Sundaram Srivastava v. Allahabad University — 1992 DIGILAW 814 (ALL)

JUDGMENT : S.P. Srivastava, J. The Petitioner appeared in M.A. Part II examination, held by the University of Allahabad in the year 1991. He received a show cause notice dated 5-9-1991 from the Respondents, wherein he was charged with having used unfair means in the aforesaid examination, while answering Medieval and Modern History 1st paper on 22-8-91. The notice indicated that the unauthorised material which was found in possession of the Petitioner was an answer book, which bad been brought from out-side the examination hall. It was further indicated in the notice that the Petitioners result for the year could be cancelled and he could also be debarred from appearing in any subsequent examination Notice required the Petitioner to submit his reply by 18-9-1991. 2. It is asserted by the Petitioner that he submitted his reply within the due time. A true copy of the aforesaid reply has been filed as Annexure-7 to the writ petition. In this reply the Petitioner had asserted that he had used the answer book which was supplied to him in the examination hall, which itself was somewhat different from the answer book supplied to other candidates. It is further asserted in the reply that a flying squad had raided the examination hall and it was thereafter that he was charged in the examination hall itself that he had changed the answer book. 3. It appears that the Unfair means Committee considered the evidence and materials on record and the relevant circumstance and vide the order dated 1-2-92 cancelled the Petitioners result of B.A. Part II Examination of 1991 and also imposed the penalty of debarring him from corresponding and any other subsequent examination of 1992. 4. The present writ petition was filed by the Petitioner on 28-2-1992 seeking the quashing of the impugned order dated 1-2-92, passed against him. The Petitioner has also prayed for a writ of mandamus commanding the Respondents to declare his result of B.A. Part II Examination. He also prayed that the Respondents be directed to permit the Petitioner to appear in B.A. Part II Examination in 1992 and to declare result of the same. 5. On 28-2-92, the learned Counsel appearing for the Respondent had been granted one week's time to file a counter-affidavit or to obtain instructions. He also prayed that the Respondents be directed to permit the Petitioner to appear in B.A. Part II Examination in 1992 and to declare result of the same. 5. On 28-2-92, the learned Counsel appearing for the Respondent had been granted one week's time to file a counter-affidavit or to obtain instructions. The learned Counsel for the Respondents has filed a counter affidavit on 30-4-92 and a rejoinder affidavit has been filed by the Petitioner in reply thereto. The learned Counsel for the Respondent has further produced, for the perusal of the court the entire record of the proceedings leading up to the passing of the impugned order. 6. I have heard Sri Rakesh Kumar, learned Counsel for the Petitioner and Shri Haider Hussain, learned Counsel for the Respondent and have further carefully perused the affidavits exchanged between the parties as well as the record produced by the Respondents. 7. The counsel for the parties have jointly requested that this writ petition may be disposed off finally. Taking into consideration on the facts and circumstances of the case, I am of the view that it is a fit case which should be finally disposed of at this very stage under the second proviso to Rule 2(1) of Chapter XXII of the Rules of the Court. 8. The counsel for the Petitioner has challenged the impugned order asserting that it has been passed in utter regard of the principle of natural justice and reasonable opportunity of bearing had not been given to the Petitioner before passing the said order. It has further been asserted that the Respondents have acted with manifest illegality in not showing to the Petitioner the evidence relied upon by them in support of the charges levelled against him. It has also been asserted that during the enquiry proceedings the Petitioner was not afforded any opportunity to cross-examine the invigilators and officers of the flying squad. It has further been asserted that the notice in question was vague and further that the impugned order stands vitiated on account of the absence of reasons. 9. It has also been asserted that during the enquiry proceedings the Petitioner was not afforded any opportunity to cross-examine the invigilators and officers of the flying squad. It has further been asserted that the notice in question was vague and further that the impugned order stands vitiated on account of the absence of reasons. 9. Learned Counsel for the Petitioner has further tried to assail the finding that the answer book in question had been brought from out side the examination ball on the ground that the answer book contains the endorsement of the invigilator and that the answer book has been written in the own hand writing of the Petitioner and further that the Petitioner himself had brought to the notice of the invigilators that the answer book supplied to him was some what different from the answer books supplied to the other candidates. It has further been asserted that the Registrar, who has issued the impugned order had no authority to punish the Petitioner and the impugned order is liable to be quashed being without jurisdiction. 