JUDGMENT HONOURABLE MR. JUSTICE MOHIT S. SHAH) This appeal is directed against the judgment and order dated 16.10.2008 of the learned Single Judge whereby the learned Single Judge allowed the writ petition filed by respondent No.1 herein (hereinafter referred to as the respondent or the student ) by quashing the decision of the appellant University by which the University had held the respondent guilty of misconduct at the examination for Second Semester of First LL.B held in April 2008 and giving further directions. 2. The appellant University conducted examinations for the Second Semester of First LL.B. from 21.4.2008 to 25.4.2008. The respondent appeared at the said examination in all the five papers. On 25.4.2008, the examination was for Banking and Negotiable Instruments Act . The examination was from 10.30 AM to 1.30 PM. The appellant University issued notice dated 9.5.2008 calling upon the respondent to give his explanation on 11.5.2008 (Sunday) at 12.00 noon regarding the incident which took place on 25.4.2008. The notice was issued on the basis of statements of four persons i.e. University observer Smt. Rajeshree Mengar, College Principal, Senior Supervisor and Junior Supervisor. It was mentioned that when the examination in Banking Law was going on, on 25.4.2008, as per the statements of the above four persons writing was found on the foot-ruler recovered from the petitioner and that the respondent had accordingly committed breach of the instructions issued to the candidates and had thus adopted unfair means at the examination. 3. The notice was received by the respondent late in the evening on Friday, 9th May 2008.Aggrieved by the above notice, the respondent challenged the same by filing a writ petition before this Court being Special Civil Application No.7292 of 2008. The petition was affirmed on 10.5.2008 and presented before the Registrar (Judicial) early in the morning of 11.5.2008. The respondent (original petitioner) also addressed a letter dated 10.5.2008 to the University objecting to the short notice period and calling for various information, documents and material including the foot-ruler, which was relevant to the inquiry. The petitioner's stand in the said petition particularly in paragraph 14 of memo of the petition was as under :- 14. The respondent (original petitioner) also addressed a letter dated 10.5.2008 to the University objecting to the short notice period and calling for various information, documents and material including the foot-ruler, which was relevant to the inquiry. The petitioner's stand in the said petition particularly in paragraph 14 of memo of the petition was as under :- 14. The petitioner submits that on 25th April 2008, though the petitioner had not involved himself in any misconduct, illegality or irregularity, an absolutely unsustainable and untenable allegation was sought to be levelled by the supervisor against the petitioner to the effect that the petitioner had in his possession a plastic foot ruler (scale) of about 6 inches, which allegedly had some scribbling on it. The petitioner respectfully submits that the same is an absolutely false allegation and as a matter of fact, the petitioner would like to narrate the sequence of events, which transpired in the class room on 25th April 2008. (i) On the said date the petitioner had presented himself at 10:30 a.m. for examination at Siddharth Law College, Gandhinagar. (ii) At around 11:15 a.m. a lady invigilator had accosted another examinee girl and was admonishing her in a very loud language which was disturbing. (iii) The petitioner had requested the lady invigilator to speak softly which, as is reasonably presumed and bonafide believed by the petitioner, angered the lady invigilator. (iv) The lady supervisor came to the petitioner at his desk after a few minutes and started checking the petitioner's belongings. The lady supervisor opened the pencil box and took out a six inches scale from the box. The scale incidentally belonged to the 6 year old son of the petitioner, which was brought by the petitioner thinking that it might be useful in the examination. The foot ruler had been brought for the purpose of drawing lines to answer probable questions, if any, in the question paper by a nature which required to be given in a tabular form for distinguishing features of any particular question or subject. (v) The lady supervisor having found that there was nothing objectionable against the conduct of the petitioner, took hold of the foot ruler and started accusing the petitioner. Said accusations were incorrect and false accusations. (v) The lady supervisor having found that there was nothing objectionable against the conduct of the petitioner, took hold of the foot ruler and started accusing the petitioner. Said accusations were incorrect and false accusations. The petitioner therefore objected to her conduct, which was apparently to victimize the petitioner for petitioner having gathered the courage as a student to intervene when the said lady invigilator was admonishing another examinee girl in a loud language. (vi) The petitioner submits that the lady invigilator without doing anything further or without putting any questions, straightaway walked outside the class room with the scale and also asked the petitioner to come out of the room. The petitioner refused to do since there was nothing objectionable and the petitioner did not want to waste any time in the completion of the answer sheet to the question paper. On the petitioner's refusal to do so, the lady invigilator came back, snatched away the answer paper and walked off. The petitioner was shocked and surprised by such insolent and high-handed behaviour. After about 10 minutes, the petitioner was called outside the class room where the petitioner was met by the said lady invigilator and principal of the college. Without any rhyme or reason, the petitioner was told that the petitioner would get back the answer papers only after about half an hour so as to enable the petitioner to continue with the examination. In view of this, the petitioner strongly protested against the high-handed and arbitrary action, however, the answer paper was not given back to the petitioner till 12.00 noon. After the petitioner was given the answer paper back, the petitioner was permitted to take up the examination and petitioner completed the answer paper in the balance time that was left. (vii) The petitioner submits that no statement worth the name either of the petitioner or of any other person namely, either the supervisor or the lady invigilator or the principal was recorded either in the presence of the petitioner or at the spot. (viii) That on conclusion of the examination time, the petitioner had deposited back the answer paper and left the examination centre assuming that the entire episode was treated as closed. (viii) That on conclusion of the examination time, the petitioner had deposited back the answer paper and left the examination centre assuming that the entire episode was treated as closed. (ix) The petitioner submits that before leaving the examination centre, the petitioner had requested the lady invigilator to return back the scale, which was taken away by her, on the ground that the same was belonging to the son of the petitioner aged six years. However, the lady invigilator refused to do so. 4. In the meantime, on 11.5.2008, the respondent - student did appear before the Committee and submitted a letter reiterating demand for documents/material and requesting for adjournment and reasonable time for reply as well as personal hearing. On 12.5.2008, the writ petition came to be disposed of by the learned Single Judge after recording the statement of the University that additional notice containing details/material to be used against the respondent and punishment proposed to be imposed would be issued and the said material would be supplied. The order of the learned Single Judge read as under :- 1. The petitioner has preferred the petition for appropriate writ to hold and declare that the action of the respondents herein in proceeding to inquiry into the allegations against the petitioner without supplying necessary documents be declared as unlawful and highhanded or arbitrary. 2. When the matter is taken up for hearing, Mr. Shelat, learned counsel for Mrs. Nanavati, learned counsel appearing for the University declared before the Court as under: 1. The University will issue an additional notice containing the details, the material which is to be used against the petitioner in the inquiry in question. 2. The punishment which is proposed to be imposed upon the petitioner shall also be stated in the said notice. 3. The material which may be referred to in the next notice and to be used against the petitioner shall also be supplied to the petitioner. 3. After the aforesaid details are supplied to the petitioner, opportunity of hearing shall be given and thereafter, appropriate decision shall be taken. 4. In the above view of the matter, Mr. Raval, learned counsel for the petitioner does not press the petition at this stage. Permission granted. Disposed of as withdrawn. 5. 3. After the aforesaid details are supplied to the petitioner, opportunity of hearing shall be given and thereafter, appropriate decision shall be taken. 4. In the above view of the matter, Mr. Raval, learned counsel for the petitioner does not press the petition at this stage. Permission granted. Disposed of as withdrawn. 5. Pursuant to the above order, the University issued notice dated 21.5.2008 enclosing the statements of the University observer, Principal of the Law College where the examination was conducted and Block Supervisor and Senior Supervisor. The show-cause notice stated that as per the statement given by the above four officers on duty, the foot-rule with written material regarding the Banking Law subject was recovered from the respondent herein and that if any substance is found in the same, the respondent was liable to be punished as per the prevailing rules of the Unfair Means Committee of the University to the extent of F+O i.e. cancellation of the result. The respondent herein was informed that the respondent had adopted unfair means at the examination by committing breach of the instructions given to the candidates and that the respondent could appear before the Committee on 25.5.2008 at 12-00 noon before which date the respondent may submit his reply and the Committee will take decision on the basis of the relevant evidence and information received. 