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2004 DIGILAW 477 (ALL)

RAJESH KUMAR; NITIN SIROHI v. IIT KANPUR

2004-03-04

RAKESH TIWARI

body2004
RAKESH TIWARI, J. Heard the counsel for the parties and perused the record. 2. These two writ petitions have been filed challenging the orders passed by the Senate Students Affairs Committee, hereinafter called as SSAC and Chairman Senate of the Indian Institute of Technology Kanpur, hereinafter referred as "institute" launching the academic programme of the petitioners by order dated 4-2-2003. The aforesaid order was confirmed by the Chairman Senate of the Institute by order dated 7-8-2003. 3. The Institute imparts education in various engineering course. Petitioners are students of the said institute. The course in the institute is of 10 semesters. Petitioner Rajesh Kumar was admitted in M. Sc. (Intregated) in the year 1989 with Roll No. 98249. The petitioner cleared IX (nine) semesters in first attempt and was studying in final semester. 4. On 30/31 January, 2003 an incident is said to have taken place in which it is alleged that Rajesh Kumar along with his some friends entered the hostel of HBTI in two cars at about 1. 30 a. m. and threatened some inmates there. It is further alleged that some shots were fired in the air by the students of IIT Kanpur which has tarnished the image of the institute. An investigation is said to have made by the SSAC, which recommended termination of academic programme of the petitioner, the Director IIT- Kanpur who is also Chairman of Academic Senate of the institute who passed the impugned order dated 4-2-2003 accepting the recommendation. 5. It is said in the affidavit that SSAC is a committee which comprises not only of the Dean of Student Affairs but has come students and warden of students hall. 6. The counsel for the petitioners submits that neither any charge-sheet nor any Articles of charges were served on the petitioners at any point of time either by SSAC or by the Chairman Senate of the Institute before taking action. It is alleged that the petitioners were called by the SSAC to appear before it on 3rd February, 2003. The Committee recorded the statement of some students including the petitioners, alleged to be connected with this incident of 3-2-2003 at HBTI. Statement of any person was not taken in their presence. All the persons were called one by one. The petitioners were not allowed to cross- examine nor were called to give their defence. They were not given any opportunity of hearing. Statement of any person was not taken in their presence. All the persons were called one by one. The petitioners were not allowed to cross- examine nor were called to give their defence. They were not given any opportunity of hearing. The committee submitted its report of investigation recommending that the petitioners be expelled from the institute. The report of the committee is Annexure CA-2 to the counter affidavit. 7. A perusal of the report shows that in this meeting 13 members were present. According to the report the incident was narrated by the Chairman in which several students are said to have participated. The Committee noted in the report that some scuffle is said to have taken place between the provocators and the inmates of the HBTI hostel and on receipt of information, the matter was reported to the authorities to "find out the facts of the incident". On the basis of quarries from some of the students and others it was found that some inmates of C-Bot wing of Hall-1 including the petitioner were "involved in frequent consumption of alcoholic liquor, socialising with female friends and providing shelter to some outsiders, and that some students namely Nitin Sirohi of Hall-1 (Of C-Bot) gave shelter to one of his cousins and a friend, who were allegedly studying at Kanpur. Apart from that some student leader from a local College having allegiance with a particular political party was a frequent visitor to Mr. Rajesh Kumar and Mr. Nitin Sirohi. " 8. Neither any notice or charge sheet was given to the petitioners nor they were given opportunity to explain allegations made against them nor any witness was examined in their presence or opportunity to defend was allowed. Only the Chairman narrated the incident and the facts gathered by him. He himself was not a witness to the incident. 9. It is submitted by the counsel for the petitioners that the narration of facts heard from others is no evidence. The chairman was not a witness of any incident. Vague allegations have been made and believed to be true and findings have been recorded without applying mind to facts alleged blindly in the name of defamation of institute. No evidence of any alleged offence was produced or ingredient of any offence proved. The chairman was not a witness of any incident. Vague allegations have been made and believed to be true and findings have been recorded without applying mind to facts alleged blindly in the name of defamation of institute. No evidence of any alleged offence was produced or ingredient of any offence proved. No body is said to have received any injury nor damage to any property is alleged to have been caused. The finding of the committee against Rajesh Kumar is as under: "mr. Rajesh Kumar (Roll No. 98292): He was having nexus with undesirable elements and harboured the main accused of the incident in his room. He was also actively involved in the incident, that occurred in HBTI Hostel which tarnished the image of the Institute. For the offences committed by Mr. Rajesh Kumar, the SSAC recommends immediate termination of Mr. Rajesh Kumar from the academic programme of the Institute. " The finding of the committee against Nitin Sirohi is as under: "mr. Nitin Sirohi ( Roll No. 98249): He was actively involved in giving shelter to his cousin namely Shri Ankur Bana and one of his friends namely Shri Abhishek Sirohi, both, outsiders, in his own room and regularly taking them to the mess for dining. He was also found having nexus with undesirable elements. He could have avoided the whole incident had he reported to the authority for preventive measures well in time. For the Commission and omission committed Mr. Nitin Sirohi, the SSAC recommends immediate termination of Mr. Nitin Sirohi from the academic programme of the Institute. " 10. The findings of the committee also show that similar allegations were found proved against several other students namely, Mr. Phani Karthik, K. K. Singh, Mallik Subharao, A. K. Somasi and Naval Malhotra. 