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Bijan Behari Goswami Vs. University of Calcutta and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberMatter No. 242 of 1964
Reported inAIR1967Cal50
ActsCalcutta University Act, 1951 - Sections 21 and 45; ;Calcutta University Regulations - Regulations 12 and 18; ;Constitution of India - Article 226
AppellantBijan Behari Goswami
RespondentUniversity of Calcutta and ors.
- .....the petitioner was served with a notice calling upon him to appear before a sub-committee of the board of examiners in sanskrit, - on march 6, 1964, and there explain the following charge of breach of discipline levelled against him : 'that in contravention of the rules of the examination you were found reading some loose papers containing handwritten notes in the lavatory while appearing in sanskrit paper iv.' on the appointed day, the petitioner appeared before a sub-committee of the board of examiners consisting of : (1) dr. ashutosh saslri (chairman) (2) professor krishna gopal goswami(member) (3) professor janakihallav bhailacharjee (member). the petitioner alleges that the sub-committee gave him 3 to 4 minutes time to make his representation, during which period the petitioner.....

B.N. Banerjee, J.

1. The University of Calcutta annually holds an examination for the degree of Master of Articles The petitioner completed the course of studies in Sanskrit, deposited the prescribed fees for the Master of Arts examination and there was an Admit Card issued in his favour by the respondent University, enabling him to sit for the examination in the Year 1963.

2. One of the rules for the conduct of the examination is :

'Candidates are forbidden to carry into the Examination Hall, or have in their possession while under examination, any books, notes papers, writings, scribblings or other materials except their admit card, university registration receipts and any other writing requisities or drawing implements. Any article carriedinto the Examination Hall or found in the possession of a candidate in contravention of this rule shall be liable to be seized by the Officer-in-charge and the candidate shall be expelled.'

3. The examination began on November 27, 1963. The petitioner appeared at the examination on three days, namely, on November 27, November 29 and December 2, 1963, without any untoward incident. On the fourth day of the examination on December 4, 1963, however, the petitioner became involved in an incident The petitioner says that he felt the necessity of going to the lavatory. while the examination was going on. While inside the lavatory, the petitioner says, his wallet dropped from the pocket of the 'Punjabi' he had put on. An invigilator, who had accompanied the petitioner, noticed this and questioned him whether he had any written notes in his possession. Then only, [he petitioner says, he rememberd that he had taken down, on the previous evening, certain notes from a book known as 'Sahitva Darpan', while using the book at the Sanskrit College Library, and that the said notes were lying in the inside pocket of his 'Punjabi'. The petitioner further says that he had completely forgotten about the existence of the said notes on his person and had no occasion to refer to them. He handed over the notes to the invigilator. At the end of the examination for the day, the petitioner says, he himself spoke to the Officer-in-Charge of the Examination Hall about the incident and was told by him that possession of such notes, within the Examination Hall, was irregular under the rules of examination. The petitioner, however, says that he was not aware of the existence of the said rules. The petitioner further says that he was not expelled, in terms of the rule hereinbefore quoted but was allowed to complete his examination. The case pleaded by the petitioner is not materially admitted in the aifidavit-in-opposition, filed on behalf of respondents Nos. 1 to 4, the University, the Vice-Chancellor, the Syndicate and the Controller of Examination. I shall refer to the contents of the said affidavit later on.

4. The examination results of candidates, who sat for the examination were published on February 22, 1964. At that time, the petitioner came to know that, he had been 'reported against' for his conduct at the examination and therefore, the publication of his examination result was withheld. Shortly, thereafter, the petitioner was served with a notice calling upon him to appear before a sub-committee of the Board of Examiners in Sanskrit, - on March 6, 1964, and there explain the following charge of breach of discipline levelled against him :

'That in contravention of the rules of the examination you were found reading some loose papers containing handwritten notes in the lavatory while appearing in Sanskrit Paper IV.'

On the appointed day, the petitioner appeared before a sub-committee of the Board of Examiners consisting of :

(1) Dr. Ashutosh Saslri (Chairman)

(2) Professor Krishna Gopal Goswami(Member)

(3) Professor Janakihallav Bhailacharjee (Member).