10. Learned Counsel for the Respondent has asserted that on 22-8-1991, while the Petitioner was appearing in B.A. Part II Medieval and Modern History paper the flying squad has caught the Petitioner red handed while he was using unfair means and had recovered the answer book in question from his possession wherein the answers had already been written and which answer book had been brought from out side the examination hall. It has further been asserted that the flying squad had handed over the answer book in question to head Invigilator who had also reported that the Petitioner was caught by the flying squad and another answer book was found from his possession, which contains several answers already written therein. It has further asserted that the Petitioner was asked to fill the 'Unfairmeans Form' which was filled by him and wherein he had admitted that the disputed answer book had been found from his possession. The flying squad and the invigilator had made the endorsement on the answer book itself indicating that the answer book had been brought from out side the hall and had been found in possession of the Petitioner. The flying squad and the invigilator had made the endorsement on the answer book itself indicating that the answer book had been brought from out side the hall and had been found in possession of the Petitioner. It has also been pointed out that the answer book, which had been recovered from the possession of the Petitioner contained certain answers already written therein pertaining to questions, which did not find place in the question paper and it has been asserted that this intrinsic evidence itself was more than sufficient to establish the charge levelled against the Petitioner. It has been asserted that the Unfairmeans Committee had considered the relevant record and the circumstances and had awarded the impugned punishment after affording reasonable opportunity of being heard to the Petitioner and the writ petition had been filed on totally misconceived and baseless allegations. 11. From the materials brought on record, it is apparent that on the relevant date an answer book, in which answers had already been written was recovered from the Petitioner by the Flying Squad. The fact of such recovery from possession of the Petitioner was admitted by the Petitioner in clear terms The Chief Invigilator of the examination Centre has certified that the fact of the recovery of the unauthorised material was brought to the notice of the Petitioner and he had admitted the said recovery. The Chief Invigilator has also certified that the Petitioner refused to give any explanation in writing after the aforesaid fact was brought to his notice in the examination hall, itself It further appears from the perusal of the record produced by the learned Counsel for the Respondent that it had been reported to the Unfairmeans Committee that the Petitioner had brought the disputed answer book fully written from out side, the answer book contained answers to the questions, which did not figure in the question paper at all and further the answers already written were without indicating the number of the question. The Unfairmeans Committee had agreed with the report and after considering the materials on record had imposed the impugned punishment. 12. The question, which arises for consideration in this case, is as to whether the Petitioner was denied reasonable opportunity of being heard by the Respondent-authorities before passing the impugned order of punishment. The Unfairmeans Committee had agreed with the report and after considering the materials on record had imposed the impugned punishment. 12. The question, which arises for consideration in this case, is as to whether the Petitioner was denied reasonable opportunity of being heard by the Respondent-authorities before passing the impugned order of punishment. Section 29 of the Uttar Pradesh State University Act provides that there shall be an Examination's Committee in the University the constitution of which shall be as may be provided for in the Ordinance. Sub-section (3) of Section 29 stipulates that the Examination Committee may appoint such number of Sub-Committees as it thinks fit and in particular may delegate to any one or more person or Sub-Committees the power to deal with and decide the case relating to the use of unfair means by the examinees. It is in accordance with the aforesaid provision that Uafair means Committee has been constituted by the Allahabad University, which deals with and decides cases relating to the use of Unfairmeans. 