6. In response to the above notice, the respondent submitted reply dated 23.5.2008 reiterating demand for relevant documents/material and also report of the inquiry stated to have been conducted by the pro Vice-Chancellor. The respondent also requested for adjournment of the hearing scheduled on 25.5.2008. The University sent reply dated 24.5.2008 informing the respondent at about 10-30 PM that all statements were supplied and the respondent will have to remain personally present before the Committee to seek additional time for representation. The respondent thereupon sent a telegram to the University on 24.5.2008 itself stating that the relevant documents and information were not supplied and that the telegram be placed before the Committee. On 25.5.2008 also, the respondent sent his letter to the University seeking adjournment till documents/material are supplied and the respondent also requested for permission to cross-examine the witnesses relied upon by the University. On 25.5.2008, the respondent appeared before the Unfair Means Committee and raised objections to the hearing. 7. On 25.5.2008 also, the respondent sent his letter to the University seeking adjournment till documents/material are supplied and the respondent also requested for permission to cross-examine the witnesses relied upon by the University. On 25.5.2008, the respondent appeared before the Unfair Means Committee and raised objections to the hearing. 7. There is some controversy as to what exactly happened at the hearing before the Committee on 25.5.2008 but on 25.5.2008 itself, the Unfair Means Committee submitted its report to the University giving finding of guilt against the respondent and also recommending punishment of F+O i.e. failure at the examination and the Committee also recommended action against Senior Supervisor and incharge Principal of the College. When the respondent made a grievance before this Court at the hearing of the previous petition on 28.5.2008, the University took the stand that the decision making body was the Executive Council and the Committee's report was only recommendatory in nature. This Court, therefore, passed order dated 28.5.2008, inter-alia, permitting the respondent herein (the petitioner in the petition before the learned Single Judge) to make a representation to the Executive Council which had yet to take a decision on the recommendations of the Committee. On 29.5.2008, the respondent, letter to the University, requested for copies of the minutes of the proceedings and report/recommendation of the Committee in order to enable him to make a representation to the Executive Council. On 31.5.2008, the University sent reply to the respondent declining to give copies of the minutes of the proceedings or the recommendations of the Unfair Means Committee, but enclosed instructions to the candidates appearing at the examination and the general instructions. The respondent herein sent his provisional representation dated 5.6.2008 to the Executive Council stating that he had not yet received all the relevant material nor was he given any opportunity for cross-examination of the witnesses. The University sent reply dated 6.6.2008 that the material relied upon by the University had been supplied and that further representation may be made latest by 7.6.2008. The respondent herein made a further representation dated 7.6.2008 wherein the respondent reiterated the defence which he had already disclosed in the first petition being Special Civil Application No.7292 of 2008 affirmed on 10.5.2008 (reproduced in para 3 of this judgment). The respondent still reiterated the request for copy of the proceedings and report/recommendations of the Committee. The respondent herein made a further representation dated 7.6.2008 wherein the respondent reiterated the defence which he had already disclosed in the first petition being Special Civil Application No.7292 of 2008 affirmed on 10.5.2008 (reproduced in para 3 of this judgment). The respondent still reiterated the request for copy of the proceedings and report/recommendations of the Committee. On 9.6.2008, the respondent also sent a letter to the Executive Council indicating that though he had not received any notice from Executive Council he had learnt that the meeting was scheduled on 10.6.2008 which may be adjourned since the respondent was posted at Junagadh and was not in position to attend the inquiry. It appears that on 10.6.2008, the Executive Council resolved to accept the recommendations of the Committee. The learned Single Judge also passed order dated 10.6.2008 in Civil Application No.6566 of 2008. Ultimately, the decision of the Executive Council was placed on the record of the petition before the learned Single Judge along with the reply affidavit. On 24.6.2008, the respondent herein filed the petition giving rise to this appeal for quashing the decision dated 10.6.2008 of the Executive Council and the recommendation of the Committee made on 25.5.2008. In fact the respondent also prayed for a declaration that the constitution of the Committee was illegal and prayed for other reliefs. 8. After hearing the learned counsel for the parties and after referring to the pleadings of the parties, the learned Single Judge allowed the writ petition of the respondent herein by setting the impugned decision dated 10.6.2008 of the Executive Council on the grounds that - (1) There were various discrepancies in the statements of the University observer, Junior Supervisor, Senior Supervisor and the Principal of the college where the respondent had appeared at the examination. The said statements were neither recorded in the presence of the student nor were they recorded by or before the Committee. (2) The foot-ruler recovered from the respondent herein on which there was alleged writing was not produced at the inquiry and in fact the foot-ruler had been destroyed on the day of the examination itself i.e. on 25.4.2008. In absence of the basic material, the University was required to accept the request of the respondent herein for permission to cross-examine the University observer and others whose statements were relied upon by the University. In absence of the basic material, the University was required to accept the request of the respondent herein for permission to cross-examine the University observer and others whose statements were relied upon by the University. The learned Single Judge held that the grounds given by the University for not granting the permission for cross-examination - [(i) in the history of the University such permission has never been granted and (ii) the respondent herein was likely to win over the witnesses if permission for cross-examination were to be granted] were absolutely arbitrary and non-tenable. Apart from quashing the decision dated 10.6.2008 of the Executive Council, the learned Single Judge also gave the following directions in para 48 of the judgment dated 16.10.2008 :- 48. Hence, it is further directed that the University shall declare the result of the applicant petitioner on or before 14.11.2008. After the declaration of the result, if the petitioner applicant is declared passed, he shall be at liberty to take admission in Second Year LL.B., of First Semester as well as of Second Semester simultaneously and shall also be at liberty to prosecute studies in accordance with law. It is also observed that in case of any shortage of requisite number of days of attendance or studies for complying the eligibility to appear in the next examinations of First Semester as well as Second Semester of Second LL.B., it would be open to the petitioner to apply the College or the University, as the case may be, for regularizing the period or for condoning the period on account of the aforesaid unavoidable circumstances and the delay caused in litigation as well as on account of the decision of the University, which is ultimately quashed by this Court. 9. Aggrieved by the above directions, the Gujarat University and its Vice-Chancellor have filed this appeal under Clause 15 of the Letters Patent. While the student against whom the inquiry was held and who was the original petitioner before the learned Single Judge is arrayed as respondent No.1 in the appeal, respondent No.2 is Government of Gujarat which was joined as respondent No. 3 before the learned Single Judge in view of the averments made in the petition regarding the State Government. 10. While the student against whom the inquiry was held and who was the original petitioner before the learned Single Judge is arrayed as respondent No.1 in the appeal, respondent No.2 is Government of Gujarat which was joined as respondent No. 3 before the learned Single Judge in view of the averments made in the petition regarding the State Government. 10. Mr SN Shelat, learned Senior Advocate with Mrs VD Nanavati represented the Gujarat University and its Vice-Chancellor i.e. the appellants herein, Mr Mihir Joshi, learned Senior Counsel with Mr Kiran Jani represented the respondent-student and Mr Kamal B Trivedi, learned Advocate General has appeared and argued for the Government of Gujarat. 