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2012 DIGILAW 897 (GUJ)

Thummar Vishal G. v. State of Gujarat Through Secretary

2012-12-28

BHASKAR BHATTACHARYA, J.B.PARDIWALA

body2012
JUDGMENT : Bhaskar Bhattacharya, J. All these Letters Patent Appeals were taken up together as those arise out of the common order dated 22nd October 2012 passed by a learned Single Judge disposing of 25 different Special Civil Applications [SCA No.13234 of 2012 with SCA No.13884 of 2012 to SCA No.13907 of 2012] filed by 25 different Engineering students being dissatisfied with the notifications passed by the respondent- University being notification No.21 dated 1st September 2012 with regard to 21 petitioners and notification No.16 dated 3rd August 2012 with regard to the other 4 petitioners, by which the University has debarred all the 25 petitioners from appearing in the forthcoming examinations to be held by the respondent-University. 2. The facts leading to the filing of those 25 Special Civil Applications out of which the present 22 Letters Patent Appeals arise may be summed up thus: 2.1 The petitioners were students studying in the respondent No.3 College and they appeared in their respective summer examination. The petitioners received a show cause notice from the respondent No.3 University inter alia alleging that they had indulged in unfair means [mass copying] during their respective examinations and were directed to show cause why the punishment prescribed in the circular referred to in the show cause notice should not be imposed upon them. 2.2 All those students appeared before the respondent No.3 and denied the allegations of mass copying. However, the respondent- University, by notification No.21 dated 1st September 2012 debarred 21 petitioners from appearing in the forthcoming examination and by notification No.16 dated 3rd August 2012 imposed similar penalty upon the other 4 petitioners. 2.3 All those 25 students preferred different Special Civil Applications and the learned Single Judge of this Court, as indicated earlier, by the common order impugned in these 22 L.P.A.s, dismissed those writ-applications by affirming the order passed by the respondent-University. 3. Being dissatisfied, 22 students have preferred these Letters Patent Appeals. It appears that the formal notice has not been issued in L.P.A. No.1510 of 2012. However, the issue involved and the respondents are the same. We, therefore, decided also to hear out the L.P.A. No.1510 of 2012 as Mr. Dipen Desai, learned advocate, and Ms. Krina Calla, learned A.G.P. waives service of notice for respondents No.1 and 2 respectively. The said L.P.A. was also, accordingly taken up for hearing and is disposed of by this judgment. 4. We, therefore, decided also to hear out the L.P.A. No.1510 of 2012 as Mr. Dipen Desai, learned advocate, and Ms. Krina Calla, learned A.G.P. waives service of notice for respondents No.1 and 2 respectively. The said L.P.A. was also, accordingly taken up for hearing and is disposed of by this judgment. 4. Pursuant to the notice issued by this Court in these Letters Patent Appeals No.1489 of 2012 to 1509 of 2012, vide order dated 8th November 2012, the respondent-University filed an affidavit-in-reply thereby supporting the action taken by the University. 5. The following table will disclose the charges against the 21 appellants before us: SI No L.P.A. No. Name & Enrolment No. Subject Code & date of exam Charge Seat No. 1. 1489 of 12 Thummar Vishal 110790119107 110005 09/06/12 Mass copy of Q. 2(A), 3(A), 3(B) & 3(C) E- 244911 2. 1490 of 12 Donga Yagnik 110790119085 110005 09/06/12 Mass copy of Q. 2(A), 3(A), 3(B) & 3(C) E- 244928 3. 1491 of 12 Popat Milan 100790111052 110005 09/06/12 Mass copy of Q. 2(A), 3(A), 3(B) & 3(C) E- 244952 4. 1492 of 12 Rupapara Akhil 110790119087 110005 09/06/12 Mass copy of Q. 2(A), 3(A), 3(B) & 3(C) E- 244969 5. 1493 of 12 Sadatiya Anandkumar 110790119089 110005 09/06/12 Mass copy of Q. 2(A), 3(A), 3(B) & 3(C) E- 244933 6. 1494 of 12 Bavarava Mayur 110790119034 110014 06/06/12 Copy from one another E- 134522 7. 1495 of 12 Postariya Mehul 110790119076 110014 06/06/12 Copy from one another E- 134514 8. 1496 of 12 Vadaviya Tushar 110790119062 110014 06/06/12 Copy from one another E- 134557 9. 1497 of 12 Bheda Amit 110790109055 110014 06/06/12 Copy from one another E- 134548 10. 1498 of 12 Agola Ronak 110790119035 110014 06/06/12 Copy from one another E- 134511 11. 1499 of 12 Desai Savan 110790119033 110014 06/06/12 Copy from one another E- 134575 12. 