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1986 DIGILAW 86 (GUJ)

SANJAY MUKUNDRAI DESAI v. REGISTRAR,south GUJARAT UNIVERSITY

1986-04-23

P.R.GOKULAKRISHNAN, S.B.MAJMUDAR

body1986
P. R. GOKULAKRISHNAN, C. J. ( 1 ) THIS Letters Patent Appeal is against the order passed by the learned Single Judge of our High Court in Special Civil Application No. 1810 of 1986. In that Special Civil Application the main prayer is to quash the order at Annexure C to the main petition wherein the South Gujarat University has passed orders against the appellant herein stating that the appellant used unfair means at the University Examination held in September 1985 that the result of the examination is cancelled and that the appellant cannot be permitted to appear at the examination till the end of academic year 1985-86. The learned Single Judge of our High Court after referring to the elaborate arguments advanced by the learned counsel appearing for the appellant herein dismissed the petition at the admission stage itself. It is as against this order that the present Letters Patent Appeal has been filed. ( 2 ) THE short facts of this case are that the appellant wrote F. Y. B. Com. examination held by the South Gujarat University Surat in September 1985 The first paper was of English. During the examination hours the Supervisor found that the appellant-student was having a slip in his pocket. The matter was immediately complained to the authorities concerned and ultimately after following proper procedure the order Annexure C was passed. ( 3 ) MR. Shethna the learned counsel appearing for the appellant submits that the order passed by the University is without evidence and that such an order could not have been passed without giving an opportunity to the appellant to examine his witnesses. The learned counsel submitted that this is a case of no evidence on record to warrant the conclusion arrived at by the University. The learned counsel further submitted that no reasonable opportunity was given to the appellant and as such there is failure of the principle of natural justice. The third submission made by the learned counsel is that the punishment in any event is excessive. ( 4 ) WE have carefully gone through the facts of this case and also the oral order passed by the learned Single Judge. The third submission made by the learned counsel is that the punishment in any event is excessive. ( 4 ) WE have carefully gone through the facts of this case and also the oral order passed by the learned Single Judge. As soon as the appellant was accosted by the Supervisor on 2-9-1985 at the Examination Hall itself the student gave a confession in writing wherein he has stated that he had thee chit in his pocket but he has not copied from the same. The appellant has further stated that by mistake it remained in his pant pocket. There was an inquiry before the Disciplinary Committee. Even before that inquiry the appellant was given show cause notice. in the show cause notice which is dated 5 it has been specifically stated that at the time of the examination the chit related to the said subject was found from the appellant herein in the Examination Hall. The show cause notice further elaborates as to how that 1090 was found by the Supervisor concerned. In reply to this show cause notice the appellant inter alia has specifically stated that he had not taken any handwritten paper with him to the examination Hall. This reply by him is dated 12 On 27-12-1985 there is another confession made by the appellant before the Members of the Disciplinary Committee wherein the appellant after narrating certain facts has definitely admitted the possession of the said slip with him. In that statement it has been further stated by the appellant that he has already confessed by stating that the slip was found from him. Thus it is clear from the statements made by the appellant himself that he had in his possession the said slip at the time when he was checked by the Supervisor. The show cause notice makes it very clear that the said slip is in respect of the paper which he was writing on that day. There is absolutely no denial in respect of the same by the appellant herein in his explanation. Subsequent to this show cause notice reply and confessions made by the appellant the Disciplinary Committee held the inquiry in which the appellant was examined. The report of the Supervisor was also considered by the Disciplinary Committee. There is absolutely no denial in respect of the same by the appellant herein in his explanation. Subsequent to this show cause notice reply and confessions made by the appellant the Disciplinary Committee held the inquiry in which the appellant was examined. The report of the Supervisor was also considered by the Disciplinary Committee. Thus we are able to see that sufficient opportunity was given to the appellant and the Disciplinary Committee took into consideration the evidence of the appellant and also the report made by the Supervisor and then only it came to the conclusion that the charges levelled against the appellant were proved. Hence the Disciplinary Committee recommended for the necessary punishment