P. Banerjee, J.
1. This Rule is directed against an order of cancellation of the examination of the petitioner for the year 1968 and debarring the petitioner from appearing in the examination of Pt. I and Pt. II of B. A. for the year 1969-70. The petitioner was a student of Surendra Nath College affiliated to the University of Calcutta. The petitioner sat for the examination of B. A. Pt. I in the year 1968 of the Calcutta University and his examination Centre was at Taltala High School. When the result of the examination came out, it appeared that against his name there was a remark 'reported against'. By a letter dated 19th November, 1968 issued by the Secretary Board of Discipline, the petitioner was charged with breach of discipline at the B. A. Part I Examination, 1968 alleging that In contravention of the rules of examination, the petitioner was found copying from books and notes while appearing in Bengali, Paper II Examination. The petitioner was directed to appear before the Sub-Committee on 25th November, 1968 at 1 P. M. The show cause notice which was served on the petitioner as annexure 'A' to the petition is in the following terms:--
SENATE HOUSECALCUTTA The 19-11-1968 CALCUTTA UNIVERSITYFrom:--
Sri A. C. Banerji, M. A.,
Secretary, Board of Discipline.
Sri Subhas Chandra Pal,
Roll Call No. 3594.
B. A. Part I, Examination. 1968
He/She is hereby informed that a meeting of the Sub-Committee of the Board of Discipline, constituted to investigate the cases of breach of discipline at the B. A. & B. Sc. Part I, Examination, 1968 will be held in the meeting room of the Secretary, Board of Discipline, Centenary Building, 3rd Floor Calcutta University, on the 25th November, 1968, at 1 P. M. to investigate his/her case regarding a report against him/her that he/she committed breach of discipline at the B. A. Part I, Examination, 1968.
He/She is hereby directed to appear before the said Sub-Committee on the date and at the hour and place mentioned above and furnish an explanation of his/her conduct.
A charge-sheet is annexed herewith.
If he/she does not appear before the Sub-Committee as directed, it will be presumed that he/she has nothing to say in his/her defence and his/her case will be decided ex parte without any further reference to him/her.
Sd./- A. C. Banerji. (A. C. Banerji)Secretary,Board of Discipline. End: One copy of Charge-sheet.
Name. Subhas Chandra Pal.
Roll. Call No. 3594,
You are hereby charged with having committed breach of discipline at the B. A. Part I, Examination, 1968.
1. That in contravention of the rules of the Examination you were found copying from some book and notes while appearing in Bengali Paper II.
Sd/- A. C. Banerji.Secretary, Board of Discipline.Dated, Calcutta the 19th November, 1968.
The petitioner appeared before the Sub-Committee and denied the charges levelled against him whereupon the members of the Board of Sub-Committee put question to the petitioner to which the petitioner replied. It is alleged by the petitioner that the relevant answer paper was not shown to the petitioner nor the books and notes from which the petitioner is alleged to have copied were produced and/or no one came forward to prove the charges. It is alleged after the hearing on 25th November, 1968 by Sub-Committee, no order was communicated to the petitioner but from circular dated 10th December, 1968 issued to the Principals of all the Colleges, it appeared that the petitioner was debarred from appearing in B. A. Part I, Examination to be held in 1969 and 1970. It may be stated here that the examination for the year 1969 has already been held and the petitioner has already lost his chance of appearing in that examination. It is further 3tated by the petitioner as it appears from the petition that the enquiry continued on other dates also and after the examination of the petitioner, the Head Master of Taltala High School on whose complaint the charge-sheet was drawn up was heard on these allegations. The petitioner challenged the order and obtained the present Rule. The University of Calcutta appeared in the matter and filed an affidavit supporting their case. It is stated in Paragraphs 15 and 16 that the petitioner and 47 other candidates took recourse to unfair means on 28th May, 1968 when the examination of Bengali Paper II was going on at the Taltala High School Centre. It is stated that the answer scripts of the petitioner along with those of 47 other examinees were received from the Officer-in -charge of Taltala High School Centre with the remark 'reported against.' It is stated that the Head Master of the School made a report about it on 28th May, 1968 and sent the report along with the answer scripts but the relevant letter having been misplaced the University asked the Head Master for the copy of the same and a copy of the letter dated 28th May. 1968 was sent to the respondents. On the basis of the said letter the proceeding was drawn up. It is stated that the petitioner was examined by the Sub-Committee on 25th November. 1968 and the petitioner was interrogated upon by the members of the Sub-Committee, The report of the Officer-in-Charge was shown to the petitioner but no explanation was forthcoming from the petitioner. Thereafter it is stated that on full consideration of the facts the Sub-Committee of the Board of Discipline submitted a report on 29th November, 1968 against the petitioner on the cases of breach of discipline. The said report was confirmed by the Board of Discipline which was ultimately confirmed by the Syndicate of the University of Calcutta and the petitioner was debarred from appearing in the examination B. A. Part I & II for the year 1969 and 1970.
