A. K. PATNAIK, J. ( 1 ) THE petitioner is a student of V. S. S. Medical College, Burla. He appeared at the second Final M. B. B. S. Examination held in October, 2001 conducted by the Sambalpur University at the V. S. S. Medical College, Burla Centre, Burla. A notice dated 28-11-2001 was issued by the Assistant Controller of Examination, Sambalpur University to the petitioner stating therein that it had been reported that the petitioner had adopted unfair means in the examination in Obstetrics and Gynaecology held on 13-11-2001. The specific charge in the said notice dated 28-11-2001 was that while the examination in the paper was in progress, the petitioner was found in possession of incriminating material. By the said notice, the petitioner was directed to explain in writing as to why disciplinary action should not be taken against him for violating the rules of examination. In his reply dated 18-2-2001 to the Controller of Examination, Sambalpur University, the petitioner stated that he was not in possession of any material other than his Admit Card but unfortunately a piece of paper was found behind him which was out of his notice and knowledge. Thereafter, by notification dated 16-2-2002 of the Sambalpur University, the results of the examination of the petitioner and two other candidates in the final M. B. B. S. Examination, 2001 were cancelled as a penalty under Statute 214 (5) (ii) of the Orissa Universities First Statutes, 1990. Aggrieved by the said cancellation of his result, the petitioner has filed this writ petition with a prayer to quash the notification dated 16-2-2002 and to direct the opp. parties to declare his result of the said examination. ( 2 ) A counter affidavit has been filed on behalf of the opp. parties 1 to 3 stating therein that under instruction No. 4 in the Admit Cards issued to all candidates before commencement of the examination, the candidates had been instructed not to have in their possession while in the hall, any book or paper, printed or manuscript even if they were unconnected with the subject of the examination, except their Admit Cards and question paper, answer books, graph sheets etc. as are provided by the University for the examination being held at the time. as are provided by the University for the examination being held at the time. In the said counter affidavit, it is further stated that in hall No. 2 in which the petitioner was taking the examination in Obstetrics and Gynaecology on 13-11-2001, there were eleven candidates and after the commencement of the examination, the observers appointed by the University arrived at the centre and during the surprise checking, the observers detected that the petitioner with Roll No. 57 and two other candidates with Roll Nos. 41 and 52 sitting in the said hall No. 2 were in possession of incriminating materials. The observers prepared the report at the spot and the report was signed by the observers, invigilators and the Centre Superintendent and when the Centre Superintendent directed the petitioner to give his signature on the incriminating material, the petitioner bluntly refused. Thereafter, a malpractice report was prepared by the invigilators which was duly countersigned by the Centre Superintendent. The Centre Superintendent sent the incriminating material and the answer scripts of the petitioner to the Controller of Examination of the University. The Controller of Examination placed the matter before the Board of Conducting Examiners and a show cause notice was issued to the petitioner directing him to submit his written explanation. The petitioner submitted his written explanation dated 18-12-2001 denying that he was in possession of any incriminating material during the examination held on 13-1-2001. The matter was placed before the examination Disciplinary Committee before whom the petitioner appeared in person and the said committee after taking into consideration of the report of the observers and the malpractice report of then Centre Superintendent and after hearing the petitioner came to a conclusion that the petitioner was in possession of incriminating material in the examination held on 13-11-2001 and recommended for cancellation of the result of the petitioner in the said examination as per sub-statute (5) (ii) of Statute 214. Thereafter, the matter was placed before the Syndicate and the proceedings of the Examination Disciplinary Committee were approved by the Syndicate by Resolution dated 8-2-2002 and the impugned notification dated 16-2-2002 was published cancelling the results of the petitioner and two other candidates who were found to be in possession of incriminating materials during the examination in the said hall No. 2 on 13-11-2001. ( 3 ) AT the hearing, Mr. ( 3 ) AT the hearing, Mr. Milan Kanungo, learned counsel for the petitioner, submitted that no incriminating material was found from the possession of the petitioner in the examination hall on 13-11-2001 but a Chit_ was lying behind the seat of the petitioner which was not to the knowledge and notice of the petitioner and during surprise inspection the Flying Squad found out the said chit and gave a false report that the petitioner was in possession of incriminating material. He further submitted that at any rate, the contents of the chit do not at all relate to Obstetrics and Gynaecology" in which the petitioner was taking the examination on 13-11-2001. Mr. Kanungo submitted that, in fact, the chit was sent to an Expert by the University authorities and the Expert after verifying the chit has opined that the chit was not used/utilised