1. A Division Bench of this Court while considering a series of writ petitions in which judgment waspronounced on 23rd December, 1981 detected various irregularities in the conduct of examination, preparation of mark-lists etc. During the hearing, some of the answer papers, chosen at randoms of the candidates selected for admission to the M. B. B. S. Degree were re-examined with the help of competent academicians. Re-examination made alarming disclosures. Such disclosures made the Court to alert the authorities far necessary follow-up action in the following words:
'Certain element of deterrence is necessary in dealing with persons associated with malpractices whether it be the candidates, examiners or the University Staff. Having looked into files concerning such action by the University of of Kerala in the past, we arc afraid that persons concerned in such malpractices have been dealt with very softly. Whenever cases come to the notice of the University authorities or Government very often stern notice is called for in larger public interest. It would also be worth while to look into the history of admission to professional colleges in the various previous years to locate unqualified persons, if any, who have been able to gel in through the back door.' The University swung into action. Crimes were registered by the police on complaints from the University, against some of the petitioners. Investigation followed. Some of the petitioners were arrested and released on bail. The Principal of the Medical College suspended the petitioners from the classes. The University authorities suspended their results and debarred them from appearing in future examinations. This affords the background for the genesis to the present petitions.
2. The above petitions involve the same questions of law and are therefore being disposed of by a common judgment. In O. P. Nos. 247, 248, 249, 625, 897 and 4339 of 1982 it is the suspension orders by the Principal that are under challenge. In O. P. Nos. 4231, 4232, 4230, 4535, 4412, 6724, 6717, and 8206 of 1982 the orders of the Syndicate suspending the results of the examination and debarring the petitioners from appearing for future examinations till the finalisation of enquiry against them are under challenge. First we will refer to the bare facts contained in the petitions and the counter-affidavits and then proceed to discuss the question of law.
3. O. P. Nos. 247/82 & 4231/82. The petitioner in these two petitions is the same. He is a First Year M. B. B. S (Additional) Student of the Medical College, Trivandrum. He was arrested by the police on suspicion about the mark-list submitted by him when he applied for admission to the M. B. B. S. course, He was released on bail on 30-12-1981. By Ext. P1 order dated 5-1-1982 issued by the Vice-Principal-in-charge he was suspended from the course in the college with immediate effect. The petition is to quash Ext. P1 and for other reliefs.
In the counter-affidavit filed by the Principal, it is stated as follows: In his application for admission to the college, the petitioner had produced a certificate showing that he had obtained the following marks in his Pre-Degree examination in the optional subjects :
Physics.'135.Chemistry.'143.Biology.'138Total'416.(out of 450)
According to the Tabulated statement of marks prepared and maintained by the University, he had obtained only the following marks:
Physics.'135.Chemistry'125Biology.'138.Total'398(out of 450)
It was on the ground that the petitionerhad produced forged mark-list that acrime was registered against him and hewas arrested.
4. O. P. Nos. 248/82 & 4230/82. The petitioner is the same in these two petitions. He is a Third Year M. B. B. S. Student (senior) in the Medical College. Trivandrum. He was arrested on 29-12-1981 and was released on bail on 2-1-1982. He showed the following marks of for the optional subjects when he sought admission to the Medical college.
Physics.'134.Chemistry.'128.Biology.'136Total'398(out of 450)
In the Tabulated statement of marks maintained by the Kerala University, the marks secured by him are shown as:
5. O. P. Nos. 249/82 & 4232/82. In these petitions there are two petitioners. The first petitioner is a final year M. B. B. S. (Junior) student and the 2nd petitioner, a Third year M. B. B. S. (senior) student in the Medical College, Trivandrum. They were arrested on the accusation that they produced fake mark-lists when they sought admission in the Medical College. The first petitioner produced a mark-list showing the following marks for the Pre-Degree examination, while seeking admission to the M. B. B. S. course:
In the tabulated statement of marks prepared and maintained by the University, he had obtained only the following marks :
The 2nd petitioner while applying to the Medical College for admission to the M. B. B. S. course showed that she had secured the following marks in the Pre-Degree examination.
However, in the tabulated statement of marks, maintained by the Kerala University, she had obtained only the following marks:
6. O. P. Nos. 625/82 & 6724/82 -- The petitioner in these two petitions is thesame. He is a Final Year M. B. B. S., student in the Alleppey Medical College. He secured admission in the Medical College, showing that he had obtained the following marks in the subjects concerned in the Pre-degree examination :
Physics'132Chemistry'136Biology'121Total389 (Out of 450)
According to the tabulated statement of marks, prepared and maintained by the Kerala University, he had obtained only the following marks :
Physics'54Chemistry'71Biology'61Total'186 (out of 450)
7. O. P. Nos. 897 and 4535 of 1982 : The petitioner is, the same. He is a student in the Second Year M. B. B. S. course in the Medical College, Alleppey, The respondent is the Principal of that College. He was admitted to the M.B.B.S. course commencing from the year 1981. In the mark list produced by him for admission he is seen to have secured the following marks for his optional subjects:
Botany main'511Chemistry'149Zoology'135Total'795 (out of 1000)
As per the records maintained by the Kerala University the marks obtained by him are only:
Botany main'320Chemistry'89Zoology'95Total504 (out of 1000)
8. O. P. Nos. 3532 and 4412 of 1982: The petitioner is the same. He had passed the Pre-Degree examination of the Kerala University held in March 1981 with Register No. 83057 for the examination. Soon after the results of the Pre-Degree examination held in March 1981 were announced, he received a mark-list issued by the University, showing the marks secured by him for various subjects in the said examination, according to which he had secured a total of 410 marks out of 450 marks for the optional subjects, which worked out to 91%. He felt that he was entitled to get more marks from his past performances. He, therefore, submitted Ext. P1 application in the prescribed form for re-valuation of his answer books in Physics, Chemistry and Biology after remitting the requisite fee, and enclosing the original mark-list. Some time later, he received a fresh mark-list from the University, which showed that he had secured 96% of the marks for his optional subjects.
Thereafter he submitted an application for admission to the M. B. B, S. course on the basis of the re-valuation marks. While his application was pending consideration by the Selection Committee, a criminal case was registered against him on the allegation that the mark-list produced by him was suspected to be a forged one. He submitted an application Ext. P. 2 on 3-2-1982 before the first respondent, Registrar. University of Kerala, for the original mark-list remitting the prescribed fee. Since there was no response he sent a reminder Ext. P-3 on 6-4-1982. O. P. No. 3532 is filed for the issuance of a writ in the nature of mandamus to dispose of Ext. P-2, application and to grant him a copy of his mark-list for the Pre-Degree examination held in March 1981.
The petitioner obtained the followingmarks in his optional subjects as per theofficial records:
In the mark list produced along with his application for admission to the M.B.B.S. course the marks shown are:
9. O. P. No. 6717 of 1982 : The petitioner appeared for the Pre-Degree examination conducted by the Kerala University in April 1979 with RegisterNo 143158. He secured the following marks in the optional subjects:
English'128Hindi'60Physics'47Chemistry'77Biology'65Total372 (out of 900)
He obtained admission to the M.B.B.S. course in the Medical College in Karnataka State by producing forged mark list The marks as per the list produced for admission are as follows :
English'148 out of 300Hindi'65 out of 150Physics'134 out of 150Chemistry'139 out of 150Biology'136 out of 150
Total '622 (out of 900)
10. O. P. Nos. 4339 and 8286 of 1982: The petitioner is the same. He is a final year M.B.B.S. student. He obtained the following marks in optional subjects for the Pre-Degree:
the Pre- Degree: Physics'42 Chemistry'56 Biology'94Total'192 (out of 450)
However, when he applied for admission to the M.B.B.S. course, the marks in the same subject that he secured were:
Physics'124Chemistry'137Biology'138Total'399 (out of 450)
The petitioner was arrested by the Crime Branch Police on 16-1-1982.
11. The attack in the above petitions is two fold : one against the order passed by the Principal and the other passed by the Syndicate. The first batch of cases relate to the suspension of the petitioners from the College by the head of the institution. The orders are similarly worded. We will refer to one of them to' understand the manner in which the said memo was worded and the direction contained therein. As a sample, we give below Ext. P1 in O. P. No. 249 of 1982 :
'REGISTERED WITH ACK DUE
Medical College, Trivandrum.
Sub: University Mark List Forgery case --Registering of case against Motty Philipose, Final Year MBBS (Jr.) Medical College. Trivandrum -- Suspension from the College -
Ref: Letter dated 2-1-1982 from the Defective Inspector, Crime Branch, C.I.D. Trivandrum.
It has been reported by the Detective Inspector, Crime Branch C. I. D. Trivandrum, in his letter read above that Sri Motty Philipose, Final Year M. B. B. S. (Junior) Medical College, Trivandrum has been arrested in Crime No. 298/CR/ 81 under Sections 120 (by 466, 468, 471 and 34 I. P. C. on 29-12-l982 at 3.00 a.m. The case is under investigation.