1500/12 Lodhia Charmy 110790107048 110014 06/06/12 Copy from one another E- 134579 13. 1501 of 12 Chikhaliya Sachin 110790109004 110014 06/06/12 Copy from one another E- 134552 14. 1502 of 12 Dhokiya Ashishkumar 110790111011 110014 06/06/12 Copy from one another E- 134482 15. 1503 of 12 Delvadiya Kalpesh 110790119043 110014 06/06/12 Copy from one another E- 134717 16. 1504 of 12 Jakasaniya Brijeshkumar 110790109059 110014 06/06/12 Copy from one another E- 134718 17. 1501 of 12 Chikhaliya Sachin 110790109004 110014 06/06/12 Copy from one another E- 134552 14. 1502 of 12 Dhokiya Ashishkumar 110790111011 110014 06/06/12 Copy from one another E- 134482 15. 1503 of 12 Delvadiya Kalpesh 110790119043 110014 06/06/12 Copy from one another E- 134717 16. 1504 of 12 Jakasaniya Brijeshkumar 110790109059 110014 06/06/12 Copy from one another E- 134718 17. 1505 of 12 Mori Dhanraj 110790109025 110014 06/06/12 Copy from one another E- 134572 18. 1506 of 12 Tapaniya Kalpeshkumar 110790109046 110014 06/06/12 Copy from one another E- 134507 19. 1507 of 12 Acharya Sachinkumar 110793119019 141902 29/05/12 Copy from one another E- 440780 20. 1508 of 12 Patel Jaykumar 110790119042 141902 29/05/12 Copy from one another E- 440772 21. 1509 of 12 Amrutiya Jaydipbhai 100790119005 141902 29/05/12 Copy from one another E- 440748 6. It appears from the records of L.P.A. No.1510 of 12 that the appellant, Tentiya Mitendra Harshadbhai, having enrolment No.100790119009 appeared in examination for the subject code No.141902 on 29th May 2002 and he was also found copying from one another. 7. Mr. Dave, the learned advocate appearing on behalf of the appellant, strenuously contended before us that the learned Single Judge committed substantial error of law in overlooking the fact that before debarring the appellants from appearing in the next examination, the respondent-University did not follow the principles of natural justice as the appellants were not supplied with the report of the Examiner on the basis of which the Unfair Means Committee has taken the decision to debar the appellants from appearing in the forthcoming examinations to be taken by the University. Mr. Dave further submits that the entire process of initiation of proceedings against the appellants was based solely on the report of the Examiner and it would appear that the same is based on inferences, surmises and conjectures and no independent inquiry of any sort by any expert body has taken place to verify the contents of the said report. Mr. Dave further contends that the learned Single Judge failed to appreciate the fact that non-supply of such crucial document to the appellant would mean that they have not been granted a reasonable and adequate opportunity of hearing. Mr. Dave further contends that by not supplying those crucial materials, his clients could not raise their effective defence against the notice of show-cause. Mr. Mr. Dave further contends that by not supplying those crucial materials, his clients could not raise their effective defence against the notice of show-cause. Mr. Dave further contends that the Observer and Supervisors who were present in the examination hall have not given any report or made complaint regarding mass-copying in the examination hall where the appellants were accommodated, and thus, it was a mistake on the part of the Unfair Means Committee in not independently verifying the report made by the Examiner in order to arrive at a subjective satisfaction. Mr. Dave further submits that the report of the Unfair Means Committee not having been supplied to the appellants, they were not in a position to know the factors which had weighed with the Unfair Means Committee while awarding such harsh punishment. Mr. Dave lastly submitted that as the respondent-University has imposed a shockingly severe punishment merely on the basis of inferences drawn by the Examiner, the same needs interference of this Court as prayed for in the writ-application, and the Letters Patent Appeals deserve to be allowed. 8. Mr. Shah, the learned senior counsel appearing on behalf of the University, has, on the other hand, opposed the aforesaid contentions of Mr. Dave and by referring to the affidavit filed by his client in this appeal has contended that the appellants are students of the respondent No.3, viz. Takshhila College of Engineering, and all the appellants have given their examinations in the respondent No.3 college itself, which was their examination centre. Mr. Shah points out that different examiners of the appellants found that the appellants had indulged in mass-copying in different subjects on different dates. 