Skip to content


Sanjay Lobo Vs. the University of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 874 of 1980
Judge
Reported inAIR1981Raj69; 1980()WLN522
ActsConstitution of India - Article 226
AppellantSanjay Lobo
RespondentThe University of Rajasthan
Appellant Advocate M.R. Calla, Adv.
Respondent Advocate C.M. Mathur, Adv.
Cases ReferredOmprakash Khandelwal v. The University of Rajasthan
Excerpt:
university ordinances - order 152--candidate using unfair means in examination--standing committee without giving opportunity to candidate recommending punishment on basis of report of invigilator & explanation of candidate--syndicate cancelling candidate's examination--committee to give opportunity to candidate--invigilator's report & candidate's explanation are no substitute to notice by committee--held, rules of natural justice are violated.;it is discretionary with the syndicate to inflict one or the other punishment, and therefore, it is also necessary that the committee, which is to recommend to the syndicate should grant an opportunity to the candidate to show cause and the report of the invigilator, and the explanation of the candidate cannot be said to be the substitute..........held in may-june, 1979 for b. sc. (hons) (physics) part ii, on the ground that the petitioner used unfair means in the examination.2. the petitioner was a student of b. sc. (hons) (physics) part ii (three years scheme) and was pursuing this course of study in maharaja college, jaipur. he appeared in b. se. (hons) (physics) part ii examination in may-june, 1979 with roll no. 161. on june 18, 1979 the petitioner had to appear in chemistry subsidiary paper hi from 3 to 6 p. m. while he was appearing in the examination, at about 5.35 p. m. the flying squad took search of the examinees including the petitioner, who were suspected of using unfair means, and sufficient material relating to chemistry-subsidiary paper iii was found in the pocket of the petitioner inside the coat which was.....
Judgment:
ORDER

Mahendra Bhushan, J.

1. This writ petition is directed against the order of the respondent cancelling the examination of the petitioner held in May-June, 1979 for B. Sc. (Hons) (Physics) Part II, on the ground that the petitioner used unfair means in the examination.

2. The petitioner was a student of B. Sc. (Hons) (Physics) Part II (Three Years scheme) and was pursuing this course of study in Maharaja College, Jaipur. He appeared in B. Se. (Hons) (Physics) Part II examination in May-June, 1979 with Roll No. 161. On June 18, 1979 the petitioner had to appear in Chemistry Subsidiary Paper HI from 3 to 6 P. M. While he was appearing in the examination, at about 5.35 P. M. the Flying Squad took search of the examinees including the petitioner, who were suspected of using unfair means, and sufficient material relating to Chemistry-Subsidiary Paper III was found in the pocket of the petitioner inside the coat which was buttoned up, The Invigilator and the Superintendent examination referred the matter of the petitioner of using unfair means in the examination to the Committee appointed by the Syndicate, and the Committee after examining the case recommended infliction of punishment of cancellation of the present examination, i.e., the examination held in May-June 1979 of the petitioner.

3. The petitioner represented to the Vice-Chancellor on November 22, 1979 for reconsideration of the decision cancelling his examination and for review of his case. He was informed about the decision of the Vice-Chancellor by letter of the Assistant Registrar (Examination-III) dated January 22, 1980. He again made a representation to the Vice-Chancellor on February 25, 1980, and he was asked vide letter dated March 22, 1980 of the Registrar, University of Rajasthan, Jaipur to appear before the Standing Committee appointed to consider the cases of unfair means on March 26, 1980 at 3.30 P M. in the University Office. He appeared and the decision is still awaited.