In the circumstances Sri Motty Philipose Final M.B.B.S. (Jr.) Medical College Trivandrum is suspended from the course in this College with immediate effect.' From the above memo, it is evident that investigation was proceeding against the pensioner for certain alleged offences under the Penal Code, that the College authorities were informed of such investigation, that the petitioner was arrested and that he was enlarged on hail. This was the basis for the action of suspension taken against him and other petitioners.
12. The attack against the order of suspension by the Principal is on the following grounds :
1. The head of the institution has no power of suspension either under the general law or under any special law.
2 His powers, to suspend the students if any, is only for misconduct that took place during the tenure as students. It does not extend to what took place before they became students of the institution.
3. The order suspending the student from the college in these cases is heinous and disastrous in its effect that cannot be repaired and the time lost cannot be compensated and for this reason the order is bad.
4. The order of suspension violates principles of natural justice.
13. Before considering the questions raised before us, it is accessory to tearin mind the nature of the accusations alleged against the students, some of them in the First Year and others in the Second, Third and Final Year M.B.B.S. course. All of them are accused of having fabricated false mark-lists showing inflated marks, which they did not obtain in the examinations taken by them when compared to the official records. The official records show some of them having failed in the examinations, same having secured only third class while others having secured lower marks than the one seen in the fake mark-lists. The counsel for the University showed some copies of the official mark lists though the counsel for the petitioners had serious objections about their acceptability. The petitioners are alleged to have secured admission in the Medical College on the strength of these fake mark-lists, By so doing, they have denied admission to students who had in fact secured more marks than they if the official records are to be the guide. The disclosure of the malpractices with its wide ramifications had created a tense situation in the institution and in the University. The question to be considered in these circumstances is whether the Principal and the University authorities should be made to wait till the guilt of the students is established or be allowed to take action to maintain discipline in the institution and protect the University from avoidable calumny. Linked to this is the question whether under these circumstances the presumption of innocence till proved guilty available in criminal law should be the guideline for educational institutions also when such grave accusations are brought to their notice. The fabrication of fake mark-lists and the wide net spread by miscreants to lure the affluent section of students to secure unfair advantage over the deserving section of the students was something unknown and could not have been in the imagination of any one with any amount of ingenuity at the time rules and regulations laying down the guidelines for the exercise of powers to maintain discipline in the institution were framed.
14. We may now usefully refer to the guidelines set by precedents for the exercise of jurisdiction under Article 226 of the Constitution while dealing with academic bodies and educational institutions.
15. In H. S. & I. E. Board v. Bagleshwar (AIR 1966 SC 875) the Supreme Court observed as fellows (Para 12): --
'12. In dealing with petitions of this type, it is necessary to bear in mind that educational institutions like the Universities or appellant No. 1 set up Enquiry Committees to deal with the problem posed by the adoption of unfair means by candidates, and normally it. is within the jurisdiction of such domestic Tribunals to decide all relevant questions in the light of the evidence adduced before them. In the matter of the adoption of unfair means, direct evidence may sometimes be available, but cases may arise where direct evidence is not available and the question will have to be considered in the light of probabilities and circumstantial evidence. This problem which educational institutions have to face from time to time is a serious problem and unless there is justification to do so, Courts should be slow to interfere with the decisions of domestic Tribunals appointed by educational bodies like the Universities.'
Krishna Iyer J., as he then was, is Kurian v. Raghavan (1969 Ker LT 253): (AIR 1970 Ker 142), in his separate but concurring judgment noted the above passage and added as follows (at p. 157):
'While scrupulous adherence to the rules of procedure and the principles of natural justice, in the sense of acting in good faith after giving a reasonable opportunity to be heard, is insisted upon. Courts 'fear to tread' and decline 'to rush in', to quash decisions of responsible academic bodies. This does not mean a licence for doing injustice being judicially accorded to such bodies, but a fair expectation that they will not deviate ordinarily from the path of fair-play. If they palpably do, the writ must go. The ultimate test is the response of the judicial conscience to the doings of these bodies, in the given case, remembering the incurable wound on the career and the indelible stain on the character of the student that may follow upon an unjust accusation and verdict.'
It is unnecessary to multiply precedents Courts have generally set certain limitations and self-imposed restrictions on them while exercising their discretionary power under Article 226 in dealing wife decisions of academic bodies. The Courts have consistently kept their hands off high academic bodies unless flagrant violation of fair-play based on bias or mala fides is brought to their notice in the orders passed by them. Even formal violation of principles of natural justice have been winked at by Courts if allegation of such violation is inconsequential in nature and when the aggrieved is assured of such opportunity in parallel proceedings. We will consider the arguments advanced before us in these cases keeping in view the duty of this Court to dispense justice without seriously violating the autonomy of the academic bodies.
16. The first question that we would like to tackle is the power of the Principal of an institution over its students. The head of an educational institution like the Principal occupies a pre-eminent position and at the same time, nowadays, an unenviable one. He is answerable to the authorities and to the public for the discipline in the institution. Time was when his authority was never questioned with passage of time, when educational institutions became the arena of activities by political and apolitical forces, there was a deterioration of values cherished for long and an invasion on his powers. Still it is necessary to give unto him what is his. Menon C. J., in Rt. Rov., A.M. Patroni v. Kesavan (1964 Ker LT 791 : (AIR 1965 Ker 75) (FB) ) observed thus :
'14. The post of the headmaster is of pivotal importance in the life of a school. Around him wheels the tone and temper of the institution; on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching......'
We agree with Nambiyar C. J., that 'the position should be a fortiori so in the case of the Principal of a College'. (1979 Ker LT 45) : (AIR 1979 Ker 171). The head of the institution, the Principal in these cases, occupies a pride of place in the educational set up. He will have to act under different set of circumstances; certain known limits of his powers can be set out by rules but not exhaustively. The Principal of a College by virtue of his office, has an inherent power and authority over his students, in matters affecting the discipline of the college. He is a second parent so far as the students under his charge are concerned.
17. In Thampan v. Principal. Medical College, Calicut (1979 Ker LT 45): (AIR1979 Ker 171) a Division Bench of this Court had to consider the validity of a disciplinary action taken by the Managing Committee of the Medical College, Calicut, resulting in suspension of some students for having indulged in ragging, Various provisions of the Calicut University Act and the First Statutes were cited before the Bench to contend that the Principal of a college was not given any power to suspend under any statutory provision. Noting the sections and the Statuses, the Bench observed as follows (at p. 174):
'These provisions only enable the Syndicate to exercise powers of supervision and control under certain circumstances and conditions specified in them. But they do not, in our view, in any way destroy the authority and jurisdiction inherent in the Principal of a College......
That is inherent in the nature of his authority and the performance of his functions.'
The teachers and the Principal are considered as a delegate of the parent for the purpose of correction and maintaining discipline. That the Principal has such a power is incontrovertible. The essence of the matter, according to us, is that the head of the institution should in law be presumed to possess an inherent right to do such acts as are necessary in his opinion to maintain discipline in the institution. This right is incapable of an exhaustive identification. To limit it within defined confines would be to erode into his authority and fetter his discretion, To deny this right to the head of the institution would be to sound the death-knell of discipline in the institution which is already a casualty, by the combination of diverse forces, from within and from without.
18. Conceding thus an inherent power with the Principal to act to maintain discipline the question that has to he answered is whether such a power can be exercised to suspend a student from the college with far reaching and serious consequences to his career till enquiry against him into the charges or investigation into the crime is over. Allied to this is the further question whether a preadmission misconduct could be made the basis of suspension by the head of the institution.
19. Mr. Warriar appearing for some of the petitioners developed his arguments about the incompetence of the Principal to suspend a student and con-tended that the power of suspension wasnot incidental or ancillary to any of hispowers but was an independent onewhich had to be separately traced. It hadno common lav origin. He referred usto the law of master and servant. Hesubmits that under the common law relating to master and servant, the masterwho has the power to appoint has apower to dismiss also. But this powerdoes not carry with it necessarily apower to suspend. Power of suspensionshould be specifically conferred eitherby contract or by statute. Similarly inthe case of a government servant thepower of suspension should be specifically conferred either in the conditions ofservice or statutorily. He further submits that suspension is, more often thannot, more harsh than other penalties andit has been uniformely held that result ofsuspension may be more disastrous andshould therefore be very sparingly usedand that too only in exceptional circumstances. He sought support for these propositions from the following authorities:In N. Subramanian v. State of Kerala(1973 Ker LJ 31), Eradi J., as he thenwas observed as follows:
'Although suspension is not one of thepunishments enumerated in Rule 11 of theKerala Civil Services (Classification,Control and Appeal) Rules, an order ofsuspension is not to be lightly passedagainst a Government servant, for thereality cannot be ignored that an orderof suspension brings to bear on the Government servant consequences far moreserious in nature than several of thepenalties made mention of in Rule 11. Ithas a disastrous impact on the fair nameand good reputation that may have beenearned and built up by a Governmentservant in the course of many years ofservice. The damage suffered by the Government servant is largely irreversiblebecause the denigration and disgrace visited on him by the order of suspension isseldom wiped out by his being subsequently exonerated from blame and reinstated in service. Hence it is imperative that the utmost caution and circumspection should be exercised in passing orders of suspension under Rule 10 resulting in such grave consequences tothe Government servant concerned.' In Veeramani v. State of Kerala (1974Ker LT 630), a Division Bench of thisCourt observed thus in para 8 of thejudgment:
'There should be some guidelines in determining when an order of suspension could and should be passed. An order of suspension should be passed only if it is necessary or desirable. Such necessity or desirability will arise when the charges against a servant are of a serious nature and keeping him in service will not be conducive to discipline or the maintaining of the efficiency or the honesty of the administration. So it follows that there must be serious allegations of misconduct and having regard to the allegations and the attendant circumstances the authority must be satisfied that it is necessary or at least desirable to keep a member of a service under suspension'.
