be a deemed failure in all the courses of the semester and debarring from registering till the corresponding semester of the next academic session in which there is deemed failure. Under Annexure-4 that punishment had been imposed which, as already mentioned, was recalled by the University when the petitioner came before this Court on the earlier occasion. The maximum punishment that could have been given in the facts of the case was what had been done then. On account of the University's own mistake in not conducting its disciplinary proceeding in keeping with the rules of natural justice and, therefore, recalling the order of punishment, the petitioner could not have been actually made to suffer a higher sentence than contemplated under the Regulation. In fact, if the earlier punishment had been sustained, by now the petitioner could have taken the examination again and passed out. Loss of one year in human life is difficult to be compensated by any process and since petitioner has already been subjected to that, we are inclined to agree with counsel for the petitioner that no other punishment should really be imposed. Keeping the unsatisfactory aspects of the matter in view, as we have indicated, and taking into consideration the fact that the petitioner is being punished again for one more year beyond what is contemplated in Regulation 37 (c) (ii), we direct that the punishment be quashed and petitioner's results be declared in accordance with law.
Parties are directed to bear their own costs of the proceeding.
9. I agree.