11. Mr Shelat, learned Senior Counsel for the appellants made the following broad submissions :- (i) The respondent student was found to be in possession of material relating to the examination as indicated in the statements of the University observer and the Principal / employees of the Law College where the examination was conducted. This Court exercising writ jurisdiction under Article 226 of the Constitution cannot disregard the finding given by a disciplinary authority and also the statement of the University observer merely on the ground that the foot-ruler could not be found. The High Court cannot quash any decision on the ground of insufficiency or inadequacy of evidence or on the ground that a different view was possible. (ii) The student had admitted that he was found to have in his possession a foot-ruler with some writing on it. This is sufficient to attract instruction No.13 given to students which reads as under :- (13). If you are found in possession of written materials in any form or mobile phone or programmed calculator or found exchanging any materials/article or found talking with other candidates or found any irregularity or caught absconding with written or blank answerbook, you will be immediately expelled and penal action will be initiated after the matter is reported to authorities. [emphasis supplied] (iii) The instructions to the Senior Supervisor also provided that if any papers or notes or books or papers with scribbling are found during the examination from a student's possession, such student will be expelled from the examination. Breach of the instructions entail penal provisions as laid down by the Executive Council of the University. [emphasis supplied] (iii) The instructions to the Senior Supervisor also provided that if any papers or notes or books or papers with scribbling are found during the examination from a student's possession, such student will be expelled from the examination. Breach of the instructions entail penal provisions as laid down by the Executive Council of the University. It is vehemently submitted by Mr Shelat that such instructions are issued to the students to infuse discipline in the competitive examination and to minimize the possibility of any chance of abuse; such instructions are not to be construed like provisions in a penal statute, but the instructions are issued for maintaining the sanctity of the examinations. As per the said instructions, any writing on the foot-ruler recovered from the respondent was sufficient to hold that the respondent was guilty of adopting unfair means at the examination and if this view is not taken, the instructions issued to the students, including instruction No.13 prohibiting possession of any material will become redundant. It is vehemently submitted by Mr Shelat that if the instructions and regulations of the University are not interpreted in the above manner, this Court will be substituting the opinion of the Executive Council and of the Unfair Means Committee. (iv) Mr Shelat also submitted that the Executive Council has considered the matter in depth and the Executive Council had also examined the request of the student for cross-examination of the witness and the said request was declined. Apart from the fact that no such request was ever granted by the University in the past, permitting the respondent to cross-examine the University observer and others would give the respondent one more opportunity to win over the witnesses with his status as an IPS police officer. The very fact that the respondent could appear in the examination without the requisite attendance in the Law College was sufficient to show that the College authorities had given him special treatment. This Court in exercise of the writ jurisdiction is only concerned with the decision making process and not with the merits of the decision and, therefore, this Court cannot review the decision of the Executive Council as arbitrary. This Court in exercise of the writ jurisdiction is only concerned with the decision making process and not with the merits of the decision and, therefore, this Court cannot review the decision of the Executive Council as arbitrary. (v) Without prejudice to the above contentions, it is submitted by Mr Shelat that even if the decision of the Executive Council could not be sustained for any reason, the order imposing penalty on the respondent student may go, but the proceedings would continue and the Court ought to have permitted the University to continue with the disciplinary proceedings against the respondent student. It is submitted that similar disciplinary proceedings were taken out against as many as 50 students including two students found with objectionable material on the palm in the same examination room where the respondent herein was appearing and also 48 other students. No special treatment was required to be given to the respondent herein merely because he is a highly placed Police Officer. (vi) It is also submitted by Mr Shelat that discipline and excellence in legal education have to be maintained, but the learned Single Judge has given go-by to the said salutary principles. (vii) Lastly, Mr Shelat challenged the direction given by the learned Single Judge whereby the University is directed to consider grant of admission to Second LL.B. in monsoon semester as well as in winter semester and also grant of permission to the respondent for simultaneously appearing at the examination for the monsoon semester as well as winter semester examinations of Second LL.B. class without the respondent having undergone any studies for the monsoon semester of Second LL.B. which period is already over. Monsoon semester was from 16.6.2008 to 25.10.2008 and the examinations were conducted from on 5.11.2008 to 10.11.2008. 12. On the other hand, Mr Mihir Joshi, learned counsel for the respondent - student has opposed the appeal and made the following submissions :- 12.1 The respondent student has not canvassed, and the learned Single Judge has not enunciated, any general principle that any student facing disciplinary inquiry has an absolute right of cross-examination of witnesses. 12. On the other hand, Mr Mihir Joshi, learned counsel for the respondent - student has opposed the appeal and made the following submissions :- 12.1 The respondent student has not canvassed, and the learned Single Judge has not enunciated, any general principle that any student facing disciplinary inquiry has an absolute right of cross-examination of witnesses. It is submitted that the finding was given by the learned Single Judge only in the peculiar facts of the present case where the entire basis of the charge levelled against the respondent was that there was material on the foot-ruler recovered from the respondent which was connected with the subject of banking law, (which was the subject for the examination on that particular day) and the primary evidence i.e. the foot-ruler was not available, that the destruction of the foot-ruler was not by the student, but by the authorities, that the statements of the University observer, the Principal, Junior and Senior Supervisors were not recorded by or before the Unfair Means Committee or in presence of the respondent student, but the so-called statements were mere letters written to the Registrar of the University or to the Controller of Examinations, that the University observer who stated that the writing on the foot-ruler was connected with the subject of Banking Law, was not a Lecturer in Law but was a Lecturer in Statistics and had an altercation with the respondent student in the beginning of the examination, that the respondent student's specific defence right from the beginning was that the foot-ruler in question belonged to his 6½ year old school going son and was required for drawing lines/tables in the answer book, that the respondent student is an IPS Officer who has investigated many sensitive cases including the Sohrabuddin encounter case. It is vehemently submitted that it was in the totality of the above peculiar facts and circumstances of the case that the respondent student had been demanding cross-examination of the witnesses whose letters/statements had been treated as evidence and only one of them had merely given an opinion that the writing on the foot-ruler was relating to the subject of Banking Law. It is submitted by Mr Joshi for the respondent student that this was a clear case of no evidence as per the settled legal principles and that, therefore, the learned Single Judge was justified in quashing the decision of the University. It is submitted by Mr Joshi for the respondent student that this was a clear case of no evidence as per the settled legal principles and that, therefore, the learned Single Judge was justified in quashing the decision of the University. 12.2 It is submitted that in the peculiar facts and circumstances of the case and since the decision is liable to be quashed on the basis of no evidence principle , there was no question of remitting the matter back to the University. It is further submitted by Mr Joshi that this was not a case of any allegation of the student having copied in the examination from any other student where the version of the invigilator or the Supervisor has to be given more credence than the version of the student caught copying. Here the question was whether the so-called writing on the foot-ruler, which according to the respondent student was merely scribbling by his 6½ year old son, was connected with the subject of Banking Law. The mere opinion of the University observer, who is only a Lecturer in Statistics, that such writing was relating to the subject of Banking Law, cannot be accepted as gospel truth in absence of any other communication in the letter of the University observer to justify her opinion that it was related to the subject of Banking. It is submitted that neither the Principal of the Law College where the examination was conducted or Senior Supervisor in the Law College have given any such opinion. 