13. Section 51 of the Uttar Pradesh State Universities Act provides that subject to the provisions of the Act and the statutes the Ordinances may provide for, interalia, the conduct of examinations. In the present case Ordinances "On the use of Unfair Means and Causing Disturbances. In Examination" contained in Chapter 28 of the Ordinance relate to the use of unfairmeans and causing disturbance in examination. As has already been indicated above Section 29 gives the requisite authority to the Examination Committee to deal with and decide case relating to the use of unfairmeans. The procedure to be adopted, while deciding the case relating to the use of unfairmeans has not been provided for in Section 29 of the Act or anywhere else in the Act Some procedure has, however, been laid down in Ordinance 1.3 referred to above, which requires that a candidate found using unfair-means in examination shall be served with a notice there for in the examination hall it self and if he refuses to accept or avoids personal receipt of such notice, such notice shall be sent to him by registered post within seven days of the incident. The candidate shall be required to submit his reply to the notice within ten days of the issue of said notice and if no reply is received within this period it would be presumed that the candidate has nothing to state in defence. Provision contained in Ordinance No. 15 require that the Examination Committee shall consider the report, if any about the candidate having been found in possession of unauthorised material, besides other things mentioned therein. 14. From the facts and circumstances brought on record in this case, it is apparent that the Petitioner was informed about the recovery of the unauthorised material found in his possession in the examination hall at that very time and he was asked for a signed statement on the prescribed form. It is further established that the Petitioner clearly admitted the fact of recovery of unauthorised material from his possession but had refused to give a statement containing his explanation It further appears that a show cause notice was served on the Petitioner requiring him to explain as to why auction be not taken against him for having in his possession during the examination hours an 'unauthorised material'. 15. It has been held by this Court in its decision in the case of Amit Kumar Singh v. The Registrar, University of Allahabad (Civil Misc Writ Petition No 10431 of 1992 ) decided on 14 5-1992 that the provisions contained in Ordinance 1, 3 indicated above, are of a mandatory nature. It has further been held that the procedural safe guards contemplated under the aforesaid provisions have been imposed for the benefit of persons affected by the exercise of administrative powers making it mandatory so that it is fatal to disregard them. 16. In the facts and circumstances of the present case, there is no manner of doubt that all the procedural safe-guards contemplated under the Ordinance No. 1.3 had been scrupulously followed and there is nothing on the record, which could impeach the report of the invigilator or the head invigilator or make doubtful the correctness of the certificate issued by the Head Invigilator to which a reference has already been made above. 17. 17. It Is by now well settled that rules of natural justice apply only when a statute or statutory Rule is silent as to the procedure to be adopted, Further, it is equally settled that the question, whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point the constitution of the Tribunal and the rules under which it functions Suresh Koshy George Vs. University of Kerala and Others, AIR 1969 SC 198 . Moreover, these rules can operate only in areas not covered by any law validly made Union of India (UOI) Vs. Col. J.N. Sinha and Another, (1970) 2 SCC 458 . 18. It may be noticed that apart from the procedural safe-guards stipulated in the provisions contained in Ordinance 1. 3 referred to above, there is no other provision regulating the farther procedure, which is to be followed by the Unfairmeans Committee before passing the order relating to imposition of punishment. In these circumstances. Since no further procedure is to be found either in Section 2.9 of the Uttar Pradesh State Universities Act or even in any Ordinance that the Petitioner has assorted that it was necessary for the Unfairmeans Committee to afford to the Petitioner an opportunity of cross exminating the invigilator or the Chief Invigilator and Officers of the Flying Squad and the failure of the Respondent authority to provide such an opportunity, it is asserted, necessarily resulted in the denial of reasonable opportunity of being heard and rendered the impugned order manifestly illegal. 19. I have given my thoughtful consideration to the contention raised by the Petitioner. In the circumstances of the case, for the reasons given herein after, I am clearly of the view that contention of the Petitioner is not at all acceptable and deserves to be rejected. 20. It is by now well settled that the norms of natural justice are not to be encased in the straight jacket formula but must be tailored to suit the requirements of the situation and the exigencies of the case. In the case of State of Mysore Vs. S.S. Makapur, AIR 1963 SC 375 . 