Rajasthan High Court - Jaipur
Rishabh Agarwal vs Raj Technical University And Ors on 26 September, 2012
Author: Ajay Rastogi
Bench: Ajay Rastogi
In the High Court of Judicature for Rajasthan At Jaipur Bench, Jaipur O R D E R S.B. Civil Writ Petition No.5446/2012 Rishabh Agarwal Vs. Raj. Technical University, Kota & Ors. Order reserved :: 12/09/2012 Order pronounced :: 26/09/2012 Hon'ble Mr. Justice Ajay Rastogi Mr. Aatish Jain, for petitioner. Mr. A.K. Bhargava, for respondent.
Instant petition is directed against the order dt.25.06.2011 cancelling examination of the petitioner held in June-2011 of B.Tech.II Semester (Back) Subject Engineering Physics (2E1023) & IV semester of June-2011 and such uncovered/uncleared subjects of lower examination along with higher examination, all examinations (lower as well as higher) held during academic session-2010-11 was also cancelled including mid term, sessional, & practical examination. However, the marks obtained in examination of the previous-III semester of the academic session-2010-11 including term end, mid term, sessional, practical & back paper examination held during this semester were allowed to be carried forward, with further restriction of not attending the classes of V semester and so also the examination of the academic session-2011-12 and if already appeared in V semester & back examination, if any, the same was also treated to be cancelled including mid term, sessional & practical examinations. However, the petitioner was permitted to take admission as regular student in IV semester of academic session 2011-12 and to appear in the subsequent examinations to be held from 6th semester and onwards and may get himself registered as regular student again in V semester of academic session-2012-13, on the ground that the petitioner used unfair means in the examination of B.Tech-II Semester (back) subject Engineering Physics (2E1023) held on 25.06.2011.
As alleged in the writ petition, the petitioner is a student of B.Tech (Automobile Engineering) and pursuing his study in Alwar Institution of Engineering & Technology, Alwar which is affiliated to Rajasthan Technical University, Kota and appeared in B.Tech-II Semester (back) Examination-June-2011 in subject Engineering Physics (2E1023) held on 25.06.2011 and it has been alleged that during examination, he was found using unfair means and some slips were found lying surrounding place of the petitioner in the examination room where the form was filled and as alleged signed by the petitioner, copy whereof has been placed by the respondent on record as Annx.R/1. It will be relevant to record that as alleged certain sheets were recovered from the shoes & belt of the petitioner, mention whereof finds place in the form Annx.R/1 but such sheets attached are not signed by the petitioner and as regards statements/questions required to be made/answered by the candidate in reference to para-C-candidate statement, column 2(a)(b) whereof is in relation to the questions viz a viz (a) Why did you bring the material referred to in the above report & (b) did you make any use of it and the answers made by the candidate in reference thereof appears to be positive and in para (D)-Statement of Witness it has been recorded that student was copying unfair means were in his belt & shoes and he was cooperative and on that premise a cryptic show cause notice regarding using unfair means was served upon the petitioner dt.30.07.2011 but it did not indicate the nature of unfair means, if any used by the petitioner and explanation was required to be furnished by the candidate within 15 days, pursuant thereto he submitted his representation and primarily denied the charge of unfair means levelled against him in totality and submitted that during examination when the Centre Superintendent came to their room certain papers were lying nearby to which he had no concern and had no control other than the place assigned to him in the examination hall and what was alleged to be recovered does not pertain to him and he is innocent. However, no opportunity of personal hearing was afforded to him and he was directly communicated with the order dt.25.06.2011 holding him guilty of using unfair means and certain examinations referred to in the order impugned were cancelled.
Grievance of the petitioner is that as regards unfair means/disorderly conduct, these are regulated in terms of Ordinance 152 of University Ordinance, which has been adopted by the respondent-university for holding enquiries regarding cases of unfair means/disorderly conduct and that was not complied with and taken note of while passing the order impugned dt.25.06.2011.
