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Kamalendu Prasad Padhi Vs. the Sambalpur University and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 959 of 1974
Judge
Reported inAIR1976Ori134
ActsConstitution of India - Article 226; Evidence Act, 1872 - Sections 115
AppellantKamalendu Prasad Padhi
RespondentThe Sambalpur University and ors.
Appellant AdvocateC.V. Murty and ;C.A. Rao, Advs.
Respondent AdvocateR.K. Mohapatra, Adv.
DispositionPetition allowed
Cases ReferredMaunsell v. Hedges
Excerpt:
.....got admission into the law class of the lala lajpatray law college affiliated to the same university. examination of 1975. on 17-9-74 another notification was issued for deleting the entry in annexure 3 about the petitioner's success in the examination. ) paper ii and recommended to the syndicate that the petitioner's result should be cancelled and he should be debarred from appearing at any examination prior to the second b. ' 6. it is now well settled that the rules of natural justice require that if any statement or evidence is considered against the delinquent, he must be given the opportunity of cross-examining the person who gave the statement or the evidence. one cannot effectively defend himself in vacuum. , board of secondary education, orissa, cuttack) it was clearly..........of the explanation he stated as follows :'if my above explanation is not accepted, i request the enquiry committee of the university in this connection to secure the attendance of the particular invigilator to whom i am reported to have threatened to assault, to take his evidence in support of his report and arrive ,at the truth for final disposal of case against me. i may also kindly be given a personal hearing to explain the matter.' an enquiry was held into the charges on 19-8-74 by the examination disciplinary committee, after the enquiry, the petitioner's result was announced and he was declared to have passed with honours in political science as per notification dated 28-8-74 (annexure 3). on 31-8-74, he was granted a provisional certificate about his success in the examination.....
Judgment:

Mohanti, J.

1. Petitioner appeared at the Final B. A. Examination of 1974 from the G. M. College, Sambalpur affiliated to the Sambelpur University. His result was withheld on the ground that he had adopted unfair means at the Examination in Political Science Paper II and Psychology Paper I held on 24-4-74 and 10-5-74 respectively. On 12-8-74 he was served with a charge-sheet to show cause against the alleged malpractice. The charge-sheet runs as follows :

'You appeared at the Annual B.A. (Hons.) Examination of 1974 conducted by the Sambalpur University, with Roll No. 1888 at G. M. College Centre. It has been reported that you adopted unfair means at the examination in Political Science II and Psychology I paper on 24-4-74, 10-5-74. In this connection I am directed to say that the following charges have been made against you.

1 (a). While the examination in the paper mentioned above was in progress, you were found in possession of incriminating material. You were warned before the commencement of the examination not to bring any paper other than your Admit Card into the Examination Hall. It is evident that you had the intention of using the incriminating material for answering the questions. You have contravened the rules for guidance of the candidates as mentioned in the Admit Card issued to you by the University for entrance to the Examination Hall

(d) You refused to give a statement or put your signature on the incriminating material, which was found in your possession.

(e) You were found copying from the incriminating material.

(f) It has been found that you used the incriminating material while answering the question.

(g) You threatened the Invigilator to assault him.

(h) You did not surrender the incriminating materials to him.

2. You are directed to explain in writing why disciplinary action should not be taken against you for violating the rules of examination. Your explanation should reach the Deputy Registrar by 17-8-74.

3. Your case will be considered by the University on 19-8-74 at 11 A.M. in the University Administrative Block at Jyoti Vihar, Burla. If besides the explanation submitted by you, you think it necessary to appear in person at the time of the enquiry, you can do so on the date and time mentioned above. No T.A., C.A. or D.A. will be paid by the University for your attending the enquiry.

4. If your explanation is not received in the office of the University by theabove date, it will be presumed that you have nothing to say in defence and the matter will be disposed of and orders passed ex parte.'

Petitioner showed cause by his explanation dated 17-8-74, (Annexure 2) denying the charges in toto and contending inter alia, that the allegations were false, motivated and most likely made out of grudge. At the end of the explanation he stated as follows :

'If my above explanation is not accepted, I request the Enquiry Committee of the University in this connection to secure the attendance of the particular invigilator to whom I am reported to have threatened to assault, to take his evidence in support of his report and arrive ,at the truth for final disposal of case against me. I may also kindly be given a personal hearing to explain the matter.'