12.3 It is further submitted by Mr Joshi that although in domestic inquiries the principle of proof beyond reasonable doubt does not apply, at least the guilt must be brought home on the principle of preponderance of probabilities. On the basis of the said test also, it was not possible to hold that the respondent was guilty of any such misconduct of having brought within the examination hall any writing connected with the subject of Banking Law. Apart from the fact that the respondent student has obtained his Diploma in Business Management from IIM, Bangalore and the respondent student was a ranker in the Xth and XIIth standard examination conducted by the Central Board of Secondary Education having obtained 6th rank in the All India merit list in the Xth standard examination and 12th rank in the All India merit list in the XIIth std. Examination, the respondent had done the Course of Bachelor of Technology (Electronics and Telecommunications) from Allahabad University, the respondent had also obtained Post-Graduate Diploma in Personnel Management from Allahabad University and had also successfully completed Two Year Diploma in Public Policy and Management from IIM Bangalore, Post Graduate Diploma in Patents Law from NALSAR University of Law at Hyderabad and the respondent is also a visiting associate at the IIM, Bangalore. Apart from these excellent academic achievements, the respondent had obtained 64.5% marks (258 out of 400 marks) in the First Semester of the First LL.B. examination (Annexure B to the petition). It is submitted that with such excellent academic background, there was no question of the respondent resorting to any unfair means at the examination, more particularly when the marks obtained at this examination do not have any significance in the respondent's career in the Police Department. It is submitted that in absence of the foot-ruler i.e. in absence of any direct or primary evidence, when the case against the respondent hinges on secondary evidence like the opinion of the University observer (who was a Lecturer in Statistics) that the so-called writing on the foot-ruler was connected with the subject of Banking Law and when the respondent's case that the said observer had an altercation with the respondent at the beginning of the examination on 25.4.2008 itself was borne out from the statement dated 26.4.2008 of the Senior Supervisor Mr RY Mankad, the question of motive would assume importance and the University has not been able to show any motive why the respondent would resort to unfair means at the examination. 12.4 Mr Joshi also submitted that since the memo of the petition contained reference to various sensitive cases investigated by the respondent herein (original petitioner), the Government of Gujarat was joined as a party respondent, but it was not clear as to why the Government of Gujarat should have made representation before this Court to support the decision of the University in the matter of punishment to be meted out to a student which was an individual case of an individual student. 13. We may also note the submissions made by Mr Kamal B Trivedi, learned Advocate General on behalf of the Government of Gujarat. 13. We may also note the submissions made by Mr Kamal B Trivedi, learned Advocate General on behalf of the Government of Gujarat. The learned Advocate General submitted that although the matter pertains to the decision of the Executive Council of the Gujarat University in a disciplinary matter against a student, having regard to the principles laid down by the learned Single Judge which will be applicable in all such matters, the State Government is also concerned. 13.1 The learned Advocate General relied on the decision of the Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education vs. KS Gandhi, (1991) 2 SCC 716 , particularly paragraphs 29, 30 and 37 thereof regarding the standard of burden of proof in such cases. The learned Advocate General also relied upon the decision in Central Board of Secondary Education vs. Vineeta Mahajan, AIR 1994 SC 733 in support of the submission that once the student is found in possession of incriminating material, that itself amounts to misconduct irrespective of the fact whether the possession of such incriminating material was bona fide or mala fide. Even if the student did not make use of such material, the very fact that the student took any paper relevant to the examination and was found to be in possession of the same by the invigilator in the examination hall is sufficient to prove the charge of use of unfair means by the student in the examination. 13.2 The learned Advocate General also relied upon the decision of the Apex Court in Board of High School and Intermediate Education, UP vs. Bagleshwar Prasad, AIR 1966 SC 875 in support of the submission that in the cases of adoption of unfair means, direct evidence would not be available in a large number of cases and that this problem which educational institutions have to face from time to time is a serious problem and that the Courts should be slow to interfere with the decisions of domestic Tribunals appointed by educational bodies like the Universities. In dealing with the validity of the impugned orders passed by the Universities, under Article 226 of the Constitution, the High Court is not sitting in appeal over the decision in question and its jurisdiction is very limited. In dealing with the validity of the impugned orders passed by the Universities, under Article 226 of the Constitution, the High Court is not sitting in appeal over the decision in question and its jurisdiction is very limited. It is also submitted that where no animus is suggested and no mala fides have been pleaded and the enquiry has been fair and the student has had an opportunity of making his defence, the High Court would not be justified in interfering with the order passed against the student cancelling his examination result. 13.3 It is, therefore, submitted that the learned Single Judge ought not to have interfered with the decision of the Executive Council of the University, which is a responsible academic body. 14. Having heard the learned counsel for the parties, we have given anxious consideration to the rival submissions. Before dealing with the submissions, we will set out the relevant instructions given by the University to the candidates as well as to the senior supervisors and also set out the provisions of Ordinance 134. The relevant portion of Ordinance 134 reads as under :- Ordinance 134 On receipt of a report regarding the misconduct of any student at any University or College examination, including breach of any of the rules laid down by the Executive Council for the proper conduct of examination or a student indulging himself in any activity which either intimidates or instigates other students for not appearing at any College or University examination or disturbing or attempting to disturb any College or University examination, the Executive Council shall have power to punish such misconduct in any one or more of the following ways : (i) Debarring such student from any University or College examination either permanently or for a specified period. (ii) Restraining him from taking admission to or attending any course of studies in a college, recognised institution or a University Department; (iii) ... ... ... ... ... (iv) Cancelling the result of such a student, if he is a candidate at any University or College examination; (v) .... ... ... ... ... (iv) .... ... ... ... ... The decision of the Executive Council as to what constitutes misconduct for the purpose of inflicting punishment under the provisions of the ordinance shall be final. The relevant portion of the instructions to the candidates reads as under :- (13). ... ... ... ... (iv) .... ... ... ... ... The decision of the Executive Council as to what constitutes misconduct for the purpose of inflicting punishment under the provisions of the ordinance shall be final. The relevant portion of the instructions to the candidates reads as under :- (13). If you are found in possession of written materials in any form or mobile phone or programmed calculator or found exchanging any materials/article or found talking with other candidates or found any irregularity or caught absconding with written or blank answerbook, you will be immediately expelled and penal action will be initiated after the matter is reported to authorities. Instruction No. 22 to the senior supervisors reads as under :- Senior Supervisors shall use utmost vigilance to detect communications by candidates with each other or use unfair means by copying, etc. They shall forthwith expel any candidate found copying or communicating in any way with another candidate or having, in his possession, books or notes or scribbling papers or any other materials from which unfair means can be practiced and report cases of expulsion to the Registrar alongwith the answer-books of the candidate and other materials, if any, connected with examination. They shall also expel forthwith any candidate who takes anybody else's answer-books or allows, deliberately his answer-book to be taken by any other candidate. But they will not expel a candidate from whose book the other candidate is found copying or whose answer-book is found with other candidate. However, his explanation should be obtained and sent to the Registrar and particulars, if any with his remarks. He should be allowed to appear in the rest of the examinations by the papers. [emphasis supplied] 15. The controversy arising in this appeal particularly centres round the following issues :- (i) Whether the decision of the Executive Council holding the respondent (original petitioner) guilty of adopting unfair means at the examination by possessing written material relevant to the subject of banking law was rightly interfered with by the learned Single Judge ? (ii) Whether the University can be permitted to take up the alternative plea that in any view of the matter, the respondent student was found in possession of some writing and, therefore, the respondent student was guilty of breach of instruction No. 13 given to the students ? (ii) Whether the University can be permitted to take up the alternative plea that in any view of the matter, the respondent student was found in possession of some writing and, therefore, the respondent student was guilty of breach of instruction No. 13 given to the students ? (iii) If the University is allowed to take such a plea, for the purpose of holding the student to be guilty of adoption of unfair means at the examination, whether the written material should be such from which unfair means can be adopted or whether possession by the student of the written material by itself is sufficient, irrespective of the fact whether such material is capable of being used at the examination in question ? 16. It is true that the learned Single Judge gave two grounds for finding fault with the decision of the Unfair Means committee and the Executive Council one was the contradictions in the statements of the the University observer, the Senior Supervisor and the Principal of the College where the examination was conducted. The other was that the respondent student's request for permission to cross-examine the University observer was denied by the Unfair Means Committee as well as the Executive Council. The decision of the Executive Council indicated two reasons for declining such request - (i) that in the history of the University, no such permission had been granted and (ii) because looking to the position of the respondent student, a senior IPS officer, there was possibility of the witnesses being pressurized or won-over. The learned Single Judge held that neither of the reasons was rational. 