In Hotel Imperial v. Hotel Workers' Union (AIR 1959 SC 1342), the Supreme Court examined the question of the extent of the power of the employer to suspend an employee under the ordinary law of master and servant, and observed thus:
'(18) The first question therefore that falls for consideration is the extent of the power of the employer to suspend an employee under the ordinary law of master and servant. It is now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily therefore, the absence of such power either as an express term in the contract or in the rules framed under, some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have in pay wages during the so-called period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay......'
In T. Cajee v. U. Jormanik Siem (AIR 1961 SC 276), the Supreme Court noted the above passage with approval and added as follows in para 14:
'.....It was this type of interim suspension which was dealt with in the case of Hotel Imperial v. Hotel Workers' Union (1960) 1 SCR 470 : (AIR 1959 SC 1342) and it was pointed out that without an express term in the contract or without some provision of a statute or the rules there could not be interim suspension in the sense that the master could withhold the wages of the servant...... No statute or rulesfilmed thereunder have been brought to our notice which authorised interim suspension having the effect of withholding remuneration in whole or in part. In the circumstances therefore though an order of interim suspension could be made against the respondent while inquiry into his conduct with a view to his ultimate removal is going on, his remuneration according to the terms and conditions communicated to him cannot be witheld unless there is some statute or rules framed thereunder which would justify the withholding of the whole or part of the remuneration......'
In B.R. Patel v. State of Maharashtra (AIR 1968 SC 800) the Supreme Court had to consider whether the Government had the power to suspend its servant pending enquiry into his alleged misconduct. It was observed that the power to suspend was not an implied term under the ordinary law of master and servant and that such a power was the creature of the statute and/or the express term in the contract. In para 3 of the judgment the decisions reported in AIR l959 SC 1342 and AIR 1961 SC 276 were noted. A distinction was made between suspending the contract of service and suspending the officer from performance of duties of his office on the basis that the contract was subsisting. It was observed:
'In this connection, it is important to notice the distinction between suspending the contract of service of an officer and suspending an officer from performing the duties of his office on the basis that the contract is subsisting. The suspension in the latter sense is always an implied term in every contract of service. When an officer is suspended in this sense it means that the Government merely issues a direction to the officer that so long as the contract is subsisting and till the lime the officer is legally dismissed, he must not do anything in the discharge of the duties of his office. In other words, the employer is regardedas issuing an order to the employee which, because the contract is subsisting, the employee must obey.'
20. It was forcefully contended, relying upon the aforesaid decisions that the suspension of the petitioners by the Principal was wrong for it is not traceable to any provisions of law or contract. The case put forward is that when the student applies for admission and the institution accepts him as a student, a contract comes into being. The relationship between the Principal and the student is governed by the prospectus and the calendar. They do not confer any power over the Principal to suspend a student. In the absence of a right to suspend, the general law laid down in the above decisions must be deemed to apply. The effect of suspension in the present cases is far more serious than in the case of an employee either under a master or under a Government. In such cases, an employee suspended could get back his work with all the attendant benefits if he is exonerated of the charges against him. He does not loss anything. Equally so is? a government servant. Depending upon the conditions of service, he gets subsistence allowance during suspension and full emoluments and restoration of seniority etc. on exoneration. What is the position of the students suspended when the charges against them are cleared long thereafter? At that time, there is no question of his being restored to status quo ante, no question of restoration of the years lost, nor the benefit of clinical and surgical courses which he has to undergo. The years lost are irretrievably lost. The suspension, it is contended, under these circumstances will be a negation of fair play and justice. The balance of convenience is not with the institution but is in favour of the student. To cut off the career of a student on a mere suspicion would be to deny him all that is dear to him. The Principal can impose stringent restrictions but should allow him to continue his studies. The orders of suspension according to the petitioners, violated all norms, amounted to premature punishment and was a negation of principles of natural justice.
21. The respondents' counsel has not pointed out any provision of law which enables the Principal to suspend a student. But the absence of such a provision will not prevent the Principal from taking such action as he deems necessaryto maintain discipline in the college as he is the best judge to decide as to how to maintain discipline. The propriety or otherwise of an order of suspension of a student by the head of an institution will justify scrutiny under Article 226 only when materials are placed before the Court of either denial of basic human rights or violation of principles of natural justice, glaring discrimination, bias or male fides. We will readily concede to the Principal an inherent power to deal with the students, to improve them and to maintain discipline and include in such power the right to suspend them when occasion demands. In these cases, the Principal had before him reports of very grievous charges against the petitioners of having secured mark-lists which do not tally with the marks in the official records. He was aware of the fact that by such admission the petitioners had denied admission to other more deserving candidates. He had also before him materials from which he knew that crimes were registered against these petitioners, that investigation was going on, that they were arrested by the police and that they were released on bail. Thus the Principal had a wealth of materials before him for suspending the petitioners from the institution. We are not unaware of the fact that the students will suffer serious loss in their scholastic career. We are also not unaware of the fact that ultimately some of the petitioners may be absolved of the guilt charged, either for paucity of evidence or on benefit of doubt. It might even be that some of the petitioners may not be put on trial. What we have to consider is whether the orders of suspension could be set at naught on the specious plea that the power behind these orders cannot be located.
22. The petitioners' counsel does not dispute that the Principal has an inherent power to suspend a student on misconduct or other acts of indiscipline during his tenure as a student. What is contended is that this power cannot be extended to justify an order of suspension for what look place prior to the admission of the student in the institution. The exercise of such a power for misconduct in the course of studies, it is admitted, can be upheld, but not for a pre-admission misconduct. A fraud or a crime committed prior to admission can be made the basis of suspension of the student or cancellation of admission onlyon proof of fraud or establishment of crime. Mere imputation of fraud or crime will not justify an order of suspension. To justify the action by resort to the general inherent power will not stand the scrutiny of law. In reinforcement of the attack against the suspension orders, we were also told that the Principal should have given due consideration to the fact that the petitioners had been prosecuting their studies in the institution for a long period of time. It was the lack of diligence on the part of the authorities to detect the malpractices in time that resulted in this sad state of affairs. The erring students were allowed to prosecute their studies. Delay should have dissuaded the Principal from taking the extreme step of suspension.
23. We have already indicated above that the Principal acts as a second parent of his students. It will not be possible to delineate his powers in clear terms, in the same way as the rights of a parent over his child cannot be clearly enumerated. The Principal is the best Judge to determine what action is to be taken against a student accused of pre-admission misconduct. To limit his powers to the misconducts in the course of studies would render him ineffective as the head of the institution. It may not be proper to import the principles of master and servant bodily to the relationship between teacher and taught. Even so, the principles enumerated by the Supreme Court in the above mentioned cases can be extended to the cases on hand also. It was held by the Supreme Court that though neither a term in the contract nor any statutory provision under the Industrial Disputes Act authorised suspension of an employee, an implied power of suspension can be recognised. (AIR 1959 SC 1342). In AIR 1961 SC 276, also the Supreme Court did not negative the power in the master to order interim suspension. In AIR 1968 SC 800, again suspension as an ancillary power was recognised. In AIR 1979 SC 193, while considering the limits of 'control' of the High Court over the subordinate judiciary under Article 235, it was held that the said power provides a wide variety of matters and if includes among other things suspension from service, of a member of judiciary with a view to hold disciplinary enquiry. Again in (1981) 2 SCC 714, while considering the scope of the expression 'supervision and control vested in the Commissionerunder Section 59 (3) and (4) of City of Nagpur Corporation Act, 1948 said that 'suspension from service pending disciplinary enquiry falls within the ambit of the word 'control'.'
