Karnataka High Court
Bangalore University vs Ram Narayan Sah Prabhat on 26 September, 1989
Equivalent citations: ILR1989KAR3292, 1989(2)KARLJ475
JUDGMENT
Rama Jois, Ag. C.J.
1. These appeals are presented by the Bangalore University, against the order of the learned Single Judge quashing the orders passed against respondents-1 to 25 by which the performance of each of them in the February-March, 1989 B.E. Degree Examination was cancelled.
2. The facts of the case in brief are these: Or. 13-3-1989 students of B.M.S. Engineering College, Bangalore, were answering the question papers on the subject called Hydrology and Irrigation, in Room No. 11 of the College. The examination commenced from 2.00 " P.M. It appears, that when the examination was going on, a Vigilance Flying Squad appointed by the University to check the menace of mass malpractice, at all the examinations of the University, made a surprise entry into the aforesaid examination room at about 3.30 p.m. The Squad gave a report of the same date to the University Registrar (Evaluation), giving the names of the students who according to the Squad were found indulging in examination malpractice. On the basis of the said report, charges were framed against each of the respondents, alleging that they had indulged in malpractice. The article of the charge also stated that the charge was supported by the document viz., report of the Squad and each of the candidates was called upon to file statement of defence. Thereafter, they were called upon to appear before the Enquiry Committee. The enquiry Committee appears to have put some questions to each of the students. The questions and answers which are sterotyped are as below:-
"Que: Have you received the article of charge? Ans: Yes. Que: Have you gone through it? Ans: Yes. Que: Do you admit the charge or deny the same? Ans: T deny the charge,"
The Enquiry Committee submitted its report holding that 28 of the 38 students to whom articles of charges were served were guilty of malpractices. Accepting the report of the Enquiry Committee, the Vice-Chancellor in purported exercise of his powers under Section 12(5) of the Karnataka State Universities Act, 1976 (the Act for short) passed the following order:
"Sub: Alleged Malpractice case of IV year B.E. Examination held on 13-3-1989.
On accepting the findings and recommendations of the Malpractice Enquiry Committee by the Vice-Chancellor on behalf of the Syndicate under Section 12(5) of the K.S.U. Act, 1976, the following students who were reported for alleged malpractice during the IV Year B.E. Examination held on 13-3-1989 are denied the benefit of performance of all papers (Theory and Practical) for which" they had appeared during February/March, 1989 examination.
Sl. No. Name of the Candidates Reg.No.
1. Brijesh Pratap Mathur E 83 BA 008
2. Narendra Prasad Singh E 83 BA 018
3. C. Narayanaswamy E 83 BA 029
4. A.G.P. Nataraja E 83 BA 030
5. C.J. Rajendra E 83 BA 038
6. Ravikumar E 83 BA 043
7. K.V. Ravishankar E 83 BA 045
8. Shankar Chawan E 83 BA 052
9. Sridhar K.G. E 83 BA 057
10. K.R. Manjula Devi E 82 BA 040
11. N. Srinivasa E 82 BA 076
12. Suresha T.D. E 82 BA 081
13. Srinivasa S. E 82 BA 125
14. Srinivasa Raju N. E 83 BA 058
15. Sudhakar S. E 83 BA 060
16. Sireddi Adinarayana E 83 BA 062
17. B.R. Subendra Kumar E 83 BA 063
18. Syed Shakir Hussain E 83 BA 068
19. Ram Narayana Sahprabhat E 83 BA 081
20. B.R. Kiran E 83 BA 106
21. Md. Aleemuddin E 83 BA 108
22. Ramesh K.S. E 83 BA 111
23. Sudarshan Babu S.L. E 83 BA 114
24. Anand A. E 82 BA 001
25. A. Arun Kumar E 82 BA 008
26. Girian H.S. E 82 BA 018
27. S.N. Krishnamurthy E 82 BA 035
28. M. Laxmikanth E 82 BA 037 They are permitted to appear for June 1989 examination in IV Year B.E. in all papers for which they had appeared during February/ March 1989. They are also permitted to pay the examination fee for the said year till 20-5-1989 without any time.
