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2008 DIGILAW 400 (KAR)

Govind v. Karnataka Public Service Commission

2008-07-28

A.N.VENUGOPALA GOWDA, S.R.BANNURMATH

body2008
ORDER 1. Petitioner is the applicant in Application No. 1241 of 2004 on the file of the Karnataka Administrative Tribunal at Bangalore. Respondents 1 and 2 are the Respondents 1 and 2 respectively in the said application. The Petitioner had filed the said application under Section 19 of the Administrative Tribunals Act, 1985 to quash the order dated 29-11-2003 passed by the first Respondent, debarring the applicant/Petitioner from taking Departmental Examination during the remaining part of his service and also suggesting to the Government to initiate disciplinary action. 2. Brief facts which lead to the filing of the said application and this writ petition are: 3. The Petitioner who was a Chief Officer of Town Panchayat at Beelagi, had appeared for the Departmental Examination conducted by the Karnataka Public Service Commissioner, Bangalore in the first session of 2003. The Petitioner has written examination for General Law Part I and Part II. The Respondent 1 discovered that the answers written by the Petitioner for General Law Part II are fabricated answers. The Respondent 1 arrived at the said conclusion on the basis of handwriting on the facing sheet of the answer booklet, which did not tally with the handwriting of the answers in the other pages of the booklet. After issuing a show-cause notice and conducting an enquiry, the Respondent 1 passed the aforesaid order dated 29-11-2003. The application filed by the Petitioner under Section 19 of the Administrative Tribunals Act, 1985 in the Tribunal against the said order was contested by the Respondent 1. The Tribunal directed Respondent 1 for production of the relevant records including the answer booklet and perused the same. Considering the contentions advanced before it and the record, the Tribunal by its order dated 21-6-2004 dismissed the application with costs. 4. The Petitioner questioned the said order of the Tribunal in Writ Petition No. 36746 of 2004 which was disposed of, reserving liberty to him to file review petition before the Tribunal by observing that, it is for the Tribunal to consider the review petition in accordance with law. Thereafter, Petitioner filed Review Application No. 16 of 2005 in the Tribunal, impleading the third Respondent. The said application was contested by Respondent 1. The Tribunal by its order dated 1-8-2005 rejected the review application. Questioning the aforesaid orders of the Tribunal and the first Respondent, this writ petition has been filed. 5. Thereafter, Petitioner filed Review Application No. 16 of 2005 in the Tribunal, impleading the third Respondent. The said application was contested by Respondent 1. The Tribunal by its order dated 1-8-2005 rejected the review application. Questioning the aforesaid orders of the Tribunal and the first Respondent, this writ petition has been filed. 5. We have heard Sri Gurudev Gachchinamath, the learned Counsel for the Petitioner and perused the record: (a) Firstly, learned Counsel contended that, the notice was issued by Respondent 1 on 8-8-2003 fixing the date of hearing as 18-8-2003, but the notice was served on the Petitioner on 27-8-2003 and when the Petitioner approached the Respondent 1 on 29-8-2003 for enquiry, without granting reasonable opportunity of hearing to the Petitioner and in violation of principles of natural justice, the Respondent 1 passed the order dated 6-9-2004 and hence, there is denial of reasonable opportunity of hearing to the Petitioner, in view of which, the Tribunal ought to have interfered and quashed the order. (b) Secondly, he contended that, after the examination took place on 29-7-2003 and 30-7-2003, the papers which were in the custody of Respondent 1 and his subordinates have undergone several process like coding, decoding, valuation etc., and thus has been handled by different people. Hence, without holding a proper enquiry, holding the Petitioner responsible for change of booklet i.e., Part A which is of the Petitioner and Part B which is not that of the Petitioner, is impermissible. (c) Thirdly, he contended that, the papers being with Respondent 1, the Petitioner cannot be penalised for the alleged manipulation of booklets, which might have occurred due to the negligence of the officials of Respondent 1. (d) Fourthly, he contended that Respondent 1 has passed the impugned order due to the influence of Respondent 3, who had a score to settle against the Petitioner, for not illegally obliging him. (e) Lastly, he contended that the Petitioner has retired from service, is facing hardship and hence, if the impugned order is not quashed, great injustice and hardship would be caused to the Petitioner. 6. Considering the contentions and the record, the points that arise for our consideration are: (i) Whether the first Respondent-Commission has the authority to hold an enquiry into the examination mal-practice and pass the order debarring the candidate/Petitioner and also recommend to the Government to take further action? 6. Considering the contentions and the record, the points that arise for our consideration are: (i) Whether the first Respondent-Commission has the authority to hold an enquiry into the examination mal-practice and pass the order debarring the candidate/Petitioner and also recommend to the Government to take further action? (ii) Whether the first Respondent-Commission has granted reasonable opportunity of hearing to the Petitioner before passing the order dated 29-11-2003? (iii) Whether the findings recorded by the first Respondent are based on evidence? (iv) Whether the findings on facts recorded by the authority and affirmed by the Tribunal, can be questioned in the writ petition? 