The petitioner alleges that the sub-committee gave him 3 to 4 minutes time to make his representation, during which period the petitioner had also to answer certain questions put to him by the members. He was thereafter asked to write down his explanation, in a concise manner, allegedly not exceeding the size on one-half of foolscap paper. The petitioner further alleges that he proieslcd against the shortness of time within which he was permitted to explain his conduct and smallness prescribed for writ ten explanation but to no effect. The petitioner also alleges that he was not shown the report made against him and that his request io call the invigilator for being questioned by him was turned down. He criticises the enquiry made by the sub-committee as a piece of empty formality and opposed to all principles of natural justice.

5. The petitioner says that he apprehend ed bias against him in Dr. Ashulosh Saslri (who happened to be the Head of the Department of Sanskrit, University of Calcutta), against whose wishes, it is alleged, the petitioner bad taken up. for study, Group J (Vaisbnavism) as bis special paper for the M. A. Examination. As such he made a written representation to the respondents the Viec-Chancellor and the Controller of Examinations, on March 24, 1964. therein relating what had happened on December 4, 1963. during the examination, and also what happened on March 6, 1964 before the meeting of the sub-committee and prayed for relief He did not receive any reply.

The petitioner further says that he has come to learn that certain recommendations against the petitioners, made by the sub-committee, were accepted or confirmed at a meeting of the Board of Examiners held on March 20, 1964, which was presided over by Dr. Ashutosh Sastri himself and attended amongst others by Professor Krishna Gopal Goswami. The petitioner submits that participation of Dr. Sastri and Prof Goswami in the meeting of the Board of Examiners was illegal and opposed to natural justice because they were the persons who made adverse recommendations against him. The petitioner also submits that at the meeting of the Board, the representation made by him, on March 24, 1964. was not placed for consideration. In proof of the last submission, he relies upon a supporting affidavit by Dr. Heramba Nath Chatlerjee. also a member of the Board of Examiners

6. The petitioner also says that at a meeting of the Syndicate of the respondent University held on April 11, 1964, the recommendation of the sub-committee against the petitioner as confirmed by the Board of Examiners- was considered, in course of a few moments, and the petitioner's examination for the year 1963 was cancelled and he was debarred from appearing at any examination of the Universityin the year 1964. The order by the Syndicate was communicated to the petitioner in or about the third week of April 1964.

7. In the meantime, on April 9, 1904, Dr. Gourinath Sastri, Principal. Sanskrit College, wrote to the respondent Vice-Chancellor a letter, from which I quote the relevant extract :

'As far as my information of the case goes. the poor candidate had neither been provided with a clear charge-sheet, nor did he get sufficient opportunity to put up his own defence. I learn that the Board of Examiners on the recommendation of the Malpractices committee has decided to debar the candidate from appearing at any examination of our University for two years. I am of opinion that the decision has not only been very hard but unfair. These are of course matters in which you are the best judge and I shall be extremely obliged if you kindly review it.'

In his reply, dated May 2, 1964, the respondent Vice-Chancellor regretted his inability to interfere in the matter.

8. In the circumstances the petitioner moved this Court on July 2, 1964, under Article 226 of the Constitution, praying for a writ of Certiorari for the quashing of the disciplinary order against the petitioner and for a Writ of Mandamus directing the respondents not to give effecl to the order and obtained this Rule.

9. In the affidavit-in-opposition, filed on behalf of the respondents, the University, the Vice-Chancellor, the Syndicate and the Controller of Examinations, it is staled that invigilator Guru Prosad Raha detected that the petitioner was reading from certain loose papers in bis possession, while under examination, on December 4, 1964, and submitted the following report to the Officer-in-charge of the examination centre :

'While 1 was on duty, in the latrine the candidate (M. A) bearing Roll No. Cal 569 was found reading with some loose papers attached herewith. I caught him and handed over (to ?) the Assislant-in-charge of the centre for necessary action. '

On that report. S. Chaudhuri. Assistant-in-Charge of the examination inscribed the following endorsement--'The above statement is true to my knowledge.' In the affidavit, it is further stated that the petitioner was given sufficient time by the sub-committee to furnish a written explanation of his conduct. In the affidavit, it is denied that the petitioner asked the members of the sub-committee to produce the invigilator, who had reported against him or that little opportunity was given to the petitioner to represent his case or that he was kept in the dark about the report of the invigilator Reliance was placed, in the affidavit, on the admission of misconduct, made by the petitioner in his written explanation, wherein he slated as hereinbelow quoted :

'The complaint against me is not true. I never looked into my written topic in the examination centre Unfortunately a portion of the explanation was with me and I handed itover as soon as I was asked. Briefly the incident was as follows :

