Andhra Pradesh High Court - Amravati
In This Batch Of Writ Petitions vs Unknown on 7 January, 2022
Author: U.Durga Prasad Rao
Bench: U.Durga Prasad Rao
HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
Writ Petition Nos.28525, 28561, 28628, 29440 & 29538 of 2021
COMMON ORDER:
In this batch of writ petitions, the petitioners challenged the proceedings in Roc.No.2006/E1A/MBBS/MP/2021 dated 19.11.2021 of 3rd respondent imposing punishment to them for use of unfair means by disqualifying them for a period of three years including April 2021 from the whole examination.
2. The petitioners are the 1st year MBBS students studying in 5th respondent Medical College. During the 1st year MBBS main examination, they failed in certain subjects, particularly in Biochemistry. The petitioners' case is that they appeared in supplementary examinations conducted in the month of April 2021 and completed the exams on 30.04.2021 and during the course of examination they were not booked for any malpractice being committed in the examination hall and on the other hand after completing the examination they returned home. Their further case is that on that evening at about 7.00 P.M., while the petitioners were at their respective residences, the police of IV Town Police Station, (Dargamitta PS), Nellore called them by phone to the residential Flat No.102 of Pooja Sathyadevam Apartment situated in Saraswathi Nagar, Nellore belonging to Sri Dr. Singamsetti Bhaskar, Assistant Superintendent working in 5th respondent College on the pretext of some enquiry. When the petitioners reached the said Apartment, they 2 found one lady police officer viz., Nageswaramma was present along with her staff. She took the petitioners to different rooms of the flat and gave some empty answer sheets similar to the answer sheets of the University and asked them to write some text matters on some papers on the pretext of comparison of their hand writings for the purpose of some enquiry. The petitioners have innocently cooperated with the police officer and wrote some text relating to the subject of the Biochemistry Paper provided on the papers given by the police officer. Later the police have implicated them in Cr.No.112/2021 of Dargamitta Police Station for the offences under Sections 417, 427, 120B IPC and Sections 8 & 10 of the A.P. Public Examinations (Prevention of Malpractices and Unfair Means) Act, 1997 (for short, 'the Act 25 of 1997') on the allegation that the petitioners in order to get themselves passed in the Biochemistry subject, colluded with A1 and other accused and while the examination papers were under transit from Post Office to RMS, got them diverted to the residential flat of A1 and copied the answers on the original answer booklets where they left some empty white papers in the bunch of their answer booklets. The police filed charge sheet against them with all false and untenable allegations which was taken cognizance by the learned V Additional Judicial Magistrate of First Class, Nellore and registered as C.C.No.5155/2021. On departmental side the matter was placed before the Malpractice Committee of the 2nd respondent University and after considering the material placed before it, the Committee found all the petitioners guilty of malpractice and made 3 recommendations to the University and the 3rd respondent, who is the Vice-Chancellor of 2nd respondent University, passed the impugned proceedings disqualifying the petitioners for a period of three years including April 2021 from the whole examination. The petitioners' case is that they are innocent and they were falsely implicated in the case without there being any plausible material against them. Their further case is that before issuing the impugned proceedings, principles of natural justice were not followed as the material relied upon by the Malpractice Committee as well as by the 3rd respondent such as the report of the Malpractice Committee etc. were not furnished to the petitioners so as to effectively present their case.
Hence, the writ petition.
3. The respondents 2 to 4 filed counter opposing the writ petition and contending thus:
(a) The petitioners have joined MBBS course in the Academic Year 2019-2020 in the 5th respondent College. The regular examinations for the said batch was conducted in January, 2021 and the petitioners failed in different subjects mentioned in their writ petitions. So they again appeared for supplementary examination in April 2021 on 29.04.2021. The Biochemistry examination for the 1st year MBBS course was conducted and the petitioners appeared for the said examination as per schedule between 10.00 AM to 13.00 PM.