An enquiry was held into the charges on 19-8-74 by the Examination Disciplinary Committee, After the enquiry, the petitioner's result was announced and he was declared to have passed with Honours in Political Science as per Notification dated 28-8-74 (Annexure 3). On 31-8-74, he was granted a Provisional Certificate about his success in the Examination vide Annexure 4. A copy of the mark-list was also issued to him on 29-8-74, vide Annexure 5. On the basis of the said Provisional Certificate and the mark-list and the Notification in Annexure 3, the petitioner got admission into the Law Class of the Lala Lajpatray Law College affiliated to the same University. Thereafter on 11-9-74, the University issued a Notification in Annexure 6 cancelling the result of the petitioner and debarring him from appearing at any examination prior to the second B.A. Examination of 1975. On 17-9-74 another Notification was issued for deleting the entry in Annexure 3 about the petitioner's success in the Examination. On 23-9-74, this writ petition was filed for quashing the Notifications in Annexures 6 and 7. On his application, the petitioner was permitted by this Court to continue as a student of the Law Class without prejudice to the result of the writ application--vide Order No. 2 dated 24-9-74.

2. Petitioner's contention is that there being no evidence available to the Enquiry Committee he was exonerated of the charges and his result was published under Annexure 3 and the same cannot be cancelled unilaterally. It is also contended that petitioner having already acted on the basis of the published result, the University authorities are estoppedfrom recalling the said result to his prejudice.

3. The opposite parties in their counter-affidavit denied that there was any violation of the principles of natural justice and averred that on the reports received from the Invigilators and the Centre Superintendent, charges were framed against the petitioner for having adopted unfair means in the examination of the Political Science (Hons.) Paper II and Psychology Paper I (Pass). He appeared at the enquiry held by the Disciplinary Committee on 19-8-74 when the reports of the Invigilators and the Centre Superintendent were shown to him and he was afforded full opportunity to defend himself. On a consideration of the reports of the Invigilators and the Centre Superintendent and also the written explanation and the oral statement of the petitioner the Committee came to the conclusion that the allegations of malpractice relating to Psychology Paper I had not been established beyond reasonable doubt and exonerated him of that charge. But the Committee found him guilty for having adopted malpractice in Political Science (Hons.) Paper II and recommended to the Syndicate that the petitioner's result should be cancelled and he should be debarred from appearing at any Examination prior to the Second B.A. Examination of 1975. Though the petitioner was found guilty of the charge relating to malpractice in Political Science (Hons.) Paper II, by mistake the Notification in Anne-xure 3 was issued by the Deputy Registrar of the University declaring the petitioner to have passed the Examination. Shortly after the issue of the Provisional Certificate (Annexure 4) to the petitioner the aforesaid mistake was detected in the office of the University and accordingly the Notifications in Annexures 6 and 7 were issued on 11-9-74 and 17-9-74 respectively. It was asserted that the University had full jurisdiction to correct the unfortunate mistake and there is no question of estoppel.

4. It having been canvassed on behalf of the petitioner that he was exonerated of the charges due to total lack of evidence against him and this contention having been controverted by the opposite parties, according to whom the reports of the Invigilators and the Centre Superintendent were shown to the petitioner at the time of enquiry and on a consideration of the same he was found guilty, we desired to look into the records of the proceedings, but the samewere not made available to us, The opposite parties filed their counter on 2-12-74 and the averments made therein were denied by the petitioner in his rejoinder dated 20-2-75. The writ application came up for hearing on 21-11-75 and 25-11-75. During all this length of time the opposite parties did not choose to produce the records in support of their stand. When a rule is issued by the Court on an application for certiorari, it is incumbent on the body exercising quasi-judicial functions, to whom the rule is addressed, to produce the relevant record before the Court along with its return (vide AIR 1959 SC 65 : Ghaio Mal & Sons v. State of Delhi), and when there is no compliance with this obligation and a dispute as to what had happened at the domestic quasi-judicial enquiry is raised and the conduct of the parties by the test of human probability is against the authority in custody of the record, adverse inference has to be drawn.