11. The committee recommended dropping of four students from current academic semester and serving a written warning to last two students to deter from such acts in future. 12. The counsel for the petitioners contends that termination of the academic programme is a serious matter which will have permanent effect throughout life of the petitioners and instead of an engineer, the institute will produce a criminals. Out of ten semesters only one semester was left. The counsel for the petitioner submits that such a type of punishment is very harsh and cannot be given without any proof or affording an opportunity of hearing and defence. Out of ten semesters only one semester was left. The counsel for the petitioner submits that such a type of punishment is very harsh and cannot be given without any proof or affording an opportunity of hearing and defence. 13. It is further submitted that one of the charges is harbouring the main accused. The word harbouring has legal connotation. It means supplying shelter. If a criminal entered the room of petitioners how it amounts to harbouring. There is no allegation that the petitioners supplied shelter. Similarly other allegations have been made in vagest possible language which are so general in nature that they cannot be controverted except by general denial. 14. The respondents have also referred to the case of Ashok Kumar Rana v. Principal Madan Mohan Malviya Engineering College. A perusal of this judgment shows that before taking disciplinary action notice and opportunity was given by the disciplinary authority of the college to the petitioners of that writ petition. 15. It was held in para 9 that the extent and nature of opportunity which is to be given in the matter of indiscipline of a student in educational institution varies from case to case. The object of giving education to student varies with various disciplines in life and action is necessary in case of discipline. It was further held that the Court cannot at all interfere with the decisions of the authorities. 16. I have gone through the whole record. It is clear that in a matter in which educational career of six students was involved, the institute did not follow even the basic principles of natural justice. None of the petitioners was informed of the allegations or charges against him. No evidence/statement of any witness was recorded in presence of the accused nor any evidence was produced before this Court to show as to how the petitioners were involved and what was the actual participation in the incident. It appears that the petitioners were called amongst others to narrate the incidents. It was only investigation. No witness was produced before them nor they were confronted with any allegation of participation in the incident of 30/31 January, 2003. They were never asked to explain their conduct. It was but necessary that they should have been given opportunity to defend themselves. It was only investigation. No witness was produced before them nor they were confronted with any allegation of participation in the incident of 30/31 January, 2003. They were never asked to explain their conduct. It was but necessary that they should have been given opportunity to defend themselves. The findings as quoted above show that they are highly vague, uncertain and of very general in nature, and unconnected with the aforesaid incident of 30/31 January, 2003. The respondents in their counter affidavit have filed copies of apologies of the petitioners in which they assured keeping good behaviour in future, so that they may complete their studies. These apologies have been tendered after the punishment was awarded. Naturally these apologies must have been tendered in the hope that they will be allowed to continue their studies and do not amount to any admission of their guilt in the background of this case. The allegations made are not such which will call for such a harsh punishment. 17. The law on penology is undergoing change all over the world. There are three types of punishments: (i) The first is the traditional i. e. punitive approach. It proceeds on the basis that punishment should act as a deterrent not only to the offender but should set an example to others. (ii) The second is theratuic approach which aims to curbs criminal tendencies which are product of diceased psychology and. (iii) The third is reformative approach giving chance to reform and become a good citizen in the larger interest of society considering the background and circumstances of particular case. 18. In the first category notorious offenders against the society are to be visited with severe punishment. In the second category rationalisation of punishment aims at curing criminal tendencies and the punishment is given to satisfy the requirement of law, taking the circumstances in which the offence was committed and in the third category those case fall in which there is chance of reformation of the offender so that he can be made a "good citizen" beneficial to the society. 19. The Supreme Court in Jai Kumar v. State of M. P. , 1999 (5) SCC page 1, held as under: "justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better-off situation. 