8.1 By referring to the details of the charges made against the appellants, Mr. Shah submitted that it would appear that the appellants of L.P.A.s No.1489 of 2012 to L.P.A. No.1493 of 2012 and other 6 students appeared in the examination on subject code 11005 on 9th June 2012 in the same classroom. Mr. Shah submits that when the answer sheets of those appellants went before the Examiner, he found that the aforesaid appellants have indulged in mass-copying as answers to questions No.2 (A), 3(A), 3(B) and 3(C) of all the aforesaid students were found to be identical and they have committed similar mistakes. Mr. Shah submits that when the answer sheets of those appellants went before the Examiner, he found that the aforesaid appellants have indulged in mass-copying as answers to questions No.2 (A), 3(A), 3(B) and 3(C) of all the aforesaid students were found to be identical and they have committed similar mistakes. The Examiner, therefore, reported to the University to verify whether the aforesaid students sat in the same classroom, and on verification, when it was found that the appellants gave examination in the same classroom, it became clear that the appellants have indulged in mass-copying, otherwise, such kind of similarity in "wrong-answers" would never have been possible. The Examiner, therefore, submitted his report to the Controller of Examinations to take appropriate action. On receipt of the report of the Examiner, the University took help from 3 different professors, who are experts on the subject and sought their opinion as to whether the report of the Examiner is proper or not. The experts submitted their report opining that all the answers in the answer sheets of the appellants and the other students are found to be same and identical. Mr. Shah further contended that out of the total 11 students who were found to have indulged in mass-copying, 5 persons have filed L.P.A.s No.1489 of 2012 to 1493 of 2012. 8.2 As regards the case of other group of students, viz. appellants of L.P.A.s No.1494 of 2012 to 1506 of 2012, Mr. Shah submits that they also sat in the same classroom and appeared at the examination of subject code 110014 on 6th June 2012. When the answer sheets of the appellants of the aforesaid L.P.A.s were sent to the Examiner, the Examiner found that the students had indulged in mass-copying of question No.2 and it was also found that all the students had committed similar mistakes while attempting the said answers. Mr. Shah points out that the Examiner has first verified whether the students sat in the same classroom or not, and on verification, it was found that all the 15 students [13 appellants and 2 other students] sat in the same classroom. The Examiner, therefore, submitted his report to the Controller of Examinations to take appropriate steps and thereafter, the matter was referred to three experts, as indicated earlier, and the experts have opined that the students have indulged in unfair means. 8.3 Mr. The Examiner, therefore, submitted his report to the Controller of Examinations to take appropriate steps and thereafter, the matter was referred to three experts, as indicated earlier, and the experts have opined that the students have indulged in unfair means. 8.3 Mr. Shah further points out that the appellant of L.P.A. No.1507 of 2012 to 1509 of 2012 and six other students appeared at their examination on subject code 141902 on 29th May 2012 from the same classroom. The Examiner found that all the aforesaid 9 students had given similar wrong answers. On verification, as the examiner found that those students sat in the same classroom, he submitted a report to the Controller of Examinations to take appropriate action, and the Controller of Examinations, after obtaining report from three experts, as indicated above, passed the order. 8.4 As regards L.P.A. No.1510 of 12, we have already recorded above that the appellant, Tentiya Mitendra Harshadbhai, having enrolment No.100790119009 appeared in examination for the subject code No.141902 on 29th May 2002 and he was also found copying from one another. Therefore, similar punishment was imposed upon him after following the procedure as indicated above. 