5. It is not disputed before us that it was incumbent on the part of the Disciplinary Committee to follow the principles of natural justice. In AIR 1966 SC 875 at p. 878 (Board of High School and Intermediate Education, U. P., Allahabad v. Banleshwar Prasad) the Supreme Court laid down as follows :

'Enquiries held by domestic Tribunals in such cases must, no doubt, be fair and students against whom charges are framed must be given adequate opportunities to defend themselves, and in holding such enquiries, the Tribunals must scrupulously follow rules of natural justice.'

6. It is now well settled that the rules of natural justice require that if any statement or evidence is considered against the delinquent, he must be given the opportunity of cross-examining the person who gave the statement or the evidence. In AIR 1963 SC 375 at p. 378 (State of Mysore v. Shivabasappa) the Supreme Court observed :

'The person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the examination of the witness will in its entirety, take place before the party charged, who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him, and admitted in evidence, a copy thereof isgiven to the party, and he is given an opportunity to cross-examine him.'

7. We are now to see whether the petitioner had adequate opportunity of defending himself. In his explanation the petitioner denied the charge and made a request for securing the attendance of the Invigilator who had reported against him for giving evidence in support of his report. In the writ petition the petitioner asserted that the members of the Committee simply questioned him about the allegations, but he was not confronted with any oral or documentary evidence against him. The reply to this assertion is that the petitioner appeared at the enquiry and the reports of the Invigilators and the Centre Superintendent were shown to him. As mentioned earlier, the record of proceedings has not been produced before us to show that the reports of the Invigilators and the Centre Superintendent were shown to the petitioner and he was questioned about the same. The disclosure of the reports and confrontation of the same to the petitioner was the integral part of the defence in absence of which the petitioner could not make an effective defence. Admittedly, the Invigilators and the Centre Superintendent were not produced for giving evidence at the time of enquiry. Mr. Mo-hapatra, the learned counsel appearing on behalf of the opposite parties argued that if at the time of enquiry the petitioner had expressed his desire to cross-examine any witness, the Committee would have exercised its discretion in making available the persons who had reported against the petitioner. It is significant to mention in this connection that neither the copies of the adverse reports were supplied to the petitioner nor the names of the Invigilators and the Centre Superintendent had been disclosed to him before the date of enquiry. The charge-sheet in Annexure 1 appears to have peen issued to the petitioner on 12-8-74 requiring him only to submit his explanation by 17-8-74 and to appear in person at the time of enquiry on 19-8-74. The enquiry was conducted on 19-8-74. The petitioner was not required to adduce evidence on 19-8-74. It was also not stated in Annexure 1 that the petitioner himself would be examined on that day. As already stated, the petitioner in his explanation had denied the allegations against him and had specifically requested the University to secure the attendance of the Invigilators for taking evidence in support of their reports. Thus, the ques-tion about the petitioner's asking for production of witnesses at the time of enquiry, when it was the duty of the Committee to do so, did not arise. If the names of the Invigilators had been previously disclosed to the petitioner, he might have been in & position to ask the Committee for their production. He could have also convinced the Committee that the Invigilators who had given the reports had some reason to falsely implicate him. He could not have produced any evidence in defence without knowing the names of the persons who had given reports against him. One cannot effectively defend himself in vacuum. How is a defence possible unless one is informed of the evidence against him. There is no record to show that the reports were shown to the petitioner and that he was questioned about the same. As the Invigilators were not produced at the enquiry the petitioner had no opportunity of testing the correctness of their reports by cross-examination. In the Full Bench decision reported in ILR (1972) Cut 469 = (AIR 1972 Orissa 224) (FB) (Pramila Dei v. Secy., Board of Secondary Education, Orissa, Cuttack) it was clearly laid down that if the delinquent as a part of his defence demands that the witnesses reporting against him are to be cross-examined, refusal thereof would amount to denial of reasonable opportunity. The Privy Council in University of Ceylon v. Fernando, (1960) 1 All ER 631 justified the denial of opportunity to cross-examine on the ground that Fernando did not ask for it and not on the ground that he had no right to it. In the instant case the petitioner made a request for examination of the Invigilators and he was denied that opportunity.