in the examination by the petitioner. He vehemently argued that since the chit could not be utilised for the examination in Obstetrics and Gynaecology on 13-11-2001, a case of adoption of unfair means was not established against the petitioner. Mr. Kanungo cited an unreported decision of a Division Bench of this Court in Kalpataru Jena v. Board of Secondary Education, Orissa and others, O. J. C. No. 8623 of 2001 decided on 4-3-2002 in which the Court found that one sheet of plain paper was recovered from the candidate but quashed the action of the Board of Secondary Education, Orissa in cancelling the examination of the candidate on the ground of malpractice. ( 4 ) IN reply, Mr. R. K. Dash, learned counsel appearing for the Sambalpur University submitted that under Statute 214 (5) (ii) of the Orissa Universities First Statutes, 1990, mere possession of incriminating material by a candidate is liable for the penalty of cancellation of the result of his examination. Therefore, even if the petitioner had not used the incriminating material found in his possession, his examination was liable to be cancelled under the said Statute. He submitted that the examination of the petitioner was cancelled by the impugned notification after complying with principles of natural justice inasmuch as charges were framed against him and intimated to him, explanation was called for and submitted by the petitioner and an opportunity of hearing was also given to the petitioner before the decision was taken by the University authorities to cancel his result. Mr. Mr. Dash further contended that in the Admit Card, certain instructions were given to the candidates and in instruction No. 4 it was stated that no book or paper printed or manuscript other than their admit card should be taken into examination hall and the candidates should not have in their possession, while in the hall, any book or paper, printed or manuscript, even if they are unconnected with the subject of the examination. Mr. Dash argued that even though the petitioner was fully aware of these instructions he violated the same by keeping in his possession a piece of paper of manuscript in the examination hall. He argued that the High Court does not interfere with such decisions of the University authority under Article 226 of the Constitution and cited a number of decisions of the Supreme Court and High Courts in support of his arguments. ( 5 ) IN Pramila Dei v. Secretary, Board of Secondary Education, Orissa, Cuttack, I. L. R. (1972) Cuttack 469 : (AIR 1972 Orissa 224) cited by Mr. Dash, Pramila Dei was charged for being in possession of a small piece of manuscript paper which she brought into the examination hall with the intention of copying from it. But Pramila Dei denied the said charge of malpractice. She was given an opportunity of personal hearing but she did not avail the same. It was contended by her that when she denied the charge of malpractice against her there should have been a regular enquiry in which oral and documentary evidence should have been taken and she should have been allowed to defend her case. A Full Bench of this Court held that if Pramila Dei had availed of the opportunity of personal hearing she could have made comments on the proposed action and the materials that were used against her. But after having failed to respond, she cannot make a grievance. A Full Bench of this Court held that if Pramila Dei had availed of the opportunity of personal hearing she could have made comments on the proposed action and the materials that were used against her. But after having failed to respond, she cannot make a grievance. This court further held that the enquiry into the charge of malpractice in an examination is not in a nature of criminal trial and that in exercise of writ jurisdiction under Articles 226 and 227 of the Constitution over the decision of the educational authority, the High Court does not function as a Court of appeal and cannot look into the question of sufficiency or propriety of evidence and can interfere with the finding of the authority only if the same is based on no evidence or is based on evidence on which a reasonable person cannot hold the delinquent guilty. ( 6 ) IN Principal, Patna College, Patna v. Kalyan Srinivas Raman AIR 1966 S. C. 707 cited by Mr. Dash, the Supreme Court dealt with limits of the High Court_s jurisdiction to issue a writ of certiorari and held that where the question involved is one of interpreting a Regulation framed by the Academic Council of a University, the High Court should ordinarily be reluctant to issue a writ of certiorari where it is plain that the Regulation in question is capable of two constructions, and it would generally not be expedient for the High Court to reverse a decision of the educational authorities on the ground that the construction placed by such authorities on the relevant Regulation appears to the High Court less reasonable than the alternative construction which it is pleased to accept. ( 7 ) IN Maharashtra State Board of Secondary and Higher Secondary Education v. K. S. Gandhi (1991)2 SCC 716 cited by Mr. Dash, the Supreme Court held that in a domestic enquiry into the charge of students /parents/guardians being privy to tampering of moderators_ mark sheets to the advantage of the students the standard of proof is not proof beyond reasonable doubt but preponderance of probabilities tending to draw an inference that the fact must be more probable. The Supreme Court, however, observed that the standard of proof cannot be put in a strait jacket formula and the