The students may please be informed accordingly .
Yours faithfully, Sd/-
Registrar (Evaluation)."
Aggrieved by the said order, the students had presented the Writ Petitions.
3. The learned Judge, allowed the Writ Petitions holding that no enquiry was held in accordance with the ordinance prescribing the procedure for an enquiry, regarding examination malpractice and on the ground that the report of the Enquiry Committee stood vitiated due to errors apparent on the face of the record. The learned Judge also held that the Vice-Chancellor had no power under Sub-section (5) of Section 12 of the Act to pass the impugned order as the said power was conferred on the Syndicate under Section 62 of the Act. He further held that there was no application of mind by the Vice-Chancellor as the Note was put by the Registrar and the Vice-Chancellor had only agreed with it.
4. Aggrieved by the order of the learned Single Judge, the University is in appeal before us.
5. Sri Gopala Hegde, learned Counsel for the University, strenuously contended that this was a case of mass-copying which evil had acquired dangerous proportion during recent year and in order to combat the said evil, the University had to take a firm step and therefore the Vice-Chancellor had passed the order cancelling the performance of the examination of 28 students. He maintained that when action was taken by the University on the allegation of mass-copying, the question of holding an enquiry in accordance with the ordinance prescribed for ordinary cases of malpractice would be of no avail and therefore the learned Judge erred in holding that the impugned order was invalid on the ground that no enquiry was held.
6. If, on the report by the Vigilance Squad that there had been mass copying or malpractice in the examination hall concerned, the University had proceeded to cancel the performance of all the candidates who took examination in that hall without reference to any individual students, and to hold a fresh examination In the subject concerned for all such students, the contention of the learned Counsel for the University would have been unexceptionable in view of the ratio of the Judgment of the Supreme Court in BOARD OF HIGH SCHOOL v. GHANSHYAM . But in the present case, what the University had done was not the cancellation of the performance of all the students at the examination on the ground that there had been a report of mass malpractice; but the action was taken against 38 candidates individually in that charge memo was served on each of them and they were called upon to appear before the Mal-practices Enquiry Committee and they were interrogated by the Committee and thereafter the Committee submitted its report recording a finding that 28 of them committed malpractice and 10 did not. That report was accepted by the Vice-Chancellor and orders were passed. Though the names of all the 28 students are set out in the same communication, it is an order passed against each of the students. Each of the students is found guilty of malpractice and the penalty imposed is cancellation of performance of the particular examination. It is a fundamental rule of natural justice that no person can be found guilty of any charge or no order can be passed which has got evil or civil consequences unless it is preceded by the holding of an enquiry in that giving full opportunity to defend himself by adducing evidence in support of the charge before the authority holding the enquiry and giving full opportunity to the person against whom an enquiry is being held to cross-examine the witnesses who gave evidence against him or giving opportunity to cross-examine the persons who had made report against him. All these safeguards are incorporated in the Ordinance framed by the University for holding an enquiry. It Is not disputed that in these cases no enquiry in accordance with the said ordinance had been held. This is also the finding recorded by the learned Single Judge. But the contention of the learned Counsel for the appellants is that this was a case where no individual enquiry was necessary. We are unable to agree. This is a case in which the University has found each of the students guilty of malpractice and on that basis imposed penalty of cancellation of the performance of the examination against each of the students. An exactly similar situation was considered by this Court. In W.P.No. 1502 of 1979 and connected cases Giri Prasath v. Karnataka University, in which the Karnataka University had imposed penalty against as many as 30 students without holding an enquiry on the ground that there was a report about mass-copying. In that case, also the University relied on the Judgment of the Supreme Court in which the Supreme Court has held that for cancellation of examination on any ground, the principles of natural justice would not be applicable. That case was distinguished by this Court and pointed out that if the University had proceeded to cancel the performance of all the students In any particular examination centre and decided to hold re-examination, the question of applying rules of natural justice does not arise because the power of the University to hold the examination necessarily includes the power to cancel the performance of the entire examination and to hold re-examination if the given situation demands such a course of action. On this reasoning, orders impugned in the said Writ Petition were quashed. The position is not different in these cases. Therefore we respectfully agree with the view taken by the learned single Judge.