20. It is by now well settled that the norms of natural justice are not to be encased in the straight jacket formula but must be tailored to suit the requirements of the situation and the exigencies of the case. In the case of State of Mysore Vs. S.S. Makapur, AIR 1963 SC 375 . It was observed as below: ...For a correct appreciation of the position, it is necessary to repeat what has often been said that Tribunals exercising quasi judicial functions are not courts and that, therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor area they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points, under enquiry from all sources, and through all channes without being fettered by rules and procedure which govern proceeding in court. The only obligation which the law casts on them is that they should not act on any Information which they may receive unless they put it to the party against whom it is to be used and give him an opportunity to explain it.... It has further been observed that what is a reasonable opportunity must depend on the facts and circumstances of each case but where such an opportunity had been given the proceedings are not been to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts. The principles of natural justice does not apply in its full rigour to the enquiries as under consideration 21. The principles of natural justice does not apply in its full rigour to the enquiries as under consideration 21. In its decision in the case of Hira Nath Mishra v. Principal Rajendra Medical College AIR 1973 SC 260, it was observed by Hon'ble Supreme Court that principles of natural justice are not inflexible and may differ in different circumstances The Hon'ble Supreme Court, while laying down an emphasis on the decision in the case of Board of Education v. Rice 1911 AC 179 quoted with approval the observation made therein that it was not necessary to examine witnesses The Hon'ble Supreme Court also quoted with approval the observations made in the case of Russell v. Duke of Norfolk (1949) 1 All ER 109 to the effect that the requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter that is being dealt with and so forth. 22. The principles of natural justice can not be extended beyond reasonable and rational limits. In the case of Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, (1984) 4 SCC 27 , besides observing as above it was also observed by the Hon'ble Supreme Court as follows: ...it will be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequence which would emanate if purely idealistic view as opposed to a pragmatic one were to be propounded.... 23. The law is very clear. If there is any statutory provision prescribing a particular procedure the authority entrusted with the duty of enquiring into the allegations of the use of unfair means has to follow that procedure in such an enquiry but in the absence of any such express provision, the authority is at liberty to determine the procedure to be followed as it thinks best suited to discharge its duty efficiently. The procedure which may be adopted in this connection need not follow the pattern of a procedure prescribed for a trial in a court or of a disciplinary enquiry against a delinquent civil servant under the relevant regulations. The procedure which may be adopted in this connection need not follow the pattern of a procedure prescribed for a trial in a court or of a disciplinary enquiry against a delinquent civil servant under the relevant regulations. The authority need not examine any witness but it must give a fair opportunity to the examinee to correct or controvert any relevant statement brought forward to his prejudice. 24. It may be noticed that the Apex Court in its judgment in the case of Union of India v. J.N. Sinha (supra) has observed thus: Rules of natural justice are not emabodied rules nor can they be elevated to the provision of fundamental rights...The aim of rules of natural justice is to secure justice or to put negatively to prevent miscarriage of justice...These rules can operate only in areas not covered by any law validly made but if on the other hand, a statutory provision either specifically or by necessary implication exercise the application of any or all the rules of natural justice then the Court can not 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 expressions of the words conferring the power, the purpose for which it is conferred and the effect of the exercise of that power. (emphasis supplied). 25. As has already been indicated above in the present case the statutory provision prescribing the procedural safe-guards are contained in Ordinances 1 3 and 1 5. These procedural safe-guards are in consonance with the principle of natural justice and fair play. In face of the clear cut statutory provision, referred to above the application of any rule of natural justice other than those specifically mentioned in the aforesaid provision stand excluded by necessary implication. 26. In the circumstances of the case, the procedure adopted by the Examination Committee could not be said, by any stretch of imagination, to be violative of the principles of natural justice. The Petitioner had never made any allegation regarding any bias against tne members of the Flying Squad or the invigilator or bead invigilator or the Uanifiairmeans Committee. 