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1997 DIGILAW 11 (KAR)

DINESH M. G. v. DIRECTOR, DEPARTMENT OF PRE-UNIVERSITY EDUCATION

1997-01-06

T.S.THAKUR

body1997
TIRATH S. THAKUR, J. ( 1 ) THIS writ petition calls in question an order dated 2nd of December, 1996 passed by the respondent-Director of Pre-University Education, annuling the II PUC Examination taken by the petitioner and debarring him from appearing in two examinations due to be held in April and October, 1997. ( 2 ) THE petitioner appeared in the II PUC Examination conducted by the Department of Pre-University Education, results whereof were announced on the Ist of June, 1996. A statement of marks issued in his favour showed that the petitioner had secured 51 marks in Chemistry and 54 marks in Mathematics out of a total of 100 in each one of those subjects. Dissatisfied with the marks awarded to him, the petitioner made an application on 3-10-1996 for re-totalling. The request for re-totalling too appears did not evoke any response from the Board, with the result that the petitioner filed Writ Petition No. 27722/96 for a Mandamus directing the Board too consider and dispose of the petitioner's application. This Writ Petition was subsequently withdrawn and was dismissed by this Court on 4-11-1996. Shortly thereafter on 8th November, 1996 the petitioner received a Show Cause Notice Annexure-C to the Writ Petition pointing out certain irregularities said to have been committed by him in collusion with the officials of the respondent -Board. The irregularities detailed in the show cause notice were as under :-" (A) When your chemistry answer book bearing No. 1144331 was valued by Sri Vinod Astagi, Lecturer in Chemistry, KLE Society's RLS Institute, Belgaum, nothing had been written on the backside of the facing sheet. But, when the chemistry answer book was scrutinised for the purpose of retotalling, it was found that the answer to question 36 (b) under Part ll1 had been written on it and in Red Ink. Two marks had been awarded. This insertion has been done by you with the active collusion of one or more officials of this Board and the officials in charge of the valuation centre, after conclusion of the valuation and tabulation. You had left half a page after answering Part 1 at page 2 of the chemistry answer book. After conclusion of the valuation and tabulation, with the active collusion of the officials of this Board and the officials in charge of the valuation centre, you had inserted answer to Question No. 42 (a) under Part IV. You had left half a page after answering Part 1 at page 2 of the chemistry answer book. After conclusion of the valuation and tabulation, with the active collusion of the officials of this Board and the officials in charge of the valuation centre, you had inserted answer to Question No. 42 (a) under Part IV. (b) When your chemistry answer book bearing No. 1 144331 was valued by Sri Vinod Astagi, Lecturer in Chemistry, he had awarded only 41 marks. But, subsequently, with the active collusion and abetment of the officials of this Board and the officials incharge of the valuation centre, 17 marks were added either by tampering with the marks awarded by the said Sri Vinod Astagi or by inserting the marks in Red Ink on the margins, for the answers inserted subsequently. " ( 3 ) THE petitioner filed a reply in which he disputed the correctness of the allegations made against him and asserted that he had not made any insertions in the answer scripts as alleged by the Board and that the version given by Sri Vinod Astagi, lecturer in Chemistry who had evaluated the petitioner's answer script in Chemistry was factually incorrect. Upon consideration of the reply the respondent-Director came to the conclusion that the petitioner was guilty of tampering his Physics and Chemistry Answer scripts after the examination was over with the active collusion of officials of the Board in any attempt to somehow secure higher marks. He accordingly directed the cancellation of the Examination taken by the Petitioner in all the 'subjects and debarred the petitioner from appearing in the next two examinations scheduled to be held in April and October, 1997. Aggrieved the petitioner has filed the present Writ Petition for a Certiorari quashing the aforesaid order. ( 4 ) APPEARING for the petitioner Mr. Devadas learned Counsel argued that the impugned order was violative of the principles of Natural Justice, in that the respondent- Director had not apart from inviting objections from the petitioner to the charges framed against him afforded any other opportunity to him of being heard in the matter. He submitted that a request for the grant of such an opportunity had been made in the petitioner's explanation D:- 23-l1-1996 Annexure-D to the Writ Petition which was not considered by the Director thereby causing prejudice to the petitioner. He submitted that a request for the grant of such an opportunity had been made in the petitioner's explanation D:- 23-l1-1996 Annexure-D to the Writ Petition which was not considered by the Director thereby causing prejudice to the petitioner. A personal hearing, argued the learned Counsel, was the bare minimum requirement of principles of natural justice, the denial whereof vitiated the order impugned. ( 5 ) MR. Reddy, learned Counsel appearing for the respondent on the other hand argued that the petitioner had not made any specific request for the grant of a personal hearing to him. He submitted that the Petitioner had offered his explanation to the show cause notice in the context of the report received from the examiner concerned which explanation had been fairly and objectively considered while passing the impugned order. He urged that grant of personal hearing only for purposes of reiterating what was already stated by the petitioner in his written explanation was an idle formality, the non performance whereof would not affect the validity of the order passed by the Director. ( 6 ) I have given my anxious consideration to the submissions made at the Bar, In matters involving disciplinary action