24. We do not close our eyes to the direction in the first three Supreme Court cases referred above for payment of wages to the employees during the period of suspension. This safeguard, it was contended, considerably lightened the rigour of the suspension order. But corresponding mollifying factor does not obtain in the suspension orders in question. We agree that the analogy should stop here, for there is nothing for the Principal to give to the students similar to wages and that is in the nature of the peculiar relationship between the principal and the students. Our attempt was only to highlight the conclusion that power of suspension has been recognised as an ancillary and an incidental power. We will wind up the discussion with reference to the following extract from 1069 Ker LT 253 : (AIR 1970 Ker 142) by Raman Nayar J., as he then was (at p. 149):
'In the absence of provision to the contrary in the rules governing the matter, whether they be statutory or otherwise, the internal administration of a College must necessarily vest in its principal as the head of the institution and it follows that matters like the discipline of the students and their detention or promotion must be within his control. Therefore, in the absence of any such rule it must be within the competence of the Principal to punish a student for misconduct. No such rule has been brought to our notice; on the contrary Clause 8 (d) of Chapter I of the Ordinances expressly lays down that a student of a college shall be under the disciplinary control of the head of the institution. The contention is, however, raised that the directions in Exts. P1 and P2 divest the Principal of this power in so far as the matter now on hand is concerned.'
We hold that the Principal acted within his powers in ordering suspension of the petitioners. The request to fault those orders cannot be granted.
25. Now we will consider the petitions in which the orders of the Syndicate cancelling the results of the petitioners and debarring them from appearing for any examinations till the enquiryagainst them is finally disposed of: are challenged. Since the orders in these petitions are similarly worded, we will give below a specimen order: 'Registered with Acknowledgement due'
UNIVERSITY OF KERALA
No. EE. III-4/1982. Dated: 4-6-1982.
Sub: Alleged mark-list forgery case --decision of the Syndicate to quashresults and debar the candidate fromappearing for University examination -- reg.
Ref: Crime No. 305/CR/81
Sri. Antony, P.V. (Final M.B.B.S. student, Medical College, Alleppey) has been reported to have an involvement in the alleged mark-list scandal and since there is prima facie case against him that he secured admission to the M.B.B.S. course and to the examinations on production of false information and/ or documents in the application forms' the Syndicate has decided by exercising the powers conferred on it by Section 23 of Chapter VII of the Kerala University First Ordinances 1978, to quash his P.D.C, and M.B.B.S. examination results and debar him from appearing for any examinations till the enquiry against him is finally disposed of.
Sri Antony, P.V. is therefore informed that his Pre-Degree Examination results (Reg. No. 29217/April 1975) and I, II and Final M. B. B. S. Examination results (Reg. No. 296/June 1978, 78/June 1979, 5th June, 1980. 314/July 1981 and 4 of December. 1981) have been quashed and he has been debarred from appearing for any examination till the enquiry against him is finally disposed of'.
Sd. Controller of Examinations'. This order was subsequently amended and the direction that the results have been quashed was altered and in the amended form, the circular reads as follows:
'UNIVERSITY OF KERALA'
No. E. A. 1/3/Misc./82. Dated 3-11-82.
The University has decided to suspend the Pre-Degree Examinations and the results thereof of the following candidates who are found to have some involvement in the mark-list scandal.
Sl. Name. Register No. year. No.
X x x x
14. P. V. Antony 29217 April 75.
X X XX
Sd. Controller of Examinations, University of Kerala',
In the counter-affidavit filed by the University, it is stated that the Syndicate of the University had passed the following resolution on 17-2-1982. The resolution reads:
'FURTHER RESOLVED that the results of all the candidates who have been reported to have an involvement in the alleged cases of mark-lists scandal be suspended forthwith invoking Section 23 of Chapter VII of the First Ordinances of the University and Enquiry Commissions be appointed to enquire into the alleged malpractices resorted to by them.
The Vice-Chancellor is authorised to appoint suitable persons as Enquiry Officers in such cases.' It was pursuant to this resolution that the order in question was passed. Since a decision in these petitions turns upon the interpretation of the various provisions of law bearing on the question and have no bearing on facts in individual cases, we do not propose to refer to the facts of the case in any of the petitions. No arguments can be advanced on the wording of the two orders. The order now in force -is the one suspending the results and debarring the petitioners from appearing for further examinations till enquiry against them is over. The original order using the word 'quashed' was mistakenly issued;
26. Before considering the contentions raised mainly based on the lack of jurisdiction in passing the orders, and absence of Competence to frame Clause 23 of Chapter VII of the Ordinance, we will refer to the various provisions in the University Act, Statutes and the Ordinances bearing on this question which were brought to our notice by counsel appearing for the petitioners and by the learned Advocate-General appearing for the University. In these cases we are concerned with the Kerala University Act, 1974, for short the Act.
27. 'University' in Section 3 means 'the University of Kerala constituted under this Act.' Section 5 deals with the powers of the University. It states that the University shall have the following powers, viz., (we will refer only to such prevision as are relevant):
'5 (v) to grant diplomas, certificates or other distinctions to persons who shall have pursued a prescribed course of study under prescribed conditions:
(vi) to withdraw or cancel degrees, titles, diplomas, certificates or other distinctions under conditions that may be prescribed by the Statutes, after giving the person affected a reasonable opportunity to present his case;
(vii) to supervise and control the residence and discipline of students of the University, colleges and recognised institutions and to make arrangements for promoting their health and general welfare;
(ix) to exercise such control over the students as will ensure their physical and moral, well-being;
(xvii) to do all such other acts and things, whether incidental to the powers aforesaid or not, as may be requisite in order to further the objects of the University as a teaching and examining body, and to cultivate and promote arts, science and other branches of learning;
(xxviii) generally to do such other acts as may be required to further the aims and purposes of this Act.'
28. Section 5 (v) gives the University the powers to grant diplomas, degrees etc., while Section 5 (vi) which is important for our purpose, enables the University to withdraw or cancel degrees etc., after giving the person affected a reasonable opportunity to present his case. Section 5 (xxviii) confers general powers to do such acts as may be required to further the aims and purposes of the Act.
29. Senate of the University is the supreme authority of the University. It has powers to review the action of the Syndicate and the Academic council as provided under the Act. It has also various other powers that are outlined in Section 19 (2) of the Act. Under Section 19 (2) (i) the Senate has the power to cancel any degrees, diplomas, title or any other distinction granted to any person in accordance with the provisions of the Statutes. Under Section 19 (2) (o), the Senate has power to exercise such other powers and perform such other functions as may be assigned to it by this Act and the Statutes.
30. The Syndicate is the chief executive body of the University under Section 21 of the Act. It has powers which are enumerated under Section 23. Under Section 23 the Syndicate has power:
(ii) to make Ordinances and to amend or repeal the same;
(iii) to propose Statutes for the consideration of the Senate;
(xiii) To exercise supervision and control over the residence and discipline of students.
(xv) to conduct University examinations and approve and publish the results thereof;
(xix) to delegate any of its powers to the Vice-Chancellor or to a Committee appointed from among its members;
(xxi) to withhold or cancel the result of any candidate at any University examination;
(xxiv) to exercise such other powers and perform such other duties as may be prescribed by this Act, the Statutes, the Ordinances, the Rules, the bye-laws, and the orders.'
Section 34 of the Act states that 'subject to the provisions of this Act, the Statutes may provide for all or any of the following matters, namely:--
XX XX XX XX
(e) the withdrawal or cancellation of degrees, diplomas titles, certificates and other academic distinctions;
X X X X
(k) all other matters which by this Act are to be, or may be prescribed by statutes'
Section 36 enables the Syndicate to make Ordinances subject to the provisions of the Act and the Statutes relating among others :
(b) the residence and discipline of students;
(c) all other matters which by this Act or the Statutes are to be, or may be provided for by the Ordinances.
Now we will refer to the provisions in the first Statutes, 1977. Under Section 83 ofthe Act, the First Statutes and First Ordinances of the University shall be made by the Government. Chapter V of the Statutes deals with the powers of the Senate and enumerates them in relation to the powers conferred by the Act. Chapter VI deals with the powers of the Syndicate. Statute 3 of this Chapter enumerates the powers and duties of the Syndicate. We will read Clauses 24, 25 and 26 under Statute 3 of this Chapter: 'The Syndicate shall in addition to the powers and duties conferred and imposed on it by the Act and subject to the provisions thereof, have and exercise the following further powers and functions:--
(xxiv) if a candidate is found guilty of using or attempting to use unfair means at an examination or a report is made as to any candidate having copied either from some book or notes or from the answers of another candidate or in any other manner or of helping or receiving help from another candidate in an examination, the Syndicate may cancel his/her examination and also debar him/ her from appearing at the examination of the University for one or more years according to the nature of the offence committed by the candidate :
Provided that when the University intends to award any of the penalties mentioned in this clause, it shall give an opportunity to the candidate concerned to show cause in writing within a week from the date on which the letter is served on him as to why the proposed penalty may not be imposed on him and shall consider the explanation, if any, if filed within the specified time, before awarding the penalty.
