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Jacob Mathew (A.) Vs. Professor of Medicine, Medical College and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1966)IILLJ638Ker
AppellantJacob Mathew (A.)
RespondentProfessor of Medicine, Medical College and anr.
Cases ReferredSocieties v. Dharam Chand and Ors.
Excerpt:
.....action is proposed are either non-existent or even if they exist, they do not justify the proposed action. rule 6, stated that the petitioner was shown all the evidence and the papers connected with the enquiry, and was asked whether he would like to cross-examine any of the witnesses and that he did not want to do so. the same is also repeated in the counter-affidavit filed by respondent 2 wherein it is clearly stated: r, 6 and in the counter-affidavit, i am not inclined to attach much significance to the absence of a formal counter-affidavit by respondent 1. i am satisfied that the petitioner was apprised of the evidence and the materials against him and was afforded sufficient opportunity of testing them by cross-examination or otherwise. 11. it was complained that the findings and..........depend upon the peculiar facts and circumstances of each case, including the nature of the action proposed, the grounds on which the action is proposed, the material on which the allegations are based, the attitude of the party against whom the action is proposed in showing cause against such proposed action, the nature of the plea raised by him in reply, the requests for further opportunity that may be made, his admissions by conduct or otherwise of some or all the allegations and all other matters which held the mind in coming to a fair conclusion on the question.it is in the light of the above principles that the petitioner's complaint of denial of reasonable opportunity and violation of principles of natural justice falls to be examined.7. the memorandum of charge issued to.....
Judgment:

V.P. Gopalan Nambiar, J.

1. The petitioner is a student, fourth-year M.B.B.S. class, of the Medical College, Trivandrum. He appeared for the second-year M.B.B.S. examination in the subject of pharmacology, held at the Medical College, Trivandrum, on 1 April 1965between 2-30 and 5-30 p.m. The next morning at about 8 a.m. the petitioner went to the examination hall, for the purpose, according to the petitioner, of collecting his hall ticket which had been left there, the previous day. At the place where he wrote the examination the previous day, according to the petitioner, he found certain additional answer-books of his, which were omitted to be taken charge of and forwarded to the examiners. These were handed over to the watchman of the hall and thereafter forwarded in separate sealed covers to the examiners concerned for valuation. The pharmacology paper had to be answered in two parts--part A and part B and each part had to be valued by a separate examiner. The examiners, Dr. Samu Ayyar and Dr, Santhakumari, who valued the answer-papers of the petitioner, found marked differences between the quality of the answers and even in regard to the manner of writing between the original answer-books and the additional books subsequently forwarded. They sent up separate reports to the Deputy Registrar of the Kerala University (respondent 2) in which they stated that they felt that there was a case of malpractice of the petitioner and requested for suitable enquiry and necessary action. Copies of their reports are Exs. R, 1 and Rule 2. The additional answer-books of the petitioner were returned unvalued. Dr. K. Narayana Pal, the Professor of Medicine, Medical College, Trivandrum, respondent 1, was appointed the enquiry officer. He conducted a preliminary enquiry at which he examined Dr. K. P. Chandra-sekharan and Dr. Mary Abraham who were the two assistant superintendents on duty at the examination held on 1 April 1965. Copies of their statements are Exs. Rule 3 and Rule 4. The peon of the medical college on duty at the examination hall, R. Sukumaran, the day-watchman, N. Sukumaran, the night watchman, Joshua, the sweeper, G. Thanu Pillai, the sergeant of the medical college, and Dr. Santhakumari, were also among the persons so examined. A copy of the statement of Dr. Santhakumari is Ex. Rule 5. Respondent 1 concluded that there was a prima facie case against the petitioner and issued a memorandum of charge, a copy of which has been filed as Ex. P. 1. The petitioner was charged with having unauthorizedly entered the examination hall at 8 a.m. on 2 April 1965 when the students are not expected to enter the hall, and handed over certain additional answer-books to the watchman representing that they were the additional books written by him on the previous day and omitted to be collected by the assistant superintendents. A copy of the petitioner's explanation dated 22 June 1965 is Ex. P. 2. By Ex. P. 3, dated 30 June 1965, respondent 1 directed the petitioner to appear before him at 2 p.m. on 2 July 1965 at the medical college office, Trivandrum. An enquiry was conducted by respondent 1 and a copy of his report on the enquiry is Ex. Rule 6. The petitioner was thereupon informed that he had been found guilty of malpractice and that the Vice-Chancellor in consultation with the subcommittee on discipline constituted by the syndicate proposed to cancel the examination taken by the petitioner, and to debar him from appearing for any examination of the university, earlier than in April 1968 (Ex, P. 4). The petitioner was asked to show cause against the same. A copy of the petitioner's reply thereto is Ex. P. 5. Thereafter by Ex. P. 6, dated 2 November 1965, the petitioner was informed by respondent 2 that the proposed punishment had been given effect to. This writ petition is to quash Ex. P. 6 and to declare the result of the petitioner in the examination in pharmacology for which he appeared.