26. In the circumstances of the case, the procedure adopted by the Examination Committee could not be said, by any stretch of imagination, to be violative of the principles of natural justice. The Petitioner had never made any allegation regarding any bias against tne members of the Flying Squad or the invigilator or bead invigilator or the Uanifiairmeans Committee. Their integrity, therefore, could not be impeached Uifatrmeans Committee had acted in a fair manner and could not be deemed to have violated the principles of natural justice while imposing the penalty in question by way of domestic internal discipline over the Petitioner. 27. It may further be noticed that a rigid and mechanical insistence for a full-fledged enquiry of examination and cross-examination of witnesses in matters relating to internal discipline of educational institutions under the guise of observing the principles of natural justice may not be conducive for the effective functioning and preservation of the structure of our educational institutions Further, there is no infallible or inflexible rule that every enquiry should be made or completed by an oral examination of witnesses. 28. It may further be notice that the Petitioner had never asked during the enquiry proceedings to cross-examine either any invigilator or head invigilator or the officers of the Flying Squad. In this view of the matter also the question of enquiry 'getting vitiated on account of the non-cross-examination of such parsons can not arise. 29. The learned Counsel for the Petitioner has placed reliance upon the decision of a learned Single Judge in the case of Pradeep Kumar Singh v. Vice Chancellor. Allahabad University 1991 ALJ 1035 in the aforesaid decision a learned Single Judge of this Court his held that before imposing the punishment while exercising the internal discipline in the matter of the use of unfairmeans by an examinee he was entitled to cross-examine the Chief Invigilator who had allegedly seized the answer book which was brought from out side the examination hall and the evidence of such person should be recorded in the presence of the concerned examinee. Similar view is expressed in the case of Ajai Kumar v. University of Allahabad 1991 ALJ 1045. 30. Learned Counsel for the Petitioner has further relied upon on the decision of another learned Single Judge in the case of Mohammad Rauful Azam v. Vice Chancellor. Similar view is expressed in the case of Ajai Kumar v. University of Allahabad 1991 ALJ 1045. 30. Learned Counsel for the Petitioner has further relied upon on the decision of another learned Single Judge in the case of Mohammad Rauful Azam v. Vice Chancellor. Aligarh Muslim University, wherein it was held that the material sought to be utilised against the charge sheeted employees should be brought to his notice and an enquiry held behind his back without disclosing the same to him stands vitiated. 31. So far as the decision of the learned Single Judge in the Case of Pradeep Kumar and Ajai Kumar (supra) is concerned it may be noticed that in Halsburys' Laws of England III edition volume 22 paragraph 1687 page 799 it has been stated that the decision of the court of appeal is binding on itself subject to three exceptions which are (a) where there are conflicting opinion of its own (b) where its decision is over ruled or cannot be allowed to stand with a decision of the House of Lords (c) where the other decision is given without reference to previous decisions of its own or Courts of coordinate jurisdiction. 32. In the present case it appears that the decisions of the Supreme Court referred to herein before and the Division Bench decision of this Court in the case of Himanshu Singh v. University of Allahabad 1985 UP LB EC 724 and Sanjeev Mishra v. University of Allahabad 1984 UP LB EC 922 were not brought to the notice of the learned single Judge even though the aforesaid decisions were clearly binding. The decisions of the Supreme Court were binding under Article 141 of the Constitution of India, Ballabh Dass v. Municipal Committee 1970 SC 1002. The decisions of the Division Benches referred to above were binding precedents. The decision of the learned Single Judge referred to above appears clearly to be a decision given in per incuriam and in these circumstances, I, prefer not to follow it. In the circumstances of the case, since the decision is per incuriam, it is not necessary to make a reference to a larger Bench which would have been otherwise, a proper course to be adopted. In this connection, I respectfully agree with the view expressed in the case of Kailash Chandra v. Ram Naresh Gupta 1982 ACJ 608. 33. In the circumstances of the case, since the decision is per incuriam, it is not necessary to make a reference to a larger Bench which would have been otherwise, a proper course to be adopted. In this connection, I respectfully agree with the view expressed in the case of Kailash Chandra v. Ram Naresh Gupta 1982 ACJ 608. 33. So far as the decision of the learned Single Judge in the case of Mohd. Rauful Azam (supra) referred to above is concerned, the ratio of that case is not at all attracted in the facts and circumstances of the present case. As has already been seen above, the Petitioner had been apprised of the martial which was sought to be utilised against him and the fact that the said material was recovered from his possession in the examination hall stood admitted to him. He had been afforded full opportunity of explaining his conduct but he had failed to submit any explanation whatsoever. The Petitioner, therefore, cannot derive any benefit out of the judgment in the case of Mohd Rauful Azam (supra). 