(xxv) the syndicate may cancel the examination of a candidate and/or debar him/her from appearing at an examination of the University for one or more years, if it is discovered afterwards that the candidate was in any manner guilty of misconduct in connection with his/her examination and/or was instrumental in the tampering of the University records including the answer books, mark sheets, result sheets, diplomas, and the like.
(xxvi) the Syndicate may cancel the examination of a candidate and/or debar him/her from appearing at an examination of the University for one or more years, if it is discovered afterwards that the candidate had obtained admission to the examination by misrepresentation of facts or by submitting false certificates or by forging documents:
The Syndicate may delegate any of its powers under this Statute to the Vice-Chancellor. Chapter XXI Statute 12) reads as follows:
'2. Degree of Bachelor of Medicine and Surgery:-- Candidates for the Degree of Bachelor of Medicine and Surgery (M. B. B. S.) shall be required: --
(a) to have passed the Pre-Degree examination of this University or an examination accepted by the University as equivalent thereto:
(b) to have subsequently pursued the prescribed course of study in a Medical College affiliated to or recognised by this University for a period of not less thanfour and a half academic years, of which not less than three years shall be spent in the study of clinical subjects after having passed the First M. B. B. S. Examination:
(c) to have passed all the prescribed examination; and
(d) to have worked thereafter as a house-surgeon for a period of not less than one year in a hospital recognised by the Syndicate or to have put in not less than one year's approved service in the Indian Army Medical Service'. Statute 13 of Chapter XXI deals with diplomas. It states:
'The University may grant diplomas in the following subjects of study:--
(i) Obstetrics and Gynaecology.
(ii) Clinical Pathology,
(iii) Public Health.
(iv) Child Health,
(xi) Psychiatric Medicine.
(xii) Physical Medicine and Rehabilitation.
(xiii) such ether subjects of study as the Senate may decide from time to time'
Chapter XXX reads as follows:
'Chapter 30.Withdrawal or cancellation of degrees, Diplomas, titles etc.
1. Procedure:-- If evidence is laid before the Syndicate to show that any person cm whom a degree, title or other distinction has been conferred or to whom a diploma, licence or certificate has been granted by the Senate, has been convicted of what in their opinion is an offence involving moral delinquency, the Syndicate may propose to the Senate that the Degree, Diploma, Title, Licence, Certificate or other distinction shall be cancelled, and if the proposal is accepted by not less than two thirds of the members present at a meeting of the Senate and is confirmed by the Chancellor, the Degree, Diploma, Title, Licence, Certificate or other distinction shall be cancelled accordingly:
Provided that before cancellation of the Degree, Diploma, Title, Licence, Certificate, or other distinction of a person, the person affected shall be given areasonable opportunity to present fee case.'
Now we come to Ordinances: The Ordinances applicable for these petitions is the Kerala University First Ordinances 1978. Ordinance 23 in Chap. VII, as amended, reads as follows:
'23. Debarring candidates and quashing results. If at any time after the publication of results, it is found that a candidate was not eligible for taking the examination, or that he has secured admission to the course or the examination, on production of false information in the application form or that he has used unfair means at an examination, the Syndicate shall have powers to quash the results of the examination, taken by the candidate and/or debar him from appearing for any examination of the University, permanently or for a specified period according to the gravity of the offence committed by the candidate.' The above was the clause as it stood till it was amended by the Syndicate at its meeting held on 17-11-1981 by which the following proviso was added to the clause by the Syndicate:
'Provided further that it shall be competent for the Syndicate to suspend the results already published of a candidate suspected of having resorted to unfair means at an examination taken by him pending an enquiry into the result.
On the basis of the enquiry report, the Syndicate shall also have the power to quash or cancel results of the candidate in the examination taken by him while the enquiry proceedings over the use of unfair means at that examination were pending.'
The above are the provisions of the Act, Statutes, and Ordinances, relevant for disposal of these petitions,
31. These provisions were repeatedly brought to our notice by all the counsel appearing for the petitioners to contend that none of them could be used or invoked to justify the order passed by the Syndicate. The University's counsel attempted to support the order stating that the various provisions noted above gave much larger powers to the Syndicate and orders under challenge passed in exercise of a smaller power will have to be sustained. We will examine these rival contentions.
32. The petitioners' counsel -- all of them--strenuously contended that none of the limbs, which form the component parts of the University, possessed thepower to pass orders which are under challenge. The power of quashing the results or suspending the results has far-reaching consequences and will have to be specifically conferred. If the provisions are silent about the conferment of such a power, the Court will be treading upon inequitable and dangerous grounds in discovering such powers from doubtful provisions. It was contended that the equivocal statements contained in the counter-affidavit of providing for an examination or other amends being made for the loss to the students of their scholastic career will not in any way be sufficient to compensate the loss suffered by the indefinite suspension order and the debarring order passed against them. For the conferment of a degree of Bachelor in Medicine Chap. XXI, Statute 2 lays down the course of study for a period not less than four and a half academic years with special emphasis, that not less than three years shall be spent in the study of clinical subjects after passing the first M.B.B.S. examination. However much the counter-affidavit may try to mollify the feelings of the students by saying that attempts will be made to turn the clock back in their' favour if they are cleared of the charges against them that will not be sufficient to repair the damage. With this forceful plea, the petitioners' counsel attempted to demolish the orders passed as ones totally lacking of jurisdiction. The learned Advocate-General repeated his submissions made while supporting the action of the Principal and said that this Court had before it students accused of serious misconduct, seeking its jurisdiction to go to their aid, despite prima facie materials being placed before it of such serious misconduct, alerting us to the settled principle that this Court will seldom go to the aid of such persons in exercise of its discretionary jurisdiction, especially where orders of academic bodies are under challenge. He reinforced his submission with the plea that in the peculiar circumstances of this case, it will not be proper to conduct a microscopic examination of the Act, Statutes and Ordinances in an attempt to exclude the orders under challenge from the powers enumerated under these provisions. He submitted that the proper course would be to liberally construe the provisions to sustain the orders under challenge. If the powers could be located with some authority of the University and in some provisions of the Act, Statute or Ordinances, the orders should be allowed to stand. A wrong reference to the provisions of law in an order will not invalidate the order, if the power could be traced elsewhere. To dissuade us from acting under Article 226, he stated that some of the petitioners before us are those who had failed in the enabling examination or those who had secured only third class and those who lulled the authorities into inaction by practising fraud. He wanted to impress upon us the gross injustice that would be done to deserving students kept out of the courses by the fraud practised by the petitioners. He further submitted that but for these orders, there would have been a breakdown of law and order in the Colleges.
33. Counsel for the petitioners met the plea saying that a general submission like this will not suffice and that if the University's counsel fails to place his finger on some particular provisions of law, the petitioners should succeed. They further made a strong plea that the provisions of the Act, Statutes and Ordinances always took care to alert the University authorities to adhere to the principles of natural justice while exercising powers under them,
34. We will first consider whether the orders under challenge can be sustained under Ordinance 23 of the First Ordinances in Chap. VII under which they are seen passed. Before doing so, we will examine briefly the contention that the Syndicate is not competent to make the Ordinance. We do not think that the objection need detain us long. It is evident from the provisions of Sections 5, 23 (ii) and (xxiv) and 36 (b) and (e) of the Act, read with Clauses (xxiv), (xxv) and (xxvi) of Clause 3 of Chap. VI of the First Statutes that there is ample powers with the Syndicate to make the Ordinance in question, and also to amend it by adding the proviso thereto. Even assuming that there is no specific power to make such an Ordinance, we are satisfied that such a power can be related to Section 5 (xvii) which comprehends power to do all such other acts as are incidental to the powers specifically conferred as may be requisite in order to further the objects of the University as a teaching or examination body. The residuary powers under Section 5 (xxviii) can also in the alternative, be invoked to justify the competence of theSyndicate to make the Ordinance. With this answer to the plea, raised, we will now proceed further.
The main thrust of the submissions by the petitioners' counsel is that these orders cannot be justified under the proviso to Clause 23 of the Ordinance. We see that Clause 23 of the First Ordinances deals with quashing the results of the examination taken by candidates and debarring them from appearing for any examination of the University permanently or for a specified period. The proviso enables the Syndicate to suspend the results. It can be seen that Clause 23 confers a larger power than what is contained in the proviso. What is contended by the petitioners is that the proviso enables suspension of the results of an examination taken by a student pending enquiry into the alleged malpractices committed at that examination. In these cases, the petitioners submit, such a situation does not exist. There is no enquiry pending into the malpractices or unfair means resorted to by the petitioners at the qualifying examinations taken by them. Enquiry, if at all, now is directed against the alleged fabrication of the mark-lists. This is after the examination. In the absence of an enquiry into the unfair means resorted to by the petitioners at the qualifying examinations taken by them the Syndicate cannot suspend the results under the proviso. We do not dismiss this submission as totally untenable. We are really unhappy at the wording of the proviso. In fact, at the time the proviso was added, the Syndicate had before it the wide-ranging accusations of malpractices involved by students seeking admission to the Medical Colleges. The Syndicate should have bestowed more attention in wording the proviso. On a close reading of the proviso, we feel that the petitioners are justified in contending that the orders under challenge cannot be justified under the proviso. We have not been told that there was or is an enquiry against any malpractice adopted by the petitioners at the examinations taken by them which enabled them to get into the Medical Colleges'. What we are told is that there are criminal cases pending against the petitioners for forging mark-lists, which may constitute a criminal offence, under the Penal Code and that there is a further enquiry into these accusations by in Enquiry Officer appointed by the University. Thus, the action taken cannot be supported under the proviso.
