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2006 DIGILAW 488 (CAL)

NIMISH BINANI v. CALCUTTA UNIVERSITY

2006-08-07

ARUN KUMAR MITRA

body2006
ARUN KUMAR MITRA, J. ( 1 ) THIS writ petition has been moved challenging the decision of the Board of Discipline of Calcutta University dated 22nd September, 2003 cancelling the Part-V Examination of the 5 year LL. B. Course on the allegation of breach of discipline. The fact as has been made out is as follows: ( 2 ) THE petitioner took admission at the South Calcutta Law College for 5 year Bachelor of Law Course under the University of Calcutta in the year 1998. He appeared at the Part I Examination in the year 1999 and passed the same. In Part-II Examination held in July 2000 the petitioner passed the examination securing 337 marks and in Part-Ill and Part-IV Examinations the petitioner also became successful. ( 3 ) " Now. on May, 2003 the petitioner appeared in Part-V LL. B. Examination. Part-V Examination started on May 29th, 2003 and it concluded on June 11, 2003. On June 13th 2003 police from Ballygunge police Station caused a search in the residence of the petitioner on the allegation that the answer script of Human Rights and International Law examination held on June 3rd, 2003 was not submitted to the Invigilator and the same was carried away by the petitioner but the police did not find owl any such answer script. Subsequently, notice along with charge-sheet was issued by the Secretary, Board of Discipline directing the petitioner to appear before the Sub-Committee. The petitioner appeared before the Sub-Committee and disclosed that he has handed over the answer script in question to the Invigilator. ( 4 ) THE Board of Discipline, on September 22nd, 2003 communicated a decision of the Board of Discipline which is impugned and under challenge. ( 5 ) THE petitioner filed representation demanding justice. From the part of the Vice-Chancellor, Calcutta University, on November 27th, 2003 secretary, Board of Discipline issued a letter communicating that the vice-Chancellor regretted insofar as the prayer of the petitioner is concerned. ( 6 ) NOW, the petitioner on December 17th, 2003 filed a representation before the Chancellor (Governor), Calcutta University. The punishment inflicted on the petitioner is the cancellation of Part-V Examination and debarring the petitioner from appearing in any examination of the university for a period of one year. ( 6 ) NOW, the petitioner on December 17th, 2003 filed a representation before the Chancellor (Governor), Calcutta University. The punishment inflicted on the petitioner is the cancellation of Part-V Examination and debarring the petitioner from appearing in any examination of the university for a period of one year. ( 7 ) THE petitioner challenged the decision of the Board of Discipline, calcutta University mainly on the grounds: that the authorities did not have in their possession, any evidence insofar as the charge is concerned. the petitioner also alleged violation of the principles of natural justice. ( 8 ) THE petitioner prayed for issuance of Writ of Mandamus to recall the impugned order of punishment dated September 22nd, 2003. Writ in the nature of Mandamus commanding the respondents to publish the result of 5 year LL. B. Part-V Examination: writ of Certiorari calling upon the respondents to produce or to transmit all the relevant records before the Hon'ble Court; writ in the nature of Prohibition prohibiting the respondents not to give effect or further effect to the impugned order dated September 22nd. 2003. ( 9 ) AGAINST such allegations, affidavit-in-opposition was filed on behalf of the University. The said affidavit was affirmed by the Controller of examinations, University of Calcutta. In the said opposition apart from dealing with the allegations made in the writ petition the respondent authorities prayed for dismissal of the writ petition. ( 10 ) THE respondent authorities also stated that examination of Human rights and International law was fixed on 3rd June. 2006. The petitioner appeared in the examination along with all other examinees. The petitioner was furnished with question paper and blank answer script. On conclusion of day's examination, it was found that the petitioner had not submitted the answer script to the concerned Invigilator. The fact that the petitioner had left the examination hall without submitting answer script to the concerned Invigilator was reported to the affirming respondent through the Officer-in-Charge of LL. B. Part-V Examination 2003, Calcutta University, Department of Law. In the opposition a copy of the report of the Invigilator has been annexed. ( 11 ) THE Officer-in-Charge after coming to know about the non-submission of answer script by the petitioner informed the said to the officer-in-Charge, Ballygunge Police Station regarding the same vide his letter dated 03-06-2003. A copy of the said has been annexed to the opposition being annexure-'r2'. ( 11 ) THE Officer-in-Charge after coming to know about the non-submission of answer script by the petitioner informed the said to the officer-in-Charge, Ballygunge Police Station regarding the same vide his letter dated 03-06-2003. A copy of the said has been annexed to the opposition being annexure-'r2'. ( 12 ) IT was also stated that on 03-06-2003 the Information was given to the affirming respondent and the affirming respondent through his note dated 04-06-2003 forwarded the same to the respondent no. 2 for taking" necessary action. ( 13 ) THE respondent no. 2, upon receipt of the complaint issued charge-sheet to the petitioner alleging that he had, in contravention of Rules of Examination of the University left the hall without depositing the answer script. Thereafter, the petitioner was called upon to appear before the Sub-Committee of the Board of Discipline for hearing. Copy of the charge-sheet has been annexed to the writ petition as annexure-'p3'. ( 14 ) BEFORE the Sub-Committee (he petitioner appeared and made his submission. The reports of the concerned Invigilator and the Officcr-in-Charge were shown to the petitioner. The petitioner however, denied the charge both orally and in writing. Thereafter, the members of the Sub-committee took up the entire matter for consideration. According to the affirming respondent, on thorough examination of the materials on record the Sub-Committee arrived at the finding that though the charge has been denied by the examinee, the concerned report is very specific in nature and hence they accepted the report and the Sub-Committee decided to recommended cancellation of the petitioner's examination debarring him for one year. ( 15 ) THEREAFTER, the