Counsel for petitioner submits that the order impugned dt.25.06.2011 is in clear violation of principles of natural justice and the opportunity has to be afforded to the examinee under the ordinance was not afforded to him, in absence whereof the very action of the respondent in cancelling examination of the petitioner under the order impugned dt.25.06.2011 apart from being in violation of principles of natural justice is not effective & sustainable in the eye of law.
Counsel for respondent on the other hand submits that report of invigilator (Annx.R/1) was duly signed by the petitioner and it was his own admission to have been in possession of the material having relevance to the examination concerned which he brought for copying and also used it and once there was admission it was not necessary under the Ordinance to grant him any further opportunity of hearing but still it was afforded by way of calling upon his explanation pursuant to show cause notice served and the explanation submitted by him was also considered by the committee while taking final decision holding him guilty and inflicted penalty under order impugned and the procedure adopted by the respondent is in conformity with the requirement to be complied with under Ordinance 152 of University Ordinance but the petitioner came out with the explanation that the so called slips alleged to have been recovered by the Superintendent were lying elsewhere to which he had no control and he did not actually use it and didn't have any nexus to use the material recovered.
Counsel for petitioner submits that the material, referred to, in fact he didn't use it and further submits that he could have clarify the factual matrix if opportunity of hearing would have been afforded to him which indisputably was not afforded despite being required under Ordinance 152 of University Ordinance.
The principles of natural justice are so well established that they hardly need citation of any authority and when the mandate of Ordinance 152 lays down the procedure regarding control of cases of unfair means/ disorderly conduct the authority is under obligation to comply with the requirement and to take further action only in conformity with the relevant regulations. It is true that requirement which is distinct feature in the instant case, that depends upon circumstances of each case but at least the essential feature which cannot be ruled out is that the person concerned should have been afforded reasonable opportunity of presenting its case. Hon'ble Apex Court in AIR 1962 SC 1110 held that enquiry before the domestic tribunals in the matter of disciplinary action is of quasi-judicial character and has to be undertaken in accordance with the principles of natural justice and the procedure to be adopted in such cases should be that the person affected should be apprised of the charges of unfair means against him and in the absence of a clear notice of charges against him, a person affected is placed at a great handicap to defend himself, and such a procedure falls below the expected standard of procedure of fair hearing and the tribunal cannot base its decision on materials, unless the person against whom the material is sought to be utilised has been given a reasonable opportunity to explain the circumstances appearing against him. In Ranjit Singh Vs. University of Rajasthan (AIR 1966 Raj. 223) it was held that principles of natural justice require that the candidate must be given an opportunity of presenting his case before that organ of the university, who has to award the punishment and the university can act according to its usual rules of business provided that rules conform to the principles of natural justice. It may be clarified at this stage that as regards the case of mass copying in the examination by the very nature of things and the circumstances of the case, it is not possible to give individual notice to each and every candidate involved in mass copying during the examination. The Division Bench of this Court in Sarita Kumari & Ors. Vs. The Board of Secondary Education, Ajmer & Anr. (WLC (Raj) 2011(4) page 136) taking note of the precedents of Hon'ble Apex Court observed that in case of mass copying/use of unfair means principles of natural justice are inapplicable and observed as under :-
5. Therefore, after giving our anxious and thoughtful consideration to the question involved in the matter referred before us, we hold as follows :-
(1) In case of mass copying/use of unfair means, the principles of natural justice are inapplicable.
(2) In case of use of unfair means by an examinee, the procedure adopted by the concerning committee/authority would be just and proper, so long as the principles of natural justice are followed by way of adequate opportunity of presenting his case is given to the examinee.
(3) Adequacy of opportunity would depend upon and be prescribed in accordance to the facts of each case.
Even as per DB judgment of this Court, referred to supra, in case of unfair means, the procedure to be adopted by the competent authority is to be in conformity with the principles of natural justice and at least adequate opportunity of presenting the case by the examinee has to be afforded. However, instant case is not the case of mass copying in the examination and the respondents were under obligation to follow the procedure provided under Ordinance 152 of the University Ordinance and that being the root question involved herein, it will be relevant to see as to whether the procedure adopted conform to the principles of natural justice regarding holding enquiry against a candidate who is charged of resorting to use unfair means in the examination. The extract of Ordinance 152 of University Ordinance being relevant for the present purpose is reproduced as under :-
O.152 :(Control of Unfairmeans and disorderly conduct)
1. No candidate shall use unfairmeans or indulge in disorderly conduct at, or in connection with the examinations.
Explanation : Here the 'candidate' means an examinee taking an examination in a particular and also includes every student on the Rolls of the University.