8.5 Mr. Shah further points out that the Unfair Means Committee issued show cause notice to the appellants to show cause as to why the punishment prescribed in circular dated 3rd November 2010 should not be imposed upon them for indulging in unfair means pursuant to which the appellants appeared before the Committee and simply denied that allegation of indulging in unfair means but did not satisfy the Unfair Means Committee as to how the same wrong answers were written by all and the same kind of mistakes were committed by all sitting in one classroom. Mr. Shah submits that none of the appellants asked for furnishing copy of the report, and such report has been annexed with the affidavit-in-reply filed before us. Mr. Shah also placed before us the answer scripts of the above students to indicate the similarity in the answer and that the same mistake has been committed by the students. Mr. Shah points that in one of the cases, the equation [at]2 has been copied by one student as [80]2, because, according to Mr. Shah, the same must have been dictated by someone. One student who could not grasp the pronunciation properly, wrote it down as [80]2 and thus, committed such mistake. 8.6 Mr. Mr. Shah points that in one of the cases, the equation [at]2 has been copied by one student as [80]2, because, according to Mr. Shah, the same must have been dictated by someone. One student who could not grasp the pronunciation properly, wrote it down as [80]2 and thus, committed such mistake. 8.6 Mr. Shah, in the circumstances, prayed that the appeals may be dismissed. 9. Therefore, the question that falls for determination in these appeals is whether, in the facts of the present case, the learned Single Judge was justified in dismissing the Special Civil Applications. 10. After hearing the learned counsel for the parties and after going the materials on record, we find that in this case the students appeared at their examination in their home-centre which was their own college. There is also no dispute that no complaint of mass copying was lodged by the Supervisor before the University. When the answer-scripts of the students were received by the concerned Examiner, from the pattern of the answers given by the students, he had doubt in his mind that there was mass-copying from each other in view of the fact that wrong answers were given by all the students and at the same time, the same mistaken steps were taken by all the students while giving the answer. This can be possible only if all the students had copied from the same paper. In view of such doubt, the Examiner concerned first inquired whether they sat for the examination in the same room, and when it was found that they sat in the same room, the concerned Examiners submitted their report to the University complaining mass-copying. It appears that the University issued show-cause notice upon the students and they appeared pursuant to such notice and simply denied the allegations of mass-copying but could not explain what led them to commit the similar mistake committed by other students. In these appeals, the university-authorities have produced before us the answer-scripts of all the students. We find that there is verbatim reproduction of the same answer which the Examiner found to be a wrong answer. Even the steps taken by the students included the same wrong steps in answering the question. 11. In these appeals, the university-authorities have produced before us the answer-scripts of all the students. We find that there is verbatim reproduction of the same answer which the Examiner found to be a wrong answer. Even the steps taken by the students included the same wrong steps in answering the question. 11. It further appears from the record that the University authorities subsequently even have taken the assistance of three experts and they have also opined that this was possible only in case of mass-copying. 12. In the circumstances, we are of the view that the learned Single Judge rightly dismissed the writ-applications. 13. As pointed out by the Supreme Court in the case of Prem Prakash Kaluniya V. Punjab University reported in 1972 (O) GLHEL-SC-21464, the examinee should be adequately informed of the case he has to meet and given a full opportunity of meeting it. As to the extend and content of that information should or ought to be, would depend on the facts of each case. The examinee can ask for more information or details with regard to the material or evidence which may be sought to be used against him and normally, if he makes a request in that behalf, the University authorities, in order to inform him adequately of the case he has to meet, would supply him the necessary particulars or details of the evidence. In the very nature of things, no hard and fast rule can be laid down and so long as the Court is satisfied that the opportunity which was afforded to the examine was adequate and sufficient, it will not interfere with any orders prejudicial to him which may have been made by the University authorities. 