2. The petitioner's counsel urged that there was denial of reasonable opportunity and violation of the principles of natural justice at the enquiry resulting in the action taken against him on the following grounds:

(1) that no witnesses were examined in the petitioner's presence by the enquiry officer and the petitioner himself was subjected to a severe cross-examination;

(2) that a copy of the enquiry report was not supplied to the petitioner;

(3) that the enquiry officer who framed charges and submitted the report, Ex. Rule 6, was biased and disqualified, as he had himself held a preliminary enquiry and come to a prima facie conclusion against the petitioner; and

(4) that the findings in Ex. Rule 6 were based only on suspicion and not on proof.

It was finally argued that the disciplinary 8ub-oommittee of the syndicate which took action against the petitioner as Indicated in Ex. P. 4 and as admitted in the caunter-affidavit of respondent 2 was not competent to deal with the matter.

3. The petitioner's counsel cited the decisions in State of Bombay v. Gajanan Mahadev Badley : AIR1954Bom351 and Onkar Prasad Gupta v. State of Uttar Pradesh 1962--II L.L.J. 3 in which it was stressed that the principles of natural justice which applied even to domestic tribunals required that all evidence must be given in the presence of the accused person and in the presence of a person against whom the proposed action is to be taken. To the same effect is also the decision in Divakaran v. Circle Inspector of Police, Munnar, and Ors. 1963--I L.L.J. 342 at 356. The above decisions were concerned with departmental proceedings under Article 311 of the Constitution or Section 240 of the Government of India Act, 1935, and the constitutional guarantees afforded thereby. The applicability of the principles of natural justice to domestic tribunals was considered by the Supreme Court in State of Mysore and Ors. V. Shivabasappa Shivappa 1964--I L.L.J. 24. Venkatarama Ayyar, J., speaking for the Court observed at p. 26:

For a correct appreciation of the position, it is necessary to report what has often been said that tribunals exercising quasi-judicial functions are not Courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict rules of evidence. They can, unlike Courts, obtain all information material for the points under enquiry from all sources and through all channels, without being fettered by rules and procedure, which govern proceedings in Court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case but where such an opportunity had been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in Courts.

4. Discussing the question as to whether the evidence of the opponent should be taken in the presence of the complaining petitioner, the Supreme Court observed In 1994--I L.L.J. 24 at pp. 27 and 28 :

When the evidence is oral, normally the examination of the witness will, in its entirety, take place before the party charged, who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him, and admitted in evidence, a copy thereof is given to the party, and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word, and sentence by sentence, is to insist on bare technicalities, and rules of natural justice are matters not of form but of substance. In our opinion, they are sufficiently complied with when previous statements given by witnesses, are read over to them, marked on their admission, copies thereof given to the person charged, and he is given an opportunity to cross-examine them.

5. After referring to the decision in : AIR1954Bom351 (vide supra), cited by the petitioner's counsel, it was observed, in Para. 9 at p. 379:

But, in our opinion, the purpose of an examination in the presence of a party against whom an enquiry is made, is sufficiently achieved, when a witness who has given a prior statement is recalled, that statement is put to him, and made known to the opposite party (?), and the witness is tendered for cross-examination by the party.