2.(a) Unfairmeans shall include the following :
(v) During examination time having in possession or access to :
(a) Any paper, book, note or any other unauthorised material which has relevance to the syllabus of the examination-paper concerned.
3.Punishment :
A candidate found guilty of unfairmeans or disorderly conduct at or in connection with an examination shall at the discretion of the Syndicate, be punished with one or more of the following. This may even be in addition to the punishment that may have been already awarded by the Principal/ Centre Superintendent, under O.88 or O.152 :
(i) Cancellation of the result of the paper in respect of which he is found to have been guilty; and/or
(ii) Cancellation of the result of the examination for which he was a candidate; and/or
(iii) Debarring the candidate from securing admission to a class and appearing at any future examinations of the University for a stated period; and/or
(iv) Any other punishment deemed suitable by the Syndicate.
4. Norms of Punishment :
(b) Where a candidate is found having in his possession or within his reach any material relevant to the syllabus of the examination paper concerned but has not copied from or used it :
(i) If the behaviour of the candidate is satisfactory :- Present examination shall be cancelled, provided that if the material found in possession of the candidate is of insignificant nature the punishment may be relaxed to the extent of cancellation of the examination of that particular paper (theory or practical as the case may be) and he/she will be treated as having obtained 'Zero' mark in that paper with all the consequences to follow. However, if the candidate so desires, he/she will be given the option of appearing in the subsequent whole examination by cancelling the present examination as a whole.
(c) Where a candidate is found to have copied from or used the material caught :
(i) If the behaviour of the candidate on being caught is satisfactory :- Present examination shall be cancelled and he shall be further debarred for one subsequent examination, if the examination is held once a year or two subsequent examinations if the examination is held twice a year, provided that if the material found in possession of the candidate and/or the extent of copying done by the candidate is of insignificant nature, the punishment may be relaxed to the extent of cancelling the present examination only.
5. Procedure for dealing with the cases of Unfairmeans and disorderly conduct :
The following shall be the procedure for dealing with the cases of candidates found using or suspected of using Unfairmeans or showing disorderly conduct in connection with the examinations :
(i) Where a candidate is suspected of using unfairmeans as defined above, the Invigilator or the Centre Superintendent or any other member of the supervisory staff including the Flying Squad shall search the candidate and/or his belongings. Where any written or printed material is found in his possession in consequence of the search, the Superintendent of the Examination Centre shall refer the case to the officer appointed by the University for the purpose indicating the nature of unfairmenas used by the candidate.
(ii) As soon as a candidate is suspected, found or reported to have resorted to unfairmeans and the Invigilator/Superintendent or any member of the Flying Squad feels satisfied that unfairmeans have been used, his answer-book shall be seized along with the material recovered and a fresh answer-book given to him to answer the questions of question paper. The answer-book shall be marked as I and II respectively.
(iii) The invigilator/member of the Flying Squad concerned shall generally give his report in writing in the form prescribed by the University (Form No.39-E). This report shall be brought to the notice of the candidate who shall normally be required to give his explanation in the above form and sign the material caught. This form No.39-E duly completed alongwith the material recovered duly signed by the candidate, the invigilator-member of the Flying Squad and the Centre Superintendent (as far as possible) will be sent by the Centre Superintendent to the University (to the officer appointed by the University for the purpose by name) for consideration.