17. Mr SN Shelat, learned counsel for the University was at pains to submit that such issues have been considered by this Court on several occasions in the context of the disciplinary inquiries against students charged with adoption of unfair means at the examination and this Court has consistently rejected such contentions urged on behalf of the delinquent students. 18. The learned counsel for the University has also submitted that the statement of the University observer was to the effect that she had found writing relating to the Banking subject found from the foot-ruler of the respondent student in his compass box and, therefore, that should be treated as evidence. 18. The learned counsel for the University has also submitted that the statement of the University observer was to the effect that she had found writing relating to the Banking subject found from the foot-ruler of the respondent student in his compass box and, therefore, that should be treated as evidence. Invoking a number of decisions of the Apex Court and this Court, it is submitted by Mr Shelat for the University that the Court should give credence to the letter dated 27.4.2008 of the University observer as against the defence of the respondent student. It is also submitted that this Court while exercising writ jurisdiction under Article 226 of the Constitution would not sit in appeal over the decision of the Executive Council which has based its decision on the above statement in the letter dated 27.4.2008 of the University observer. Relying on the decision dated 10.4.1975 of a learned Single Judge of this Court in Special Civil Application No. 357 of 1975, the decision dated 17.8.1978 of a Division Bench of this Court in Special Civil Application No. 1097 of 1978 (paras 37 & 54), AIR 1979 Guj. 62 (para 33), AIR 1984 J&K 40 (para 8) and the decision of the Apex Court in AIR 1982 SC 710 (paras 96, 101 & 102), it is submitted that a student facing the charge of adoption of unfair means at an examination is not entitled to cross examine the University observer/supervisor/invigilator. Otherwise, the University will not be in a position to hold and complete such inquiries against delinquent students because a large number of such cases arise every year. Reliance is also placed on the decision dated 28.3.2008 of a Division Bench of this Court in Letters Patent Appeal No. 302 of 2008 and connected matters in support of the contention that whether the candidate has used incriminating material or not is not a relevant factor and that possession of such material is sufficient to hold the examinee guilty of misconduct. 19. On the other hand, Mr Mihir Joshi, learned counsel for the respondent student has submitted that incriminating material must be such from which unfair means are capable of being practiced. In support of this submission, reliance is placed on AIR 2002 Guj. 13 (para 2.1), AIR 2003 Orissa 34 (paras 10, 12 & 13), AIR 1994 SC 733 (para 5) and 2004 (5) CTC 744 . In support of this submission, reliance is placed on AIR 2002 Guj. 13 (para 2.1), AIR 2003 Orissa 34 (paras 10, 12 & 13), AIR 1994 SC 733 (para 5) and 2004 (5) CTC 744 . Mr Joshi for the respondent student has also relied on the following authorities in support of the submission that even though this Court is not sitting in appeal over the decision of the University, the Court would be justified in quashing a decision if it is a case no evidence or the evidence is legally not capable of supporting the conclusion :- (i) AIR 1992 Guj. 45 (para 20 to 26) (ii) AIR 1964 SC 364 (para 20, 23) (iii) 1998 (3) SCC 227 (para 13, 14 & 15) (iv) 1992 (2) SCC 10 (para 8) The learned counsel heavily relied upon a decision in 1988 (3) SCC 227 and submitted that in the said case the Apex Court confirmed that the statement of witness recorded in absence of the petitioner and without offering the witness for cross-examination did not constitute legal evidence. 20. We have carefully read the letters written by the University observer on 27.4.2008, two days after the examination and the letters written by the Senior Supervisor and the Principal of the Law College where the examination was conducted, which letters were written on 26th April, i.e. the next date after the examination when there was some newspaper report about the alleged incident. 20.1 Mr RY Mankad, Senior Supervisor addressed letter dated 26.4.2008 to the Controller of Examinations stating as under :- .... at about 11.15 to 11.20 (am) on 25.4.2008, one block supervisor Shri DD Prajapati, came there (Principal's office) and told the Principal that the lady observer has called the Principal in the block on the upper floor. Accordingly, I went there. At that time, the said observer told me that this student had brought incriminating material in the examination room, which is found during checking. The material-writing was on small plastic scale (futpatti) and about five to six points were written thereof pertaining to the subject of the examination of which was held on that day. Instead of making copy case against the said student, observer had retained his paper for about half an hour as a part of punishment. Moreover, material was also recovered from two-three other students, upon whom above punishment was also inflicted. Instead of making copy case against the said student, observer had retained his paper for about half an hour as a part of punishment. Moreover, material was also recovered from two-three other students, upon whom above punishment was also inflicted. On coming to the lower floor, the said observer had told me that when I was doing checking in the block, this officer told me that he is being disturbed and class is being disturbed also. In reply she told him that she is performing her duties as observer, as she has come here as a responsible officer. At that time, this officer told her that he is also an IPS officer. Therefore, on checking his compass box, the said material was found. The observer of the University had caught the abovesaid student for bringing material in the examination room and she imposed such punishment which she deemed fit/proper, upon the said student. The news published in the newspaper regarding to hide true facts are absolutely bogus. The seat number of this student was 2065. 20.2 Principal of College Ms Meenakshi Gharekhan also addressed letter dated 26.4.2008 to the Controller of Examinations as under :- To, The Controller of Examination, Gujarat University, Ahmedabad 380 009. Subject : Regarding irregularity (copy) in examination published in the newspaper. Respected Sir, With reference to the subject noted above I state that, last paper of Banking and Negotiable Instrument subject of Ist LL.B. examination was held during 10.30 am to 1.30 pm on 25.4.2008. In this connection, I had gone to the lower floor for recording report regarding presence of the students at 11.15 to 11.30. At that time, I was called by block supervisor room no. 3 and I was told that I was called by the lady observer of the University, on the upper floor. When I reached before her, she told me that two girls have written something on their hands, which is illegal and one student has written something on scale (futpatti) and therefore I retained their papers and I directed the block supervisor to return the same after half an hour. The scale (futpatti) was appearing small one having six or six and half inches and one small thin paper slip was affixed thereon which can be removed easily and some points were written thereon. The scale (futpatti) was appearing small one having six or six and half inches and one small thin paper slip was affixed thereon which can be removed easily and some points were written thereon. I and the said lady observer had seen the same and immediately thereafter it was destroyed and thrown and the said plastic scale (futpatti) was broken and thrown in dustbin. The said lady observer of University had told me that paper of this student has also been retained for half an hour just like others. I told her that I accept as a senior supervisor, the decision that may be taken by her observer of the University, and I also told her such action may be taken as she may deed fit and proper, and I was with her. The students whose papers were taken away, were sitting on their seats and as per the direction of the said lady supervisor, their papers were given back to them after half an hour. ... ... ... ... ... ... 20.3 Junior Supervisor Mr DD Prajapati had also addressed a letter to the Registrar of the University on 26.4.2008 stating as under:- I humbly state that, during 10.30 am to 1.30 noon, on 25.4.2008, I was performing my duty as a Junior Supervisor in Block No. 5 and Room No. 3, in the first year LL.B. Examination. At that time, observer from the Gujarat University had checked the students in my block and during the said checking, the said observer lady found some illegible writing on the hands of two girl students. Therefore, she directed to wash the hands and to remove the same and she gave them permission to write the paper after half an hour. On making further checking, one scale (futpatti) was found from one student which was bearing some writing copy and he was also permitted to write the paper after half an hour. 20.4 The University observer, on whose statement the University has placed strong reliance, stated in her statement recorded before the Controller of Examinations and the Pro Vice Chancellor on 27th April as under :- I, Mengar Rajeshree H. have been serving as a Lecturer of Statistics subject in CU Shah Arts College. On 25.4.2008, I had gone to Sidhdhartha Law College alongwith question paper as an observer of the University. On 25.4.2008, I had gone to Sidhdhartha Law College alongwith question paper as an observer of the University. I was assigned the duty to conduct and oversee the Examination in two sessions i.e. 10.30 to 1.00 PM (Ist LL.B) and 3.00 to 6.00 (3rd LL.B.). In the morning session at about 11.30, I had gone to block No. 3. During the course of random checking there, scale (Futpatti) bearing the copy/writing relating to banking subject was found from the compass box of the student. Performing my duty faithfully as a representative of the University, I had called Principal and senior supervisor of the Sidhdhartha Law College, in the block and handed over them muddamal scale (futpatti) and the answer sheet of the student and instructed them to make a copy case. At that time, junior supervisor, senior supervisor and lady principal asked me not to make copy case, as the student himself is an IPS Officer. I replied to them at the present he is a student only. And I did not accept their request as a part of my duty as observer of the University. ... ... ... I will come personally for the purpose of inquiry/investigation and cooperation, in this regard, as and when called upon by the University about the said incident. 