35. But the question still remains whether the power to suspend the results and to debar the petitioners from appearing in any examinations of the University can be located elsewhere. For this purpose, we will examine closely the main Clause 23 of the Ordinance in Chapter VII. Clause 23 states that the Syndicate has the power to quash the results of the examination and/or to debar him from appearing from an examination if it is found that he secured admission to the course of the examination on production of a false information in the application form. The petitioners want us to put a narrow construction on this clause and contend that the clause contemplates not admission to the Medical College but admission to the qualifying examination course viz., in the case of some, the Pre-Degree Examination and in the case of others, B. Sc. Degree Examination. We do not agree that this clause admits only of such a narrow construction. In our view Clause 23 is wide enough to include within its ambit cases like this where persons have managed to secure admission on production of false mark-lists. It would be improper, according to us, to consider this clause to mean only the qualifying examination. The petitioners seek support for this contention that this clause occurs in Chapter VII, which deals with, conduct of examinations. According to them, this clause can refer only to the course that the petitioners had completed, and not to the course in which they have been admitted by using the alleged false information. We do not feel persuaded to agree to this contention either. We feel that the clause takes in 'admission to the course' also. This clause gives power to quash the results, and to debar. To suspend the results is an ancillary power which will also come within this clause.
36. Since the cases were argued at length with reference to the provisions of the Act and the Statutes, we will not rest content with the above conclusion, but would look into other provisions also to see whether the impugned orders can be otherwise sustained. Section 5 (vi) enables the University to withdraw or cancel degrees. It is true that this can be done only after giving the persons affected, a reasonable opportunity to present their case. Regarding reasonable opportunity and submissions made on violation of natural justice, we will deal with separately. All that we wish to say at this stage is that the power under Section 5 (vi) will be available to the University, and therefore to its component parts to suspend the degrees and the results of the examination which is a much larger power than the power to withdraw or cancel degrees. The University also has powers under Section 5 (ix) to exercise necessary control over the students to ensure their moral well-being. The interim suspension of the degrees is an exercise of control over the students. Section 5 (xvii) confers a general power on the University to do all such other acts or things 'whether incidental to the powers aforesaid or not', as may be requisite 'in order to further the object of the University'. In our view, the order of suspension is a power incidental to the power of withdrawal or cancellation of degrees and could be exercised by the University to ensure the moral well being of the students and purity in education which the University caters to its students. Section 5 (xxviii) is also a general provision which authorises the University to act in such a manner as it thinks fit to further the aims and purposes of the Act. The powers conferred by these provisions, in our view, can be invoked to justify the interim action complained against.
37. Section 23 of the Act by enumerating the powers of the Syndicate makes the exercise of such powers subject to the provisions of the Act and the Statutes. The Syndicate resolution and the follow-up action cannot in any manner be said to be opposed to any of the provisions of the Act. Section 23 (xv) deals with conduct of University examinations and approving and publishing of the results thereof; Section 23 (xxi) deals with withholding or cancellation of results of any candidate at any University examination. Section 23 (xxiv) deals with the general power to perform the duties that are prescribed under the Act, statutes etc, Power of approval of the examination results will take within it a power for interim suspension of the result also. The Syndicate can in appropriate cases keep in abeyance the results of an examination pending approval. It might be contended, and in fact it is contended, that this can refer only to suspension before the results are actually published, while in the cases before us the suspension is after thepublication of the results. This is so, That is why we have referred to Section 23 (xxi) which gives the Syndicate powers to withhold or cancel the result of any candidate at any University examination,
38. Considerable argument was adduced on the scope of the expression'withhold' in Section 23 (xxi). It wascontended that withholding meant onlykeeping back and not suspending. Butwhen we read the clause as a whole, wefind that this clause confers power towithhold or to cancel the results. Withholding of results can be for any lengthof time. Cancelling results takes in amuch larger power. If the Syndicatecan withhold or keep back the result atan examination or even cancel the results, one fails to see how it can be saidthat the Syndicate does not have the incidental Or the interim power to suspendthe results also. If results could bewithheld or cancelled, it could be suspended even after the publication ofthe results. Statute 23 of Chapter VIIof the Ordinance deals with the cancellation of results and debarring of studentsafter the results are published. There isno reason why the power under Section 23(xxi) of the Act should be restricted towithholding or cancellation of examinations before the results are publishedand not after. We hold that the ordersunder challenge can be justified underSection 23 (xxi) of the Act.
39. Chapter VI, Statutes 3 (xxiv) (xxv) and (xxvi), which we have extracted above, on a close examination persuade us to conclude that the Syndicate has necessary powers to deal with students in extraordinary cases like this. These three clauses contemplate misconducts at examinations and penalties to be imposed. With the provisions before us, we will not be justified in exercising jurisdiction against the University. We will do so only when glaring violation of basic rights and natural justice is brought to our notice, completely denying to the aggrieved students any opportunity to defend themselves. In our view, Clauses (xxiv), (xxv) and (xxvi) of the first Statutes contain sufficient guidelines for the Syndicate to act, for the interim suspension order to be passed, and for other actions to be taken, till the students are exonerated from the charges against them. According to us, the orders under challengecan be sustained under these statutes also.
40. Section 5 (xvii) of the Act contains a residuary power. It enables the University to do all such acts as are incidental or otherwise in order to further the objectives of the University, The University has a duty to maintain discipline in its institutions, to preserve purity in the educational system and to safeguard confidence of the people in the conduct of examinations. We will not be wrong if we say that the interim suspension order passed is to vindicate the University. Section 5 (xvii) gives ample power for this. The order under challenge can be sustained under this statute also.
41. We may also add that our stand that conferment of a larger power will take in a lesser power also can be justified in terms of Section 15 of the Interpretation and General Clauses Act (Kerala) corresponding to Section 16 of the Central Act.
42. We will now quickly survey the authorities cited before us though none of them approximate either on facts or in law to the cases before us. In AIR 1961 Madh Pra 356, the cancellation of the results after they were declared was allowed to stand since the authority concerned was satisfied of the use of unfair means in the examination hall. It was even held that the principles of natural justice would not strictly apply since the Committee in that case was only exercising an administrative function.
In AIR 1962 Madh. Pra. 3, it was held that permission given to a student to appear in an examination could not be withdrawn even if it transpired subsequently that the student was not eligible to appear because of deficiency in attendance.
In AIR 1966 Andh Pra 59, a student was allowed to appear for a competitive examination. He was duly qualified to appear. Subsequently he was discharged on the ground that he was not duly qualified. The order of discharge was held to be not supportable in law since there was negligence on the part of the Government in not scrutinising in time.
In AIR 1967 Madh. Pra. 1194 the withholding of examination results by the Vice-Chancellor for want of attendance was struck down on the ground that the question whether the candidate had sufficient attendance should have been scrutinised before admitting him to the examination.
In AIR 1968 Delhi 131, a student who had been admitted to a course did not possess a pass in a recognised qualifying examination. The University negligently allowed him to join the course. Much later the admissions were cancelled. This action of the University was struck down by a learned single Judge and confirmed by a Division Bench, It was held by the Court that the University should have exercised its powers of cancellation within a reasonable time,
In AIR 1976 Cal 347, a student had obtained admission for Pre-medical course of study on the basis that he belonged to scheduled caste. After enquiry it was found that it was not correct. The admission was subsequently cancelled, after issuing a show cause notice. The cancellation order was held to be valid when the student concerned challenged the order,
In AIR 1976 Orissa 134, action was taken by the University against a student on the ground that he had adopted unfair means at an examination. The results were released. Thereafter a notification was issued cancelling his results and debarring him from appearing at any examination and deleting his result from the list already published. This was challenged successfully. The orders were quashed on the ground of violation of natural justice and also on the ground that the University had no power to change the earlier decision taken at the time when the results were announced.
In AIR 1977 Orissa 107, the admission of a student to the L.L.B. course who had been convicted of an offence and had undergone imprisonment for two years but who had suppressed this information was cancelled, The cancellation order was challenged before the High Court, The order was upheld.