(iv) If a candidate refuses to give his statement on the spot and/or refuses to sign the material recovered or leaves the centre without giving his statement or if the candidate is found guilty of showing dis-orderly conduct, his case will be reported by the Centre Superintendent to the University on Form No.39-E. An intimation notice to this effect (preferably on the prescribed form), will be sent to the candidate under registered cover calling upon him to show cause why action should not be taken against him for using unfairmeans or showing misconduct and asking him to submit/furnish his explanation/reply, if any, directly to the Registrar of the University by registered post with a copy of his reply endorsed to the Centre Superintendent within fourteen days from the date of despatch of the intimation notice from the Centre Superintendent. If the intimation notice due to any reason has not been sent by the Centre Superintendent, it will be sent to the candidate by the University before finally disposing of the case.
(v) Where the Centre Superintendent refers a case of use of unfairmeans or disorderly conduct to the University, he shall record such evidence as is available in support of the allegations made by the invigilator/member of the Flying Squad or any member of the supervisory staff and after giving his own remarks, he shall send all the relevant material to the University for further action.
(vi) The University will consult the Head Examiner/Examiner or any other expert appointed by the University, where-ever necessary, and get his report on the prescribed form (Form No.73-E) regarding the use of unfairmeans.
(vii) All cases of suspected use of Unfairmeans Or of disorderly conduct reported by the Centre Superintendent or by any other person concerned with the examination including the examiner shall be considered and decided by the Syndicate. The Syndicate may, however, appoint Standing Committee(s) or authorise the Vice-Chancellor to appoint such committee(s) to examine the cases on its behalf and give the recommendations for consideration and approval by the Syndicate.
The Standing Committee may be divided into Sub Committee(s) by the Convener to deal with suspected cases of Unfairmeans and disorderly conduct.
(viii)(a) The cases of suspected use of unfairmeans or of disorderly conduct will be considered and decided by the committee in the candidate's absence on the basis of the reports of the invigilator/Centre Superintendent and the statement, if any, made by the candidate in Form No.39-E and/or the reply statement, if any, received from the candidate in the reply to the notice issued to him by the Centre Superintendent and/or by the University. No further representation or protest from the candidate will be entertained afterwards.
(b) In case a candidate desires to be given a personal hearing and/or if the Standing Committee thinks it necessary, it shall fix a date and time and notify to the candidate by registered post to appear before the Committee for personal bearing. Sending such a notice by registered post to the candidate at the address given by him in his examination application form/Form No.39-E shall be deemed to be a discharge of the University's liability for serving the notice. No adjournment of the meeting will ordinarily be granted to the candidate. If considered necessary the Committee may ask the Invigilator/Superintendent or any other member of the Supervisory Staff to be present in the meeting at the time of holding the enquiry.
On the date fixed for hearing which will ordinarily be not less than 14 days from the date of despatch of the notice the Committee shall meet at the notified place on the date and time specified in the said notice for giving personal hearing to the person(s) concerned.
The statement/reply of the candidate will be recorded by the Committee which may also seek and record clarifications or further explanations, if necessary, from the Invigilator/Centre Supdt./any other member of the supervisory staff, who may be present at the time of the enquiry.
(ix) In no case shall the candidate be allowed to be represented by a lawyer or any other person. Also no adjournment of the hearing will be granted to the candidate unless deemed necessary by the Committee. Further, it will not be obligatory for the University to furnish a copy of the incriminating material or any other material recovered from the possession of the candidate. However, the candidate will be shown the incriminating material at the time of hearing if he so desires.
(x) On the basis of the report(s)/statement(s) of Invigilator(s)/Member(s) of the Flying Squad or the supervisory staff, the statement, if any, of the candidate, the remarks of the Centre Superintendent and also the statements recorded at the time of personal hearing, the Committee will record its recommendations regarding the punishment to be awarded to the candidate. If the candidate is absent, the Committee may consider and decide the case in his absence.
Notes : (1) If a candidate appearing in uncovered/uncleared subject(s) of paper(s) of a lower examination along with the higher examination is found guilty of use of unfairmeans in a paper of the lower or the higher examination, his uncovered papers at the lower examination as well as the complete higher examination shall be cancelled and if required under this Ordinance will be further debarred from appearing at the subsequent examination in the same.
