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Balwinder Singh and ors. Vs. University of Jammu and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtJammu and Kashmir High Court
Decided On
Case NumberWrit Petn. No. 349 of 1981
Judge
Reported inAIR1983J& K19
ActsConstitution of India - Articles 14 and 226; ;Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 1; ;Jammu and Kashmir University Act, 2005 Smvt. - Section 26
AppellantBalwinder Singh and ors.
RespondentUniversity of Jammu and ors.
Appellant Advocate Bhim Singh and Joginder Singh
Respondent Advocate T.S. Thakur, Adv.
DispositionPetition allowed
Cases ReferredKraipak v. Union of India
Excerpt:
- orderi.k. kotwal, j.1. by virtue of this writ petition, the petitioners seek to challenge notification dated 28-10-1981, issued by the university of jammu, imposing punishment of cancelling their b. a. final examination for the year 1981 in all the papers and further disqualifying them from appearing in and passing any university examination for a period of one year. they have also challenged notice dated 4-6-1981, calling upon them to submit their explanation to the charge and to appear before the sub-committee/ competent authority constituted for the purpose of holding an enquiry into the aforesaid charge.2. briefly stated, the petitioners' case is : that they were students of m. a. m. college, jammu, and had appeared in b. a. (final) examination in the year 1981, their examination.....
Judgment:
ORDER

I.K. Kotwal, J.

1. By virtue of this writ petition, the petitioners seek to challenge notification dated 28-10-1981, issued by the University of Jammu, imposing punishment of cancelling their B. A. final examination for the year 1981 in all the papers and further disqualifying them from appearing in and passing any University examination for a period of one year. They have also challenged notice dated 4-6-1981, calling upon them to submit their explanation to the charge and to appear before the Sub-Committee/ Competent Authority constituted for the purpose of holding an enquiry into the aforesaid charge.

2. Briefly stated, the petitioners' case is : that they were students of M. A. M. College, Jammu, and had appeared in B. A. (final) examination in the year 1981, their examination centre being M. A. M. College itself. On 1-6-1981 a general but peaceful walk out was staged by the examinees of the M. A. M. College centre, the reason being that the General English Paper (B) had been set out of syllabus. Stiffness of the paper invoked general indignation and resentment amongst almost all the examinees as a consequence whereof there was a similar walk out from other centres also. Career of so many students having been imperilled, a committee of prominant citizens and University authorities was formed to evolve ways and means to redress the wrong done to the students. This Committee took a decision that fresh examination in the paper will be held by the University for which the examinees shall have to pay the penalty of paying extra money. The petitioners also paid Rs. 60/- each and look the examination. Their result was, however, withheld for the reason that they had committed misconduct or used unfair means during the previous examination. They were chosen for hostile discrimination at the behest of the State Government, because they had been spearheading the common cause of the student community against Government's discriminatory, nepotic and corrupt conduct in granting admissions to professional institutions. The petitioners were on the other hand served with a notice dated 4-6-1981 requiring them to file their written explanation to the charge stated therein and to appear before the Sub-Committee/Competent Authority which was to make enquiry into the charge. This notice was served on them not before 7-6-1981, even though they were required to submit the written explanation by 8-6-1981. The petitioners appeared before the Sub-Committee hut no explanation was sought from them. The petitioners challenged the aforesaid notice through the present writ petition, but before the Court could give its decision, the University passed another notification on 28-10-1981, imposing punishment on them. No witness during the enquiry was examined in their presence, nor were the petitioners allowed to cross-examine any such witness, and nor were they allowed to lead any evidence in defence. In the premises, they havechallenged the aforesaid notification on the grounds : firstly, that the petitioners had never gone to S. P. M. College centre; secondly, that the inquiry conducted and the punishment imposed was in clear breach of the relevant statutes; thirdly, that the impugned notifications were vitiated by mala fides and the petitioners were chosen for hostile discrimination; fourthly, that the inquiry held against them was violative of the principles of natural justice; and fifthly, that the petitioners having been already punished and fine imposed on them, they could not have been punished again by cancelling their examination and disqualifying them from appearing or passing any University examination for one year.