In AIR 1978 Madh Pra 86 (FB), the examination taken by a candidate and his admission were cancelled on the ground that he was not eligible to take the examination. When this was challenged the University contended that the candidate was guilty of fraud in suppressing relevant facts when he applied for admission to the examination, A Full Bench of the Court took the view that the University was estopped from cancelling the examination and that there had been violation of natural justice,
In AIR 1978 Punj & Har 107, a student who had get admission by producing afalse certificate, moved the Court when his admission to the course was subsequently cancelled. This order was challenged in Court. It was held that the action was taken long after the admission was given and also that the Principal's power had terminated after the student completed the course even though he was undergoing house surgeoncy.
In AIR 1981 Raj 8, it was held that the admission obtained on the basis of a false scheduled caste certificate could not be cancelled after the student had undergone the course for some years.
43. These decisions have to be considered on their facts. In some the orders were upheld and in others they were faulted. But in most of them the orders were on cancellation of results. They did not relate to suspension orders. This, according to us, marks the vital distinction between the two sets of cases. Here final orders are yet to be passed. If the petitioners are found innocent of thecharges the suspension orders will be lifted.
44. In AIR 1976 SC 376, cancellation of candidature at an examination long after the results were announced was struck down by the Court. It was observed that where a person on whom fraud was committed was in a position to discover the truth by due diligence and it was not so done in time, it should be assumed that fraud was not proved. Relying on this decision it was contended that the materials on the basis of which fraud was put forward in these cases were in the possession of the University at the relevant time and the University not having discovered it in time, the fraud should not be now used to the detriment of the petitioners. We may answer this plea also. It cannot be said that it was possible for the University authorities to detect the fraud of such wide scale with ordinary diligence, Admission to a large number of seats was being made without suspecting any foul play. None was alerted at that time about the fraud. To say that the discovery of fraud subsequently cannot be made use of under these circumstances, relying upon the above observation of the Supreme Court, is not correct,
45. Considerable reliance was placed by the University's counsel on AIR 1977 SC 1146. There, the Vice-Chancellor suspended a teacher on grounds of misconduct. This was done invoking Clause 9 (2)of the schedule. It was found that the said clause did not apply to the teacher in question since he was not in service on contract basis to whom alone the said clause applied. However, the suspension was sought to be sustained on the basis of Statute 24 (2) which was newly introduced with a view to bring the Statutes in conformity with the provisions of the Act 1969. ' If the Statute was validly passed an express power of suspension under Statute 24 (2) was available to the Vice-Chancellor and therefore the Supreme Court considered the question whether the statute itself had been validly passed. The Supreme Court pointed out that Section 13 (C) made the Vice-Chancellor responsible for the discipline in the University in accordance with the Act, Statutes and Regulations. This section was a new provision to sustain the order of suspension. Statute 24 (2) was considered in the light of Section 13 (6). The Supreme Court sustained the new statute on the ground that it was in accordance with Section 13 (6). Mr. Warrier submits that the suspension order was not sustained on the basis of Section 13 (4) which conferred the power on the Vice-Chancellor to take such action as he deemed necessary in an emergency, in answer to the contention that the general power of control will not take in the power of suspension,
46. We do not feel that the approach made by Mr. Warrier is wholly correct. The order was found unsustainable under Section 9 (2). An attempt was made to see whether it could be sustained under any other provision. Statute 24 (2) read with Section 13 (6) rescued the suspension order. The Supreme Court has not stated that a power of suspension will never come within a general power of discipline or within the power to act in an emergency. In our opinion, the inference that is sought to be drawn from the discussion in the above Supreme Court case, which the counsel has attempted cannot be justified and according to us the general power will take in the smaller power also.
47. In AIR 1980 SC 1666, the assessment made by the University of the performance of a student in the examination was called in question, It was held that the assessment made by qualified and competent academic authorities could not be called in question except in cases where bias and mala fides was alleged There again the facts are dissimilar andno support can be drawn by the petitioners from this.
48. The orders passed by the 'Principal and the University authorities were challenged on violation of principles of natural justice also. We have earlier indicated that some of the provisions of the Act and Statutes contained built-in safeguards to comply with the principles of natural justice. It was contended that natural justice is an all pervasive rule and it does not contemplate any exception. We know that the petitioners were not heard before the orders were passed.
We do not for a moment say that natural justice can be eschewed from consideration in matters where something is done to a person to his detriment without hearing him. We have before us an extraordinary situation. The educational authorities were confronted with accusations of malpractices of such alarming, proportions that they found it not only improper but risky to keep erring students inside the colleges and to permit them to continue to prosecute their studies. In the nature of the allegations against them, it would be futile to wait till they were afforded an opportunity to explain their position. The educational authorities had to reckon with the reality of a considerably large number of deserving students kept out of the institution because of the irregularities alleged to have been committed by the petitioners and the continuance of the undeserving students in the institutions. The gravamen of the charges and even a break-down of law and order situation resulting from serious unrest among the students community were factors to be reckoned with. The authorities also knew that the students would be proceeded against both by the police and by the University authorities separately where the petitioners would have ample opportunity to defend themselves. In other words, a parallel enquiry conforming strictly to the principles of natural justice were in the offing. It is against this background that the plea based on the violation of principles of natural justice has to be considered.
49. In the nature of things, according to us, a hearing would be an exercise in futility. Both before the police and before the University authorities, the students will have sufficient opportunity to vindicate themselves. This is one of the rare cases where strict compliancewith or adherence to the principles of natural justice will have to be deferred When the action is considered purely as an interim measure, awaiting final orders, the seriousness of the plea based on violation of the principles of natural justice will get watered down. The interim orders are normally passed ex parte. A right to the person affected to get a hearing or to represent his case cannot be pleaded when such interim orders are passed. We are viewing the orders of suspension passed in this case purely as an interim measure. When we say this, we are not unaware of the fact that the consequences of these orders are serious in nature on the students. Sometimes situation may arise when such action is inevitable.
50. We would like to view these cases from another angle. What purpose can be served by the Principal asking the students to explain the accusations against them. The students can give either of the two answers: (1) a clean admission of the guilt that they had produced fabricated mark-lists, and (2) a raise case that they have not forged the mark-lists produced by them and that they had produced them having obtained them from the University authorities in all innocence. In either case, the Principal has no alternative and that is why he has resorted to the order of suspension as in this case. Similar is the situation so far as the University authorities are concerned. The charge of fabrication of mark-lists, investigation, and arrest stare in their face. Therefore to wait till the students are given an opportunity to deny the charges against them could be to imperil the smooth running of the University. The only course open to the University was to suspend the results and debar the students from appearing in any examinations till the students get a full and complete opportunity to place their case before Court and the authorities. Under these circumstances, to comply with the principles of natural justice and the formal ritual of serving a notice on the students would be an exercise without any purpose and more so to issue a writ to compel the authorities to give this opportunity as it will be a futile writ. While accepting that the principles of natural justice are inviolate, a formal exercise in that behalf in these cases will not serve any purpose nor yield any desired result. Reference was made to AIR 1977 J&K; 1, by the petitioners counsel to contend that he view that the student would have no defence if notice was given is no answer to the plea based on violation of natural justice. Here again, the order under challenge was not a suspension order but a cancellation order. AIR 1981 SC 136 also was brought to our notice. We have already indicated that principles of natural justice recognise no exception. We know that the petitioners will get an opportunity to defend. The above decision recognises situations where Courts will not issue futile writs.
51. There is another facet for the question of natural justice in these cases. Post-decisional opportunity has been recognised in some rarer cases as sufficient compliance with the principles of natural justice. We repeat and say that in these cases final decision has not been taken. The petitioners have abundant opportunity to explain the accusation made against them. In Maneka Gandhi v. Union of India (AIR 1978 SC 597) the Supreme Court had accepted the plea of the Attorney-General to afford opportunity to the aggrieved party there to explain her stand. There, the petitioner's passport was impounded. It was contended that the petitioner had no opportunity to show-cause that the order of impounding was bad. The Attorney-General filed a statement on behalf of the Union Government that the petitioner can make a representation in respect of impounding of passport and that the representation will be dealt with expeditiously and even if the impounding of the passport was confirmed, it would not exceed a period of six months from the date of the decision that might be taken on the petitioner's representation. This was held to be sufficient compliance with the principles of natural justice. We quote the relevant extracts from the various judgments rendered in that case:
'38. The attitude adopted by the Attorney-General, however, shows that passport authorities realize fully that the petitioner's case has not been justly or reasonably dealt with. As the undertaking given by the Attorney-General amounts to an offer to deal with it justly and fairly after informing the petitioner of any ground that may exist for impounding her passport, it seems that no further action by this Court may be necessary. In view, however, of what is practically an admission that the order actually passed on 7th July, 1977, isneither fair nor procedurally proper. I would, speaking for myself, quash this order and direct the return of the impounded passport to the petitioner. I also think that the petitioner is entitled to her costs (per Beg C. J.).'