The scheme of Ordinance 152, referred to supra, is regarding control of unfair means/ disorderly conduct. However, petitioner's case as alleged is of unfair means and not of disorderly conduct and when the invigilator or the Centre Superintendent either shall search or cause a candidate to be searched by any person and if any written material is found in possession of the candidate in consequence of the search, the Superintendent of Examination has to conduct on the spot enquiry and dispose of cases which he feels that unfair means have not been adopted or in such a case where he is satisfied that unfair means have been used, a procedure has been provided and the answer books have to be seized along with the material recovered and a fresh answer book is to be given for answering the remaining questions of the question paper and such of the books have to be sent by the Centre Superintendent to the officer appointed by the University for the purpose together with the material recovered duly signed by the candidate, the invigilator and the Centre Superintendent has to give its report in writing in the form prescribed by the University and it is to be brought to the notice of the candidate who is required to give his/her explanation in the above form and if the Centre Superintendent decides to refer a case of unfair means to the officer appointed by the University for the purpose he shall record such evidence as is available in support of the allegations made by the invigilator and after giving his own remarks he has to send all the relevant material to the officer appointed by the University for the purpose in clause 5(v) for further action and thereafter in terms of clause 5(vi) the University will consult the Head Examiner/ Examiner or any other expert appointed by the University, where-ever necessary and get his report on the prescribed form (Form No.73-E) regarding use of unfair means and all cases of suspected use of unfair means/disorderly conduct reported by the Centre Superintendent or by any other person concerned with the examination including the examiner shall be considered & decided by the Syndicate. However, the Syndicate may appoint Standing Committee or authorise the Vice-Chancellor to appoint such committee to examine the cases on its behalf and give the recommendations for consideration and approval by the Syndicate and the standing committee may be divided into sub-committees to deal with suspected cases of unfair means and disorderly conduct and after such procedure being followed at all levels the cases of suspected use of unfair means are to be examined in the light of clause-5(viii)(a)&(b) by the committee and clause-5(x) clearly provides that apart from the report, the statement made at the time of personal hearing the committee will record its recommendations regarding punishment to be awarded to the candidate. From the scheme of Ordinance 152 of which reference has been made (supra) it clearly envisages that while complying with the principles of natural justice it is required that the candidate must be given opportunity of hearing to defend his case before the organ of the University who has been assigned the task to award punishment and it was incumbent on the committee constituted by the authority to give opportunity of hearing to the petitioner of presenting his case before it and in case the candidate would have admitted during the course of enquiry that he was using unfair means it might not be necessary for the committee to hold any further enquiry and could have proceeded after going through the report of the invigilator, the explanation of the petitioner and could have made its recommendations to the competent authority. In in the opinion of this Court, the copy of form placed on record by the respondent along with their reply as Annx.R/1 that could not be considered as a substitute for granting opportunity of hearing to the candidate which was to be afforded by the committee to show cause against his alleged conduct of using unfair means in the examination and calling for explanation is the basic essential requirement under Ordinance 152 and it was for the committee to afford the candidate reasonable opportunity to show cause as regards his alleged unfair means for which he was charged. Admittedly in the instant case the committee was constituted to give/afford opportunity of hearing to the petitioner to show cause and the petitioner has been punished and examination was cancelled without affording reasonable opportunity to him to explain and as such there was clear breach of principles of natural justice. It is no doubt true that University being an autonomous body and creator of statute is certainly responsible for the standards and conduct of the examinations and where the university examination is involved, certain amount of autonomy should be extended to the university authorities and the meticulous investigation into the rights and wrongs of the doings of the universities or their committees may demoralise the authorities themselves and the overall impact may be injuries in public interest but it is always necessary that in arriving at a finding that the candidate has used unfair means in the examination the principles of natural justice must be followed, in absence whereof the finding arrived at is vitiated and cannot form the basis of the punishment.