3. While not denying the allegations that the petitioners were not examinees at the S. P. M. Commerce College centre, but were taking examination at a different centre, the respondents have averred that they did cry hoarse and instigated the examinees to come out of examination hall besides pelting stones at the windows of the S. P. M. Commerce College building. They were correctly identified as the mischief mongers and properly dealt with under the statutes. The inquiry against them was no doubt entrusted to a Sub-Committee in the beginning but later on the charge against them having been found to be of a more serious nature, if was entrusted to the Competent Authority. They werp given full opportunity of tendering their written explanation and otherwise defending themselves. They were even asked to lead evidence in. defence but they declined to do so. Two out of them, namely, Balvinder Singh and Manmohan Singh even gave in writing that they had no evidence to produce in defence. There was no violation of the principles of natural justice. There might, have been some delay in sending the occurrence report by the Superintendent of S. P. M. Commerce College, Centre, but that in the circumstances of the case could not have been sent on the very same day, and in any case, mere delay in sending the said report could not vitiate the entire proceedings, as the statute under which if was required to be sent is declaratory rather than mandatory in character. The punishment imposed on the petitioner was strictly in accordance with the statute. The Competent Authority had made enquiries and there was no malice in any of the members of the Committee against the petitioners. The respondents have also raised preliminary objections to the maintainability of thewrit petition firstly, that a joint writ petition based upon different facts and causes of action is not competent; secondly, that the petitioners ought to have first exhausted the alternative remedy of appeal which was more efficacious; and thirdly, that the Competent Authority was not made a party to the writ petition even though it was a necessary party.

4. Before dealing with the merits of the writ petition, it is necessary to first dispose of the preliminary objections in regard to its maintainability. The C.P.C. applies to writ petitions of civil nature. Order 1, Rule 1 of the Code provides that all persons may be joined in one suit as plaintiffs, in whom a right to relief arising out of the same act or transaction exists, whether jointly, or severally, or in the alternative. The petitioners have been punished for the same incident, on the same allegations, and by the same order One writ petition by all of them is thus clearly maintainable.

5. The rule that the petitioner should exhaust the statutory alternative remedy of appeal etc. before filing the writ petition, even though a rule of self imposed limitation rather than a rule of law, the courts have yet refused to exercise discretion in favour of a petitioner who has not exhausted such alternative remedy which is equally efficacious. However, one of the exceptions to this rule is that the alternative remedy shall be no bar where the impugned order has been made in violation of the principles of natural justice. (S. Baburam Prakashchandra v. Antarim Zila Parishad, AIR 1969 SC 556), In the present case one of the grounds, rather the principal ground taken is that the impugned notification imposing punishment on the petitioners is violative of the principles of natural justice. Granting, therefore, that the petitioners had an alternative remedy of appeal under Statute 17, still the writ petition cannot be thrown out for this reason simpliciter.

6. True, the petitioners were found guilty by the Competent Authority which is not a Party to the writ petition, in that, its all members, namely, the Vice-Chancellor, the Pro-Vice-Chancellor, the three persons nominated by the Syndicate, the Dean of Faculty of Law, the Registrar and the Controller of Examinations-cum-member Secretary have not been impleaded as parties to it, nevertheless, none of them has been shown to be interested in contesting the writ petition, nor do the impugned notifications favour any one of them. These notifications have been issued by respondent No. 1 through respondent No. 5, both of whom have been made parties to the writ petition. Strictly speaking, out of all the respondents, respondent No. 1 alone is interested in contesting the writ petition. There is, therefore, no force in the third preliminary objection as well that the writ petition in the absence of the Competent Authority is not properly constituted. Overruling all the preliminary objections, I now proceed to deal with the other contentions raised in the writ petition.