21. From the above letters written to the University/Controller of Examinations on 26th April and also the statement of the University observer recorded on 27th April, it is clear that there was some altercation between the University observer and the respondent student on 25th April. When the University observer was checking the concerned block, the respondent student had made a grievance that the class was being disturbed by the manner in which the University observer was scolding another student, whereupon the observer stated that she was performing her duties as an observer and that she was there in the examination hall as a responsible officer to which the respondent student also stated that he was also an IPS officer. It was thereafter that the observer checked the respondent's compass box and recovered a foot-ruler. This clearly supports the case of the respondent, which he has been putting forth right from the beginning, that on account of altercation between him and the observer, the observer had some ill-will against the student. It was thereafter that the observer checked the respondent's compass box and recovered a foot-ruler. This clearly supports the case of the respondent, which he has been putting forth right from the beginning, that on account of altercation between him and the observer, the observer had some ill-will against the student. It is also an admitted fact that although the foot-ruler was recovered from the respondent, the University observer did not report the matter to the University and allowed the Principal of the College to destroy the foot-ruler. The observer did not report this matter to the University on 25th April itself but it was only when there was a newspaper report about alleged irregularity at the examination which appeared in the newspapers on 26th April morning that the letters were written by the Principal, Senior Supervisor and Junior Supervisor to the University authorities, and the University observer did not write any such letter on her own, but it was after two days i.e. on 27th April that her statement was recorded by the Controller of Examinations and the Pro-Vice Chancellor, as stated in the affidavit filed on behalf of the University. It is also an admitted fact that on 25th April, the observer and the Principal of the Law College had taken away the answer book of the respondent student for half an hour on account of the foot-ruler recovered from the respondent student. 22. The University observer, a Lecturer in Statistics, is not shown to have been asked by any one as to on what basis she formed the opinion that the writing related to the subject of Banking Law or to any law, for that matter. The fact remains that the statement of the University observer was not recorded by, or before, the Unfair Means Committee or in the presence of the respondent student. 23. According to the student, there was some scribbling on the foot-ruler which belonged to his 6½ year old son and that he was carrying the foot-ruler only to draw necessary lines in case such lines were required to be drawn in the answer book for the purpose of drawing tables for answering any question which may require such tables to be drawn. This defence was indicated by the respondent immediately after he received the first show cause notice from the University as already pointed out in para 3 hereinabove. 24. This defence was indicated by the respondent immediately after he received the first show cause notice from the University as already pointed out in para 3 hereinabove. 24. In order to test this defence of the respondent, we called upon the University to bring for our perusal the answer books of the respondent for the examination in Banking Law and also in other subjects in which the respondent had appeared at the examination from 21st to 25th April 2008. We found that the defence of the respondent was borne out because in the answer book for the subject of Company Law, the respondent had drawn lines with a ruler to explain the difference between Memorandum of Association and Articles of the Association. As far as the answer book on the Banking Law subject is concerned, since the foot-ruler was taken away from the respondent, the difference between Bill of Exchange and Promissory Note was explained after drawing the line between the two columns and such line was drawn by hand i.e. without foot-ruler. 25. We have considered various decisions of the Apex Court and this Court cited at the bar. It was as far back as in 1962 that the Apex Court held in Board of High School and Intermediate Education, UP, Allahabad vs. Bagleshwar Prasad, reported in AIR 1966 SC 875 as under :- 12. In dealing with petitions of this type, it is necessary to bear in mind that educational institutions like the Universities or appellant No.1 set up Enquiry Committees to deal with the problem posed by the adoption of unfair means by candidates, and normally it is within the jurisdiction of such domestic Tribunals to decide all relevant questions in the light of the evidence adduced before them. In the matter of the adoption of unfair means, direct evidence may sometimes be available, but cases may arise where direct evidence is not available and the question will have to be considered in the light of probabilities and circumstantial evidence. This problem which educational institutions have to face from time to time is a serious problem and unless there is justification to do so, Courts should be slow to interfere with the decisions of domestic Tribunals appointed by educational bodies like the Universities. This problem which educational institutions have to face from time to time is a serious problem and unless there is justification to do so, Courts should be slow to interfere with the decisions of domestic Tribunals appointed by educational bodies like the Universities. In dealing with the validity of the impugned orders passed by Universities under Art. 226, the High Court is not sitting in appeal over the decision in question; its jurisdiction is limited and though it is true that if the impugned order is not supported by any evidence at all, the High Court would be justified to quash that order. But the conclusion that impugned order is not supported by any evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify the said conclusion. Enquiries held by domestic Tribunals in such cases must, no doubt, be fair and students against whom charges are framed must be given adequate opportunities to defend themselves, and in holding such enquiries, the Tribunals must scrupulously follow rules of natural justice; but it would, we think not be reasonable to import into these enquiries all considerations which govern criminal trials in ordinary Courts of law. In the present case, no animus is suggested and no mala fides have been pleaded. The enquiry has been fair and the respondent has had an opportunity of making his defence. That being so, we think the High Court was not justified in interfering with the order passed against the respondent. However, it is necessary to bear in mind that the above principles were laid down in a case where the charge against the concerned student was that the student had looked back and copied from the answer written by the other candidate who was sitting behind him. The report of the Enquiry Committee showed that the complaint which they were to investigate referred to copying on a large scale in several papers and it was after examining all the complaints in light of the evidence available to them that the Committee made its final report and held that the concerned student and the students who were sitting behind him were guilty of having used unfair means. The High Court interfered with the decision of the University based on the above report of the Enquiry Committee and held that the student could not have looked and copied from the answer book of the other candidate and that there was no evidence to show that the other candidate could have copied from the student's paper with his connivance. The Apex Court held that it would not be reasonable to exclude from consideration the circumstances under which the whole inquiry came to be held and the general background of the prevailing disturbed and riotous atmosphere in the examination hall during the days that the examination was held at the concerned centre and that the High Court had ignored this background altogether. The Apex Court also looked at the answer books of the two students and observed that the Court was not prepared to hold that the identical incorrect answers were given by the two candidates either by accident or by coincidence. The Apex Court also noticed that some of the incorrect answers and particularly the manner in which they were given clearly suggested that they were the result of either one candidate copying from the other or both candidates copying from a common source and that the significance of this fact had been completely missed by the High Court. The Court then observed that it would be inappropriate in such a case to require direct evidence to show that the student could have looked back and copied from the answer written by the other candidate who was sitting behind him. The principle is, therefore, well settled that apart from the requirements that the inquiry held by the domestic Tribunal in such cases must be fair and students against whom charges were framed must be given adequate opportunities to defend themselves and in holding such inquiries the Tribunals must scrupulously follow rules of natural justice. The Court in case of judicial review has also to consider the question as to whether probabilities and circumstantial evidence do not justify the conclusion of the University. 