7. Re: Point (i): Article 320 of the Constitution of India confers power on the Commission to conduct the examinations and therefore, the power of the Commission is not controlled by the limitations imposed, if any, by any statutory provisions, is the settled position of law. Rule 14 of the Karnataka Public Service Commission (Conduct of Service Examination) Rules, 1965 reads as follows.-- A candidate who is found guilty by the Commission of impersonation or of submitting fabricating document or documents which have been tampered with or of making statements which are incorrect or false, or of suppressing any material information or of using or attempting to use unfair means in the examination hall or otherwise resorting to any other irregular and improper means in connection with any service examination, such candidate may in addition to rendering himself liable to a criminal prosecution.-- (a) be debarred either permanently or for a specified period by the Commission from admission to any examination or appearance at any interview held by the Commission for selection of candidates; and (b) be subjected to disciplinary proceedings. From the aforesaid regulation, it is clear that the Commission has the jurisdiction to find out the mal-practice. Adoption of 'unfair means' in an examination need not be necessarily confine to copying or impersonation of another candidate or being impersonated by any other person or collusion with any person for the purpose of getting help or for aiding any other candidate which are necessarily to be in the Examination hall and at the time of examination. Adoption of 'unfair means' in an examination need not be necessarily confine to copying or impersonation of another candidate or being impersonated by any other person or collusion with any person for the purpose of getting help or for aiding any other candidate which are necessarily to be in the Examination hall and at the time of examination. 'Unfair means' need not be necessarily confined in the examination hall alone but may include any unfair means adopted at any stage even after the conclusion of the examination, such as, getting original answer sheet substituted by the examinee in collusion with the staff of the Commission, which shall be after the conclusion of the examination but shall nevertheless fall within the meaning of unfair means. In the instant case, the Commission having discovered the mal-practice, a show-cause notice dated 8-8-2003 was issued to the Petitioner, as he was accused of having committed unfair means. The Petitioner has appeared on 29-8-2003 before the first Respondent and after considering his statement, in view of the mal-practice/unfair means having been found, the consequential action was taken, namely, debarring him permanently from taking admission to any departmental examination and recommending to the second Respondent-Government to take disciplinary action. In the said background of facts, we are of the opinion that, the Commission has the authority to hold enquiry into the examination mal-practice and pass the order against the candidate. 8. Re: Point (ii): It is not in dispute that a show-cause notice dated 8-8-2003 was issued by the Commission to the Petitioner. Though he was notified to appear on 18-8-2003 for enquiry, since the notice did not reach him before 18-8-2003 and the same reached him on 27-8-2003, he admittedly appeared before the first Respondent on 29-8-2003, on which date, his statement has been recorded by the first Respondent and thereafter, the impugned order dated 27-11-2003 was passed by the Commission. To the Review Application No. 16 of 2005, first Respondent filed the statement of objections, wherein it was averred as follows.-- When he attended the office on 29-8-2003, the enquiry was held and the applicant was permitted to peruse the records and his statement was recorded as stated in the reply statement Annexures-R1 and R2. 9. There is no dispute that the Petitioner filed a reply statement to the said statement of objections of the first Respondent. 9. There is no dispute that the Petitioner filed a reply statement to the said statement of objections of the first Respondent. In the reply statement, he has not traversed the aforesaid material averments made by the first Respondent with regard to the providing of opportunity of hearing to him, the documents being allowed to be perused by him and his statement having been recorded. Between 29-8-2003 and 29-11-2003, the Petitioner did not write to the first Respondent seeking any further opportunity of hearing, if he was not granted the reasonable opportunity of hearing on 29-8-2003, if it was not a fact. Having examined the aforesaid aspects of the matter, in our view, there is no denial of reasonable opportunity of hearing by the first Respondent/Commission to the Petitioner and hence, there is no violation of principles of natural justice in passing the order dated 29-11-2003. 