7. It has been strenuously urged on their behalf that the petitioners had never visited S. P. M. Commerce College on 1-6-1981, nor had they cried hoarse to instigate the examinees at that centre to come out of the examination hall without answering the question paper, and nor had they pelted stones at the college building. They had been identified as the prominent miscreants with a design, for some of the University authorities who were not happy over their anti-Government stand of raising their voice against its decision in granting admissions to professional institutions, wanted to spoil their career at the behest of their superlords in the Government, whose henchmen they in fact were. This was, according to them, a clear case of hostile discrimination actuated by malice. Whether or not the petitioners had taken any part in the demonstration is a pure question of fact, which cannot be gone into in a writ petition. A court exercising its writ jurisdiction cannot disturb a finding of fact re-corded by the authority whose order has been assailed before it, unless it can ba shown that the finding is not based upon any evidence. The report of the Superintendent, a copy whereof has been enclosed as Annexure A to the respondents' counter-affidavit, clearly shows that the petitioners were vividly recognized by the Superintendent of the centre, because they had taken comparatively more active part in the melee. Their names and parentage were discovered by him by perusing the admission registers of M. A. M. College, of which they were the students. This is, therefore, a finding of fact which cannot be said to be based upon no evidence. It is accordingly binding on this court. This report further indicates that the Superintendent was able to recognize only the petitioners out of many such, and that too, because they had taken a comparatively more active part in the hooliganism. He could not, therefore, name any one else to enable the authorities to initiate disciplinary proceedings against him as well. The question of subjecting the petitioners alone to hostile discrimination in the circumstances of the case cannot thus arise, assuming that to meet the requirements of Article 14 of the Constitution, a similar action ought to have been taken against all those who had taken part in the demonstration. And equally baseless is the plea of mala fides. A party alleging mala fides has not only to set out full particulars thereof in its pleadings, but is further required to substantiate the same by supplying proof. There is nothing of the sort in the instant case. Neither the pleadings contain any particulars of the mala fides, nor is there any evidence to substantiate the same. All the aforesaid contentions, therefore, fail.

8. The other contention that the petitioners were punished twice is also fallacious and must be rejected. True, they had to pay Rs. 60/- each, but this amount they had to pay to meet the extra expenditure on holding fresh examination and not as a measure of punishment to attract the bar of double jeopardy.

9. This brings me to the next question of complying with the requirements of the Statutes in holding enquiry and imposing penalty, though in isolation from the allied question of observing therein the rules of natural justice. In order to appreciate the rival contentions of the parties in this behalf, it is necessary to first of all notice the scheme of the Statutes in such matters. Before the examination actually starts, the Officer-in-charge Examinations under Statute 2 is required to forewarn the examinees that they shall not have with them any book, paper or note. He is also authorised to search the person of a suspect. In case he discovers or even suspects any misconduct or use of unfair means by any examinee. Statute 3 enjoins upon him to make a report of it to the Controller of Examinations without delay and on the day of occurrence itself, containing full details of evidence and explanation of the concerned examinee in case the latter is willing to tender it. If a candidate is caught copying, he shall not be prevented from answering the remaining part of the question paper on a separate answer book, but his suspectr ed answer book shall foe seized by the officer. Statute 4 defines the various types of misconduct and unfair means and Statute 5 provides as to what would be the punishment for these. Clauses (a) to (d) of Statute 5 contain the procedure for holding enquiry against a delinquent Since these clauses are inextricably inter-connected with Clause (a) of Statute 3 and have been the subject matter of the entire polemics, the same are reproduced in verbatim as below :

'3. (a) The 'Officer-in-charge Examinations' shall report to the Controller of Examinations without delay and on the day of occurrence each case where use of unfair means/misconduct in the examination is suspected or discovered, with full details of evidence and explanation of the candidate concerned on the term (Annexure) supplied by the Controller of Examination for the purpose;

x x x xx x x x x

5. In all cases in which the alleged misconduct/unfair means of the candidates is for the first time during the course of the examination or examinations taken by him in the University, the following procedure shall be adopted:--

(a) An officer of the University authorised by the Controller of Examinations in this behalf shall, within 10 days after the receipt of the report of the Officer-in-charge, send a notice to the candidate to present himself before any Sub-Committee and he shall be asked to defend himself by submitting a written explanation on or before the date fixed for the hearing. The candidate shall also be supplied with the gist of the report of the Supervisory staff along with the notice. If, for reasons to be recorded in writing, it is not possible to fix the date of hearing within 10 days, the Controller of Examinations may fix the date of hearing within one month after the date of receipt of the report of the Officer-in-charge.

(b) Papers connected with the case including the report of the Supervisory staff and written explanation of the candidate, if any, shall be placed before the 'Sub-Committee' by the Officer authorised in this behalf by the Controller of Examinations.