probative value could be gauged from facts and circumstances of a given case. The Supreme Court, however, observed that the standard of proof cannot be put in a strait jacket formula and the probative value could be gauged from facts and circumstances of a given case. But the standard of proof is the same both in civil cases and domestic enquiries. In the said decision, the Supreme Court further held that where the findings of a domestic enquiry body is challenged, it was not open to the High Court under Article 226 of the Constitution to itself evaluate the evidence and to interfere with the finding as the High Court does not sit as a Court of appeal on the findings of facts recorded by the domestic enquiry body nor has it the power to evaluate the evidence as an appellate court and to come to its own conclusions and if the conclusions reached by the domestic enquiry body can be fairly supported by the evidence on record then the High Court has to uphold the decision though as an appellate court of facts it may be inclined to take a different view. ( 8 ) IN Sardar Patel University v. Minal R. Jogi, AIR 2002 Gujarat 13, cited by Mr. Dash, the High Court of Gujarat has held that so far as misconduct committed at the examination is concerned some time the burden would not be even to the extent of yardstick of preponderance of probabilities but less than that. The High Court of Gujarat further held in the said case that mere finding of possession of incriminating material is sufficient to hold the examinee guilty of misconduct, but whether the incriminating material was intended for copying or was actually used or was innocently possessed may be relevant for imposing punishment. In the said case, the candidate was found to be in possession of a ruler containing writing pertaining to a subject in which the candidate was appearing the examination and the Court held that the decision of the University authorities in finding the candidate guilty of misconduct could not be interfered with by the Court. ( 9 ) IN the light of the aforesaid decisions of Courts_ we may now examine whether the result of the petitioner in the M. B. B. S. examination taken by him was liable to be cancelled by way of punishment under Statute 214 (5) (ii) of the Orissa University First Statutes, 1990. ( 9 ) IN the light of the aforesaid decisions of Courts_ we may now examine whether the result of the petitioner in the M. B. B. S. examination taken by him was liable to be cancelled by way of punishment under Statute 214 (5) (ii) of the Orissa University First Statutes, 1990. The Statute 214 of the said Statute is extracted herein below : 214. Unfair means in examinations- (1) All instances of unfair means in examinations whether reported by the Centre Superintendents/invigilators/supervisors/ Observers/examiners or otherwise shall be placed before the appropriate Board of Conducting Examiners by the Controller of Examinations as soon as practicable but preferably before the results of the relevant examinations are passed for publication. The Board of Conducting Examiners shall consider the reports and other materials, if any, and make a report of the scope and extent of the unfair means resorted to and specifically whether use has been made of unauthorised or incriminating material referred to in the reports or produced before the Board. (2) In case the Board is satisfied that there is prima facie evidence of resort to unfair means in the examinations, the Controller of Examinations shall forthwith issue notices to the candidate concerned precisely specifying the nature of the charge and calling upon the candidate to furnish his written reply to the charges within a period of twenty one clear days. The notice shall also inform the candidate that he shall have the right to a personal hearing on a specified date which shall be after the last date for receipt of the written reply from the candidate. (3) The written reply of the candidate along with the report of the Board of Conducting Examiners and other reports and material pertaining to the matter shall be placed before the Examinations Committee. (3) The written reply of the candidate along with the report of the Board of Conducting Examiners and other reports and material pertaining to the matter shall be placed before the Examinations Committee. (4) The Committee shall give a personal hearing to the candidate as indicated in the notice issued to the candidate by the Controller of Examinations and shall also consider the report of Board of conducting Examiners and other reports and material relevant to the case, if any: provided, however, that in case no reply has been received from the candidate within the stipulated time and/or in the event the candidate failing to appear before the Committee at the appointed time, the Committee shall be competent to consider the other reports and other relevant material placed before them by the Controller of Examinations. (5) If the Committee comes to the conclusion that there has been resort to unfair means, the Committee may recommend to the Syndicate that any of the following penalties may be imposed on the candidate commensurate with the gravity of the unfair means resorted to by him, namely :- (i) for writing the roll number or leaving any identification mark any where in the answer script in the place provided for the purpose-cancellation of the result of the examination. (ii) for possession (but not use)of unauthorized or incriminating material. cancellation of the result of the examination : (iii) for misbehaviour with the Centre