In T. P. Daver v. Lodge Victoria Mo. 363, S.C. Belgaum and Ors. : [1964]1SCR2 , the enquiry conducted by all the members of one of the daughter Iodge of the ' Grand Lodge of Scotland' and the expulsion of one of the members thereof, was attacked Inter alia on the ground that the members of the lodge were both the prosecutors and judges and therefore the principles of natural justice had been violated. Dealing with this argument it was observed;

It is true that the earlier resolution, Ex. 114, shows that eleven members of the lodge were not well-disposed towards the appellant; but here we are concerned with the complaint filed by respondent 2 Notice of the complaint was given to all the members of the lodge. It may be that some of them did not like the appellant, and one of them is the complainant himself. But 22 members of the lodge met and unanimously held, after considering the complaint and the answer given by. the appellant, that he was guilty. If the appellant had any objection for one or some of the members taking part in the meeting, he could have raised an objection, but he did not do so. The rules governing tribunals and Courts cannot mutatis mutandis be applied to such bodies as lodges. We have to see broadly in the circumstances of each case whether the principles of natural justice have been applied. In the circumstances of this case, particularly when we find that the appellant had not raised any objection, we cannot say that the resolution passed by the Lodge Victoria is bad for violating any principles of natural justice.

6. In Fedco (Private), Ltd., and Anr. v. S.N. Bilgrami and Ors. : [1960]2SCR408 explaining the concept of reasonable opportunity, it was observed;

The requirement that a reasonable opportunity of being heard must be given has two elements. The first is that an opportunity to be heard must be given; the second is that this opportunity must be reasonable. Both these matters are justiciable and it is for the Court to decide whether an opportunity has been given and whether that opportunity has been reasonable.

It was further observed :

There can be no invariable standard for 'reasonableness' in such matters except that the Court's conscience muse be satisfied, that the person against whom an action is proposed has had a fair chance of convincing the authority who proposes to take action against him that the grounds on which the action is proposed are either non-existent or even if they exist, they do not justify the proposed action. The decision of this question will necessarily depend upon the peculiar facts and circumstances of each case, Including the nature of the action proposed, the grounds on which the action is proposed, the material on which the allegations are based, the attitude of the party against whom the action is proposed In showing cause against such proposed action, the nature of the plea raised by him in reply, the requests for further opportunity that may be made, his admissions by conduct or otherwise of some or all the allegations and all other matters which held the mind in coming to a fair conclusion on the question.

It is in the light of the above principles that the petitioner's complaint of denial of reasonable opportunity and violation of principles of natural justice falls to be examined.

7. The memorandum of charge issued to the petitioner indicated the report of the examiners and also the handing over of the answer-books to the watchman by the petitioner. The enquiry report, Ex. Rule 6, stated that the petitioner was shown all the evidence and the papers connected with the enquiry, and was asked whether he would like to cross-examine any of the witnesses and that he did not want to do so. The same is also repeated in the counter-affidavit filed by respondent 2 wherein it is clearly stated:

the candidate had no grievance at the time that any of the witnesses were not examined in his presence

and that the enquiry officer reported that the petitioner was shown all the evidence and papers (p. 4 of the counter-affidavit). At p. 5 of the counter-affidavit, it was stated that the petitioner was given opportunity to cross-examine any witness he wanted and that he did not care to do so. In view of the express statements in Ex. R, 6 and in the counter-affidavit, I am not inclined to attach much significance to the absence of a formal counter-affidavit by respondent 1. I am satisfied that the petitioner was apprised of the evidence and the materials against him and was afforded sufficient opportunity of testing them by cross-examination or otherwise. It Is also seen that the petitioner had no grievance that the witnesses were not examined in his presence.

8. The petitioner's counsel contended that respondent 1 was biased and was disqualified to conduct the enquiry, as, prior to the framing of the charge, he had conducted a preliminary enquiry and examined several persons as noticed already. I do not think that the mere fact that respondent 1 held a preliminary enquiry into the matter would in any way disqualify him from conducting the enquiry and submitting his report, in Koregaonkar (D. A.) v. State of Bombay 1957--11 L.L.J. 23 it was observed:

The mere fact that an officer holds a preliminary inquiry and comes to a prima facie conclusion does not disqualify him from acting as an inquiry officer, so long as he conducts the inquiry in a judicial manner.