(c) The 'Sub-Committee' shall afford an opportunity to the candidate of being heard in person on the date fixed for hearing in accordance with Statute 5 (a),

(d) On consideration of the record of the case if the Sub-Committee is satisfied that the candidate has committed misconduct/unfair means it shall disqualify him from passing or from appearing at all University examinations for a period of one year;

Provided that if 'he Sub-Committee is of the opinion that the candidate is re-pentful and willing to sign an undertaking that he shall not repeat the misconduct/unfair means in any examination it may impose punishment designed in Column-B for unfair means/misconduct of the nature described in Column-A below.'

10. The other Statutes, except 15. 16 and 17, are not of much relevance for the present discussion to require a keen observation. Whereas Statute 15 makes provision for dealing with a person who is not a candidate for any University examination, Statute 16 gives the constitution of the Competent Authority, and Statute 17 confers right of appeal on the examinee, who has been found guilty for misconduct or using unfair means by either the Sub-Committee or the Competent Authority.

11. The petitioners' contention in regard to breach of the Statutes is twofold. Firstly, it has been urged that since the petitioners were not examinees at S. P. M. College centre, no action could have been taken against them under Statute 5, 'Candidate' in terms of the Statute, argued Mr. Bhim Singh, means and includes only the examinee at the particular centre where the misconduct is alleged to have been committed, or the unfair means used. I find no force in this argument. The expression 'candidate' has been defined by Clause (b) of Statute 1 to mean a person appearing or claiming to appear in 'an examination' and the expression 'examination' has been defined by Clause (a) to mean an examination held by the University. What is, therefore, required is that the examinee sought to be proceeded against should be merely an examinee in the particular session of the University examinations, and not that he must also be an examinee at the particular centre where the misconduct or the unfair means are alleged to have taken place.

The petitioners had admittedly appeared in an examination held by the University of Jammu even though their centre was M.A.M. College. They were thus candidates within the meaning of Statute 5 and action could have been taken against them under it.

12. The Second limb of the argument is that since the Superintendent of S. P. M. Commerce College centre did not send the report on the day of the occurrence itself in terms of Clause (a) of Statute 3 the entire proceedings culminating into the order of punishment, stood vitiated, as the Statute on its plain language was mandatory in character. This argument, even though a little attractive, is yet untenable. The occurrence took place on 1-6-1981. The petitioners were not personally known to the Superintendent who had on that day merely recognized them and had found out their identity only on the day following by perusing the admission registers containing their particulars and photographs. It was not possible for him to leave the examination hall on that day in search of their particulars, and he could do so only on the next, day. The report was drafted on 2-6-1981 and was undoubtedly sent with reason able despatch to the concerned officer, which reached him on 3-6-1981. No fault could, therefore, be found with the enquiry, merely because the occurrence report was not sent by the Superintendent on the day of the occurrence itself. The Statute did not enjoin upon him to do something that was not humanly possible. Lex non cogit a impossibilia i.e. law forces not to impossibilities. This Statute appears to be merely directory in nature, for no penal consequences can flow from its ' non-observance. Furthermore, enquiries by educational bodies cannot be equated with proceedings under preventive detention laws, which deal with personal liberty of the citizens, wherein even a slight departure from the embodied law may render the detention illegal. Clause (a) of Statute 3 is no doubt required to be observed both in letter and spirit, but failure to do so will not vitiate the entire proceedings, unless such failure is traceable to bias, or it otherwise materially affects the outcome of the enquiry.

13. This brings me to the last and the most important ground of challenge, viz. failure to observe the rules of natural justice. Two questions immediately arise here for consideration. These are : whether rules of natural justice are applicable to domestic enquiries like the present one, and if so, what is the extent of their application to such enquiries? That enquiries into misconduct or use of unfair means held by educational bodies like Universities are quasi-judicial in nature to which rules of natural justice are attracted, and that such bodies can prescribe their own procedure for holding the enquiries, so long as the principles of natural justice are followed and adequate opportunity of presenting his case is given to the examinee, has been held at the highest level of judicial hierarchy in Board of High School and Intermediate Education v. Ghanshyam Dass Gupta, AIR 1962 SC 1110. What is the ambit and scope of maxim audi alteram partem was considered by the Supreme Court in Suresh Koshy George v. University of Kerala, AIR 1960 SC 198 wherein the following observations made by Lord Herman, J-in Byrne v. Kinematograph Renters Society Ltd., 1958-2 All ER 579 were quoted with approval :

'What, then, are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly that he should bo given an opportunity to state his case; and thirdly, of course, that the Tribunal should act in good faith. I do not think that there really is anything more.'

