S.C. Agrawal, J.
1. Mahendra Mathur, the petitioner in this writ petition filed under Article 226 of the Constitution is a student of the University of Udaipur (hereinafter referred to as 'the University'). He joined the postgraduate course for obtaining the degree of Master of Science in Chemistry of the University in the year 1976. The aforesaid postgraduate course is of a duration of two years consisting of four semesters. The petitioner has passed the First and the Second Semester examinations. The third Semester examination commenced from 10th April, 1978 The petitioner is reported to have used unfair means at the examination of course No. 611, Chemical Bonding held on 10th April, 1978. On 28th July, 1978, the Registrar of the University sent a communication to the petitioner, wherein it was stated that the Centre Superintendent had made a report on 10th April' 1978, alleging that the petitioner was caught red handed while using a small sheet of white paper in the examination of Course No. 611 Chemical of MSC Chemistry Third Semester Examination and that when he was asked to hand over the same by the invigilator on duty, the petitioner had refused to hand over the sheet of paper and that the aforesaid case of un-fair means was considered by the Results Committee on 27th July, 1978 and the Committee had decided that the Semester examination of' the petitioner be cancelled as per the Rules of un-fair means By the communication aforesaid, the petitioner was required to show cause in writing within 7 days from the date of the receipt of the letter as to why the proposed punishment for use of un-fair means in the examination be not confirmed. After the receipt of the aforesaid communication from the Registrar, the petitioner, by his letter, dated 1st August, 1978, requested the Registrar of the University that he may be provided with copies of certain documents mentioned in the said letter. Amongst the documents of which copies were sought by the petitioner were the report made by the Centre Superintendent regarding his case on 10th April, 1978 and the copy of the minutes of the meeting of the Results Committee held on 27th, July, 1978 The Registrar of the University, by his letter dated August 2, 1978 informed the petitioner that copies of the report made by the Centre Superintendent as well as the minutes of the meeting of the Results Committee could not be supplied to the petitioner. On 3rd August, 1973, the petitioner submitted his reply to the show cause notice dated 28th July, 1978, where in he denied that he had used any un-fair means or had attempted to use un-fair means at the examination held on 10th April, 1978 and submitted that the entire case about the aforesaid use of unfair means by the petitioner was absolutely false and fabricated at the instance of one of the invigilators Dr, G.V. Bakora, who wants to spoil and ruin the career of the petitioner, In the reply aforesaid, the petitioner sought permission to cross-examine the complainant and the witnesses against the petitioner and also sought permission to lead his evidence In his reply, the petitioner further requested that his result may be announced without further delay. It appears that after the aforesaid reply of the petitioner, the mark-sheet for the Third Semester Examination was issued by the University to the petitioner on 8th August, 1978. According to the said mark sheet, the petitioner has secured in aggregate 70 6% marks, in the Third Semester examination & in the paper of Chemical Bonding Course No. 611, he has secured 55 marks out of 100. Thereafter by notification dated 5th December, i978, the Registrar of the University has notified that the-Executive Committee of the University, at its meeting held on 18th November. 1978 had confirmed the penalty awarded by the Results Committee to the candidates having used unfair means at the various examination of the University held in 1978 except in the case of the two candidates (including the petitioner) named in the notification In so far as the petitioner is concerned, it was stated that the Executive Committee of the University had imposed the penalty of cancellation of the present Semester Examination. Being aggrieved by the aforesaid decision of the Executive Committee of the University contained in the notification dated 5th December, 1978 the petitioner has filed this writ petition for the issue of a writ of certiorari to quash the said notification dated 5th December, 1978
2. In the writ petition, the petitioner has alleged that the aforesaid decision of the Executive Committee of the University cancelling the Third Semester Examination of the petitioner was arrived at in disregard of the. principles of the natural justice in as much as no inquiry what so ever was held for the purpose of verifying the correctness of the charge of the use of unfair means levelled against the petitioner. The petitioner has also submitted that the copy of the report submitted by the Centre Superintendent was not supplied to the petitioner inspite of demand and that in the absence of the said report, the petitioner could not even know the exact charge, which had been levelled against him. The petitioner has further asserted that the explanation which was submitted by the petitioner in his reply dated 3rd August. 1978 to the show cause notice had been found to be satisfactory by the Results Committee and that was the reason why result of the petitioner was declared and the mark sheet was issued to him on 8th August, 1978 and that the Executive Committee of the University was not competent to interfere with the aforesaid decision of the Results Committee. The petitioner, in his writ petition has also asserted that even if it was open to the Executive Committee so differ from the decision of the Results Committee, it was incumbent; upon the Executive Committee to have given reasons for so differing from the Results Committee & that in the present case the Executive Committee has not recorded any reason why it was differing from the decision of she Results Committee.