10. Re: Points (iii) and (iv): There is no dispute that the Petitioner has appeared in the examination which took place on 29-7-2003 and 30-7-2003. He was issued with the show-cause notice alleging commission of mal-practice. He has appeared before the Commission on 29-8-2003 and his statement has been recorded by the first Respondent. The statement of the Petitioner and the answer booklet in original, have been summoned and perused by the Tribunal and it has recorded that, the handwriting of the details written on the covering sheet of the booklet No. 0550324 does not match with the handwriting of the answer sheets written in the subsequent papers of the booklet. During the course of the enquiry conducted by the Respondent 1, the applicant has agreed that whatever has been written in the covering sheet of the answer booklet has been written by him and the subsequent pages written, are not written by him. According to the Tribunal, the record showed that the answer booklet which was supplied in the hall was bearing No. 0553467 and that he had also taken additional answer sheets during the course of the examination and that answer booklet No. 0550324 handed over by the applicant after the conclusion of the examination time, is not the one which was supplied to him for writing answers during the time of examination. Thus, there is abundant material to show that there is commission of examination mal-practice. Thus, there is abundant material to show that there is commission of examination mal-practice. The question is: Whether the inference drawn that, the Petitioner has committed the mal-practice is justified? The Petitioner is the beneficiary of the fraud. None else could have committed the examination mal-practice in respect of the answer booklet of the Petitioner. None else would have been benefited by the commission of the fraudulent act of replacement of the answer booklet. In the enquiry, the applicant has admitted about the material facts of replacement of answer sheets. Thus, it is clear that the first Respondent-Commission was justified in arriving at the conclusion that the Petitioner has committed the mal-practice to gain unfair advantage. The Tribunal has also perused the original answer booklet and also the statement of the Petitioner before the first Respondent and thereafter, has arrived at the conclusion that there is fraudulent replacement of a totally different answer booklet in which, some other person has written answers, to various questions on Petitioner's behalf and that there is fraud committed. Thus, the findings recorded by the first Respondent-Commission is based on evidence and it has rightly drawn the inference. The Tribunal, having perused the original record has recorded the aforesaid findings. 11. Learned Counsel for the Petitioner contended that the conclusions arrived at by the first Respondent-Commission and the Tribunal are erroneous. In our view, the first Respondent is conferred with the jurisdiction to conduct the enquiry into the examination mal-practice and take follow-up action. The Tribunal, which is the first forum where judicial review of the action of the authority can be examined, has also examined the original record and has arrived at the said conclusion. Hence, it is not permissible for this Court, exercising writ jurisdiction under Articles 226 and 227 of the Constitution, to go into the finding of fact recorded by an authority/Tribunal. Power under Articles 226 and 227 is the power of judicial review and this Court can only examine the procedural correctness and cannot go into the merits of the controversy like an Appellate Authority. 12. In the case of Sterling Computers Limited and Others Vs. Power under Articles 226 and 227 is the power of judicial review and this Court can only examine the procedural correctness and cannot go into the merits of the controversy like an Appellate Authority. 12. In the case of Sterling Computers Limited and Others Vs. M and N Publications Limited and Others, AIR 1996 SC 51 , it has been held that: While exercising the power of judicial review, the Court concerned, primarily has to see whether there has been any infirmity in the "decision making process" and by way of judicial review, the Court cannot examine the details though the Court has inherent limitation on the scope of enquiry. 13. The Court can certainly examine whether the decision making process was reasonable, rational and not arbitrary on the facts and circumstances of each case. Having examined the aforesaid aspects of the matter, in our view, there is no infirmity in the decision making process by the Commission. Hence, we hold that the findings recorded by the first Respondent are based on evidence and hence no case is made out for interference. Points (iii) and (iv) are accordingly answered. 14. The last contention of the learned Counsel does not appeal to us. The Commission which has been vested with the jurisdiction to initiate action against any candidate of resorting to any irregular or improper means in the examination or using any other unfair means, if the candidate is found guilty, the Commission may take action of invalidating the answer book or debarring the candidate either permanently or for a specified period and also recommending to the Government to take disciplinary action. The Petitioner having indulged in use of unfair means and examination mal-practice and having been found guilty by the Commission, which has been rightly been upheld by the Tribunal, has to face the consequences as provided under the aforesaid Regulation 14. The Commission has acted within the four comers of the Regulation and has adhered to the Rule of law. A candidate who has used unfair means or committed examination malpractice, when found guilty, has to undergo the consequences provided under law and hence, the contention cannot at all be countenanced on the ground of retirement from service or any hardship being faced. Such factors are extraneous, in consideration of matters of the present nature. 15. A candidate who has used unfair means or committed examination malpractice, when found guilty, has to undergo the consequences provided under law and hence, the contention cannot at all be countenanced on the ground of retirement from service or any hardship being faced. Such factors are extraneous, in consideration of matters of the present nature. 15. In our view, the Tribunal has considered the matter in the proper perspective and there is neither any arbitrariness nor illegality on its part, calling for interference in the writ jurisdiction of this Court. 16. For the foregoing reasons, the writ petition is devoid of merit and hence, is hereby dismissed. No costs.