14. These observations make it abundantly clear that apart from the three requirements : that the person proceeded against should know the nature of the charge against him. that he should be given an opportunity to state his case and that the Tribunal should not be biased against him, there is no other requirement of the rules of natural justice. That the person accused must necessarily be given an opportunity to cross-examine a witness, or produce evidence in defence, or that he should be given a personal hearing, strictly speaking, are none of the requirements of these rules. A similar view was taken by a Full Bench of the Allahabad High Court in Triambak Pati Tripathi v. Board of High School and Intermediate Education, AIR 1973 All 1 and by a Full Bench of the Orissa High Court in Pramila Dei v. Secretary, Board of Secondary Education, AIR 1972 Orissa 224. The following observations made in the Orissa case may be quoted with some advantage (at pp. 228-29):--

'The next question for consideration is whether the enquiring authority has any further duty in the matter of enquiry after charges are supplied, explanation is obtained and it listens to the parties in good faith. In other words, is it bound to follow any other requirements besides the aforesaid three elements? Clearly the enquiry is not in the nature of oath unless there is a codified rule to that effect It need not examine any witness. It can obtain information in any way it thinks best; but if the information is so obtained the examinee must be given fair opportunity of correcting or contradicting any relevant statement prejudicial to his views. If follows as a necessary corollary that if the examinee wants any material to be produced or to cross-examine any witness, then the authority must make those materials or witness available. The authority has, however, no duty to suo motu examine oral evidence or give opportunity for cross-examination. If the delinquent as a part of his defence demands that witnesses reporting against him are to be cross-examined by him, refusal thereof would amount to denial of reasonable opportunity.'

Their Lordships further observed (at p. 229):--

'As has already been indicated, charges of accusations along with the statement of particulars on which they are-based are to be furnished to the delinquent. If the delinquent is of opinion that before furnishing explanation he is to look into some materials he must ask for the same. If he does not complain of the vagueness of the charge before submission of explanation, his subsequent plea that the charge was vague is not available when the accusations are said to have been established.' (Also see Narendra Narain Misra v. Vice-Chancellor, AIR 1975 All 290, State of Assam v. Gauhati Municipal Board, AIR 1967 SC 1398, and Union of India v. Jyoti Prakash Witter, AIR 1971 SC 1093).

15. What exactly then we mean when we say that the delinquent should know the nature of the charge against him is the next question to be answered here. Does it mean merely conveying to him the bare allegations constituting the charge, or does it mean something more than that? Courts have taken the view, and with respects rightly so, that charge includes all the material on which it is founded, so that the delinquent may have an opportunity of explaining it and putting forth his own version or to put it the other way round 'of correcting or contradicting any relevant statement prejudicial to his views,' for unless he knows the material on which the charge is based, he can neither explain it, nor can he produce any evidence in defence, as such evidence has relation to the material that tends to incriminate him. As observed by the Full Bench in Triambak Pati Tripathi v. Board of High School & Intermediate Education, AIR 1973 All 1 : 'In our opinion the first two principles necessarily imply that the person proceeded against must be informed about the material on the basis of which the allegations made against him are founded so that he may have an opportunity of explaining them and putting forward and substantiating his own version.' (Also see Ahamad Kabir v Principal, Medical College, AIR 1967 Ker 121). The delinquent has not only to be told as to what exactly are the allegations against him, he has also to be told as to what material is going to be used against him to prove these allegations. This becomes a fortiori necessary, keeping in view the fact that rules of natural justice do not postulate any right in the delinquent to cross-examine the witnesses, or to produce his own evidence or to be heard in person. The enquiry committee is at liberty to use any type of evidence against him whether direct or circumstantial, oral or documentary. Unless, therefore, he knows as to what material is going to be used against him, he is likely to be handicapped in putting forth his explanation and proving his innocence. After all how can he exercise his option to cross-examine a person or produce any evidence in defence, unless he knows who has reported or deposed against him or what are the incriminating circumstances against him. The conclusion is thus inescapable that a delinquent cannot be said to have had the knowledge of the charge, unless he not only knows the allegations against him, but also knows the material that is going to be used to substantiate these allegations.