I went to urinate and as I was goint to put mv sacred thread on my ear my wallet fell down. As it was being picked up, the 'guard' through suspicion interrogated me and I said. 'I have not looked into anything or written anything after having done so. Thereafter. I sat for the examination and later on informed the 'In charge' of this mailer. I have not looked into or copied anything (this is) my earnest prayer. I beg to he pardoned by you for having paper. '

The allegation of bias against the petitioner in Dr. Ashutosh Sastri was denied in the affidavit and reliance was placed on a supporting affidavit by Dr. Sastri, in which the latter, inter alia, denied the allegation of bias against the petitioner. The irregularities alleged by the petitioner in the disciplinary enquiry were generally denied in the affidavit in opposition and in particular it was stated :

'It has always been a practice of the subcommittee to rely on the written complaints of the invigilators or the officer in charge of the examination centres. Should any demand he made by the candidate concerned for production of the complaint (should be complainant) before the committee or should the subcommittee feel that the production of the invigilator or other complainant is essential for proper investigation of the charges, the committee can call for the production of the complainant. In the instant case, no demand for production of the invigilator or the officer-in-charge was made. '

10. Mr. B.N. Sen, learned Advocate for the petitioner contended, in the first place, that the syndicate of the respondent University alone had the power to conduct examinations and to approve and publish the results thereof; such powers were never delegated by the syndicate to the Board of Examiners and the Board in its turn could not sub-delegate such powers to a sub-committee of itself. As such he contended the sub-committee of the Board of Examiners had no power to enquire into the charge levelled against the petitioner and to recommend a punishment. He contended, in the next place, that assuming for the sake of argument that the sub-committee of the Board had the power of enquiring into the charges levelled against the petitioner, (which of course he disputed), the enquiry was conducted without regard to the rules of natural justice in the following respects :

'(a) the petitioner was given loo short a time to make his oral submissions.

(b) there was an unreasonably short size prescribed for the written explanation which the petitioner was called upon to submit.

(c) the petitioner was not shown the invigilator's report on which he was being proceeded against.

(d) the request by the petitioner for the invigilator being called for the purpose of being questioned by him was turned down by the sub-committee of the Board.

He contended further that the Board of examiners as also the Syndicate merely accepted the penalty recommended by the sub-committee without consideration or without examination of the materials on which the recommendation was alleged to be founded and as such acted with gross irregularity in the exercise of their jurisdiction. He also contended that there was no express finding thai the petitioner was guilty of the charge levelled against him and as such no penally should have been imposed upon him. He lastly contended that the penalty imposed upon the petitioner was unwarranted and particularly contended that in debarring the petitioner from appearing at any of the examinations of the respondent University. In the year 1904, the respondents went beyond their power. In his fairness, Mr. Sen, learned Advocate for the petitioner, did not emphasise upon the plea of bias, over which much was said in the petition.

11. With a view to appreciate the points urged in this Rule, it is necessary to examine the law governing the respondent University concerning Examinations. The respondent University is now governed by an Act known as the Calcutta University Act, 1951 thereinafter referred to as the Act). Under Section 7 of the Act, officers of the University are :

(1) the Chancellor,

(2) the Vice-Chancellor,

(3) the Treasurer,

(4) the Registrar, and

(5) such other persons as may be declared by the statutes to be officers of the University.

Of the officers abovenamed, the Vice-Chancellor is the Principal executive and academic officer of the University. Section 15 of the Act defines authorities of the University as :

(1) the Senate,

(2) the Syndicate,

(3) Finance Committee.

(4) the Academic Council.

(5) the Faculties.

(6) the Boards of Studies.

(7) the Board of Health.

(8) the Board of Residence and Discipline, and

(9) such other bodies as may be declared by the statutes to be authorities of the University.

Section (2) (k) of the Acl defines Statutes, Ordinances and Regulations in the following language :

'Statutes, Ordinances and Regulations mean respectively, statutes, ordinances and Regulations of the University made under this Act and they shall be deemed to be rules within the meaning of Clause (36) of Section 3 of the Bengal General Clauses Act, 1899.'