7. Learned Counsel for the appellants next contended that the learned Judge erred in holding that the Vice-Chancellor had no power under Section 12(5) of the Act to pass an order and to get it ratified by the Syndicate. Section 12(5) of the Act confers emergency powers on the Vice-Chancellor. That provision reads:
"In case of any emergency which, in his opinion, requires immediate action the Vice-Chancellor shall take such action as he deems necessary and shall at the earliest opportunity, thereafter report the action taken to such Authority or body as would in the ordinary course have dealt with the matter.
Provided that if the action taken by the Vice-Chancellor is not approved by the Authority or body concerned it may through the State Government refer the matter to the Chancellor whose decision shall be final:
Provided further that if the decision taken by the Authority or body on the report of the Vice-Chancellor under this sub-section affects adversely any person in the service of the University, that person may prefer an appeal to the Chancellor through the State Government within thirty days from the date on which the decision was communicated to him and the decision of the Chancellor on such appeal shall be final."
According to that provision, if, in the opinion of the Vice-Chancellor, there exists an emergency in which he has to act immediately, though according to the provisions of the Act, decision on the topic arising for consideration has to be taken by a specified authority of the University, he could exercise the powers of such authority forthwith and later in the normal course get it ratified by the designated authority. The learned Counsel submitted that under Section 62 of the Act, the Syndicate of the University was empowered to impose any penalty for examination malpractices acting on the report of the Mal-practices Enquiry Committee and in view of the urgency, it was open for the Vice-Chancellor to take the decision in the first instance and thereafter to get it ratified by the Syndicate. He submitted that the view taken by the learned Judge that the matter could be decided only by the Syndicate and it did not fall within the scope of emergency powers of the Vice-Chancellor under Section 12(5) of the Act, was erroneous.
8. In our opinion, the above question was purely academic as far as these cases are concerned. Whether the Syndicate had to take a final decision in the matter or the Vice-Chancellor could take final decision in the matter, the holding of an enquiry in accordance with the Ordinance and rules of natural justice was a condition precedent. Once it is found that no enquiry was held in accordance with the Ordinance - whether the final order was passed by the Vice-Chancellor or the Syndicate - the final order is liable to be quashed. Therefore, we vacate the view taken by the learned Single Judge on the scope of the powers of the Vice-Chancellor under Section 12(5) and reserve it for consideration in an appropriate case.
9. It is unfortunate that a well intended action of the University had to be set aside; but there is no alternative for the Court when an individual is visited with penalty without holding inquiry and in violation of Rules of Natural Justice. We are, however, unable to understand as to why it has not been possible for the University to ensure that no copying takes place in examination by preventing students from taking any book or even any piece of paper into the examination hall and also by keeping a vigil throughout the examination period, if necessary even by seeking the assistance of the Police, and also by administering a stern warning to private colleges that if they do not prevent copying in their respective colleges, their recognition would be cancelled. It is well known that 'where there is a will there is a way'. We hope that the University authorities would examine this aspect of the matter and put down examination malpractice which is a menace to the examination system with a heavy hand.
10. Learned Counsel for the appellant submitted that the learned Judge had not reserved liberty for the University to hold do novo enquiry against the respondents petitioners. It is well settled, that when, in a petition under Article 226 of the Constitution, any decision of an Administrative Authority is quashed on procedural irregularities, it is for that authority to decide as to whether de novo inquiry is called for and it is unnecessary for the Court to reserve any such liberty to the authority concerned to hold a de novo inquiry (see A.I.R. 1961 S.C. 75) State of U.P. v. Babu Ram. Therefore, it is for the University to decide as to whether in these cases, it is desirable to hold a de novo inquiry.
In the result, we make the following:
ORDER The appeals are dismissed.