Superintendent/invigiliable/supervisors/others connected with the conduct of the examinaition-cancellation of the result of the examination : (iv) for use of unauthorized or incriminating material-cancellation of the result of the examination and debarring the candidate form appearing at the next examination; (v) for use of unauthorized or incriminating material combined with misbehaviour with the Centre Superintendent/invigillators/observers/supervisors or others connected with the conduct of the examination-cancellation of the result of the examination and debarring the candidate form appearing at the next two examinations (6) the syndicate may consider the recommendations of the Examination committee and decide on the penalties to be imposed. All such order imposing penalties shall be published in the University Notice Board and the Gazetee. " the marginal title of Statute 214 indicates that Statute 214 relates to unfair means in the examination". Statute 214 (1) further provides that all instances of unfair means in the examination" shall be placed before the appropriate board of Conducting Examiners by the Controller of Examinations. " the marginal title of Statute 214 indicates that Statute 214 relates to unfair means in the examination". Statute 214 (1) further provides that all instances of unfair means in the examination" shall be placed before the appropriate board of Conducting Examiners by the Controller of Examinations. Statute 214 (2) provides that in case the Board is satisfied that there is prima facie evidence of resort to unfair means in the examination", the Controller of Examinations shall forthwith issue notices to the candidate concerned precisely specifying the nature of the charge and calling upon the candidate to furnish his written reply to the charges within a period of twenty one clear days. Statute 214 (3) provides that the written reply of the candidate along with the report of the Board of conducting Examiners and other reports and material pertaining to the matter shall be placed before the Examination Committee and Statute 214 (4) provides that the committee shall give a personal hearing to the candidate and shall also consider the report of the Board of Conducting Examiners and other reports and material relevant to the case. Statute 214 (5) provides that if the Committee comes to the conclusion that there has been resort to unfair means", the Committee may recommend to the Syndicate that any of the penalties mentioned therein may be imposed on the candidate commensurate with the gravity of the unfair means" resorted to by him. The aforesaid analysis would show that the object of different provisions of Statute 214 is to punish candidates taking resort to unfair means in the examination hall with appropriate penalties depending on the gravity of the unfair means adopted. ( 10 ) STATUTE 214 (5) (ii) provides that for possession (but not use) of unauthorised or incriminating material the punishment is cancellation of the result of that examination. Statute 214 (5) (iv) provides that for use of unauthorised or incriminating material, the punishment is cancellation of result of that examination and debarring the candidate appearing at the next examination. For cancelling the result of a candidate under Statute 214 (5) (ii) the Examination Committee has to come to the conclusion that the candidate was in possession of unauthorised or incriminating material and it is not necessary for the said Examination Committee to further come to a conclusion that the candidate used unauthorised or incriminating material in the examination. For cancelling the result of a candidate under Statute 214 (5) (ii) the Examination Committee has to come to the conclusion that the candidate was in possession of unauthorised or incriminating material and it is not necessary for the said Examination Committee to further come to a conclusion that the candidate used unauthorised or incriminating material in the examination. Hence, the contention of Mr. Kanungo, learned counsel for the petitioner, that the Expert had given a finding that the piece of paper said to have been found from the possession of the petitioner was not used by the petitioner has no merit. This contention would have been relevant if the result of the examination of the petitioner had been cancelled and he had been debarred from appearing at the next examination under Statute 214 (5) (iv) of the Orissa Universities First Statutes, 1990 which provides for punishment for use of unauthorised incriminating material. ( 11 ) IN Central Board of Secondary Education v. Ms. Vineeta Mahajan, AIR 1994 SC 733 , a similar question arose as to whether possession of incriminating material without the use of the same in the examination itself amounts to unfair means and the Supreme Court held interpreting the rules applicable to the examination : (Para 5 ). . . . . . . . . . . . . . . . . . . The rule clearly defines the use of unfair means at the examination" and lays down in simple language that a candidate having in possession, papers relevant to the examination in the paper concerned, shall be deemed to have used unfair means at the examination. The sine qua non, for the misconduct under the rule, is the recovery of the incriminating material from the possession of the candidate. Once the candidate is found to be in possession of papers relevant to the examination, the requirement of the Rule is satisfied and there is no escape from the conclusion that the candidate has used unfair means at the examination. The Rule does not make any distinction between bona fide