Petitioner asserted in the writ petition that he was not confronted with any oral or documentary evidence at the time of enquiry and that no opportunity in consonance with the rules of natural justice was afforded to him to defend himself. As he was present at the enquiry, his assertions must be credited with personal knowledge. The counter-affidavit is of the Assistant Registrar of the University. He does not claim to have been a member of the Disciplinary Committee. Nor does he state that he was present at the enquiry as an officer of the University. If a member of the Committee had indicated by affidavit the details of what had transpired before it, the position may have been different. The Assistant Registrar in paragraph 10 of his counter has stated that the University records are thebasis of the statements made in the counter-affidavit. In such premises, the University could not withhold the evidence available with it and ask the Court to accept the bald assertions made in the return to the Court. (See AIR 1917 PC 6 : Murugesam Pillai v. Gnana Sambandha Pandara).

In the premises aforesaid, we are constrained to hold that the petitioner had no adequate opportunity to defend himself and the decision taken against him is contrary to the principles of natural justice.

8. The next question for consideration is whether in the circumstances of the case the opposite parties are estopped from taking the stand that the petitioner was found guilty of the charges, that his result was cancelled and that he was not eligible to take admission into the Law College. The University issued the Notification in Annexure 3 declaring the petitioner to have passed in the Examination. This was confirmed by the issue of mark-list and Provisional Certificate to the petitioner.

Although in the counter-affidavit, the plea of mistake has been raised, no material has been placed to support the plea. It must be assumed that the result of the examination of the petitioner was published in due course unless it is established that the result is vitiated by mistake. Where the mistake is mutual, the position may be different but where one of the parties, particularly a statutory authority which functions in accordance with a set of rules and to whose acts presumption of correctness attaches, wants to resile from its own action, must establish that the action was the result of a mistake. No attempt has been made in this regard by the University. By merely calling the mistake as an unfortunate event, the responsibility could not be discharged. On the strength of the three documents the petitioner got admission to the Law College after paying necessary fees which the University accepted. As a result of the aforesaid representations the petitioner did not pursue the study for purposes of re-appearing in the B.A. Examination. Undoubtedly as the facts of the case show, petitioner has changed his position to his prejudice by the declaration of the result following the disciplinary enquiry. It is not the case of the University that the petitioner was aware of the fact that he had not actually been declared to have passed the examination and connived tocreate any document on the basis of which he got his admission into the Law College.

The scope of estoppel has been indicated by the Supreme Court in the case of Union of India v. Anglo Afghan Agencies, AIR 1968 SC 718. In T. Morrison & Co. v. Hungerford Investment Trust Ltd, AIR 1972 SC 1311, the Court indicated :

'Estoppel is a rule of equity. That rule has gained new dimensions in recent years. A new class of estoppel i.e. promissory estoppel has come to be recognised by the courts in this country as well as in England.'

A representation made by one party for the purpose of influencing the conduct of the other party and acted upon by him, will, in general, be sufficient to entitle him to the assistance of the Court of Equity for the purpose of realising such representation was the dictum of Lord Cottenham cited with approval in Maunsell v. Hedges, (1854) 4 HLC 1039. In the facts of this case, we are satisfied that the University authorities are estopped from withdrawing from the representation evidenced by Annexure 3 and they must not be permitted to withdraw from it

9. The learned counsel for the opposite parties has not been able to point out any provision in the University Act or the Statutes made thereunder which enabled the University to review its decisions once made and to take up a different stand after declaring that the petitioner had passed the B.A. Examination especially when he had acted upon that declaration by joining the Law Class.

10. In the result, the writ petition is allowed, but in the circumstances without any order as to costs. Issue writ of certiorari quashing the Notifications in Annexures 6 and 7. A writ of mandamus be also issued to the opposite parties to forbear from preventing the petitioner from continuing his study in the Law College.

Shankar, C.J.

I agree.


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