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1966 DIGILAW 16 (MP)

Rikhabchand Jain v. Jiwaji University

1966-02-01

P.V.DIXIT, R.J.BHAVE

body1966
ORDER Dixit, C. J.— 1. By this application under Article 226 of the Constitution, the petitioner questions the legality of an order of the Jiwaji University, Gwalior, cancelling his result of the Second Year Engineering Examination of the University for the year 1965 and debarring him from appearing at the Examination in the year 1966. The applicant seeks a writ of certiorari for quashing this determination of the University, and also prays that a direction be issued to the respondents to declare his result for the 1965 examination. 2. The applicant appeared as a student of the Madhav Engineering College, Gwalior, at the Second Year Engineering Examination of the University held in May 1965. On 6th May 1965, while he was answering Chemistry Paper, the invigilator found the applicant putting his hand too often in a pocket of the garment which he was wearing. The invigilator, therefore, became suspicious and took a search of the petitioner and found in his pocket four slips of paper. The answer-book, which was then with the applicant, was taken away from him and a new answer-book was given to him for answering the questions within the fifty minutes that were left after the search. The matter of the recovery of four slips was reported by the Superintendent of Examinations to the University. Along with his report, the Superintendent also forwarded the statement that he had recorded of the petitioner as regards the existence of slips of paper in his pocket. In that statement, the petitioner admitted that the four slips were recovered from his possession; that he had brought them in the Examination Hall by mistake; but that he did not make any use of them for answering questions in the Chemistry paper. In the statement he also prayed that he should be excused for the lapse. The Results Committee constituted by the University under Ordinance No. 32 of the Vikram University Ordinances, adopted by the Jiwaji University, then considered whether the petitioner had used or attempted to use unfair means at the examination, and on the basis of the reports of the invigilator, the Superintendent of Examinations and the examiner made a recommendation to the Executive Council that the petitioner's examination for 1965 should be cancelled and that he should be debarred from appearing at the 1966 examination. Two of the three members of the Results Committee expressed the view that "as the Examiner has not categorically stated that the candidate made use of the four chits found in his possession, only the examination of 1965 may be cancelled". The third member said that "since the examiner has observed that 'It seems that slips were only supporting in the event of his (candidate's) forgetting anything', no punishment is called for". The Examiner in the Chemistry Paper had reported- "Chit No.4 is of some other subject.........In view of the answers given in his second answer book, it seems that these chits were only supporting in the event of his forgetting anything. I, therefore, recommend only this examination may be cancelled." In his further report the Examiner stated that"— The candidate could copy only two equations in Question No.9 from contraband chit No.2. If he got opportunity he could use No.1 and 3 also. Chit No.4 is of some other subject." 3. Shri Dabir, learned counsel appearing for the petitioner, urged that under clause 10 of Ordinance No. 16 the Executive Council could debar a candidate from appearing at an examination of the University for one or more years if he was found guilty of using or attempting to use unfair means at the examination or on a report being made that any candidate or candidates had copie either from some books or notes or from the answers of another candidate or in any other manner; that the results Committee had not found the petitioner guilty either of using or attempting to use unfair means at the examination or of copying, but that it only found that he was in possession of "four slips of paper"; that the possession of these articles only amounted to 'preparation' and not an 'attempt' to use unfair means; and that consequently on the findings reached by the Results Committee itself no act of the petitioner had been established empowering the Executive Council to impose on the applicant the punishment of cancelling his result for the 1965 examination and excluding him from the 1966 examination. 4. We are unable to accept this contention. 4. We are unable to accept this contention. It is no doubt true that under clause 10 of Ordinance No. 16 the Executive Council has no power to debar a candidate from appearing at any examination of the University merely on the ground that he has made preparation for using unfair means at an examination. The distinction between 'preparation' and 'attempt' is well-known. 'Preparation' consists in devising or arranging the means or measures necessary for the commission of an act. It differs from 'attempt', which is the direct step towards the commission of the act after preparation has teen made. But between 'preparation' and 'attempt' the difference is only of degree, and it is always a question of fact whether a certain act is merely one of preparation or one committed in the course of the attempt. Now, here, the invigilator did not report that he actually saw the petitioner using the "chits" which were in his possession or that he was about to make use of them but that he could not because of his (invigilator's) intervention. The invigilator only said that he became suspicious when he found that the applicant was too often putting his hand in his pocket. But it is not correct to say that the Examiner or the two members of the Results Committee did not form the opinion that the petitioner had made use of 'one of the chits' in answering the question-paper. When the two reports submitted by the