or mala fide possession of the incriminating material. Once the candidate is found to be in possession of papers relevant to the examination, the requirement of the Rule is satisfied and there is no escape from the conclusion that the candidate has used unfair means at the examination. The Rule does not make any distinction between bona fide or mala fide possession of the incriminating material. The High Court reasoning that the candidate having not used the material - in spite of the opportunity available to her - the possession alone would not attract the provisions of the Rule, in our view, is not borne out from the plain language of the Rule. . . . . . . . . . . . . . . . . . " this decision of the Supreme Court has been followed by the High Court of Gujarat in Sardar Patel University v. Minal R. Jogi (AIR 2002 Gujarat 13) (supra) cited by Mr. Dash. ( 12 ) BUT in the aforesaid case of Central Board of Secondary Education v. Ms. Vineeta Mahajan ( AIR 1994 SC 733 ) (supra), the Supreme Court has held that once the candidate is found to be in possession of papers relevant to the examination", the requirement of the rules is satisfied and there was no escape from the conclusion that the candidate has used unfair means at the examination. Similarly, in Sardar Patel University v. Minal R. Jogi (AIR 2002 Gujarat 13) (supra) it was held by the High Court of Gujarat that material which was found from the possession of the student on the ruler was pertaining to the subject for which the student was appearing at the examination". Thus, unless the material that is found in possession of the candidate is relevant to the subject in which the candidate is taking the examination, it cannot be held that the candidate had resorted to unfair means in the examination. The object of different provisions of Statute 214, as we have held above is to punish a candidate resorting to unfair means in the examination". Statute 214 (5), in particular, states that if the Examination Committee comes to the conclusion that there has been resort to unfair means", it may recommend to the Syndicate that any of the penalties mentioned therein may be imposed on the candidate. Statute 214 (5), in particular, states that if the Examination Committee comes to the conclusion that there has been resort to unfair means", it may recommend to the Syndicate that any of the penalties mentioned therein may be imposed on the candidate. The committee can reach this conclusion only if the material found in possession of the candidate was relevant to the subject in which the candidate was taking the examination in the examination hall and not otherwise. This is the only construction, that is possible of the provisions of the Statute 214 of the Orissa Universities First Statutes, 1990. ( 13 ) IN the instant case, the Examination Disciplinary Committee came to the finding that a piece of paper has been recovered from the possession of the petitioner in the examination hall containing some writings. The High Court cannot in exercise of its powers under Article 226 of the Constitution interfere with the said finding of the Examination Disciplinary Committee which is based on the material placed before it as it is not an appellate Court over the decision of the said Committee. But the case of the petitioner is that the writing in the said piece of paper has no relevance to Obstetrics and Gynaecology in which the petitioner was taking the examination in the examination hall on 13-11-2001. On a construction of Statute 214, we have held that the Committee cannot come to the conclusion that the petitioner has taken resort to unfair means unless the writings on the piece of paper recovered from the possession of the petitioner have relevance to the subjects in which the petitioner was taking the examination in the examination hall. It is not for this Court exercising power under Article 226 of the Constitution to find out as to whether the writing in the piece of paper recovered from the possession of the petitioner have relevance to the subjects in which the petitioner was taking the examination in the examination hall. Under Statute 214 (5), the power has been vested in the Examination Committee to reach a conclusion as to whether there has been resort to unfair means by the candidate. Under Statute 214 (5), the power has been vested in the Examination Committee to reach a conclusion as to whether there has been resort to unfair means by the candidate. Therefore, the Examination Disciplinary Committee will now have to take a decision afresh after hearing the petitioner whether the writings in the piece of paper recovered from the possession of the petitioner had relevance to the subjects in which he was taking the examination in the examination hall. ( 14 ) FOR the aforesaid reasons, we quash the decision of the Examination Disciplinary Committee and the decision of the Syndicate to impose the punishment of cancellation of M. B. B. S. examination on the petitioner for resorting to unfair means under Statute 214 (5) (ii) of the Orissa Universities First Statutes, 1990 and direct that the matter will go back to the Examination Disciplinary Committee and Syndicate for a fresh decision under the Statute 214 (5) (ii) in accordance with the observations made in this judgment. This exercise will be completed by the Examination Committee and the Syndicate within a period of three months from today. With the aforesaid direction, the writ petition is allowed but considering the facts and circumstances of the case, the parties shall bear their own costs. Petition allowed.