4. The only grievance of the petitioner is that there has been violation of the principles of national justice, in as much as the Standing Committee appointed by the Syndicate to examine the cases of the candidates, who are alleged to have re-sorted to unfair means, did not grant an opportunity to the petitioner to show cause and the procedure prescribed in Ordinance 152 (hereinafter referred to as the Ordinance) to deal with such matters has nut been followed. A case of alleged discriminatory treatment to the petitioner is also made out on the ground that the cases of other candidates, who were not better placed than the petitioner, unit, who too were found using unfair means in the examination have been dealt with differently. The respondent was called upon to show cause as to why the writ petition be not admitted, and a reply has been filed in which the allegation of violation of the principles of natural justice in case of the petitioner has been denied.

A case has been set up that the petitioner was found using unfair means at the time of examination in the subject 'Chemistry-Subsidiary Paper-III, and he admitted to have been in possession of the material, which had relevance to the examination concerned. Because he admitted it was not necessary under the Ordinance to grant any opportunity of hearing and all through the University has interpreted the provisions of the Ordinance in such a manner that a Committee appointed by the Syndicate to examine the cases of candidates, who were suspected of using unfair means only gives a right of hearing to such a candidate, who denies to have used unfair means. An opportunity was granted to the petitioner at the time when he was found using unfair means in the examination and it was not necessary at the subsequent stage for the Committee to again grant an opportunity to the petitioner to show cause. In my opinion, looking to the urgency of the matter, the writ petition itself should and can be disposed of at this stage.

5. The Ordinance defines unfair means and under Clause 1 (III) (a) unfair means includes having in possession during the examination time any paper, books or notes, which have relevance to the examination concerned. The petitioner is charged with having in his possession the material concerning Chemistry-Subsidiary Paper-Ill, which was not insignificant. No doubt the material found in possession of the petitioner did not relate to the questions set in the paper, but, to my mind, under Clause 1 (III) (a) of the Ordinance, the material should only have relevance to the subject of the examination concerned, and not only with the questions set in the examination. A candidate may be expecting that a particular question may be set in the examination paper, and in that hope may take the relevant material with him in the examination to be used in case the necessity arose.

It may be that the question or questions relating to that material are not set in the examination, but still the material will have relevance to the examination, and, it any candidate is found having in his possession during examination time any paper or notes, which have relevance to the examination concerned, it can he said prima facie that the candidate had an intention to cheat in the examination, and as such he is found using unfair means in the examination. But, the question before this Court is not, as to whether there was sufficient material before the Standing Committee appointed by the Syndicate to examine the case of the petitioner about his using unfair means in the examination, and the only question is, as to whether there has been violation of the principles of natural justice in the case of the petitioner.

6. It is contended by Mr. Calla, the learned Advocate for the petitioner that the Standing Committee appointed by the Syndicate to examine the case of the petitioner should have granted an opportunity to the petitioner to show cause, but it was not done and hence the order cancelling the examination of the petitioner is illegal and ineffective. The learned Advocate for the respondent. Mr. Mathur, on the other band, contends that the report of the Invigilator was brought to the notice of the petitioner immediately he was found using unfair means, and he was given an opportunity to explain on the spot. The petitioner came out with the explanation that he had brought the material to study outside, but, as he was late, he forgot to place the material outside, and the same remained in the inside pocket of his buttoned up coat. He had no intention to use the material and did not actually use it. Thus, according to Mr. Mathur, at that stage an opportunity was granted to the petitioner, and there is no rule of law or practice that the Standing Committee appointed by the Syndicate to examine the case of the candidate charged with having used unfair means should give an opportunity to the candidate to show cause.

7. The principles of natural justice are so well established that they hardly need citation of any authority. In Suresh Koshy George v. University of Kerala, AIR 1969 SC 198, the following observations of Tucker, L. J. in Russel v. Duke of Norfolk, (1949-I All ER 109 at page 118) have been quoted :--

'There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.'

