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2019 DIGILAW 793 (KAR)

Ajith Vicent Raj A. v. State of Karnataka

2019-04-02

S.SUJATHA

body2019
JUDGMENT : S. SUJATHA, J. 1. The petitioners are claiming to be the students of the respondent No. 4 College, pursuing Diploma Course in Mining Engineering, which is of three years duration. They have passed the first five semesters and have also written all the papers in sixth semester examination held during April-May 2018. When one of the theory examination in Maths-2 subject was being conducted for the second semester students, on 31.05.2018, 11 students were allegedly found to be involved in examination malpractice of impersonation, by the examination squad consisting of Chief Superintendent of Examinations, Deputy Superintendent of Examinations and Chief Observer who made a surprise visit and found that 11 students were alleged to have involved in examination malpractice. The members of the squad recorded their observation in a register, along with the names of 11 students who were allegedly involved in malpractice. Subsequently, the petitioners were called upon to appear before the respondent No. 3 for an enquiry on the allegation of malpractice conducted by them on 31.05.2018 and they were requested to give their details. The respondent No. 3 imposed penalty of cancellation of the performance in the examination, debarring the petitioners from appearing for the next seven semesters till April/May 2022, pursuant to holding enquiry by the Enquiry Committed. The result of the petitioners in the said sixth semester was declared as "malpractice" and no marks are awarded to the petitioners. 2. It is the grievance of the petitioners that a representation to respondent Nos. 1, 2 and 4 was made requesting them to declare their sixth semester examinations through their college respondent No. 4. There being no response, the petitioners are before this Court seeking for quashing the circular dated 01.08.2018 issued by the respondent No. 3 and the SMP punishment list enclosed to the same as far as the petitioners are concerned inter alia seeking for a direction to the respondent No. 3 to declare the result of the petitioners pertaining to sixth semester of Diploma Course in Mining Engineering held during April/May 2018. 3. The learned counsel Sri. Subramanya Bhat N. appearing for the petitioners contended that the punishment has been imposed by the respondents on extraneous consideration. The impugned order/circular is in total violation of principles of natural justice; no enquiry was conducted by the respondent No. 3 rather petitioners were made to admit the mistakes which they never have done. 3. The learned counsel Sri. Subramanya Bhat N. appearing for the petitioners contended that the punishment has been imposed by the respondents on extraneous consideration. The impugned order/circular is in total violation of principles of natural justice; no enquiry was conducted by the respondent No. 3 rather petitioners were made to admit the mistakes which they never have done. It was argued that the respondent No. 3 is not justified in imposing penalty, debarring the petitioners for the next seven semesters. The same is highly disproportionate to the mistakes if at all committed by them. 4. The learned counsel for the petitioners placed reliance on the judgments of the Hon'ble Apex Court in the case of Board of High School and Intermediate Education, U.P. Allahabad vs. Ghanshyam Das Gupta and Others, (1962) AIR SC 1110 as well as in the case of Kammalapati Brahmarao vs. Gulbarga University, Gulbarga and Others, (1995) 3 Kar. LJ 491. 5. Learned Additional Government Advocate Smt. Pramodhini Kishan appearing for the respondents justified the impugned circular/order imposing the punishment of debarring the petitioners for the next seven semesters till May-2022. 6. I have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record. 7. Annexure C is the common circular issued by respondent No. 4 imposing the punishment to about 592 students depending on the nature of malpractice proved during the May/June 2018 Diploma Semester examination. There are certain technical flaws found in the procedure of the Enquiry Committee as pointed out by the learned counsel for the petitioners inasmuch as non-mentioning of the names of the petitioners in the Register at Annexure A, where the names of 5 students who are allegedly involved in the malpractice is depicted; no signature found in the statements of the petitioners recorded on 17.07.2018. However, these defects are hyper technical in nature and the petitioners who have admitted their guilt of impersonation before the Enquiry Committee cannot be exonerated on these minor defects. 8. The Hon'ble Apex Court in the case of Dr. Ambedkar Institute of Hotel Management, supra, has held thus:- "19. Moreover, the respondent examinee has been given the minimum punishment under the Rules and no lesser punishment could have been imposed, except in exceptional circumstances. 8. The Hon'ble Apex Court in the case of Dr. Ambedkar Institute of Hotel Management, supra, has held thus:- "19. Moreover, the respondent examinee has been given the minimum punishment under the Rules and no lesser punishment could have been imposed, except in exceptional circumstances. It is true that when a person confesses his guilt it is often treated as a mitigating circumstance and calls for lesser punishment if that is permissible. However, this is not an absolute rule and will not apply in all kinds of cases. In particular, as stated above, in academic matters there should be no leniency at all if our country is to progress. Apart from that, the respondent had been given the minimum punishment under Rule 9.2 and we fail to understand how a lesser punishment could have been given to him, except by exercising discretion in a particular case. This is not that kind of exceptional case, and no sympathy was called for. 22. The learned Division Bench has repeated the view of the learned Single Judge that the punishment given was disproportionate to the offence committed. We entirely disagree with that view. As already stated above, the minimum punishment was imposed on the respondent and we fail to understand what other punishment could have been given to him even when he has confessed his guilt. In our opinion, this was not a fit case for exercising discretion by waiving or reducing the minimum punishment." 9. Similarly, in the case of Ghanshyam (supra) the Hon'ble Apex Court has observed thus: "The statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially, will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided, the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute. A duty to act judicially may arise in widely different circumstances which it will be impossible and indeed inadvisable to attempt to define exhaustively." 10. In Dr. Ambedkar Institute of Hotel Management (supra) it is held that when a person confesses his guilt it is often treated as a mitigating circumstance and calls for lesser punishment if that is permissible. However, this is not an absolute rule. Keeping the judgments referred to above, this Court is of the view that the punishment given appears to be disproportionate to the offence committed moreover, while imposing the maximum punishment, a reasoned order ought to have been passed that too when the petitioners have confessed their guilt. In the circumstances, this Court is of the considered opinion that justice would be met in exercising the discretion by reducing the punishment to PEC + 3 instead of PEC + 7 imposed by the respondents authorities. 11. Hence, the following: ORDER The punishment imposed by the respondent in terms of the Circular dated 1.8.2018 as far as these petitioners are concerned is modified to PEC + 3. Petitioners are permitted to appear for the sixth semester examination during April, 2020. The third respondent is directed to declare the results of the petitioners thereafter. However, it is made clear that the petitioners' examination centre shall be other than the respondent No. 4 institution and the same shall be decided by the respondent No. 3. 12. With the aforesaid observations and directions the writ petitions are disposed of.