Section 21 of the Act deals with the power of the syndicate and Clause (o) of Section 21 empowers the syndicate 'lo conduct University examinations and approve and publish results thereof in accordance with statutes and Regulations.' Clause (q) of Section 21 authorises the syndicale 'to appoint examiners after consider-ing all the recommendations of the Boards of studies and to fix their remuneration in accordance with the provisions of the Ordinances.' Clause (w) of Section 21 empowers the syndicate 'to delegate any of its powers to the Vice-Chancellor or to a committee cons tituted from amongst its own members or to a committee appointed in accordance with the statutes.'' Section 45 of the Act deals with constitution of committees in the following language:

'All the authorities of the University shall have power to appoint committees and to delegate to them such of their duties and functions as they deem fit. Such committees shall, unless there be some provisions in this Act to the contrary, consist of such members of the authority concernerl and also of any other person or persons that such authority may think flt to appoint.'

12. Chapter XXV of the Regulations, framed under the Act. inter alia provides for the following regulations for the conduct of examinations generally :

'10. As soon as possible after an examination has been held the persons who have set any question paper in the examination, the Moderators and those who are to examine the answers to that paper or any portion of it and the Head Examiner, if there is one, shall meet to determine the kind or standard of answers to be expected from candidates, and to decide upon a system of marking. Their conclusions shall be embodied in the memorandum to be jointly signed by them and forwarded to the Registrar. If owing to unavoidable circumstances any Examiner who has set a paper or a Moderator who has moderated a paper is unable to attend the meeting, the remaining examiners contemplated by these Regulations shall meet and transact the aforesaid business. '

'11. In the case of any examination for the degree of Master or Doctor in the Faculties of Arts and Science, for the degree of Bachelor of Commerce and in the case of every examination in the other Faculties, the entire body of Examiners for that examination shall meet, as soon as possible after the tabulation of the results, and draw up a report of the examination as a whole for the consideration of the Syndicate.

As soon as possible after the publication of the results of every examination in every Faculty referred to in the preceding paragraph, the persons who have examined the answer-papers in each subject shall meet together and draw up a report upon the examination in that subject for the consideration of the Syndicate. '

'12. The reports submitted to the Syndicate shall ordinarily embody such remarks and recommendations suggested by the work done by the candidates which is though desirable in the interests of education to communicate to the Heads of Colleges and Schools.

'18. No candidate shall ordinarily be declared to have passed or to have obtained Hon-ours unless he has attained the standard laid down in the Regulations for a Pass or for Honours. If, however, the Syndicate are satis-fled that consideration ought to be allowed in the case of any candidate by reason of his high Marks in a particular subject or in the aggregate, the Syndicate may pass such candidate or award him Honours as the case may be :

Provided that no action shall be taken by the Syndicate in this behalf, except :

(a) upon the Report of the Examination Board concerned in the case of the Matriculation Examination, the Intermediate Examination in Arts or Science, and the B. A., B. Sc., and B. Sc. (Tech) Examinations, or

(b) upon the Report of the Examiners in the case of any other Examination.'

13. For B. A. and B. Sc. Examinations, Chapter XXV contains a Special Regulation (at page 6 of the Regulations 1962 edition), namely,

The functions of the Examination Board shall be:

(a) xxxxx

(b) xxxxx

(c) To consider all cases of breaches of discipline arising in connection with the examination.

Curiously enough the Regulations do not contain any corresponding provision for M. A. and M. Sc. Examinations.

14. Lastly, there is a body of rules known as 'Miscellaneous statutes, ordinances and Regulations' of which Rule 3 read as follows :

'Save as otherwise provided in the Act, the First Statutes, the First Ordinances and the First Regulations and subject thereto, the practice and procedure in force in the University shall continue in force until altered, repealed or amended.'

Keeping in view the above provisions of law, I now proceed to examine the contention made by Mr. Sen that neither the Board of Examiners nor its sub-committee had jurisdiclion to enquire into the charge of breach of discipline against the petitioner and to recommend a penalty. Under Clause (o) of Section 21 of the Act, the Syndicate is empowered to conduct examinations and to approve and publish re suits. This power, in my opinion, includes the power to debar a candidate from appearing at an examination for misconduct, to disapprove of his result or to publish a negative result for him. Examiners for different examinations are appointed by the Syndicate, under Clause (q) of Section 21 of the Act, and Examiners for a particular examination may be constituted into a committee within the meaning of Section 45 of the Act. The Syndicate may delegate its powers to such a committee, under the provisions of Clause (w) of Section 21 of the Act. In the instant case, it does not appear that the syndicate either constituted the Board of Examiners into a Committee or delegated its power to the Board of Examiners.