2. On behalf of the Sub-Committee a joint affidavit by Sm. Mira Dutta Gupta, Sri Kiron Chandra Choudhury and Sri Paresh Chandra Bhattacharyya was filed. In paragraph 6, it is stated that on 25th November, 1968 the petitioner appeared before the Sub-Committee and the petitioner was interrogated by them. It is further stated that petitioner was shown the report of the Presiding Officer of Taltala High School and it explained the contents of the charge. The petitioner denied the said charges and further stated that there was no disturbance in the examination Hall. In paragraph 7 of the said affidavit it is stated as follows:--
'That on 27th November, 1968, we called for the Head Master, Taltala High School, who was the Presiding Officer of the said Examination Centre. One M. R. Dey, who was an assistant teacher of the Taltala High School and acting as a Supervisor during examination at the Taltala High School Centre met us with a forwarding letter dated 27th November 1968 from the Head Master, while we were holding a meeting of the Sub-Committee as will appear from a copy of the said letter hereto annexed and marked 'A'. The said M. R. Dey explained to us the circumstances in which the petitioner and 47 other candidates took recourse to unfair means in the said examination Centre and copied from the notes and books.'
On the basis of the said affidavit it is stated by the University that the order is valid and there was no denial of the principles of natural justice.
3. Mr. P. K. Mukherjee appearing for the petitioner contended that the proceeding is, on the face of it, without jurisdiction as the charges are vague and cannot be sustained and as such the petitioner could not make any proper representation to the said charge. Secondly the report on which the charge was based was never shown to the petitioner and thirdly witnesses were examined and the report of persons was considered without giving the opportunity to the petitioner to test the evidence taken behind back of the petitioner by cross-examining them.
4. Mr. Ranjit K. Banerjee for the respondent however, contended that the University has given all opportunities to the petitioner as is envisaged under Rule 62 and Sub-rule (3) of the first Ordinance of the University of Calcutta and as such there was no violation of the principle of natural justice as stated.
5. The Rule 62 (3) of Calcutta University First Ordinance and Sub-rules (4), (5) and (6) run as follows:--
(3) 'On receipt of reports of cause of breaches of discipline the Secretary of the Board shall inform the student concerned of the charges against him and ask him to appear before the Board or the Sub-Committee appointed for the purpose as mentioned in Clause 5 below, and furnish an explanation verbally or in writing, with regard to the charge made against him. The student shall also be informed that in case he fails to appear before the Board or the Sub-Committee mentioned above, and explain his conduct on the date fixed for the purpose, his case may be decided ex parte without further reference to him.
(4) If the board or the Sub-Committee holds that the charges referred to in Clause (3) have been proved it may recommend cancellation of the examination of the candidate concerned, or his debarment from appearing at a University Examination for such period as it may deem fit, or both.
(5) Decisions of the Sub-Committee appointed by the Board for the purpose shall be subject to confirmation by the Board of Discipline, and the proceedings of the Board shall be placed before the Syndicate for confirmation;
Provided that the Board may appoint one or more sub-committees, each committee shall consist of not more than five members of whom not more than three members shall be nominated by the Vice-Chancellor who may not be members of the Board of Discipline. The sub-committees will consider any matter particularly involving breaches of discipline referred to in Clauses (2) and (3).
(6) Decisions of the Board of Discipline shall be subject to confirmation by the Syndicate.'