16. In the present case, as already noticed, we have embodied rules which lay down the procedure for holding enquiries into misconduct and unfair means. In what manner and to what extent these rules will apply to such enquiries, is the ether question which falls for determination at this stage. Dealing generally with this question, their Lordships in Union of India v. J. N. Sinha, AIR 1971 SC 40 observed as under (Para 7) :--

'.....As observed by this court in Kraipak v. Union of India, AIR 1970 SC 150, 'the aim of rules of natural justice is to secure justice and to put it negatively to prevent miscarriage f justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it'. It is true that if a statutory provision can be read consistently with the principles of natural justice, the Courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But, if on the other hand, a statutory provision either specifically or by necessary implication excludes the application of any or all the rules or principles of natural justice the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the na-ture of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power.'

17. This question had arisen even earlier in more or less a similar case viz : Board of High School and Intermediate Education v Bagleshwar Prasad, AIR 1966 SC 875 and was disposed of by Gajendragadkar J. fas he then was) in these words (at P. 878) :--

'In dealing with petitions of this type it is necessary to bear in mind thai 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 Universities 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. Enquiries 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. In the present case, no animus is suggested and no mala fides have been pleaded. The enquiry has been fair and the respondent has had an opportunity of making his defence. That being so, we think the High Court was not justified in interfering with the order passed against the respondent.'

18. Clause (a) of Statute 3 requires the Officer-in-charge examinations to submit his report in regard to misconduct or unfair means committed or used by an examinee, as far as possible, on the same day along with the explanation of the examinee, if any, and full details of the evidence available in the case. This furnishes the basis of the enquiry against the delinquent. After this report is received, a notice in terms of Clause (a) of Statute 5 has to go as far as possible, within ten days thereafter, or at the most within one month to the delinquent to submit his written explanation to the charge, with a view to defending himself, and to appear before the Sub-committee on the date fixed therein. The examinee shall also be supplied with the gist of the report of the supervisory staff along with the notice and shall also be entitled to personal hearing as ordained by Clause (c) of the Statute. This Statute, it is so obvious, does not speak of holding an enquiry by necessarily examining witnesses, nor does it speak of affording opportunity to the delinquent of cross-examining the witnesses. Or adducing his own evidence in defence. Reading these Statutes in the light of the law laid down in the aforesaid decisions dealing with the applicability of rules of natural justice to such enquiries, the following conclusions can be easily drawn 3

1. The Officer-in-charge Examinations shall submit the report of misconduct or unfair means along with the examinee's explanation, if any, on the date of occurrence itself. Failure on his part to send the report on the same day will not, however, vitiate the enquiry, unless such failure has materially affected the result of the enquiry.

2. After the report is received, the Officer authorised in this behalf shall send a notice to the examinee, stating therein the allegations constituting the charge together with the material sought to be relied upon to substantiate the same, and shall call upon him to submit his written explanation to it in his defence, and to appear before the Enquiry Committee. Failure on his part to do so shall vitiate the enquiry.

3. This notice shall be sent by him asfar as possible, within ten days fromthe receipt of the report. The first daleof hearing fixed before the EnquiryCommittee shall also be for any daywithin ten days from the receipt of thenotice, but if it is not possible to do so,it may be fixed for any day within onemonth from that date. If will not, however, be obligatory to conclude the enquiry within a period of one monthafter the report is received, thoughevery effort shall be made to concludeit as early as possible. Clause (a) of Statute 5, in so far as it relates to fixing ofthe period of notice, or of the date ofhearing before the Enquiry Committeebeing also directory in nature, its breachwill not, vitiate the enquiry, unless itcan be attributed to malice, or it hasotherwise materially affected the result;of the enquiry.

4. During the enquiry, the Enquiry Committee shall not be bound to examine any witness. It may base its finding on evidence, direct or circumstantial oral or documentary.