to be awarded to the appellant herein. ( 5 ) MR. Shethna the learned counsel appearing for the appellant drew our attention to the decision in the case of Natvarbhai S. Makwana v. Union Bank of India and Others reported in 19234 Gujarat Law Herald 791. In that decision the learned Single Judge of our High Court observed as follows:"it may happen that the Bank authorities may bona fide believe that there is theft or misappropriation of bank money. The delinquent officer charged with misconduct of theft or misappropriation may be induced to confess the guilt for one reason or another-say informal understanding that he shall be dealt with leniently. Or that he himself might have been lost in the jungle of account books and he himself may not be sure as to whether he has committed any mistake or not. He may be on the verge of retirement and may be desirous to put an end to any such inquiry. He may not have resources to fight the case put against him. For any of these reasons or say on account of mere foolishness he may confess the misconduct charged against him and be punished for the same without there being any evidence or proof for the same i. e. theft/misappropriation. Later on in audit it may be discovered that there was only accounting mistake and no theft/misappropriation whatsoever. To avoid such possibility it is always necessary that the factum of misconduct be established. Moreover disciplinary proceedings by the department are in the nature of quasi criminal proceedings -much more so from the viewpoint of consequences of such proceedings. Later on in audit it may be discovered that there was only accounting mistake and no theft/misappropriation whatsoever. To avoid such possibility it is always necessary that the factum of misconduct be established. Moreover disciplinary proceedings by the department are in the nature of quasi criminal proceedings -much more so from the viewpoint of consequences of such proceedings. An employee may be visited with the penalty of removal or dismissal from service which would be almost equivalent to economic death sentence. Therefore proof of the facts constituting misconduct has got to be emphasised. Ordinarily admission alone of the delinquent officer cannot be regarded as sufficient proof of misconduct as well as the facts constituting misconduct. "we have quoted the whole observation in order to show that the same will not be of any assistance to the appellant herein since the facts herein are completely different and there is absolutely no question of want of proof in this case. ( 6 ) THE learned counsel next submitted the decision in the case of Siddharth Mohanlal Sharma v. South Gujarat University reported in 23 GLR 233. In that case the University authorities had acted solely on comparison of evidence since it was the case of the University that someone instead of the candidate wrote the examination. In those circumstances and on the facts of the case the Bench of our High Court held that it is a clear case of no evidence alter observing that no evidence does not merely signify total dearth of evidence; evidence which does not reasonably support the conclusion is also comprehended within the meaning of the said expression. As far as the facts of the present case are concerned there is ample evidence to support the order passed by the University. Apart from the confession made by the appellant we have the statement of the Supervisor and the Disciplinary Committee had all materials before it before it recommended the punishment to the Syndicate concerned. ( 7 ) MR. Shethna further submitted after citing the decision in the case of A. P. Shah and Others v. B. M. Institute of Mental Health and Others reported in lids Gujarat Law Herald 262 that the punishment is in any event excessive in this case. It is the case of the learned counsel that the punishment awarded is disproportionate to the offence committed by the appellant. It is the case of the learned counsel that the punishment awarded is disproportionate to the offence committed by the appellant. We are afraid we are not able to appreciate this argument. The appellant had been caught red-handed and he had confessel on two occasions. On one occasion when he was asked by giving show cause notice he made prevaricating statement as if he had not brought the slip to the Examination Hall. The learned Single Judge of our High Court has considered all these prevaricating statements made by the appellant herein and came to the conclusion that sufficient punishment commensurate with the offence committed by him has been meted out to him. The discussion and the conclusion arrived at by the learned Single Judge of our High Court are after proper appreciation of the evidence on record and after adverting to all the arguments submitted before him by the learned counsel for the appellant. ( 8 ) EVEN apart from the reasons given by the learned Single Judge we ourselves have considered all the aspects of the case and we are in complete agreement with the reasoning and the finding of the learned Single Judge of our High Court. In these circumstances this Letters Patent Appeal is dismissed. Appeal summarily dismissed. .