9. In Registrar, Co-operative Societies v. Dharam Chand and Ors. : [1962]2SCR433 , it was pointed out that the mere fact that the Registrar of Co-operative Societies gave the notice for removal of the managing committee was no reason to hold that he would be biased in the investigation of individual responsibilities of the various members of the committee. On the materials placed before me, I see little to substantiate either the case of any bias against respondent 1, or the charge that he did not conduct the proceedings judicially.

10. It was stated that the notice, Ex. P. 3, was bald and gave no notice to the petitioner as to why he was called upon to appear before respondent 1. This is difficult to accept, as Ex. P. 3 expressly referred to respondent 1 as the officer-in-charge of the enquiry. Its close proximity in date to the memorandum of charge, Ex. P. 1. and to the petitioner's explanation Ex. P. 2, should also have suggested to the petitioner the purpose for which he was called upon to appear.

11. It was complained that the findings and the enquiry report were based merely on suspicion and not on proof. A reading of the enquiry report, as a whole, leaves no doubt in my mind that respondent 1 found the charges against the petitioner proved, Perhaps a legal mind, trained in judicial procedure might have recorded more specific findings and used dearer language. For Instance It was stressed by the petitioner's counsel that respondent 1 had merely recorded that

there Is a reasonable suspicion that the student might have been Instrumental In the placing of the paper on the table

and again that

these evidences prove that there are sufficient grounds to suspect malpractice.

But earlier, respondent 1 had clearly recorded his conclusion on the materials that there were no papers on the table on 1 April 1965, and If at all, it must have appeared on 2 April 1965, after the sweeper's entry. He further recorded it as unlikely that both the assistant superintendents in the examination hall omitted to take charge of, or even to notice, the additional answer-books of the petitioner on 1 April 1965. The sergeant, who went on his usual rounds on 1 April 1965 to each and every table to affix the numbers for the next morning examination did not see the additional answer-books. The sweeper did not see any papers on the table or on the floor. After noticing these circumstances, and rejecting the explanation of the petitioner as untenable, respondent 1 observed that Dr. Samu Ayyar's remark that this was a case of malpractice

appears to be substantiated by the evidence on hand, and the absence of a proper explanation on the part of the student.

On the reading of the entire report, Ex. Rule 6, I feel that respondent 1 had found the charges proved on the materials placed before him.

12. From the nature of the charge, and the nature of the enquiry and the petitioner's attitude and conduct, I cannot regard the omission to furnish a copy of the enquiry report to the petitioner as in any way vitiating the proceedings. By the notice evidenced by Ex. P. 4, the petitioner was informed that as a result of the enquiry he was found guilty of the malpractice. In his explanation (Ex. P. 5) he did not demand a copy of the enquiry report. The omission to furnish a copy of the enquiry report was not made a ground of complaint in the main affidavit of the petitioner.

13. I do not find any substance in the petitioner's complaint that at the enquiry before respondent 1, the petitioner was severely cross-examined. There was no grievance on this score, by the petitioner in answer to Ex. P. 4. I am unable to see any prejudice to the petitioner or any flaw in the proceedings on this account.

14. The last contention of the petitioner was that the disciplinary sub-committee of the syndicate was not competent to deal with this matter or to take action against the petitioner. On behalf of the respondents my attention was called to Section 19 (v) of the Kerala University Act (Act 14 of 1957) by which the syndicate could delegate its powers to a committee appointed from among its members. Under Chap. 7, Rule 3 (XXVII), of the First Statutes of the university, the syndicate could take cognizance of any misconduct of any student. Under 01. XXXI of the same rule, it could appoint its own committee to regulate the transaction of its business. A copy of-the syndicate's proceedings under these provisions was made available to me. In view of these provisions the objection to the jurisdiction to the disciplinary sub-committee is groundless.

15. This writ petition fails and is dismissed with costs.


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