8. In Indra Methi v. Board of Secondary Education, Rajasthan, Ajmer 1974 Raj LW 230 : (AIR 1975 Raj 116), which was also a case of allegedly using unfair means in the examination after reviewing the case law on the principles of natural justice, and placing reliance on Board of High School and Intermediate Education, U. P. Allahabad, v. Ghanshyamdas Gupta AIR 1962 SC 1110, it was held that the enquiry before the domestic tribunals in the matter of disciplinary actions is of quasi-judicial character and has to be undertaken in accordance with the principles of natural justice. The procedure to he adopted in such cases should be that the person affected should be apprised of the charges of unfair means against him.

In the absence of a clear notice of charges against him, a person affected is placed at a great handicap to defend himself, and such a procedure falls below the expected standard of procedure of fair hearing and further that the tribunal cannot base its decision on materials, unless the person against whom the material is sought to be utilised has been given an opportunity to explain the circumstances appearing against him. In Ranjit Singh v. University of Rajasthan (AIR 1966 Raj 223), which has been referred to in Indra Methi's ease (supra) it has been field that the principles of natural justice require that the candidate must be given an opportunity of presenting his case before that organ of the University, who has to award the punishment, and the University can act according to its usual rules of business, provided the rules conform to the principles of judicial procedure.

The necessity of framing proper rules on the subject and by the rules to delegate the powers of the Syndicate in this behalf to a small body, or any officer of the University was emphasised. A reference may also be made here to Prem Prakash Kaluniya v. Punjab University (1973) 3 SCC 424 : (AIR 1972 SC 1408), and to Triambak Pati Tripathi v. The Board of High School and Intermediate Education, U. P., Allahabad, AIR 1973 All 1 (FB), and to The Bihar School Examination Board v. Subhas Chandra Sinha, AIR 1970 SC 1269. It may be observed here that Tripathi's case and the case of Bihar School Examination Board (Supra) were of mass copying, and, therefore, wilt not apply to the instant case. In Tripathi's case, individual show cause notices were given to the candidates, and a spot enquiry was held by the Committee appointed for the purpose by the Examination Committee of the Examination Board, and the principles of natural justice were held to have been followed.

In case of mass copying in the examination by the very nature of things and the circumstances of the case, it is not possible to give individual notice to each and every candidate involved in mass copying during the examination, but the same cannot he said where only a few individuals resort to using unfair means in the examination. In the latter case, it is necessary that show cause notice to each and every individual alleged to have resorted to use unfair means in the examination should be given, and thus a reasonable opportunity should be given to him to explain the charges levelled against him. No doubt, if the procedure of holding enquiry is laid down in the rules, then that procedure has to be followed, but, even if no procedure is prescribed, the tribunal being a quasi-judicial domestic tribunal has to give a reasonable opportunity to the candidate to explain the charges levelled against him. The principles of natural justice cannot be laid down in a watertight compartment, and it will depend on the constitution of the tribunal, on the nature of the enquiry, and the facts and circumstances of each case as to whether the requirements of natural justice have been met or not.

9. Let us now examine the relevant provisions of the Ordinance to see, as to whether it contains provisions which conform to the principles of natural justice regarding holding enquiries against a candidate, who is charged of resorting to use unfair means in the examination.

10. The procedure for denting with the cases of the candidates found using or suspected of using unfair means in connection with the examination is contained in Clause 2 of the Ordinance. The Invigilator or the Centre Superintendent either shall search or cause a candidate to be searched by any person, and where any written material is found in possession of the candidate in consequence of the search, then the Superintendent of the Examination has to conduct on the spot enquiry and dispose of cases in which he feels that unfair means have not been adopted, But, where he is satisfied that unfair means have been used, he is to refer the case to the Officer appointed by the University for the purpose, indicating the extent to which unfair means have been used by the candidate. If the Superintendent feels satisfied that unfair means have been used by the candidate, his/her answer books have to be seized along with the material recovered, and a fresh answer book is given to him/her to answer the remaining questions of the question paper.