14. In the case before us, the students were made known about the allegation of mass-copying. They appeared before the Unfair Means Committee. They simply denied the allegations but could not point out what led them to commit exactly the same mistake in the stepping of the answers. It appears that allegation has not been made against all the examinees but only a limited group of examinees. The Examiner first ascertained whether they sat in the same room and only when he was satisfied that they sat in the same room that show cause notice was issued. 15. It appears that allegation has not been made against all the examinees but only a limited group of examinees. The Examiner first ascertained whether they sat in the same room and only when he was satisfied that they sat in the same room that show cause notice was issued. 15. We have already pointed out that even subsequently, the University had appointed three experts for further confirming whether the view taken by the Examiner was correct nor not. 16. We by ourselves have also seen the answer papers. We have already pointed out that the equation [at]2 has been written down by one student as [80]2, which is possible only if somebody has dictated and the other, without knowing its meaning, has copied. 17. In such circumstances, we do not find any reason to interfere with the order passed by the learned Single Judge. 18. In this connection, we may profitably refer to the decision of the Supreme Court in the case of Board of High School and Intermediate Education U.P. v. Bagleshwar Prasad reported in (1963) 3 SCR 767 where in it was held that the identity of the wrong answers given by the respondent in that case with that of other candidate bearing the consecutive Roll Number rendered the charge of the respondent having employed unfair means highly probable and that the findings of the enquiry committee based upon such probabilities and circumstantial evidence could not be said to be based on no evidence as in such matters direct evidence quite often cannot be available. It was further pointed out that in dealing with those cases, the problems faced by such institutions should be appreciated by the High Court and so long as the enquiry held was fair and afforded the candidate an opportunity to defend himself, the matter should not be examined with the same strictness as applicable to criminal charges in the ordinary Courts of law. 19. The same view has been taken by the Supreme Court in the case of Union Public Service Commission v. Jagannath Mishra reported in 2000 (O) GLHEL-SC-33503. 20. We may, at this stage, also refer to the following observations of the Supreme Court in the case of Controller of Examinations v. G.S. Sunder and another reported in 1992 (2) GLH 140 SC:- "10. We have given our careful consideration to the above submissions. 20. We may, at this stage, also refer to the following observations of the Supreme Court in the case of Controller of Examinations v. G.S. Sunder and another reported in 1992 (2) GLH 140 SC:- "10. We have given our careful consideration to the above submissions. One thing must put beyond doubt, in matter of enforcement of discipline this Court must be very slow in interference. After all, the authorities in charge of education whose duty it is to conduct examination fairly and properly, know best how to deal with situations of this character. One cannot import fine principles of law and weigh the same in golden scales. In the present system of education, the system of examination is the best suited to assess the progress of the student so long as they are fairly conducted. Interference by court in every case may lead to unhappy results making the system of examination a farce. For instance, we cannot but strongly condemn copying in the examination which has grown into canker of mass copying. Such unhealthy practices which are like poisonous weeds in the field of education must be rooted out in order that the innocent and the intelligent students are not affected." 21. As the appellants did not make any allegations of any malafide or personal bias at the instance of the University against any of them, in our opinion, in the facts of the present case, it does not deserve interference with the decision of the University authorities. 22. The appeals are, thus, devoid of any merits and are consequently dismissed. In the facts of the case, there will, however, no order as to costs. Appeal dismissed.