5. Where it proposes to examine any witness, it shall examine him in the presence of the examinee. It will not be, however, obligatory on its part to afford him an opportunity of cross-examining him unless he asks for it himself. In case he expresses his desire to cross-examine a witness or any other person whose statement is sought to be relied upon during the enquiry, the Enquiry Committee shall afford him an opportunity in that behalf and failure to do so on its part will vitiate the enquiry.

6. The examinee shall not be entitled to lead any evidence in defence unless he would specifically ask for it. He shall, however, have a right to be heard in person.

7. The Enquiry Committee shall be manned by persons who are not biased against the examinee.

19. The charge sheet served upon the petitioners reads as under :

'You went to the centre S.P.M. Rajput College of Commerce, Jammu, along with other students of M.A.M. College, Jammu and started crying hoarse asking the examinees of that centre to leave the examination hall and tear off their answer books. You also threw the stones on the window panes.

In this connection, you are hereby directed to send your written explanation to the undersigned on or before 8-6-1981. You are also required to present yourself before the Sub-Committee/ Competent Authority to explain your case and defend yourself. The date and time of the meeting of the Committee will be intimated to you in due course.'

20. The Competent Authority, as appears from the respondents' counter-affidavit, merely relied upon the report of the supervisory staff and did not examine any witness to hold the petitioners guilty. As no witness was examined during, the enquiry, no question of affording any opportunity to cross-examine the witnesses could consequently arise; the fact that the Enquiry Committee was not obliged to afford any such opportunity without being asked for notwithstanding. That apart, the petitioners have not stated anywhere that they had expressed their desire to cross-examine any person or to produce defence evidence; To this extent, therefore, no fault can be found with the enquiry.

21. Nevertheless, what was communicated to the petitioners was simply the allegations constituting the charge They were further entitled to know the material proposed to be relied upon for proving those allegations, for then and then alone it could be said that the charge was made known to them. This obligation shall have to be read in Clause fa) of Statute 5 to meet the minimal requirement of the principles of natural justice, even if the Statute is silent on it, for in its absence the Statute would be rendered obnoxious. There is neither any averment in the respondents' counter-affidavit, nor any proof that such material had ever been supplied to them. A copy of the report submitted by the Superintendent has been attached with the counter-affidavit. It contains a number of other material facts which appear to have been blacked out from the charge-sheet. Who reported the matter, who identified the petitioners and how they were identified, were all such material facts which ought to have been communicated to them, to enable them not only to give a complete and effective explanation to the charge, but also to enable them to decide as to whether or not to cross-examine any person out of the supervisory staff, or to examine any witness in defence. The statement in the countter-affi-davit that all the material against them was shown to the petitioners, does not inspire confidence. Evert otherwise also showing cannot tantamount to supplying which, in the context in which the expression is used, must mean supplying in writing. That being so as in fact it is, even the declaration made by petitioners Balwinder Singh and Manmohan Singh that they had no evidence to lead in defence, would be of no consequence, for the obvious reason that unless they knew as to what really they had to meet, they could not have imagined as to what sort of evidence they would require to lead in defence.

22. I am conscious of the day to day problems which educational institutions have to face these days. By and large the students these days believe more in misconduct and the use of unfair means, than in hard work in achieving success in examinations. Mid-night oil burners are always at the mercy of mid-day cinema goers. Those who do not work hard but possess mischief value, carry the day. They create hooliganism, force walk-outs, and do not permit even the hard working students who have no difficulty in answering the question paper, whenever they want to do so little realising that prodigies and not rowdies can make a nation. There also appears to be some truth in the allegation that students who are talented but resource-less, are by and large a poor lot these days. They are either excelled by mediocres by sheer use of unfair means during academic examinations, or are let down at the viva voce for extraneous considerations. It is only truism that by losing the talent, we are losing the future. Be that as it may, but for the aforesaid omission in supplying the ma-ferial to the petitioners, I wander whether they would have deserved any leniency at the hands of the court. But, as the things stand, benefit of this omission has to go to them.

23. In the result, the petition succeeds, and is allowed accordingly. The impugned notifications in so far as these petitioners are concerned, are by a writ of certiorari quashed and respondent No. 1 is by a writ of mandamus directed to declare their result withheld by it; their future admission depending upon their result. Keeping in view the fact that the period of one year, for which the petitioners have been disqualified is about to expire, I do not think it would be just and proper, to order a fresh enquiry against them. No costs.


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