Both the answer books (Annexure I and II) have to be sent by the Centre Superintendent to the officer appointed by the University for the purpose together with the material recovered and duly signed by the candidate, the Invigilator and the Centre Superintendent. The Invigilator has to give his report in writing in the form prescribed by the University. The Invigilator's report has to be immediately brought to the notice of the candidate, who shall be required to give his/her explanation in the above form. If the Centre Superintendent decides to refer a case of unfair means to the officer appointed by the University for the purpose, he shall record such evidence as is available in support of the allegations made by the Invigilator, and, after giving his own remarks, he shall send all the relevant material to the officer appointed by the University for the purpose. Under Clause 2 (vi) of the Ordinance, all cases of unfair means reported by the Centre Superintendent have to be considered and decided by the Syndicate.

The Syndicate may, however, appoint one or more Committees to examine the cases in the first instance, and give its/ their recommendations or authorise the Vice Chancellor to appoint such Committee. Under Clause 2 (vii) of the Ordinance, if the candidate denies the allegations as contained in the Investigator's report, or if the Committee otherwise thinksit necessary, only then it has to fix a date, time and place for holding an enquiry, and give a proper notice to the candidate by registered post. On the date fixed in the notice, which shall not be less than fourteen days from the date of its despatch, the Committee shall meet at the required place, on the date and time specified in the notice for the purpose of holding enquiry, and the candidate shall be allowed to be present in the same.

Then the evidence has to be recorded in the presence of the candidate, who is to be allowed to put relevant questions to the various witnesses by way of cross-examination, and after the evidence is recorded, the candidate shall be required to make statement and to produce such evidence as he/she thinks necessary to submit in his/her defence. It is only thereafter that the Committee after granting such bearing to the candidate, as it may deem necessary, record its findings about the guilt of the candidate. The report of the Committee and its recommendations shall then have to be placed before the Syndicate, which is the final authority to take such necessary action, as it may think necessary in each case.

11. It will, therefore, be clear that the Ordinance contains an elaborate procedure to deal with the cases of the candidates who are found or are suspected of using unfair means in the examination. It is contended by Mr. Mathur, the learned Advocate for the respondent, that the Invigilator's report was brought to the notice of the candidate immediately and he was given an opportunity to furnish his explanation which he did, and because he did not deny to have been in possession of the material relevant to the concerned examination, it was not necessary for the Standing Committee to have called upon the petitioner to show cause, and the principles of natural justice have not been violated. But, to my mind, this submission of Mr. Mathur has no force, because it is the body or the tribunal which is empowered to hold an enquiry in a case of a candidate alleged to have used unfair means, who must give an opportunity to the candidate to show cause.

Only if the candidate denies the allegations, or, if the Committee otherwise thinks it necessary, it shall be necessary for the Committee under Clause 2 (vii) of the Ordinance to hold an enquiry in the manner provided therein. If the candidate admits then it is not necessary to hold such an enquiry, but the question of admission or denial by the candidate of the charge levelled against him of having used unfair means in the examination will only arise when in pursuance of the show cause notice issued by the Committee to the candidate, a candidate submits reply either admitting or denying the charges levelled against him. A reference may be made here to Ranjit Singh's case (AIR 1966 Raj 223) (supra), where it has been observed that the principles of natural justice require that the candidate must be given opportunity of presenting his case Before that organ of the University, who has to award the punishment. In the instant case, the Syndicate appointed the Standing Committee, and the Standing Committee had to enquire into the matter, and to make its recommendations to the Syndicate.

Therefore, it was incumbent on the Standing Committee appointed by the Syndicate to give an opportunity to the petitioner of presenting his case before it and in case the candidate would have admitted that he was found using unfail means, only then it was not necessary for the Committee to hold any enquiry, and the Committee could have, after examining the report of the Invigilator, the explanation of the petitioner, made a recommendation to the Syndicate. To my mind, the Invigilator's report and the explanation of the candidate contained therein is no substitute for opportunity to the candidate by the Committee to show cause against his alleged conduct of using unfair means in the examination. It is the Committee which is a domestic tribunal, a quasi-judicial tribunal, which has to deal with the case, and it is that Committee which is to give a reasonable opportunity to the candidate to show cause.