The rule envisages that on receipt of the reports the Secretary to the Board shall inform the student concerned about the charges levelled against him and ask him to appear before the Board or Sub-Committee for the purpose. The student being so charged has a right to furnish the explanation verbally or in writing. In case of non-appearance, his case may be decided ex parte. After hearing the student the sub-committee may recommend cancellation of the examination or his debarment from appearing in the University examination for such period as It may deem fit, or both, The decision of the sub-committee is subject to confirmation by the Board of Discipline and thereafter by the Syndicate. It is for the consideration of the Court what is the nature of the enquiry envisaged in Rule 62 (3) of the Calcutta University First Ordinance 1966. It is not disputed before me that in coming to the finding of the guilty of the petitioner, it is incumbent on the part of the sub-committee to follow the principles of natural justice and Mr. Banerjee on behalf of the University contended that they have followed the said principle inasmuch as they have given the charge-sheet to the petitioners and heard them in defence. That is what is exactly needed, in the submission of Mr. Banerjee, under the statutory provision made under Rule 62 (3) of the said rules. In support of his contention Mr. Banerjee relied on the case reported in : 3SCR767 . The Supreme Court held as follows:.--
'In dealing with petitions of this type, it is necessary to bear in mind that educational institutions like the Universities or appellant No. 1 set up Enquiry Committees to deal with the problem posed by the adoption of unfair means by candidates, and normally it is within the jurisdiction of such domestic Tribunals to decide all relevant questions in the light of the evidence adduced before them. In the matter of the adoption of unfair means, direct evidence may sometimes be available, but cases may arise where direct evidence is not available and the question will have to be considered in the light of probabilities and circumstantial evidence. This problem which educational institutions have to face from time to time is a serious problem and unless there is justification to do so, Courts should be slow to interfere with the decisions of domestic Tribunals appointed by educational bodies like the Universities. In dealing with the validity of the impugned orders passed by University under Article 226, the High Court is not sitting in appeal over the decision in question, its jurisdiction is limited and though it is true that if the impugned order is not supported by any evidence at all, the High Court would be justified to quash that order. But the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify the said conclusion. Enquiry held by domestic Tribunals in such cases must, no doubt, be fair and students against whom charges are framed must be given adequate opportunities to defend themselves, and in holding such enquiries, the Tribunals must scrupulously follow rules of natural justice; but it would, we think, not be reasonable to import into these enquiries all considerations which govern criminal trials in ordinary Courts of law.'
Therefore, the Supreme Court has held that in the enquiry held by the domestic Tribunals the students against whom, the charges are framed must be given an adequate opportunity to defend themselves and in holding such enquiries the Tribunals must scrupulously follow the principle of natural justice. We are now to see whether that has been followed in the present case. In my opinion, on consideration of the records of the case, and the affidavits filed, it is quite clear to me that there was clear violation of the principles of natural justice. It appears that the report of the Enquiry Officer was considered by the sub-committee. The Examination of the Head Master and one Mr. M. N. Roy was heard behind the back of the petitioners and the petitioners were not given any opportunity of testing their evidence by cross-examination of those witnesses. It is stated in the joint affidavit filed by Mrs. Mira Dutta Gupta, Sri Kiron Chandra Choudhury and Paresh Chandra Bhattacharyya that the Head Master and one M. R. Dey were examined on 27th November, 1968 and it is nowhere stated that these gentlemen were produced for cross-examination by the petitioners. It appears to me that it cannot be said in the circumstances of the case that the petitioner had opportunity to defend himself . It is now well settled that the rules of natural justice require that if any evidence or statement is considered against the petitioner, the petitioner must be given the opportunity of cross-examining the person who made the statement against the petitioner behind his back. This principle has been held by the Supreme Court in : (1964)ILLJ24SC as follows:--
'The person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the examination of the witness will in its entirety take place before the party charge-ed, 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.... 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.'
If that is the position in law, it cannot be doubted in the facts of the present case, that the principle of natural justice has not been followed. In so far as the chargesheet is concerned, I am however, of the opinion that there is nothing wrong in the charge-sheet and the charge-sheet cannot be said to be vague because it is not stated from which book the petitioner copied. In the Supreme Court decision reported in : 3SCR767 , it is stated in page 878, as quoted above that in cases of adoption of unfair means by the candidates, the question will have to be considered in the light of probabilities and circumstantial evidence. In that view of the matter it cannot be said that the charge-sheet is vague as alleged.
6. Mr. Banerjee on behalf of the respondent relied on the decisions, : AIR1967SC122 and : 1SCR1287 . It is argued by Mr. Banerjee that they have followed the statute itself and therefore, there cannot be any violation of the principles of natural justice. In my opinion the first case arose out of Commission of Enquiries Act of 1952 and the second in the Assam Excise Act and not a matter concerning the University students. The case reported in : 3SCR767 is a case regarding a student who had taken an unfair means in the examination hall and applies on all force in this case. In my opinion it must be held that in the matter like this the principle of natural justice should be scrupulously followed.
7. In that view of the matter this rule must be made absolute and the order of debarring the petitioner from appearing in the B. A. Part I examination for the years 1969 and 1970 must be quashed. I have no doubt in my mind that the allegations made against the petitioner are quite serious and has, in fact, of late grown as a serious problem in the field of education and must be stamped out. But in the facts of this case the impugned order cannot be sustained and it must be set aside. Liberty is given to the respondents to proceed again in accordance with law, on the basis of the charge-sheet issued against the petitioner if they are so minded. It is for the Respondents to consider whether they will proceed again, in view of the fact that the petitioner has already lost one year.
8. The Rule is therefore, made absolute. A writ in the nature of certiorari and mandamus be issued accordingly. There will be no order as to costs.