26. Again in Maharashtra State Board of Secondary & Higher Secondary Education vs. KS Gandhi, (1991) 2 SCC 716 , the Apex Court was concerned with the case of adoption of unfair means at an examination. 26. Again in Maharashtra State Board of Secondary & Higher Secondary Education vs. KS Gandhi, (1991) 2 SCC 716 , the Apex Court was concerned with the case of adoption of unfair means at an examination. The Court held that in such matters direct evidence may sometimes be available, but cases may arise where direct evidence is not available and the question will have to be considered in light of the probabilities and circumstantial evidence. How to face it, is a serious problem and unless there is justification to do so, the Court should be slow to interfere with the decisions of domestic Tribunal appointed by the educational body like the Universities. The Court further held that in case where direct evidence is not available, the Examination Committee has of necessity to rely on circumstantial evidence which may include the answer given by the examinee, the report of the Superintendent of the centre, the invigilator and the report of the experts and other attending circumstances. The Examination Committee if it relied upon such evidence to come to the conclusion that the examinee has used unfair means in answering questions, then it is not open to the High Court to interfere with that decision, merely because the High Court may have taken a different view on reassessment of those circumstances. The Court has no jurisdiction to quash the order merely on the ground that the evidence available on record is insufficient or inadequate or on the ground that a different view could possibly be taken on the evidence available on the record. The Apex Court laid down the following principles in para 37 of the said judgment :- 37. It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. In some cases the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral documentary or circumstantial from which the inferences can be made the method of inference fails and what is left is mere speculation or conjecture. Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which such an inference could be drawn. The standard of proof is not proof beyond reasonable doubt but the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a strait-jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries. [emphasis supplied] 27. In the same vein, in a recent decision dated 18.7.2008 in Civil Appeal No. 4520 of 2008 (North West Karnataka Road Transport Corporation), the Apex Court has reiterated the following principles laid down in State of Haryana vs. Rattan Singh, 1977 (2) SCC 491 :- The essence of a judicial approach is objectivity, excluding of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. ... ... .... The simple point is, was there some evidence or was thee no evidence not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of undertaking and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the record. 28. The discussion on this subject cannot be complete wihout reference to the decision of a Division Bench of this Court (speaking through Hon'ble Mr Justice PD Desai as His Lordship then was), in Siddharth Mohanlal Sharma vs. South Gujarat University, 1982 (1) GLR 233 where the Court considered several English and Indian decisions and laid down the following principles :- 30. On gleaning through the illustrative decisions and examining their ratios closely, it would appear that the no evidence rule has the same content and meaning in our country as in England No evidence does not merely signify total dearth of evidence; evidence which does not reasonably support the conclusion is also comprehended within the meaning of the said expression. In other words, cases were this is complete lack of evidence and cases where the evidence, if any, if incapable of rationally leading to the conclusion reached, are both treated, on a par so far the applicability of the rule of no evidence is concerned. In none of these decided cases, there was no evidence: in the sense of there being utter paucity of evidence. There was some evidence, direct or circumstantial, on the basis of which the domestic tribunal had reached the conclusion of guilty. The grievance that there was no evidence was examined by applying the test whether or nor, accepting the whole of the evidence as it stood, the impugned conclusion followed legally or logically. There was some evidence, direct or circumstantial, on the basis of which the domestic tribunal had reached the conclusion of guilty. The grievance that there was no evidence was examined by applying the test whether or nor, accepting the whole of the evidence as it stood, the impugned conclusion followed legally or logically. In cases where direct evidence was not available, the totality of circumstances was carefully considered and the challenge that there was no evidence in support of the decision was examined by applying the test whether probabilities and circumstantial evidence justified the conclusion. Where direct evidence was available, the challenge was examined by applying the test whether it was so thoroughly inconsistent with th rest of the evidence as to make it impossible of acceptance. Mere suspicion, even if honestly and bona fide entertained on the basis of apparently cogent circumstances, was held to be out of bounds even in domestic inquiries, where the principle that in punishing the guilty scrupulous care must be taken to see that the innocents are not punished, was found to apply as much as it applies to regular criminal trials. In the ultimate analysis, the test which appears to have been applied is whether there was some material capable of having any evidential value. If not, the case was held to fall within the mischief of the rule of no evidence . 31. It would thus appear that the Court exercising the power of judicial review is to look upon the decision of the domestic tribunal a sacrosanct so long as it rests on findings of fact which are supportable on evidence in the sense explained above. The limit of indulgence is reached if the evidence does not meet with the above test or standard and the no evidence rule would then enable the Court to quash the decision on the ground that it discloses an apparent error of law. The above decision of the Division Bench was also followed in Patel Jagrutiben Kalabhai (Minor) vs. Gujarat Secondary Education Board (Examination Wing), AIR 1992 Guj. 45 wherein this Court (speaking through Hon'ble Mr Justice CK Thakkar, as His Lordship then was) quoted the above principles and held as under :- It is, thus, clear that no evidence does not mean only total dearth of evidence. 45 wherein this Court (speaking through Hon'ble Mr Justice CK Thakkar, as His Lordship then was) quoted the above principles and held as under :- It is, thus, clear that no evidence does not mean only total dearth of evidence. It extends to any case where the evidence taken as a whole is not reasonably capable of supporting the finding; or where, in other words, no tribunal could reasonably reach that conclusion on that evidence. It is well established that to reach a conclusion on no evidence is to commit an error of law apparent on the face of the record. 29. We agree with the submission of the learned counsel for the University that when the University is conducting domestic inquires against students on the charge of adoption of unfair means at the examination, in absence of any allegation of mala fides against the supervisor or invigilator or observer appointed by the University, normally greater weight should be attached to the word of such supervisor/invigilator/observer as against the word of the student who would be an interested party. It would certainly be so when the allegation against the student is of copying from the answer book of another student in the examination hall or some such unfair means adopted by the student where the primary evidence would be only word against word. However, when the charge against the student is of possession of incriminating material i.e. possession of written material relevant to the subject in which the examination is being conducted, the primary evidence would be the offending material. It would be from such offending material itself that the Unfair Means Committee can give the finding whether the written material was relating to the subject in which the examination was being held. 30. It would be from such offending material itself that the Unfair Means Committee can give the finding whether the written material was relating to the subject in which the examination was being held. 30. Having considered the above settled principles, having regard to the fact that the charge against the respondent student in the case at hand was not of copying from another candidate, but having in possession writing related to the subject of Banking Law, in absence of the foot-ruler on which such writing was allegedly found, and having regard to the fact that the foot-ruler was not destroyed by the student, but by the University observer and the College Principal, if the statement of the observer was recorded before the Unfair Means Committee, the Committee could have asked the observer on what basis the observer formed the opinion that the writing related to the subject of Banking Law. The respondent student's defence that there was altercation between the observer and him followed by searching of his compass box by the observer is also borne out by the statement of the Senior Supervisor (para 20.1 hereinabove). In absence of the foot-ruler and in absence of the statement of the University observer having been recorded by the Unfair Means Committee or in presence of the respondent student, we are constrained to hold that there was no evidence which could be treated as legally leading to the conclusion that the respondent student was possessed of any material relating to the Banking Law. The statement of the University observer, recorded by the Controller of Examinations two days after the examination, was only an opinion which was not supported by any evidence and, therefore, we find that there was no evidence on record capable of leading to the conclusion reached by the Unfair Means Committee and the Executive Council. Hence, we hold that the decision of the Executive Council that the respondent student had committed the misconduct of adoption of unfair means of possessing incriminating material related to the subject of Banking Law must be quashed and set aside as not supported by any evidence. 