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Madhu Kumar Vs. Himachal Pradesh University - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petition No. 43 of 1972
Judge
Reported inAIR1973HP94
ActsConstitution of India - Atricle 226
AppellantMadhu Kumar
RespondentHimachal Pradesh University
Appellant Advocate B.B. Vaid, Adv.
Respondent Advocate Inder Singh, Adv.
DispositionPetition allowed
Excerpt:
- .....discipline committee was not served on him. it is also urged that the statement contained in his father's letter sent to the committee in response to the notice cannot be treated as the petitioner's reply to that notice it is further submitted that on receipt of the letter of the petitioner's father, which intimated that the petitioner was at bombay, the committee should have directed the issue of a notice to him at bombay.4. i have heard learned counsel for the parties. the notice issued to the petitioner to reply to the charge and to appear before the committee must have been sent to the address maintained in the records as the address of the petitioner. the notice was therefore rightly directed to that address. the authorities cannot be expected to have been aware that the.....
Judgment:

R.S. Pathak, C.J.

1. The petitioner prays for relief under Article 226 of the Constitution against an order of the Himachal Pradesh University disqualifying him from appearing at any University examination for two years.

2. The petitioner appeared at the Pre-Medical examination for the year 1971 conducted by the Hirnachal Pradesh University. On April 28. 1971 he sat for paper A in Biology. According to the petitioner he completed the paper and handed over the answer book to the supervisory staff in the examination hall. The case of the respondents is that the petitioner took the answer book away with him and destroyed it leaving merely the title page in his possession. It is said that he was summoned to the College office and his father, Shri Kripal Datta Bhagra. was also sent for. It is alleged by the respondents thai; the petitioner made a statement in the office before the College Principal and the Supervisory staff admitting that he had destroyed the answer book and that only the title page was available, and the petitioner's father also made a statement expressing the belief that the petitioner was responsible for the destruction of the answer book. The petitioner pleads that the statements made by him and his father were made at the dictation of the College authorities, who were trying to shield the Supervisory Staff from the consequences of the loss of the answer book which had in fact been surreptitiously removed from their custody by another student Satinder Mohan in order to create difficulties for them. The petitioner urges that he did not take the answer book away from the examination hall and that the statement recorded before the Principal was made by him under coercion. Thereafter, it appears, proceedings were taken for holding, an enquiry into the matter and a notice was issued to the petitioner to appear before the Examination Discipline Committee on July 14. 1971. The petitioner was then in Bombay. The notice was received by the petitioner's father. It seems that the notice was not forwarded by the father to the petitioner, and the father took it upon himself to reply to the notice. In his reply, the father stated that the paper in Biology was so difficult that the petitioner could not, answer it and in the belief that he was in any event failing in the paper he took the answer book away with him without realising that he was thereby acting in violation of the University Rules. The petitioner's father volunteered to appear in place of the petitioner before the Examination Discipline Committee. The Committee took into account the reports of the Supervisory staff, the statements of the petitioner and his father recorded in the office, and the explanation attempted by the father in response to the notice. It seems that the petitioner's father also appeared before the Committee and the material relied upon by the University was placed before him. It is said that he was given an opportunity to plead on behalf of his son and answer the charge. It is not known whether the petitioner's father availed of that opportunity, and if so, what statement was made by him. On July 16, 1971. the Committee held the petitioner guilty under Regulation 15 (d) of the Regulations 'Use of Unfair Means' of the Punjab University Calendar, Vol. 1, 1970 and disqualified him for a period of two years including that in which he had been found guilty. The order was conveyed to the petitioner by a letter dated September 3. 1971. The petitioner now challenges that order.

3. The principal contention of the petitioner is that the impugned order was made in breach of the principles of natural justice. The notice informing him of the charge and giving him an oppotu-nity to appear before the Examination Discipline Committee was not served on him. It is also urged that the statement contained in his father's letter sent to the Committee in response to the notice cannot be treated as the petitioner's reply to that notice It is further submitted that on receipt of the letter of the petitioner's father, which intimated that the petitioner was at Bombay, the Committee should have directed the issue of a notice to him at Bombay.

4. I have heard learned counsel for the parties. The notice issued to the petitioner to reply to the charge and to appear before the Committee must have been sent to the address maintained in the records as the address of the petitioner. The notice was therefore rightly directed to that address. The authorities cannot be expected to have been aware that the petitioner had meanwhile left for Bombay. The notice was received by the petitioner's father as apparently they were residing together. It must be taken that it was received by the petitioner, having regard to the close relationship between the two and the implied authority in the father to receive the communication. The petitioner's father shouldhave forwarded the notice to the petitioner to enable him to comply with it, but it does not appear that he did so. Instead, he took upon himself the onus of replying to the notice. He attempted to exDlain the position in his letter da tec March 5. 1971. He also stated that it, was not possible foi the petitioner to appear in person before the Committee on the date fixed in that behalf The explanation in the letter was acted upon by his Committee. And it is here that the Committee erred. It appeared from the letter that it was not possible for the petitioner to appear before the Committee on the date fixed. The Committee should have directed the issue of a fresh notice to the petitioner fixing another date for his appearance, after satisfying itself that in fact it was not possible for the petitioner to appear on the date originally fixed. Also, the Committee should not have relied upon the explanation attempted by the father. It is not possible to assume that the petitioner would have tendered the same explanation as that attempted by the father. It is urged for the respondents that the petitioner had already confessed to his misconduct in the statement recorded earlier in the College office. In my opinion, that statement cannot be pressed into service as a Statement made before the Committee At best it can be employed for the purpose of checking on the credibility of any explanation tendered by the petitioner before the Committee or as material relating to the petitioner's conduct. It cannot be taken by itself as concluding the guilt of the petitioner so far as the Committee is concerned. It was always open to the petitioner to explain the circumstances in which he made the confession contained in the statement The explanation of the petitioner's father in the letter of July 5, 1971 would properly amount merely to an appreciation of the situation as understood by him. The Committee was not concerned with that. It was concerned with the case which would have been taken by the petitioner in reply to the notice, had the petitioner been in a position to do so. It was possible that the petitioner could take an entirely different position and submit a wholly different explanation. As I have observed, whether the explanation by the petitioner would be sustainable would fall to be determined by reference to all the facts and circumstances of the case, including the statements of the petitioner and his father made in the College office earlier. I am clear in the view that the Committee could not act upon the explanation tendered by the petitioner's father. Having regard to all the circumstances. I hold that the decision of the Committee is liable to be quashed.

5. It is pointed out on behalf of the respondents that nowhere in the writ petition has the petitioner disowned the explanation attempted by his father. It seems to me that having regard to the entire tenor of the case set up in the writ petition it must be taken that the petitioner does not adopt the explanation tendered by his father.

6. Then, it is urged that the petitioner should have had recourse to the alternative remedy by way of appeal or review before the Vice Chancellor of the University. As to that, it is settled law that relief under Article 226 of the Constitution should not be denied to a petitioner, who complains of a breach of the principles of natural justice, on the ground that an alternative remedy is available to him

7. Accordingly, the writ petition is allowed. The order dated July 16, 1971of the Examination Discipline Committee conveyed to the petitioner by the letter dated September 3, 1971 is quashed. It will be open to the respondents to take fresh proceedings in the matter against the petitioner. In the circumstances of the case, there is no order as to costs.


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