3. In the reply to the writ petition, filed on behalf of the respondents, it has been pleaded that the action against the petitioner has been taken in accordance with the Rules which have been framed by the University for dealing with cases of using unfair means at the University Examinations. The case of the respondents is that the petitioner was caught re-handed, using unfair means in the examination hall on 10th April, 1978 by the invigilator Dr Bakora, and that Dr Bakora had reported that the petitioner was caught red handed using a small sheet of white paper which he was asked to handover but he refused to do so and that after the examination was over ; the Centre Superintendent, Shri K. K Maharishi, asked the petitioner to give a statement but he kept silent and refused to give a statement and thereafter the Centre Superintendent submitted his report to the University. In their reply to the writ petition, the respondents have; submitted that the petitioner was shown the report made by Dr. Bakore against him and he was asked to explain but he refused to give any statement and that it was wrong to say that the petitioner was not given any opportunity to explain the report made against him. In the aforesaid reply, it is not denied that the copy of the report sent by the Centre Superintendent University as well as copy of the minutes of the proceedings of the Results Committee held on 27th July, 1978 were not supplied to the petitioner. The respondents have asserted that the University is not a regular Court and no inquiry as has been provided in the Code of Civil Procedure or Code of Criminal Procedure is made or could be made and that a fair opportunity was provided to the petitioner to explain his conduct but he refused to do so. In reply of the respondents it has also been stated that although the mark-sheet of the examination was sent, result of the petitioner was not declared and that the decision of the Results Committee was subject to the final decision of the Executive Committee and that the decision taken by the Executive Committee, cancelling the examination of the petitioner was not in contravention of the provisions of the University Act or the Statutes
4. Shri N.N. Mathur, the learned Counsel for the petitioner has urged the following contentions in support of this writ petition:
(i) The University was required to follow the principles of the nature justice while imposing the penalty of cancellation of the examination of the petitioner on the charge of his having used unfair means at the examination and that in the present case the impugned order, imposing the penalty of cancellation of the Third Semester of the Examination of the petitioner was passed in violation of the principles of the natural justice in as much as the copies of the report of the Invigilator and the Centre Superintendent were not supplied to the petitioner and that no enquiry was held and the petitioner was not afforded any opportunity to cross-examine the Invigilator and other witnesses.
(ii) The decision of the Results Committee exonerating the petitioner of the charge of having used unfair means at the examination was final in view of the provisions contained in Statute 10 (5) of the Statutes of the University and the Executive Committee had no jurisdiction to reverse the decision of the Results Committee.
(iii) The impugned decision of the Executive Committee, imposing a penalty on the petitioner is arbitrary in as much as no reasons have been given by the Executive Committee for differing from the decision of the Results Committee.
5. Before dealing with the contentions aforesaid, it will be convenient to take note of the relevant provisions of the Udaipur University Act, 1962 (hereinafter referred to as 'the Act') and the Statutes framed thereunder.
6. Section 19 (11) of the Act lays-down that the Executive Committee shall be the executive body of the University and in the said sub-section, provision is made for the constitution of the Executive Committee. Section 34 of the Act lays down that statutes may be framed to make provision in respect of the matters set out therein. Sub-section (O) of Section 34 provides for statutes being framed to provide for the conditions under which the students shall be admitted to the degrees, diplomas or other course and the manner in which the examination are to be held and eligibility for the award of the degrees and diplomas.