recommendation of the Sub-Committee was placed before the Board of Discipline in its meeting held on 16-09-2003. In the meeting the recommendation of the Sub-Committee was, duly considered and in terms of Ordinance 62 (6) of the Calcutta University First ordinances, 1979, the decision of the Board of Discipline was required to be confirmed by the Syndicate. ( 16 ) IT was also alleged in the opposition that in view of the urgency involved in the matter, the decision of the Board of Discipline taken in the meeting was placed before the Vice-Chancellor. The Vice-Chancellor u/s. 9 (6) of the Calcutta University Act, 1979 approved the said decision. ( 17 ) AFFIDAVIT-IN-REPLY was filed by the petitioner. ( 16 ) IT was also alleged in the opposition that in view of the urgency involved in the matter, the decision of the Board of Discipline taken in the meeting was placed before the Vice-Chancellor. The Vice-Chancellor u/s. 9 (6) of the Calcutta University Act, 1979 approved the said decision. ( 17 ) AFFIDAVIT-IN-REPLY was filed by the petitioner. The petitioner in his said reply reiterated his earlier stand and the petitioner submitted that the petitioner was not allowed to cross-examine the Invigilator and he was not given reasonable opportunity of hearing, ( 18 ) THE petitioner further alleged that the recommendation of the Sub-committee was bad in law. The petitioner alleged in his reply that considering the possibility and probability, the matter goes in favour of the petitioner. ( 19 ) THE petitioner also alleged that his co-examinee Sohail Alam was not allowed to adduce evidence in support of his cause as he was the best; witness inasmuch as he was the eye witness. ( 20 ) IN summary, the petitioner alleged that injustice has been committed. ( 21 ) HEARD the learned counsel for the parties and considered their respective submissions. The question involved herein is a much disputed one. On the one hand the Invigilator says that answer script has not been deposited and on the other the examinee says that he has deposited the answer script in usual manner and there is no reason why he will take away the answer script. ( 22 ) SECONDLY, on the complaint from the University Officer, the officer-in-Charge, Ballygunge Police Station came to his residence with search warrant but did not get the answer script. It is true that a disciplinary Sub-Committee was formed and the Sub-Committee gave a recommendation and that recommendation was considered by the disciplinary committee and ultimately, the Vice-Chancellor applied his power u/s. 9 (6) of the Calcutta University Act. ( 23 ) IN course of his submission the learned counsel for the petitioner relied on a decision reported in AIR 1991 Cal. 310 (West Bengal Council of Higher Secondary Education and Ors. vs. Roupshanara Momtaz and anr ). In this judgment the Hqn'ble Division Bench of the Calcutta High court observed that "malpractice must be directed in examination hall itself before answer book is deposited and the student cannot be punished for act of somebody else whose identity is not known. 310 (West Bengal Council of Higher Secondary Education and Ors. vs. Roupshanara Momtaz and anr ). In this judgment the Hqn'ble Division Bench of the Calcutta High court observed that "malpractice must be directed in examination hall itself before answer book is deposited and the student cannot be punished for act of somebody else whose identity is not known. Their Lordships also observed that "malpractice should not be given too wide a meaning. ". This judgment, however, relates to a different set of facts and not identical with the case of the petitioner. Insofar as the facts are concerned, however, the ratio of the judgment can be taken into consideration while deciding this issue. An examinee completes his examination and leaves the examination hallafter that sometimes passed and it was detected that one answer script which is of the examination falls short. How is it to be decided whether the examinee has taken it away or it has been misplaced for any reason whatsoever? Not that the Invigilator or the Officer-in-Charge are giving incorrect picture but the entire thing is vague. ( 24 ) FROM the circumstantial evidence it cannot be derived what has actually happened. The remedy left was a regular title suit before the Civil court but at this stage title suit will be a long drawn affair and that is why on the point of equitable relief, title suit cannot be advised now. ( 25 ) THE University, under the ordinance was to place the report before the Syndicate and the Vice-Chancellor exercised emergency power. Reason for emergency was not known. It would have been due and proper if the University could have placed it before the Syndicate and the syndicate would have given a hearing to the petitioner giving him reasonable opportunity. Reasonable opportunity means the petitioner should be allowed to adduce evidence according to his choice and the person concerned or the student should be examined and/or cross-examinedthat would have brought some result. ( 26 ) SUCH being the position, I feel it proper to set aside the impugned order of punishment. The report of the Sub-Committee will be placed before the Syndicate. If required, the Syndicate out of its members will form a committee for the particular purpose and the said committee will give a hearing to the petitioner. ( 26 ) SUCH being the position, I feel it proper to set aside the impugned order of punishment. The report of the Sub-Committee will be placed before the Syndicate. If required, the Syndicate out of its members will form a committee for the particular purpose and the said committee will give a hearing to the petitioner. Before the Sub-Committee the petitioner will be entitled to produce documentary evidence, if he has got any, or produce any other witness in his support and in turn the University authorities. may also produce some type of evidence and witness. Both the petitioner and the University will be entitled to examine and/or cross-examine the witness of either of the parties. After perusal of the entire evidence and the result of the examination of witness the Syndicate will take a decision in the matter. The report of the Sub-Committee is to be placed before the Syndicate within a week from the date of communication and the same will convene a meeting and will complete the process within a fortnight thereafter. The Syndicate will communicate its views or the result backed by reasons to the petitioner within a week thereof. ( 27 ) WITH the above observations and/or directions the writ petition is disposed of. ( 28 ) THERE will be, however, no order as to costs. Writ allowed in port.