against students accused of committing malpractices, the procedure otherwise known to trials in the Courts is not and need not be necessarily followed. What is essential is that the person accused of the commission of the malpractice must have a fair and reasonable opportunity of stating his defence and proving the same of the basis of what ever materials he may call in aid. It is equally well settled that the High Court does not while examining the validity of any such order of punishment sit in appeal over the orders passed by the disciplinary Authorities so as to reappraise the evidence in order to substitute its own finding for that of the Disciplinary Authority. More than the decision itself the Court would be concerned with the decision making process and interference with the orders would be warranted only if the process leading to the decision suffers from any error of law causing prejudice to the delinquent. More than the decision itself the Court would be concerned with the decision making process and interference with the orders would be warranted only if the process leading to the decision suffers from any error of law causing prejudice to the delinquent. The question then is whether the grant of a personal hearing to the delinquent can be said to be a part of the requirements of Audi Alteram Partem and if so whether denial of such a hearing would in the instant case invalidate the order of punishment. My answer is in the affirmative. The principles of natural justice are not a set of codified rules nor can requirements of natural justice be placed in a straitjacket. The requirements of the doctrine vary from case to case and apply differently in different situations. The universal test that is applied is whether there has been fair play or action stated differently the question is whether the delinquent has had the satisfaction of having explained his case before the authority dealing with the same. It is possible that the delinquent student may be contended with what has been stated by him in his written defence in which event an order passed even without granting any such hearing may also stand the test of judicial scrutiny. On the contrary if the delinquent seeks an opportunity of being heard personally in support of his defence, denial of such a hearing without any compelling reasons to justify the same would tantamount to denial of a fair opportunity. The argument that the petitioner could have made no improvement in his case beyond what had been stated by him in writing does not impress me. It is not open to the authority trying the case to grant or deny a hearing to the delinquent depending upon whether the later would have anything worthwhile to say in addition to what was already stated by him in his explanation to the charges framed against him. Nor can it be said that the delinquent must demonstrably establish prejudice before the Court can interfere for denial of an opportunity to explain his defence may more often than not by itself constitute a prejudice grave enough to warrant interference with the order passed by the authority. In the instant case it is not although the petitioner had not asked for an opportunity of being heard in person. In the instant case it is not although the petitioner had not asked for an opportunity of being heard in person. The explanation tendered bv him contained request which was worded thus:"please give me an opportunity to meet you in your office with my parent. "it is true that the request made in the aforesaid sentence added to the explanation is not happily worded as a prayer for a personal hearing ought to have been yet it cannot be denied that the very object behind the petitioner seeking a meeting in the respondent's office was to make certain further submissions in his defence. No such opportunity was admittedly granted to the petitioner nor does the impugned order refer to any such opportunity or otherwise justify the denial of the same. In the totality of the circumstances of the case and keeping in view the fact that an order disqualifying the petitioner was bound to seriously affect his career, it was just and proper that the opportunity sought by him was granted. Justice must not only be done but must appear to have been done. One of the situations where justice may be said to have eluded the judgement is where the party who has suffered an adverse order has a brooding sense of injustice not because he had a good cause which he lost because of a bad Judge but only because he did not have a fair opportunity to state his case before the Judge pronounced his verdict. ( 7 ) IN the result, I allow this petition and by a Writ of Certiorari quash order dt. 2-12-1996 passed by the lst respondent with a further direction that the said respondent shall pass a fresh order after affording to the petitioner an opportunity of being heard in the matter. Since the petitioner has been granted admission to the MBBS Course against a payment seat in the 3rd respondent-College, it is appropriate that the fresh orders are passed as expeditiously as possible but not later than two weeks from today. The petitioner shall appear before the Director for a personal hearing in the matter on 13-1-1997 at 10. 30 a. m. in the latter's office. Pending fresh orders by the Director, the seat against which the petitioner had been admitted shall not be reallotted to any other candidate. The petitioner shall appear before the Director for a personal hearing in the matter on 13-1-1997 at 10. 30 a. m. in the latter's office. Pending fresh orders by the Director, the seat against which the petitioner had been admitted shall not be reallotted to any other candidate. It follows that order passed by the Specific Officer, CET dated 12-12-1996 cancelling the petitioner's selection and allotment against the aforesaid seat shall not be given effect to till fresh orders are passed by the respondent. A copy of this order shall be handed over to Mr. Reddy for compliance. ( 8 ) IN the circumstances, however, the parties shall bear their own costs. Order accordingly. --- *** --- .