The submission made by counsel for respondent that form was duly signed by the petitioner and it was his own admission and even thereafter a show cause notice was served upon him and as regards the procedure prescribed for dealing with such cases of suspected unfair means, the principles of natural justice have been complied with by the authorities in conformity with Ordinance 152 of the university ordinance is of no substance for the reason that the document which was filled at the spot may not have any validity for holding the petitioner guilty unless a reasonable opportunity of hearing being afforded by the committee and that was the mandatory requirement under Ordinance 152 and as regards show cause notice served upon the petitioner it was nothing else but cryptic one and no details/supporting material of any nature was furnished thereto and even what is being annexed with Annex.R/1 is not signed by the petitioner and he could have explained about the alleged unfair means only if opportunity of hearing would have been afforded to him and that being the requirement of Ordinance 152 of University ordinance it was incumbent on the committee to afford opportunity of hearing, denial whereof vitiates the very action of the respondent holding the petitioner guilty and inflicted penalty under order impugned.
In the opinion of this Court the question of denial or admitting having used unfair means in the examination will only arise when the committee which is to deal with the matter gives a show cause notice to the candidate mentioning as regards charges against him and afford reasonable opportunity of hearing and follow the procedure prescribed in the Ordinance for dealing with the cases of those who are suspected of using unfair means which has not been followed by the authority in case of the petitioner and his examination has been cancelled on the recommendations of the committee without observing the principles of natural justice which has vitiated the process adopted while holding the petitioner guilty and inflicting penalty.
It will also be relevant to record that it is discretionary for the competent authority to inflict either of the penalty, nature whereof has been provided under Ordinance-152(3) and it was all the more necessary for the committee which has to recommend to the authority as regards penalty to be inflicted if any upon allegation found proved was supposed to grant opportunity to the candidate to show cause and the report of the invigilator and the explanation of the candidate in no manner can be said to be a substitute to the notice initially served upon the petitioner of show cause and the reason is very obvious that at the time when the candidate as contemplated was suspected of using unfair means he was not in such state of mind so as to come out with his defence and the report of the invigilator may be evidence but it has to be considered by the committee along with other material if any and the authority is under obligation to afford reasonable opportunity to the candidate to show cause, which in the considered opinion of this Court, the respondents have failed to comply with despite being required under Ordinance 152 of University Ordinance.
So far as the judgment relied upon by counsel for respondent in Ganpat Ram Vs. State of Raj. & Ors. (RLW 1999 (1) (Raj.) page 254) the question which has been raised for consideration in the instant case was neither raised nor examined and it may not be of any assistance to him. As regards the judgment in Priyanka Meena Vs. Chairman, RPSC (RLR 2001(3) 556) it was an special appeal arising out of order of the learned Single Judge and the scheme of Ordinance 152 referred to in the instant case was not available for consideration as that was a case of using unfair means in the competitive examination conducted by the Rajasthan Public Service Commission and as regards the judgment of Hon'ble Apex Court in Bihar Public Service Commission & Anr. Vs. Vinoy Kumar Singh & Anr. (2003(7) SCC 28) is of no assistance regarding the issue raised for consideration in the instant case.
The penalty which has been inflicted upon the petitioner certainly spoiled his carrier and he will carry this stigma with him for all times to come and may create impediment when he go ahead to get public employment and under these circumstances it was all the more necessary for the authorities to take a pragmatic view and afford reasonable opportunity of hearing to the incumbent which is mandatory requirement to be complied with in conformity with principles of natural justice and so also under Ordinance 152 of University Ordinance. It is nothing but safeguard provided to find out the alleged truth from the sleeves of the incumbent.
In the result, the writ petition succeeds and is hereby allowed. The order inflicting penalty upon the petitioner dt.25.06.2011 (Annx.6) is hereby quashed & set aside. However, it will not preclude the respondents from examining the matter afresh in accordance with law after due compliance of principles of natural justice and in conformity with Ordinance 152 of University Ordinance keeping in view the observations made by this Court (supra) and as far as possible the matter should be finalized within six weeks and the petitioner is also directed to cooperate. No costs.
(Ajay Rastogi),J.
VS Shekhawat/-PA/p.25 5446cw12SepFnlDsps.doc Certificate - All corrections have been incorporated in the judgment/order being emailed/Vijay Singh Shekhawat/PAJ