31. Hence, we hold that the decision of the Executive Council that the respondent student had committed the misconduct of adoption of unfair means of possessing incriminating material related to the subject of Banking Law must be quashed and set aside as not supported by any evidence. 31. The learned Single Judge held in the background of the above facts that the request made by the respondent to permit him to cross-examine the University observer was required to be accepted by the Unfair Means Committee and also by the Executive Council and that the letter written by the University observer, which was not a statement recorded by, or before, the Unfair Means Committee or a statement recorded in presence of the respondent student, could not be accepted as evidence, without the respondent student getting an opportunity to cross-examine the University observer. In view of the above finding given by the learned Single Judge, it cannot be said that the learned Single Judge has laid down any unqualified principle that a student is entitled to cross-examine the teacher or observer appointed by the University at such examinations. The judgment of the learned Single Judge cannot be read in this manner and we make it clear that the finding given by the learned Single Judge that the petitioner was entitled to cross-examine the University observer has to be treated as confined to the facts of the present case and it was not intended to be a principle of universal application. 32. We may note that the argument of the learned counsel for the appellant University that the respondent did not have sufficient attendance in the College was not indicated in the show cause notice or in the report of the Unfair Means Committee or the decision of the Executive Council and, therefore, we have not permitted the learned counsel to raise this issue. 33. As regards the alternative case of the University that there was some material on the foot-ruler and, therefore, the respondent had committed the breach of instruction No. 13, we are of the view that instruction No. 13 given to the students cannot be read in isolation and the same has to be read in conjunction with instruction No. 22 issued to the senior supervisor which clearly refers to the possession of books or notes or scribbling papers or any other materials from which unfair means can be practiced. At the cost of repetition, Instruction No. 22 is quoted hereunder :- Senior Supervisors shall use utmost vigilance to detect communications by candidates with each other or use unfair means by copying, etc. They shall forthwith expel any candidate found copying or communicating in any way with another candidate or having, in his possession, books or notes or scribbling papers or any other materials from which unfair means can be practiced and report cases of expulsion to the Registrar alongwith the answer-books of the candidate and other materials, if any, connected with examination. They shall also expel forthwith any candidate who takes anybody else's answer-books or allows, deliberately his answer-book to be taken by any other candidate. But they will not expel a candidate from whose book the other candidate is found copying or whose answer-book is found with other candidate. However, his explanation should be obtained and sent to the Registrar and particulars, if any with his remarks. He should be allowed to appear in the rest of the examinations by the papers. [emphasis supplied] 34. In view of our previous finding, it must be held that the scribbling on the foot-ruler was not any material from which unfair means can be practiced. The defence of the respondent student that the foot-ruler belonged to his 6½ year old son and he possessed the foot-ruler to draw lines while answering questions which required drawing of tables was supported by the use of the foot-ruler in the answer books in the subject of Company Law where such lines were drawn for explaining the difference between Memorandum of Association and Articles of Association and the respondent student had also drawn a line in the answer book on the subject of Banking Law while explaining the difference between Bill of Exchange and Promissory Note. He had drawn the line by use of the hand without the foot-ruler as the foot-ruler was taken away by the observer. 35. He had drawn the line by use of the hand without the foot-ruler as the foot-ruler was taken away by the observer. 35. It is true that as per the settled legal position emerging from the decisions relied upon by the learned counsel for the University, it is not necessary that the student should actually make use of the material in order to be held guilty of adoption of unfair means, but all those decisions dealt with cases where the written material in question was related to the subject of the examination or the mobile phone/calculator was capable of being used for adoption of unfair means. Our attention is not invited to any decision taking the view that even if the writing brought by the student in the examination is not related to the subject or is not capable of being used for adoption of unfair means, even then the student must be considered guilty of adoption of unfair means. 36. We are, therefore, of the view that the alternative case pleaded by the University cannot be accepted for the purpose of holding that the respondent student was guilty of adopting unfair means. In view of the above findings and in view of the fact that we are not basing our decision on the ground that the University observer was not offered for cross-examination, it is not necessary to remit the case back to the University. For arriving at this conclusion, we have also taken into consideration the fact that the respondent -student has already lost six months in this litigation and he could not secure admission to the monsoon semester in the Second LL.B. which was from 16th June to 25th October, 2008. 37. The relevant University rules regarding admission read as under :- Law R. 7 : No candidate will be allowed to join Monsoon or Winter Semester of Second LL.B. unless he passes the whole of First LL.B. Examination as per rules or he is allowed ATKT under L. R.5(3). Law R. 5(3) : A candidate who secures 50% marks in each of the papers except one for the I LL.B. will be granted ATKT for II LL.B. and he will have to clear the paper by getting 50% or more marks in which he has to appear before or at any time simultaneously he posses the II LL.B. Examination (Whole Examination). Law R.10 : (a) Notwithstanding anything contained in L.R. 8 and 9 above a candidate who joined the college in the Monsoon Semester will be allowed to go to Winter Semester of the examination and at his option will be required to appeal in all the papers of the II LL.B. Examination after keeping Monsoon and Winter or Winter and Monsoon Semesters terms in a Law College affiliated to this University and must have attended the college for the required number of days. Law R. 11 (Winter or Monsoon Semester) : Candidate joining only in Winter Semester in a Law College affiliated to this University and having kept attendance for the required number of days in the college will be required to answer the Winter Semester paper mentioned in L. 6. He will be allowed to join the Monsoon Semester and may carry forward his marks of Winter Semester or may appear in all the papers of the II LL.B. Examination. 38. Having heard the learned counsel for the parties and having considered the Rules, we are of the view that the learned Single Judge was not justified in directing the University on 16th October, 2008 to permit the student to take admission to the monsoon semester (16th June to 25th October, 2008) and winter semester in Second LL.B. and also to appear at the combined examination for the monsoon semester and the winter semester in Second LL.B. which will be held in April/May, 2009. Without securing admission to the monsoon semester in the year 2008, the student could not be permitted to appear at the examination for the monsoon semester also at the examination in April/May, 2009. We, therefore, set aside that part of the direction given by the learned Single Judge. O R D E R 39. In the result, the appeal is partly allowed. We, therefore, set aside that part of the direction given by the learned Single Judge. O R D E R 39. In the result, the appeal is partly allowed. While for the reasons given in this judgment, we confirm the finding of the learned Single Judge quashing and setting aside the decision of the Executive Council regarding adoption of unfair means by the respondent -student at the First LL.B. held on 25.4.2008, and we also confirm the direction given by the learned Single Judge to the appellant University to declare the result of the respondent student at the First LL.B. examination held in April, 2008, we set aside that part of the order of the learned Single by which the University has been directed to permit the respondent - student to take admission to the Second LL.B. Class in the monsoon semester (which is already over by now) and winter semester simultaneously and to appear at the Second LL.B. examination for both the monsoon semester and the winter semester, which examination is to be held in April/May, 2009. The respondent's result at the First LL.B. Examination held in April 2008 shall be declared within one week from today and depending on that result, the respondent will be at liberty to take admission to the Second LL.B. Class in the winter semester. 40. The appeal is accordingly disposed of in terms of the aforesaid directions. 41. Since the appeal is disposed of, the Civil Application for stay is also disposed of.