'.........The fact that the petitionerwas not heard before or soon after the impounding of her passport would have introduced a serious infirmity in the order but for the statement of the Attorney-General that the Government was willing to hear the petitioner and further to limit the operation of the order to a period of six months from the date of the fresh decision, if the decision was adverse to the petitioner. The order, I agree, does not in fact offend against Article 19(1)(a) or 19(1)(g) (per Chandachud J.).'
'64. But the question then immediately arises whether the Central Government has complied with this procedure in impounding the passport of the petitioner. Now, it is obvious and indeed this could not be controverted, that the Central Government not only did not give an opportunity of hearing to the petitioner after making the impugned order impounding her passport but even declined to furnish to the petitioner the reasons for impounding her passport despite request made by her. We have already pointed out that the Central Government was wholly unjustified in withholding the reasons for impounding the passport from the petitioner and this was not only in breach of the statutory provision, but it also amounted to denial of opportunity of hearing to the petitioner. The order impounding the passport of the petitioner was, therefore, clearly in violation of the rules of natural justice embodied in the maxim audi alteram partem and it was not in conformity with the procedure prescribed by the Passport Act, 1967. Realising that this was a fatal defect which would void the order impounding the passport, the learned Attorney-General made a statement on behalf the Government of India to the following effect:
'1. The Government Is agreeable to considering any representation that may be made by the petitioner in respect of the impounding of her passport and giving her an opportunity in the matter...' This statement removes the vice from the order impounding the passport and it can no longer be assailed on the groundthat it does not comply with the audi alteram partem rule or is in accord with the procedure prescribed by the Passport Act, 1967'.
X X X X X X X
'92. In view of the statement made by the learned Attorney-General to which reference has already been made in the judgment, we do not think it necessary to formally interfere with the impugned order. We, accordingly, dispose of the writ petition without passing any formal order. There will be no order as to costs.' (per Bhagwati J.).Relying on the above passages, it can be held that the opportunity that will be afforded to the petitioners in this case will be sufficient compliance with the principles of natural justice.
52. O. P. Nos. 3352 and 4412/1982. We have already referred to the facts of these two cases. The relief prayed for in these two petitions is a limited one. In O. P. No. 3532 of 1982 the prayer is to issue the petitioner his mark-list of the IInd Year Pre-Degree examination held in March, 1981. His register number is 83057. This prayer is innocuous in nature. We direct the respondent, the Registrar, University of Kerala, University Officer, Trivandrum, to deliver to the petitioner his mark-list for the Pre-Degree Examination held in March, 1981 as expeditiously as possible.
In O. P. No. 4412 of 1982-J the prayer is to quash Ext. P-2, the order of the Controller of Examinations, which order we have upheld in the body of the judgment. In this petition we would prefer to make a slightly different approach. The petitioner has obtained 91% of the marks as per the original mark-list. As per the second mark-list produced, he is seen to have secured 96%. We are told that enquiry is being conducted against the genuineness of the second mark-list. There is no suspicion or complaint against the first mark-list. In a reply affidavit filed by the petitioner in O. P. No. 3532/1982 on 31-1-1983, he has stated that he has secured admission in the Dr. B.R. Ambedkar Medical College at Bangalore and that he is prosecuting his studies there. The college authorities wanted his mark-list and migration certificate. He had undertaken to produce them. Since the enquiry against him is directed against the second mark-list and he has secured admission on the strength of his first mark-list, there is no reason why Ext. P-2 order in this petitionshould stand in his way of continuing his studies in the College at Bangalore. We, therefore, quash Ext. P-2 order to the extent it suspends the results of the petitioner's Pre-Degree examination and debars him from appearing for any examination or conducting studies. In other words, Ext. P-2 will not stand in the way of his prosecuting his studies in the Bangalore College. The respondents are directed to issue to the petitioner the migration certificate from the University of Kerala, without prejudice to the enquiry if any pending against him.
53. We would like to mention here that we had to decline reliefs to meet of the petitioners because of the seriousness of allegations against them. Most of them have been either by themselves or through their parents or others accused of serious misconduct. We do not know whether some of the petitioners would have secured admission on the strength of the mark seen in the official records. If there is no complaint against the official mark-list and on the strength of the official mark-list any one of them would have obtained admission, we have no objection in their case being re-examined. There may be cases of over-zealous parents in their anxiety to see that their children get admission resorting to easy but costly methods to secure inflated mark-list with the help of obliging officials in the University. There may be bona fide cases of applications made by parents for revaluation on the performance of their children in the past and of the confidence of the children themselves. Such parents would have received a second mark-list in the normal course from erring officials. We do not want such students also to suffer. This, we say, because we are conscious that the suspension orders have their disastrous effects. But those who would never have got admission in the College by their original mark-list will not receive any indulgence from us. Among the petitions before us, we find that the petitioner in O. P. No. 247 of 1982 had obtained 398 marks as per the original mark-list and gets 416 marks as per the fake mark-list; the difference is only 18 marks. Similarly, the first petitioner in O. P. No. 249 of 1982 secured 368 marks as per the original mark-list but has secured 415 marks as per the fake mark-list; the difference is only 17 marks. The respondents will examine whether these two students would have secured admission on the strength of their original mark-list and if they could, the suspension order of these students will have to be lifted, however, without prejudice to the enquiry and investigation being proceeded with and also without prejudice to the rights of the respondents to pass appropriate orders against them if found guilty in the enquiry. We feel such a direction is necessary in the interest of justice. In the case of others we are sure that the respondents will, consistent with the spirit of the commitments made in their counter-affidavits, restore to them what is their due, regardless of loss of attendance and clinical classes in case they are exonerated of the charges they are now accused of.
54. In these petitions, the facts disclosed disturb our judicial conscience. We will not be justified in saying that the University is not blameworthy. The enquiry initiated and the investigations going on will not by themselves clear the mess into which the University has sunk. Purity in the educational system is something every citizen desires. The University should be above suspicion. Time was when such things were unheard of. We do not wish to identify the reasons or the persons responsible for the deterioration in the educational system here. Considerable damage has already been done to the young men and women in this State. It is necessary to completely restructure the examination system. We do not feel that the new entrance examination introduced is a panacea for all ills. The entrance examination may have its own in-built limitations. To rely solely on the result of the entrance examination may, we are afraid, not yield desired results. Meritorious candidates may prove casualties. Whether the performance of the students in the public examination should also be considered along with the result of the entrance examination is a matter to be considered on merits by the educational authorities. It is for them to evolve a satisfactory formula to rid the system from its ills.
55. While we dispose of these cases, we would like to make it clear that no single observation made by us on the facts of this case or anything said in this judgment should be used against the petitioners either in the enquiry to be conducted by the University or in the criminal case if and when instituted against the petitioners for the charges levelledagainst them. The observations made by us are related to the purpose of examining whether the challenge against the orders can be upheld under Article 226 of the Constitution. We guardedly make this observation lest the petitioners' interest be imperilled by the use of any observation made by us.
56. The serious apprehension expressed by the petitioners' counsel in unison was that inordinate delay in the enquiry and in the criminal cases would result in irreperable injury to the students. We are conscious of this apprehension and also are aware that the apprehension is well-founded. We would, therefore, direct the authorities to finalise the enquiry as expeditiously as possible, at any rate, before 30th June 1983. We will be happy if the investigating officers would finalise the investigation before 30th June.
57. In the result, we dismiss O. P. Nos. 247, 248, 249, 625, 897, 4231, 4232, 4230, 4535, 4339, 6717, 6724 and 8286 of 1982. However, we direct the respondents in O. P. No. 247 of 1982 and O. P. No. 249 of 1982 to examine whether the petitioner in O. P. No. 247/82 and the first petitioner in O. P. No. 249 of 1982 would have secured admission in the course with the original mark-list and also whether there is any enquiry into the genuineness of the said original mark-list, if there is none and if they would have secured admission to the course with these marks, they shall be allowed to continue their studies without prejudice to the enquiry against the fake mark-lists and with liberty to take such action as is found necessary if found guilty. In O. P. No. 3352 of 1982 and O. P. No. 4412 of 1982, we direct the respondents to issue the mark-list of the Pre-Degree Examination and the migration certificate to the petitioner. We quash Ext, P-2 in O. P. No. 4412 of 1982 to the extent it suspends the petitioner's results of the Pre-Degree Examination and debars him from appearing for any examination or conducting studies in Dr. B. R. Ambedkar Medical College. No costs.
58. Counsel for the petitioners in all these petitions, except in O. P. No. 3352 of 1982 and 4412 pf 1982, made an oral application for certificate to file an appeal to the Supreme Court, immediately after the judgment was pronounced. We are not satisfied that these cases involveany substantial question of law of general importance which, in our opinion needs to be decided by the Supreme Court. Certificate refused.
59. ISSUE carbon copy of this judgment to counsel on both sides on payment of requisite charges.