15. Nevertheless, Chap. XXV, Regulation 11 authorises the Board of Examiners to draw up a report of the examination. In drawing Up such a report the examiners may include therein a report on specific cases of misconduct on the part of examinees, brought to their notice, and express their views as to how the examinees should be dealt with. For the purposes of drawing up a report, the Examiners, constituting the Board, may, if necessary, themselves institute an enquiry and examine candidates charged with misconduct personally or may appoint a sub-committee of their own and enquire through such a sub-committee. Without being themselves the disciplinary authority as the Examination Board for B. A and B. Sc. examination is, the members of the M. A. Examination Board can only function as a fact finding body and any enquiry made by such a body cannot amount to a disciplinary enquiry.

16. Mr. Ranadeb Chowdhury, learned Advocate for the respondents, placed strong reliance on paragraph 25 of the affidavit-in-opposition and contended that by long standing practice the Board of Examiners has always been vested with powers to draw up a reporl to misconduct cases for consideration of the Syndicate and such power has been preserved under Rule 3 of the Miscellaneous Statutes. Ordinances and Regulations, hereinbefore quoted. That may be so. But that does not, constitute the report into findings of the statutory disciplinary authority in opposition, the value of the report is nothing more than a fact finding report, which may be considered bv the disciplinary authority before it takes disciplinary action.

17. If this be the legal position, then the arguments by Mr. Sen that the Board of Examiners could not delegate their functions to a sub-committee or that the sub-committee act ed without regard to the principles of natural justice or that the Board of Examiners merely accepted the findings of the sub-committee without themselves examining the evidence of the petitioner must be ignored as irrelevant because a fact finding body, not functioning as the disciplinary authority, need not act in the manner as Mr. Sen argued it should. Further, the contention that the sub-committee acted without regard to the principles of natural justice, as argued by Mr. Sen, is denied item by item in the affidavit in opposition and it is difficult for me. in the face of such denial, to come to my own findings on disputed questions of fact and to uphold the arguments put forward by Mr. Sen.

18. I need, however, at this stage observe that the absence of any provision investing the Board of Examiners for M. A. and M. Sc. examinations with jurisdiction over cases of breach of discipline by the examinees is a serious lacuna. Such jurisdiction exists in B. A. and B. Sc. Examination Boards. There is no reason why M. A. and M. Sc. Examination Boards should not be invested with such jurisdiction. Absence of such a provision for M. A. and M. Sc. examinations renders solemn enquiries by Examination Board into mere fact finding enquiries and makes them valueless in a disciplinary proceeding except for the limited purpose of enabling the discplinary authority in this case the Syndicate, to make up its mind as to whether to start a disciplinary action against a delinquent.

19. Be that as it may, the legal position found above leads to another serious consequence. If the value of the Sub-committee report, as endorsed or approved bv the Board of Examiners, is no more than that of a fact finding report, by a bodv not invested with jurisdiction over breach of discipline by examinees, then the Syndicate, which is the disciplinary authority, should have formally charged the petitioner with misconduct, should have itself enquired into the matter afresh with proper opportunity to the petitioner to show cause and then should have made such penal order against the petitioner as he deserved In the instant case, the Syndicate did nothing of the sort. It merely accepted the fact finding report of the sub-committee and passed a penal order upon the petitioner This the Syndicate should not have done Then, again the penalty prescribed was more than what the rules for the conduct of examinations, hereinbefore quoted, warranted. Under the aforesaid rules, the petitioner could he expelled for the examination for 1963. But the rules did not empower the respondents to debar the petitioner from 1964 examination. I would have quashed the order but for reasons hereinafter stated.

20. Admittedly, the petitioner was carrying a written note in his pocket, while under examination. That by itself made the petitioner liable to expulsion from the examination hall and consequent cancellation of examination for 1963, under the rules of examination hereinbefore quoted It may be. as the petitioner says, that he never utilised the notes and had no intention of doing so. I do not decide that. But even if the petitioner's version be true, that does not help him. Universities are entitled to frame rules under which examinations shall be held. Moreover, the rule of examination quoted above is a reasonable and eminently desirable rule Having had admittedly violated that rule, the petitioner must not be allowed to escape the consequences. He did not deserve the high honours of an academic examination for the year 1963, regard being had to his admitted conduct.

21. The penalty imposed was no doubt in excess of the powers taken under the rules of examination. But 1964 is now over and no effective relief against the penalty can now be given to the petitioner.

22. For the reasons aforesaid, I am disclined to interfere in this matter. The ruleis discharged. There will be no order as tocosts.

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