7. Statute 10 deals with the Executive Committee of the Board of Control of the University. Clause (3) of Statute 10 defines the powers and duties of the Executive Committee and lays-down that the Executive Committee shall have the power to appoint examiners and arrange for the holding of the examination and publishing results thereof. Clause (5) of Statutes 10 reads as under:
'(5)' There shall be Results Committee for declaration and publication of the results of the University examinations. It shall consist of the following:
1. The Vice-Chancellor
2. The Registrar
3. The Chairman of the Faculty concerned
4. One member nominated by the Vice-Chancellor every year
8. The decision taken by the Results Committee with regard to the Results of candidates, shall be final. The decision, in regard to cases where unfair means have been used, will rest with the Executive Committee.
9. The examination results, as passed by the Results Committee, shall be published by the University.'
10. Neither the Act nor the Statutes lay-down the procedure which is to be followed in a case where any complaint of use of unfair means at an examination has been received against a student. It appears that a set of Rules for dealing with the cases of unfair means at the University examination have been framed by the University, with the approval of the Council of Deans and the Executive Committee In the said Rules the expression 'Unfair means' has been defined to include 'having in possession during examination time any paper, books or notes which have relevance to the examination concerned.' The said Rules prescribe the following procedure for dealing with the cases of candidates found using or suspected of using unfair means in connection with the examination : -
(i) Where a candidate is suspected of using unfair means as defined above, the Invigilator or the Centre Superintendent shall search the candidates or cause the candidate to be searched by any person. Where any written material is found in his possession in consequence of the search, the candidate shall be dealt with according to there rules
(ii) The Superintendent of the Centre is empowered to expel a candidate from the examination hall in cases of grave misconduct or indiscipline. All such cases of grave misconduct will be reported to the University forthwith for further action.
EXPLANATION Grave misconduct or indiscipline will include walkouts, instigation to walkouts, physical violence, tearing of the answer books, intimidation of the examination authorities, examinees and the like.
(iii) As soon as a candidate is suspected, found or reported to have resorted to unfair mean his/her answer books shall be seized along with the material recovered and a fresh answer book given to him/her to answer the remaining questions of the question paper. Both the answer books (marked as I and II) will be sent by the Centre Superintendent to the Registrar of the University by name together with the material recovered an duly signed by the candidate, the Invigilator and the Centre Superintendent.
(iv) The Invigilator shall give his/her report in writing in the form prescribed by the University. The Invigilator's report shall be immediately brought to the notice of the candidate who shall be required to give his/her explanation in the above form.
(v) If the candidate refuses to give his/her statement on the spot or runs away from the Centre, his/her case shall be decided by the University in absentia, on the basis of the report of the Invigilator and the Centre Superintendent.
(vi) After the punishment is determined by the appropriate body an opportunity to show cause in writing shall be afforded to the candidate concerned as to why the same be not confirmed. If no reply is received within the time given the punishment shall stand confirmed.
(vii) In no case the candidate shall be allowed to represent himself/ herself by an Advocate.
11. A perusal of the aforesaid procedure which has been prescribed by the University shows that after a candidate is found using or is suspected of using unfair means at the examination, the Invigilator shall give his report in writing and the said report of the Invigilator shall be immediately brought to the notice of the candidate who shall be required to give his explanation to the same and in cases where the candidate refuses to give his statement on the spot, his case shall be decided by the University in absentia on the basis of the report of the Invigilator & the Centre Superintendent & that after the punishment is determined by the appropriate body, a further opportunity to show cause in writing shall be afforded to the candidate concerned as to why the proposed punishment may not be confirmed. In other words, two opportunities are contemplated by the aforesaid procedure. The first opportunity is afforded to the candidate to offer his explanation to the report of the Invigilator and the second opportunity is afforded to the candidate after the appropriate body has arrived at the conclusion that the candidate is guilty of having used unfair means and has determined the punishment proposed to be inflicted on the candidate.