Examiner are read together, along with his recommendation that the petitioner's examination for 1965 should be cancelled, there can be no doubt that the Examiner came to the conclusion that the applicant copie two equations from "Chit No.2" and that if he had had the opportunity, he would have used "chits Nos. 1 and 3 also". The recommendation of the two members of the Results Committee that the petitioner's result for the 1965 examination should be cancelled also proceeded on the basis that the petitioner had made use of some of the chits found in his possession. Their opinion that "as the examiner has not categorically stated that the candidate made use of the four chits found in his possession" is not an opinion saying that the petitioner had not made any use of any of the chits found with him. Their opinion that "as the examiner has not categorically stated that the candidate made use of the four chits found in his possession" is not an opinion saying that the petitioner had not made any use of any of the chits found with him. By this opinion, what the two members desired to say was that the Examiner has not in explicit terms said that the petitioner had made the use of all the four chits. This is quite different from saying that the Examiner had reported that the petitioner had not made use any of the chits which were found with him. On this material and the opinion expressed by the Examiner and the Results Committee, the Executive-Council was competent to form its own view of the matter, as under clause 10 of Ordinance No. 16 it is the Executive Council which is empowered to debar a candidate from appearing at any examination of the University. It cannot, therefore, be urged that there was no material whatsoever before the Executive Council to support the action taken against the applicant cancelling his result for the 1965 examination and debarring him from 1966 examination. 5. The petitioner cannot also complaint that the respondents took punitive action against him without giving him an opportunity of hearing. It is no doubt true that the Executive Council and the Results Committee must follow the rules of natural justice while dealing with the matter of use or attempt to use unfair means at an examination by any candidate, and must give him a reasonable .opportunity of hearing. But the Jiwaji University Act or the Ordinances governing the University nowhere prescribe any particular procedure to be followed by the University authorities in taking action under clause 10 of Ordinance No. 16. The University is, therefore, competent to devise its own procedure; fulfilling the requirements of natural justice, as has been pointed out by this Court in Abdul Haque Vs. The Board of Secondary Education Bhopal, 1966 JLJ 629 = 1966 MPLJ 439 and by the Supreme Court in Board of High School and Intermediate Examination Vs. Ghanshyam, AIR 1962 SC 111, and Board of High School and Intermediate Education U. P. Vs. Bagleshwar Prasad, 1963 All. LJ 676; (1963) II SCJ 651. The Board of Secondary Education Bhopal, 1966 JLJ 629 = 1966 MPLJ 439 and by the Supreme Court in Board of High School and Intermediate Examination Vs. Ghanshyam, AIR 1962 SC 111, and Board of High School and Intermediate Education U. P. Vs. Bagleshwar Prasad, 1963 All. LJ 676; (1963) II SCJ 651. Now, here, there was no question of holding any enquiry whether the four chits were recovered from the petitioner's possession while he was answering the Chemistry question paper. They were actually recovered by the invigilator, and in his statement before the Superintendent of Examinations the petitioner admitted that those chits were with him and that he had brought them in the Examination Hall through mistake. There was of course no direct evidence to show whether the petitioner did make use of those chits or attempted to Use them. But as pointed out by the Supreme Court in Board of High School and Intermediate Education U. P. Vs. Bagleshwar Prasad (supra), direct evidence in such matters is not necessary and should not be expected. It was observed in that case that— "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." The question whether the petitioner did or did not use any of the slips of paper or attempted to use them is one of inference to be drawn from the recovery of the slips, their contents, and the answers recorded by the petitioner in the answer-book Such an inference would no doubt be an inference of fact, and the competent authority to draw the proper inference is clearly the Executive Council. The rules of natural justice only contemplate that no material should be used against the delinquent candidate before giving him an opportunity to explain it. The candidate cannot clearly claim that he is entitled to an opportunity of hearing even at the stage when the competent authority proceeds to draw an appropriate inference from the material to explain which the candidate had been given adequate opportunity. The candidate cannot clearly claim that he is entitled to an opportunity of hearing even at the stage when the competent authority proceeds to draw an appropriate inference from the material to explain which the candidate had been given adequate opportunity. In the present case, the petitioner cannot complain that he was not given any opportunity to give his explanation with regard to chits on which the respondents based the action taken against him when he admitted the recovery of the chits from his possession and only offered the explanation that they had been brought by him at the Examination Hall through some mistake. 6. In our opinion, there is no ground whatsoever for quashing the determination of the University authorities in cancelling the petitioner's result for 1965-examination and debarring him from 1966-examination. This application is, therefore, dismissed with costs. Counsel's fee is fixed at Rs. 100. The outstanding amount of security deposit, if any, after deduction of costs, shall be refunded to the petitioner.