19. The Supreme Court in Jai Kumar v. State of M. P. , 1999 (5) SCC page 1, held as under: "justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better-off situation. Law Courts exist for the society and ought to rise up to the occasion to do the needful in the matter, and as such ought to act in a manner so as to subserve the basic requirement of the society. It is a requirement of the society and the law must respond to its need. The greatest virtue of law is its flexibility and its adaptability, it must change from time to time so that it answers the cry of the people, the need of the hour and the order of the day. In the present-day society, crime is now considered a social problem and by reason therefore a tremendous change even conceptually is being seen in the legal horizon so far as the punishment is concerned. One school of thought on this score propagates that the function of the law Court is that of a social reformer and as such in its endeavour to act as such the question of a deterring punishment would not arise since the society would otherwise be further prone to such violent acts or activities by reason of the fact that with the advancement of the age the mental frame of boys of tender age also go on changing and in the event of any arrogance being developed or a sense of revenge creeping into the society, the society would perish to the detriment of its people. The other school, however, has expressly recorded and rather emphatically that unless the severest of the severe punishments are inflicted on an offender (obviously depending upon the nature of the crime) the society would perish. The law Courts as a matter of fact have been rather consistent in the approach that a reasonable proportion has to be maintained between the seriousness of crime and the punishment. The law Courts as a matter of fact have been rather consistent in the approach that a reasonable proportion has to be maintained between the seriousness of crime and the punishment. While it is true that a sentence disproportionately severe ought not to be passed but that does not even clothe the law Courts with an option to award the sentence which would be manifestly inadequate having due regard to the nature of the offence since an inadequate sentence would fail to produce a deterrent effect on the society at large. Punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for a tooth, rather having its due impact on the society while undue harshness is not required but inadequate punishment may lead to sufferance of the community at large. " 20. Again in AIR 1998 SC 3164 , State of Gujarat and another v. Honble High Court of Gujarat, Honble Thomes, J. laid down as under: "reformation should hence be the dominant objective of a punishment and during incarceration every effort should be made to recreate the good man out of convicted prisoner. Thus, reformation and rehabilitation of a prisoner are of great public policy. They serve a public purpose. " 21. The counsel for the respondents have laid down great emphasis in his argument that the petitioners have failed to show that any prejudice being caused by not giving them notice, charges or following of any other principles of natural justice. He insists that no opportunity was required to be given and the enquiry from the petitioners by the committee was sufficient, compliance of principles of natural justice. He has relied upon the case of Aligarh Muslim University v. Mansoor Ali, 2000 (2) LBESR 905 (SC) : 2000 (7) SCC. 529 , and the case of Dr. Satendra Singh, 2002 (2) LBESR 15 (All) : 2002 (2) ESC page 450 (All. D. B. ). There is no dispute about the legal position that unless prejudice is shown mere breach of principles of natural justice is not enough to invalidate an order. In the instant case, the position is quite different. The petitioners were not even informed about the allegations against them, nor were they informed about what was their conduct for which enquiry was being conducted. In the instant case, the position is quite different. The petitioners were not even informed about the allegations against them, nor were they informed about what was their conduct for which enquiry was being conducted. They were not even were warned that enquiry proceedings would be used against them. By what evidence the Institute took the guilt proved is not known. They were never given any opportunity to defend themselves. No reason has been given by the committee except narration of the incident by the Chairman. This is in fact no enquiry or decision in the eyes of law. Question of prejudice is writ large on the face of record. The aforesaid two cases are therefore, not applicable to the facts and circumstances of this case. 22. The Court has undoubtedly the power to intervene to correct any error in complying with the Rules and Regulations. The counsel also relied upon the case of Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education v. S. S. Gandhi, 1991 (2) SCC 716 para 29, of the judgment of the Apex Court laid down thus: " (29 ). . . . . . . . . . . . . . . . . . . . . . . While it is open to the High Court to interfere with the order of the quasi-judicial authority, if it is not supported by any evidence or if the order is passed in contravention of the statutory provisions of the law or in violation of the principle of natural justice, the Court has no jurisdiction to quash the order merely on the ground that the evidence available on the record is insufficient or inadequate or on the ground that different view could possibly be taken on the evidence available on record. The Examination Committee has jurisdiction to take decision in the matter of use of unfair means not only on direct evidence but also on probabilities and circumstantial evidence. There is no scope for importing the principles of criminal trial while considering the probative value of probabilities and circumstantial evidence. The Examination Committee is not bound by technical rules of evidence and procedure as are applicable to Courts. We respectfully agree with the ratio. " 23. There is no scope for importing the principles of criminal trial while considering the probative value of probabilities and circumstantial evidence. The Examination Committee is not bound by technical rules of evidence and procedure as are applicable to Courts. We respectfully agree with the ratio. " 23. The Supreme Court in a recent case reported in AIR Supreme Court Weekly-6429, State of Karnataka v. Puttaraja, it has been held that: "undoubtedly, there is a cross-culture conflict where living law must find answer to the new challenges and the Courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which mast be achieved by imposing appropriate sentence. Therefore, law as a corner stone of the edifice or "order" should meet the challenges confronting the society. Friedman in his "law in Changing Society" stated that, "state of criminal law continues to be - as it should be -a decisive reflection of social consciousness of society". Therefore in operating the sentencing system, law should adopt the corrective machinery or the deterrence ideology based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used, the indelible impact on the victim and his family and all other attending circumstances are relevant facts which would enter into the area of consideration. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not lend endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. " 24. This position was illuminatingly stated by this Court in Sevaka Perumal etc. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. " 24. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu, AIR 1991 SC 1463 , in which it has been held that: "the criminal law adheres in general to the principal of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime yet in practice sentences are determined largely by the other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Proportion between crime and punishment is a goal respected in principal, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity in now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times on account of misplaced sympathies to the perpetrator of crime leaving the victim or his family into oblivion. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is though then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the gravity of the crime, uniformly disproportionate punishment has some very undesirable practical consequences. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dannis Councle MCG Dautha v. State of Callifornia, 402 US 183:28 LD2d 711, that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitable distinguished. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Court would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e. g. where it relates to offences against women like the case at hand, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact and serious repercussions on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse to time or considerations personal to the accused only in respect of such offence will be resultwise counter productive in the long run and against societal interest which needs to be cared for and strengthened by the required string of deterrence inbuilt in the sentencing system. " 25. In the background of law laid down by the Apex Court on penology aforesaid the facts of this case show that not only there has been gross violation of fair play and principles of natural justice but great injustice has been done to the petitioners who have been awarded inappropriate sentence/punishment and the authorities have miserably failed to adopt corrective approach i. e. deterrance ideology. 26. The respondents have filed affidavit of Dean of Student Affairs and Ex-officio Chairman SSAC. 26. The respondents have filed affidavit of Dean of Student Affairs and Ex-officio Chairman SSAC. In para 3 of this affidavit it is stated that "before this incident" "general ambience of indiscipline of inmates of Hall-1 (C-Bot Wing)" was very alarming. It is further stated in the same paragraph that the deponent was well aware of the wrong doings of Mr. Nitin Sirohi and Mr. Rajesh Kumar and also the impact it was having on the psyche of others students and in particular, inmates, of Hall-1, inasmuch as harbouring unsocial elements in the hostel room had grown to become a serious threat for the students life in the hostel. It touched frightening peak when the students come to know about the involvement of Mr. Rajesh Kumar and Mr. Abhishek Sirohi (brother of Mr. Nitin Sirohi), alongwith other outsider and unsocial elements in the incident of 30/31-1-2003 that took place in the hostel of HBTI. It is also stated in para 4 that the Dean was well aware of the wrong doings of the petitioners and it is also the fact that "he did not take any action". This shows that the authorities/respondents were and are themselves responsible for encouraging indiscipline in the Institute. They did not perform their duties as teacher, guide and Dean of Student welfare. 27. Having given anxious thought I feel that punishment awarded to the petitioners is highly disproportionate and drastic to the allegations made against him and reformative approach is against in this case. 28. Thus, it is clear that the petitioners have not only been treated unfairly but they have also been discriminated as 2 students have been awarded only warning for same or similar incident. These students have already lost more than 1 year of their life and career which they would have completed by now. This is sufficient punishment. These students have already given undertaking not to repeat any such act in future. They have no criminal history and must have been good students to find admission in I. I. T. Kanpur. The Court is duty bound to see that the punishment awarded is appropriate to the offence and where there are chances of reformation, particularly, in cases of students, the Court must give, chance to such students to reform their life and to become a good citizen of the country. The Court is duty bound to see that the punishment awarded is appropriate to the offence and where there are chances of reformation, particularly, in cases of students, the Court must give, chance to such students to reform their life and to become a good citizen of the country. Therefore, keeping in view the rights of the victims i. e. students and the fact that they have lost one year of their career appears to be sufficient punishment. They would be passing out immediately after examination of last semester. The punishment of termination of their academic session is too harsh and is highly disproportionate. I am, therefore, of the opinion that in the facts and circumstances of this case a chance to reform should be given to the petitioners and they be permitted to complete their career in the Institute. 29. For these reasons the writ petition is allowed. The respondents are directed to allow the petitioners to complete their studies. The impugned orders dated 7-3-2003 7-8-2003 and letter/order dated 31-3- 2003 are quashed. No costs. Petition allowed. .