12. In the present case from the reply filed on behalf of the respondents, it appears that the petitioner was given an opportunity to offer his explanation, by the Centre Superintendent on 10th April, 1978 after the examination was over and the report of the Invigilator, Dr. Bakora, was shown to the petitioner at that time but the petitioner kept mum and did not offer any explanation. Thus the University has complied with the requirement of the Rules in so far as affording the first opportunity is concerned, The question that remains is as to whether the petitioner has been afforded an adequate opportunity to show cause against the punishment which was proposed to be inflicted on him by the appropriate body of the University after having taken a decision, in absentia, on the basis of the report of the Invigilator and the Centre Superintendent.
13. The submission of Shri N N. Mathur, the learned Counsel for the petitioner is that an opportunity to show cause against the proposed punishment as contemplated by the aforesaid R includes an opportunity to establish innocence of the candidate & that the said opportunity was denied to the petitioner in as much as the petitioner was not furnished the copies of the report of the Invigilator as well as the report of the Centre Superintendent and he was also not afforded an opportunity to cross-examine the Invigilator & other witnesses Shri H.M. Parekh, the learned Counsel for the respondents, on the other hand, has submitted that question whether the principles of natural justice have been followed in a particular case will depend upon the facts of that case and that no abstract rule can be laid down and that in the present case sufficient opportunity had been afforded to the petitioner and it can not be said that he was denied an opportunity to show-cause against the proposed punishment.
14. In the context of action being taken against student using unfair means at the examination, the Supreme Court, in Board of High School & Inter-mediate Education UP. Allahabad v. Ghanshyamdas Gupta and Ors. : AIR1962SC1110 , has observed:
It is true that there is no lis in the present case, in the sense that there are not two contesting parties before the Committee and the matter rests between the Committee and the examinee; at the same time considering that materials will have to be placed before the Committee to enable it to decide whether action should be taken under Rule 1(1). It seems to us only fair that the examinee against whom the Committee is proceeding should also be heard. The effect of the decision of the Committee may in an extreme case blast the career of a young student for life and in any case will put a serious stigma on the examinee concerned which may damage him to later life. The nature of misconduct which the Committee has to find under Rule 1(1) in some cases is of a serious nature, for example, impersonation, commission of fraud, and perjury, and the Committee's decision in matters of such seriousness may even lead in some cases to the prosecution of the examinee in courts. Considering therefore the serious effects following the decision of the Committee and the serious nature of the misconduct which may be found in some cases under Rule 1(1), it seems to us that the Committee must be held to act judicially in circumstances as these.'
'We are therefore of opinion that the Committee when it exercises its powers under Rule 1(1) in acting quasi-judicially & the principles of natural justice which requre that the other party (namely the examinee in this case) must. be heard, will apply to the proceedings before the Committee.
In the said case the Supreme Court has also observed that the Committee could prescribe its own procedure for performing the aforesaid duties so long as the principles of natural justice were followed and adequate opportunity of presenting his case was given to the examinee. Thus what is necessary is that the examinee must be afforded an adequate opportunity of presenting his case. Clause (vi) of the procedure referred to above, which requires that after the punishment is determined by the appropriate body, an opportunity to show cause in writing shall be afforded to the candidate concerned as why the same be not confirmed, in my view, contemplates an adequate opportunity of presenting his case being afforded to the candidate. It is settled law that an opportunity can be regarded as adequate only when the person who is proceeded against is informed about the adverse material which is being used against him so that he may be in a position to offer his explanation with regard to the same.
15. In Ramchandra Singh v. Punjab University Chandigarh , the Punjab High Court was dealing with a case dealt with by the unfair means Committee appointed by the Punjab University. The regulations framed by the University only provided for taking an explanation of the candidate in the form of a statement at the time when he is so suspected and apprehended by the Superintendent of the examination and the regulations made no provision for the suspected candidate to know what exactly had been submitted by the Superintendent to the University The Punjab High Court held, that this was not enough to meet the requirement of natural justice and has observed:
The explanation that may have been offered by the candidate at the moment may be of considerable importance, for the Committee to judge the guilt or otherwise of the candidate, yet, except in a case where there is no controversy about facts. Such an explanation can be no substitute for the explanation that the candidate may offer on being told the exact version given by the Superintendent and the Supervisory Staff from which an inference about this having used unfair means is sought to be drawn.
The aforesaid observations have been quoted with approval by a Division Bench of this Court in Ranjeet Singh v. University of Rajasthan 1966 RLW 275. In Ranjeet Singh's case 1966 RLW 275 the Division Bench of this Court has also concurred with the observation of the Allahabad High Court in Son Pal Gupta v. The University of Agra : AIR1958All792 . In that case a candidate was caught by the Invigilator with a chit in the examination ball and the candidate had declined to give any explanation to the Invigilator and thereafter the Invigilator had sent the report to the University. The Allahabad High Court has observed that the Vice Chancellor, before taking a decision in the matter, should have heard the candidate before passing the orders and that merely the taking of explanation of the candidate by the Invigilator was not enough and that without telling the candidate as to what were the reports against him and without letting him know the nature of the explanation required of him, it could not be said that the principles of natural justice had been followed.
16. In Indra Mathi and Ors. v. Board of Secondary Education, Rajasthan Ajmer and Ors. , a learned Single Judge of this Court (Joshi J.) has thus defined the requirements of a reasonable opportunity of being heard:
To put it differently reasonable opportunity of being heard or fair hearing requires that:
(i) the adjudicating authority should give all the information as to the nature of the case which the party has to meet;
(ii) should disclose all information evidence or material which the authority wishes to use against the individual concerned in arriving at the decision ;
(iii) to receive all the relevant materials which the individual wishes to produce and
(iv) it should give to the individual concerned an opportunity to rebut such information or material.
17. In the said case, the inquiry officer had not disclosed the gist of the complaint nor the report of the expert which were in existence prior to the date when he embarked upon the enquiry and the report of the inquiry officer which had been considered by the Results Committee was also not disclosed to the candidate. It was held that there was no sufficient compliance with the principles of natural justice and in that context Joshi J. has observed ;
The Results Committee had relied upon the report of the enquiry officer but that report was also not confronted to the petitioner. Mr. M. D. Purohit seriously contended that it was not necessary to disclose or confront all the materials used by the results committee to the petitioner under the principles of natural justice. I am unable to agree. It is a basic requirement of principles of natural justice that the materials which are sought to be used against a particular individual are to be disclosed to him before any adverse order is passed against him.
The results committee availed of examiner's and expert's report without confronting it to the concerned petitioner nor did it give any opportunity to the petitioner for giving explanation. In these circumstances it is difficult to hold that the reasonable opportunity was given in the instant case and consequently there was a violation of principles of natural justice.
The learned Counsel for the respondent has placed strong reliance on the following observations of the Supreme Court in The Chairman Board of Mining Examination and Chief Inspector of Mines and Anr. v. Ramjee : 2SCR904 , where the Supreme Court has observed:
Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against the form, features and the fundamentals of such essential procedural propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt that is the conscience of the matter.
These general observations must be tested on the concrete facts of each case and every minuscule violations do not spell illegality. If the totality of circumstances satisfy the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
It may be noticed that in the aforesaid case the Supreme Court has also observed that:
It is desirable also to communicate the report of the inquiry officer including that part which relates to recommendation in the matter of punishment so that that the representation of the delinquent may be pointed and meaningful.
18. Thus, while laying down that the question as to whether there has been violation of the principles of natural justice in a particular case or not will have to be decided in the facts and circumstances of that particular case, the Supreme Court has not de parted from the principles laid-down in earlier cases that before any action is taken against a person, any adverse material on which reliance is sought to be placed should be brought to his notice so that he may he able to offer an explanation. In my opinion, the decision of the Supreme Court in the Chairman Board of Mining Examination and Chief Inspector of Mines v. Ramjee : 2SCR904 does not in any way detract from the principles laid down by the Supreme Court in the earlier cases which have been followed by this Court in Ranjeet v. University of Rajasthan 1966 RLW 275 and Indira Methi and Ors. v. Board of Secondary Education Rajasthan, Ajmer and Ors. that it is the basic requirement of the principles of natural justice (audi alteram partem) that the materials which are sought to be used against a particular individual are to be disclosed to him before any adverse order is passed against him In my view it was, incumbent upon the respondents to have supplied the petitioner with the copies of the reports of the Invigilator and the Centre Superintendent, as well as the minutes of the meeting of the Results Committee held on 27th July, 1978 and in the absence of the said documents having been supplied to the petitioner, it can not be said that the petitioner was afforded an adequate opportunity to show cause against the proposed punishment
19. The fact that on 10th April, 1978 the Centre Superintendent had asked the petitioner to give his explanation with regard to the report submitted by the Invigilator and the failure on the part of the petitioner to make a statement before the Centre Superintendent cannot justify the denail of the opportunity to the petitioner to show cause against the confirmation of the punishment determined by the Results Committee The aforesaid refusal on the part of other petitioner to make a statement before the Centre Superintendent on 10th April, 1978 enabled the University to decide, in absentia, the case of the petitioner on the basis of the report of the Invigilator & the Centre Superintendent. The right to be afforded an opportunity to show cause against the confirmation of the punishment to the petitioner after the said punishment had been determined by the appropriate body of the University after arriving at a decision on the case of the petitioner, in absentia. The report of the Invigilator & the report of Centre Superintendent were the documents on the basis of which the case of the petitioner was decided in absentia against him & in order that the petitioner could have an adequate opportunity of showing cause against the confirmation of the punishment proposed by the Results Committee, he should have been afforded an opportunity of offering his explanation to the adverse material contained in those reports and for that purpose, it was necessary that the copies of the report of the Invigilator and the report of the Centre Superintendent should have been furnished to the petitioner. So also was the petitioner entitled to be furnished with the copy of the University of the meeting of the Results Committee held on 27th July, 1978 in which meeting the Results Committee considered the case of the petitioner and decided to impose the punishment of cancellation of the Third Semester examination of the petitioner. In the absence of the said minutes the petitioner was completely in the dark about the reasons which had prevailed with the Results Committee in arriving at the conclusion that the petitioner was guilty of using unfair means at the examination and thus he was not in a position to effectively deal with the aforesaid reasons. It must, therefore, be held that the petitioner was not afforded an adequate opportunity of showing cause against the proposed punishment in as much as he was not furnished with the copies of the report of the Invigilator, the report of the Superintendent & the minutes of the meeting of the Results Committee held on 27th July, 1978, and the impugned order dated 5th December, 1978, imposing the penalty of cancellation of the Third Semester Examination on the petitioner was passed in disregard of the principles of natural justice and Is liable to be quashed.
20. I am further of the view that it was incumbent upon the Executive Committee to have given reasons for disagreeing with the decision of the Results Committee and in holding the petitioner guilty of using unfair means at the examination held on 10th April, 1978. In the absence of any reasons being given by the Executive Committee as to why it was differing from the reasons given by the Results Committee, the aforesaid decision of the Executive Committee can only be regarded as arbitrary. In Siemens Engineering & Manufacturing Co. v. Union of India : AIR1976SC1785 the Supreme Court has laid down:
The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law.
In the Chairman, Board of Mining Examination and Chief Inspector of Mines and Anr. v. Ramjee : 2SCR904 on which reliance has been placed by the learned Counsel for the respondents, the Supreme Court has observed:
We agree with Shri Ghambir that the adjudicating agency must indicate in the order, at least briefly, why it takes the decision it does, unless the circumstances are so clear that the concluding or decretal part of the order speaks for itself even regarding the reasons which have led to it.
This duty to record the reasons is far greater in a case where the Executive Committee chooses to differ from the finding of the Results Committee as in the present case. There is however, nothing on record to show the reasons which impelled the Executive Committee to take a view different from that taken by the Results Committee. The decision of the Executive Committee, as contained in the order dated 5th December, 1978, cannot therefore, be sustained and must be quashed.
21. In view of my findings aforesaid, I do not consider it necessary to examine the question as to whether under Clause (5) of Statute 10, the Executive Committee was competent to interfere with the decision of the Results Committee, exonerating the petitioner of the charge of having used unfair-means at the examination
22. In the result, the writ petition is allowed and the notification (annexure 6) dated 5th December, 1978, imposing the penalty of cancellation of the Third Semester Examination on the petitioner is quashed. The parties are left to bear their own costs in this writ petition.