34. So far as the contention of the learned Counsel for the Petitioner that he had not been afforded opportunity of personal hearing is concerned, suffice it to say that firstly no such opportunity had been asked for by the Petitioner and secondly in view of the Full Bench decisions in the case of Triambak Pati Tripathi Vs. The Board of High School and Intermediate Education, U.P., Allahabad, (1972) 42 AWR 330 and Ghazanfar Rashid Vs. Secretary, Board of High School and Intermediate Education, U.P., Allahabad and Others, (1979) AWC 380, the Petitioner could not be held entitled to such an opportunity and the impugned order could not be held to be vitiated in law on this ground. 35. In the decision of The Board of High School and Intermediate Education Uttar Pradesh Vs. Bagleshwar Prasad and Others, AIR 1966 SC 875 , the Hon'ble Supreme Court has observed thus: ...enquiries held by domestic Tribunal 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 course of law.... 36. 36. In the same case the Hon'ble Supreme Court has observed that it is necessary to bear in mind that the educational Institutions like the Universities set up Enquiry Committees to deal with the problem posed by the adoption of unfairmeans by the 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 It has further been observed that the courts should be slow to interfere with the decision of the domestic Tribunals appointed by the educational bodies like Universities. 37. The other contention raised by the Petitioner to the effect that the notice in question was vague is also totally misconceived and baseless. The unauthorised material which was sought to be relied upon in support of the charges levelled against the Petitioner was shown to the Petitioner and brought to his notice immediately on its detection and recovery from his possession in the examination ball itself. The Petitioner knew what was the material, which was sought to be utilised against him in the enquiry proceedings An opportunity to explain was afforded to the Petitioner at the initial stage but he did not submit any explanation whatsoever at the time when the notice in question was given to him on 22-8-91. In the notice dated 5-9-1991, be was given further opportunity to show cause. Having known the material sought to be utilised against him and further known the circumstances in which the unauthorised material had been recovered from his possession it cannot be said that the Petitioner was not made aware of the material sought to be utilised against him and that the notice in question was vague. In any case, in the circumstances, no prejudice can be said to have been caused to the Petitioner. The contention raised by the Petitioner to the effect that the impugned order has been passed by the Deputy Registrar, who bad no authority to impose the punishment in question is totally misconceived and baseless. The learned Counsel for the Respondents has produced the relevant record, from which is established that the impugned punishment order was passed by the duly constituted Committee. Its decision was however, communicated to the Petitioner through the Deputy Registrar vide the letter dated 1-2-1992. 38. The learned Counsel for the Respondents has produced the relevant record, from which is established that the impugned punishment order was passed by the duly constituted Committee. Its decision was however, communicated to the Petitioner through the Deputy Registrar vide the letter dated 1-2-1992. 38. So far as the contention of the learned Counsel for the Petitioner about other defects is concerned they relate to appraisal of evidence. In the proceedings of the nature which are in question the sufficiency of evidence before the authority concerned cannot be a subject matter of scrutiny by this Court, while exercising jurisdiction under Article 226 of the Constitution of India. There may be a case where the decision of the authority is perverse 1 e. to say a decision which no reasonable man could have arrived at on the basis of the materials before it or there may be a case of a decision based on no evidence where interference by this Court may be necessitated but the present one is not such a case. The duly constituted Committee has considered the evidence and the materials on record and the available intrinsic evidence, which established that the Petitioner was in possession of unauthorised material as contemplated under the relevant Ordinance and has come to a conclusion that he was guilty of the use of unfairmeans, the view taken by the Examination Committee in the matter of domestic internal discipline cannot be said to be vitiated by any error much less manifest error of law, so as to justify any interference by this Court in exercise of the jurisdiction under Article 226 of the Constitution of India. 39. In view of the conclusions Indicated hereinbefore, the writ petition is clearly devoid of merit. No ground for interference in the impugned order has been made out. 40. The writ petition, is, therefore, dismissed without there being any order as to costs.