In the instant case, the Committee did not give any opportunity to the petitioner to show cause and as such the petitioner has been punished and his examination has been cancelled without affording an opportunity to him to explain, and as such there has been a clear violation of the principles of natural justice. No doubt, the University is an autonomous body and is responsible for the standards and the conduct of the examinations, and where the University examination is involved, a certain amount of autonomy should be extended to the University authorities and the meticulous investigation into the rights and wrongs of the doings of the Universities or their Committees may demoralise the authorities themselves, and the overall impact may be injuriousin public interest, and obnoxious to justice (vide Civil Appeal No. 830/78, The Gurunanak Dev University v. Rajinder Kumar Girdhar decided on 18-4-1978).

But, it is necessary that in arriving at a finding that the candidate has used unfair means in the examination, the principles of natural justice must be followed, otherwise the finding arrived at is vitiated, and cannot form the basis of the punishment. Mr. Mathur, the learned Advocate for the respondent, has referred to Omprakash Khandelwal v. The University of Rajasthan, Jaipur (Civil Writ Petn. No. 38/77 decided on August 31, 1977) (Raj), but even in that authority the principles of natural justice had been followed, and the procedure prescribed in dealing with the cases of the candidates suspected of using unfair means was also followed. Therefore, that case lends no assistance to the learned Advocate for the respondent.

12. The contention of Mr. Mathur, the learned Advocate for the respondent is that all through the University has been interpreting the provisions of the Ordinance in such a manner that the Committee appointed by the Syndicate to examine the cases of candidates who are alleged to have used unfair means only holds an enquiry, if the candidate denies having used unfair means or the Committee otherwise thinks proper to hold the enquiry. But, this contention has no force, in as much as in the case of other two candidates, namely. Walia and Michael, who were also suspected to have used unfair means in the examination, an opportunity was granted by the Committee, though on their representations, to show cause. There is no provision of making representation, and there is no warrant for the assumption that only an opportunity to show cause will be granted to such of the candidates who represent and not to others. To my mind, as already observed above, the question of denial or admitting having used unfair means in the examination will only arise when the Committee, which is to deal with the matter gives a show cause notice to the candidate mentioning therein the charges against him. Therefore, I am of the opinion that the procedure prescribed in the Ordinance for dealing with the cases of those who are suspected of using unfair means has not been followed in the case of the petitioner, and his examination has been cancelled on the recommendations of the Committee by the Syndicate without observing the principles of natural justice, which have been clearly violated in the case of the petitioner.

It may also be observed here that it is discretionary with the Syndicate to inflict one or the other punishment, and, therefore, it is also necessary that the Committee, which is to recommend to the Syndicate, should grant an opportunity to the candidate to show cause and the report of the Invigilator and the explanation of the candidate cannot be said to be the substitute to the notice by the Committee to the candidate to show cause, because at the time when the candidate is suspected of using unfair means, he is to be given another copy to answer other questions, and at this stage it cannot be expected of the candidate to be in such a state of mind as to come out with his defence. The report of the Invigilator may he evidence in the case and has to be considered by the Committee along with the other material, if any, but the Committee is bound to give a notice to the candidate to show cause.

13. In the result, the orders of the respondent- (Annexures I and III to the writ petition) are hereby quashed and set aside, and the respondent is directed to examine the case of the petitioner, or get it examined by the competent authority in the light of the observations made above. As far as possible, the matter should be finalised within two weeks, and the petitioner shall cooperate. This court cannot grant any relief to the petitioner that he should be allowed to appear in the B. Sc. (Hons) Part III examination. It will be open for the University to consider whether any such request of the petitioner, if made is to be allowed or not. The costs of this petition are made easy.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //