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1995 DIGILAW 469 (CAL)

Sarbojit Bandhapadhyay v. University of Calcutta

1995-12-22

DIPAK PRAKAS KUNDU

body1995
JUDGMENT The judgment of the Court was as follows :–– The writ petitioner in his writ petition has, inter alia, prayed a writ of or in the nature of mandamus commanding and/or directing the respondents Nos. 2 to 9 to act in accordance with Law and to forthwith publish the result of the petitioner Roll-Cal No. 87/90 in LL. B. Part II Examination, 1989. 2. It is the case of the writ petitioner that he took admission under Calcutta University Law College in Hazra Campus in 5 years LL. B. Course. The writ petitioner in the year 1988-89 appeared in Part I Examination of LL.B. 5 years course and the writ petitioner passed the said examination and obtained 44.8% marks in the said examination. The copy of the mark-sheet has been annexed with the writ petition as Annexure 'C'. The writ petitioner also appeared in Part II LL.B. Examination in the year 1989-90 and his Roll No was Roll-Cal No. 87/90 and for the same the Controller of Examination issued the admit card in favour of the petitioner. A copy of the said admit card has been annexed with the writ petition as Annexure 'D'. It is the case of the writ petitioner that he day to day appeared in the examination hall and after answering the questions he submitted the answer papers before the hall-in-charge before leaving the examination hall and the writ petitioner appeared in all the papers. The petitioner stated that on or about 1st week of November, 1990 all on a sudden the petitioner received a letter from the Secretary, Board of Discipline, Calcutta University dated 30.10.90 for appearing before the Sub-committee of the Board of Discipline and it was also alleged in the said letter that an investigation would be made against the writ, petitioner on the basis of a report that the writ petitioner had committed breach of discipline in the said examination and a copy of charge sheet was also sent to the writ petitioner along with the notice dated 30.10.90. A copy of the said letter dated 30.10.90 and a copy of charge sheet dated 30.10.90 have been collectively annexed with the writ petition as Annexure 'E'. A copy of the said letter dated 30.10.90 and a copy of charge sheet dated 30.10.90 have been collectively annexed with the writ petition as Annexure 'E'. It is the case of the writ petitioner that he appeared before the Sub-committee of the Board of Discipline on 22.11.90 and denied the charges illegally levelled against him and the writ petitioner also declared before the Committee that he is innocent and not guilty of the charges and further stated that he never accepted unfair means in the said examination. It is stated that the writ petitioner on or about 24th December, 1990 filed an application for information regarding the result of the disciplinary committee and/or decision of the said committee and that the authority concerned never disclosed the decision of the committee to the writ petitioner. It is the case of the writ petitioner that on 14th January, 1991 the respondent authorities concerned banded over a copy of the decision dated 28th December, 1990 to the petitioner. A copy of the said decision has been annexed to the writ petition as Annexure 'G'. It appears from the aforesaid decision that the writ petitioner was intimated that his LL B. Part II Examination, 1989, had been cancelled for breach of discipline committed by him at the aforesaid examination and that he had also been debarred from appearing any examination of the said University for a period of two years. 3. It appears from the writ petition that being aggrieved by and dissatisfied with the aforesaid decision regarding breach of discipline the petitioner moved an application under Article 226 of the Constitution of India and Mohitosh Mojumder, J. after hearing the submissions made on behalf of both the parties, inter alia, passed the following order:–– "Considering the facts and circumstances of the cases as also the submission of Mr. Partha Pratim Mukherjee, the Learned Advocate appearing on behalf of the writ petitioner, that the petitioner was not given an opportunity of being heard, I am of the view that the order impugned in the writ application does not disclose any reason as the same appears to be capsuled in character. In my view, the concerned authority shall decide the matter de novo within a period of seven days from the date. The petitioner shall be given opportunity of hearing on Friday next when he would appear. In my view, the concerned authority shall decide the matter de novo within a period of seven days from the date. The petitioner shall be given opportunity of hearing on Friday next when he would appear. No adjournment shall be granted to the petitioner. The embargo thus imposed upon him shall remain operative till the decision of the concerned authority is reached. In the event the concerned authority decides the matter in favour of the petitioner, the petitioner shall be allowed to appear at the ensuing 5 years LL. B. Examination in respect of the part for which he is eligible to appear. The order shall be passed after taking into account the exceptions and/or objections taken by the petitioner in the writ application. The copy of the writ application shall be treated as grievances of the petitioner. Let another copy of the writ application be served upon Mr. Pranob Kumar Chattopadhyay the Learned Advocate appearing on behalf of the University, for the purpose of treating the same as the grievances of the petitioner during the course of the day. As indicated above, if the decision goes in favour of the writ petitioner, the University authority shall allow the petitioner to appear at the Examination to be held in the month of March 1991. The embargo remain in force for ten (10) days and the petitioner shall be communicated the decision of the authority by Monday week". (emphasis added) 4. It appears from the above quoted order of Mohitosh Mojumder, J. that the Learned Judge directed the concerned authority to decide the matter "de novo" within a period of seven days from the date. 5. Thus it has become necessary to find out the meaning of the words "de novo". The words "de novo" mean:–– The sine qua non of a "de novo" trial as that term is used to describe a retrial of a matter or controversy theretofore tried by another tribunal is the nullification of the judgment or order of first tribunal and retrial of issues on which judgment or order was founded, and when jurisdiction of second tribunal attaches, judgment or order of first tribunal is not merely suspended, but is nullified. (1) Southern Canal Co. v. State Bd. of Water Engineers, 318 S.W. 2d 619 622 159 Tex. 227. (Words and Phrases Permanent Edition, Vol. 12). 6. (1) Southern Canal Co. v. State Bd. of Water Engineers, 318 S.W. 2d 619 622 159 Tex. 227. (Words and Phrases Permanent Edition, Vol. 12). 6. Therefore, the effect of the order of Mohitosh Mojumder, J. was nullification of the decision under challenge in that case and direction of retrial of issues on which the said decision was founded. 7. It is the case of the writ petitioner that the concerned authorities, i.e., respondent Nos. 4 and 5 after knowing the aforesaid order of Mohitosh Mojumder, J. directed the writ petitioner to appear before the Sub-committee on 1st March, 1991 for holding enquiry about the matter as per direction of the Hon'ble Court. It is the case of the writ petitioner that though the writ petitioner appeared before the Subcommittee on 1st March, 1991 and though the writ petitioner waited for a long time for his call but on or about 5-20 P. M., the petitioner was called by the Sub-committee and without given any opportunity to the writ petitioner asked the writ petitioner to sign a blank paper but the petitioner denied to sign any blank paper. It is further case of the writ petitioner that the concerned authorities clearly violated the order of the Hon'ble Court and also acted arbitrarily and whimsically against the writ petitioner. 8. It appears from Annexure 'H' collectively of the writ petition (at page 32) that the writ petitioner was informed by the Secretary, Board of Discipline that pursuant to the order passed by the Hon'ble Court on 22.2.91 on enquiry relating to the charge brought against the writ petitioner had been held de novo on 1st March, 1991 and the University after taking into consideration the enquiry report dated 1st March, 1991 and the information made therein adhered to the decision taken earlier in the matter. It appears from Annexure 'H' continued (page 33) of the writ petition that the Sub-committee held the enquiry 'de novo' relating to the charge of breach of discipline brought against the writ petitioner. The Sub-committee in its report categorically stated that the charge had specifically been explained to the writ petitioner. It appears from Annexure 'H' continued (page 33) of the writ petition that the Sub-committee held the enquiry 'de novo' relating to the charge of breach of discipline brought against the writ petitioner. The Sub-committee in its report categorically stated that the charge had specifically been explained to the writ petitioner. From the said report it appears that the writ petitioner replied to the charge that he took away additional blank sheets previously, wrote answers on them before hand outside the examination hall and stitched the same with his respective answer-scripts in Paper 8 at the aforesaid examination. According to the report of the Sub-committee, the charge levelled against the writ petitioner had been established. The Subcommittee in its report observed as follows:–– "(1) The pattern of handwriting as contained in the loose sheets (taken previously) do not tally with that of the original scripts. (2) The signature of the invigilators on the additional sheets have been tampered with in order to stitch the same with the original answer-scripts. (3) The dates on the several additional sheets have also been tampered in order to stitch the same with the original answer-books. (4) In the original answer-scripts, the average number of lines written in both the cases, are 8 to 10 while in the additional sheets lines written are 15 to 20 (approximately). This raised enough suspicion. (5) Since the charge is identical (which were not satisfactorily explained by the candidates) in the answer-scripts of both the candidates, this report is prepared for both the candidates. (6) We agree with the report sent and comments made by the examiner in the instant cases. It may be noted that while appearing before the Sub-committee on 1.3.91 both the candidates declined to write down their statements with regard to the queries made relating to the charges. In view of the facts and circumstances and on the face of records we recommend that the decision taken earlier be adhered to." (emphasis added) 9. Both from pages 32 and 33 of the writ petition it appears that the concerned authorities decided to adhere to the decision taken earlier in the matter. 10. In view of the facts and circumstances and on the face of records we recommend that the decision taken earlier be adhered to." (emphasis added) 9. Both from pages 32 and 33 of the writ petition it appears that the concerned authorities decided to adhere to the decision taken earlier in the matter. 10. While discussing about the meaning of the words "de novo" this Court has pointed out that the words "de novo" imply nullification of the decision or judgment or order of the first authority and retrial of issues on which such decision or judgment or order was founded, that being the position in law, the concerned authorities had no opportunity to adhere to the decision taken earlier in the matter. As soon as Mohitosh Mojumder. J., directed the concerned authority to decide the matter "de novo" the earlier order of the first authority stood nullified and since the decision of the first authority was nullified, and became non-est in the eye of law, therefore, there was no scope for adhering to the said decision. By adhering to the earlier decision which was nullified by the order of Mohitosh Mojumder, J., the concerned authorities acted beyond their jurisdiction and such action is ultra vires. In (2) Anindra Halder v. State of W. B. & Ors. reported in 94 CWN 338, Bhagabati Prasad Banerjee, J., in Para 18 of the said Report observed as follows :–– "Accordingly, in my view, the Charge-sheet No. 16 dated 15th August, 1987 is illegal and void inasmuch as the same was submitted flouting and/or ignoring the judgment of the Division Bench of this Court. It is a cardinal principle that if any action is taken violating the decision or order passed by the Court the same is a nullity and non-est in the eye of law apart from the commission of contempt". (emphasis added) 11. This Court is also of the view that it is a cardinal principle that if any action is taken violating the decision or order passed by the Court the same is a nullity and non-est in the eye of law apart from the commission of contempt. 12. (emphasis added) 11. This Court is also of the view that it is a cardinal principle that if any action is taken violating the decision or order passed by the Court the same is a nullity and non-est in the eye of law apart from the commission of contempt. 12. The aforesaid actions of the concerned authorities also indicate the bias of the authorities concerned against the writ petitioner because though by virtue of the order passed by Mohitosh Mojumder, J. the earlier order passed against the writ petitioner was nullified and became non-est in the eye of law yet the concerned authorities ignoring such decision of the Court with a closed mind decided to adhere to the non-existing earlier decision. This is also manifestation of total non-application of mind. 13. Clauses 5 and 6 of Ordinance 62 of the Calcutta University First Ordinance, 1979 read as follows :–– "All matters to be decided by the Board of Discipline shall be decided at a meeting of the Board :–– Provided that the Board may appoint one or more Subcommittees consisting of three members who may not necessarily be the members of the Board. The Sub-committee or Sub-committees shall at the first instance scrutinise all the cases of breach of discipline and exonerate from the charges those students whom they may consider eligible for such exoneration after preliminary enquiry and recommend suitable disciplinary measures including cancellation of examination or debarment from appearing at any University examination for such period as it deems fit or both against whom there are prima facie cases. Such students against whom disciplinary measures have been recommended shall be given an opportunity to defend their cases, if they so desire, after they are intimated about the punishment imposed on them. In such cases the Sub-committee shall further investigate, interrogate and give them an opportunity to place their grievances before the Sub-committee. In case such students fail to appear before the Sub-committee on the fixed date and furnish any explanation, in writing with regard to the charges made against them, their cases shall be decided ex parte by the Sub-committee concerned without further reference to them. Any such decision relation to disciplinary action so recommended by the Sub-committee concerned shall be referred to the Board of Discipline for approval :–– Provided further that two members shall form the quorum for a meeting of the Sub-committee. Any such decision relation to disciplinary action so recommended by the Sub-committee concerned shall be referred to the Board of Discipline for approval :–– Provided further that two members shall form the quorum for a meeting of the Sub-committee. Decisions of the Board of Discipline shall be subject to confirmation by the Syndicate". 14. It appears from the aforesaid clauses 5 and 6 that any decision relating to disciplinary action recommended by the Sub-committee should be referred to the Board of Discipline for approval. It is well-settled principles of law that matters relating to disciplinary action ran within quasi-judicial power of the disciplinary authority. In this context the word "approval" has to be interpreted. When power of approval has been conferred upon the Board of Discipline, the Board of Discipline may approve, may not approve the recommendation of the Sub-committee. Such exercise of power imports the act of passing judgment, use of discretion and the determination as a deduction therefrom. The meaning of the word "approval" is as follows :–– "The very act of "approval" imports the act of passing judgment, the use of discretion, and the determination as a deduction therefrom unless limited by the context of the statute. (3) Fuller v Board of University and School Lands of State of North Dakota, 129 N. W. 1029, 1032: 21 N.D. 212". "The act of approval "imports the act of passing judgment, the use of discretion, and the determination as a deduction therefrom"; to confirm, ratify, sanction or consent to some act or thing done by another; the word "approve" means to regard or pronoun", at good; think or judge well of; admit the propriety or excellence of; to be pleased with; commend. (4) Molton v. Cherokee Oil & Gas Co., 170 p. 691, 697 : 67 OKL. 247". (Words and Phrases, Permanent Edition, Vol. 3A). 15. No document or record has been placed before this Court by the University authorities to show that the Board of Discipline while approving the recommendation of the Sub-committee passed any judgment or used discretion and the determination as a deduction therefrom. Therefore, the action of the Board of Discipline while approving the recommendation of the Sub-committee was also illegal and bad in law because the Board of Discipline failed to exercise its jurisdiction and thereby acted ultra vires. 16. Therefore, the action of the Board of Discipline while approving the recommendation of the Sub-committee was also illegal and bad in law because the Board of Discipline failed to exercise its jurisdiction and thereby acted ultra vires. 16. Both the Sub-committee and the Board of Discipline by adhering to the earlier decision which was nullified by the decision of Mohitosh Mojumder, J. look into consideration irrelevant and extraneous matters and committed fraud on power. They also acted unreasonably. 17. It appears from Clause 6 of Ordinance 62 of the Calcutta University, First Ordinance, 1979 that the decisions of the Board of Disciplines shall be subject to confirmation by the Syndicate. It is an admitted fact that the decision of the Board of Discipline was not confirmed by the Syndicate. The Vice-Chancellor in exercise of its emergency power under Section 9 (6) of the Calcutta University Act, 1979 confirmed the decision taken by the Board of Discipline. Sub-section 6 of Section 9 of the Calcutta University Act, 1979 reads as follows :–– "The Vice-Chancellor may take on behalf of the University such action as he may deem expedient in any matter which, in his opinion, is either urgent or of an emergent nature and shall report the same for confirmation at the next meeting to the authority or body which, in the ordinary course, would have dealt with the matter. Provided that if the action taken by the Vice-Chancellor is not approved by the authority or body concerned, the matter shall immediately be referred to the Chancellor whose decision thereon shall be final." 18. As stated hereinabove the illegality committed by the Sub-committee and Board of Discipline went to the root of the matter which cannot be cured by confirmation and/or ratification either by the Vice-Chancellor or by the Syndicate. When an illegality goes to the root of the matter, such illegality cannot be cured by ratification and/or confirmation. Reference may be made to the (5) B. N. Nagarajan's case reported in AIR 1979 SC 1616. At page 1676 of the Report the Supreme Court observed as follows :–– "Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedures on manner which does not go to the root of the appointment". 19. At page 1676 of the Report the Supreme Court observed as follows :–– "Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedures on manner which does not go to the root of the appointment". 19. In that case the Supreme Court was considering regularization of appointments but the principles laid down are applicable in the case at hand. 20. In the facts and circumstances stated hereinabove the decisions of the Sub-committee, Board of Discipline and consequential confirmation by the Vice-Chancellor and the Syndicate are all declared illegal and are hereby quashed. 21. This Court is aware of the principles laid down by the Hon'ble Supreme Court to the effect that the Court should be slow to interfere with the administration of educational institutions. But there is no decision of the Hon'ble Supreme Court which has laid down that even when the educational institutions have acted illegally, the Court shall remain a silent spectator. The charges levelled against the writ petitioner are very serious in nature. Under these circumstances the respondents are given liberty to initiate de novo disciplinary proceeding against the writ petitioner on the same charge sheet and such enquiry should be completed and decision should also be taken within six weeks from the date of communication of this order. 22. To the extent mentioned hereinabove, the writ petition is allowed. There shall be no order as to costs. Issues involved in these three cases being same, all these three matters were heard analogously and this judgment shall cover all the three cases.