After completion of the examination, the staff of the college parcelled the answer sheets and deposited in the Head Post Office, Nellore for 4 speed post and receipt was deposited with 5th respondent college. As reported by the Police Department, in the meanwhile, as per their pre- plan the petitioners with the aid of two old students (A2 & A3 in C.C.No.5155/2021) have taken answer scripts from the Postal staff (A4 in C.C.No.5155/2021) and handed over to A1 in C.C.No.5155/2021, who is the Professor of 5th respondent college, and they separated answer scripts which were given to 5th respondent. All the students have committed malpractice in public examinations. After completion of the same, as usual they handed over the bundle to postal staff, who in turn deposited in RMS office, Railway Station, Nellore. On the next day i.e., 30.04.2021, as usual pre-plan was implemented by the accused. However, on receiving the credible information, the accused including the petitioners were caught red handed by the police. They registered Cr.No.112/2021 of Dargamitta Police Station against the accused including the petitioners for the offences under Sections 417, 427, 120-B IPC and Sections 8 & 10 of the A.P. Public Examinations (Prevention of Malpractices and Unfair Means) Act, 1997. After investigation the police have laid charge sheet and the learned V Additional Judicial Magistrate of First Class, Nellore has taken cognizance of the same and registered as C.C.No.5155/2021. The University on its part, issued Memo dated 21.10.2021 to all the petitioners calling upon their explanations and after receipt of the explanations and considering the report of the Sub- Divisional Police Officer, Nellore, punishment of debarring the petitioners for a period of three years from appearing in the University 5 examination was imposed as per the provisions of the Act 25 of 1997 and also as per the Rules and Standing Orders of the University. The entire exercise was undertaken by strictly following the rules and procedure and by giving fair opportunity to the petitioners to submit their explanations. The petitioners' contention that they were falsely implicated in the case is preposterous.
Hence, the writ petitions are liable to be dismissed.
4. Heard arguments of Sri Ghanta Rama Rao, Senior Counsel representing Sri Ghanta Sridhar, learned counsel for petitioner in W.P.No.29538/2021, and Sri Rosedar SRA, learned counsel for petitioners in W.P.Nos.28525 & 29440 of 2021, and Sri Md. Saleem, learned counsel for petitioners in W.P.Nos.28561 & 28628 of 2021.
Heard the learned Government Pleader for Medical Health & Family Welfare representing the 1st respondent, and Sri G.Vijay Kumar, Standing Counsel for the respondents 2 to 5.
5. The main plank of argument of the counsels appearing for the petitioners is that as per the impugned proceedings dated 19.11.2021, the Malpractice Committee of 2nd respondent University met on 19.11.2021 and after considering the material evidence i.e., FIR dated 30.04.2011 and also detailed report of the Sub-Divisional Police Officer, Nellore town dated 17.05.2021 and explanations of the candidates, the Committee came to the conclusion that the petitioners were guilty of using unfair means and disqualified them for a period of three years including April 2021 from the whole examination. It is 6 vehemently argued that none of the aforesaid documents which were said to be placed before the Malpractice Committee and relied upon by the said Committee to make its recommendations against the petitioners were furnished to the petitioners so as to enable them to effectively present their case. Since the relevant documents were not supplied to them, the petitioners submitted preliminary explanation only. Without considering these aspects in a proper perspective, the impugned proceedings came to be passed by 3rd respondent. Learned counsel for petitioners thus argued that principles of natural justice became a casualty in this case. On this pivotal argument, they prayed to allow the writ petition.
6. Per contra, learned Standing Counsel for the respondents 1 to 4 argued that the petitioners committed grave malpractice by employing unfair means. They sidetracked the answer bundle while the same was being carried from Post Office to RMS and took them to the Apartment of their Professor where they filled the answers in the blank answer sheets on which, during the examination, they scribbled something with pencil. Learned Standing Counsel argued that all the petitioners were caught red handed in Flat No.102 of Pooja Sathyadevam Apartment by the police and after investigation they filed charge sheet against them. He further argued that due procedure was followed and memos were issued and their explanations were called for and placed before the Malpractice Committee, which after considering the material placed before it such as the FIR, report of the 7 Sub-Divisional Police Officer, Nellore and the explanation of the petitioners, found the petitioners guilty of malpractice by employing unfair means and recommended to the 3rd respondent to take suitable action and 3rd respondent in turn disqualified them for a period of three years from appearing in the examinations. Learned Standing Counsel vehemently argued that in the entire process, there was no casualty of the principles of natural justice as the petitioners were given fair opportunity to present their version. Except denying the every allegation the petitioners did not make any plausible explanation for their presence in the Apartment of their Professor at the relevant time and for noting down the answer sheets at the relevant time. Later, for the purpose of filing writ petition, they created a story to the effect that on the call of the police, they went to Flat No.102 of Pooja Sathyadevam Apartment, where they were allegedly asked to write something on white papers for comparison of their handwritings and they were implicated in a false case. Learned Standing Counsel argued that this Court while exercising writ jurisdiction, will not test the veracity of the findings and punishment imposed by the disciplinary authority except procedural violations involved.
7. The point for consideration is whether there are merits in the writ petition to allow?
8. Point : I gave my anxious consideration to the facts and arguments advanced by either side. Admittedly, the petitioners have appeared for the 1st year MBBS supplementary examination. The 8 gravamen of the accusation against them is that in collusion with several other persons who are arrayed as accused in C.C.No.5155/2021, the petitioners contrived that the answer sheets bundle which was supposed to be carried from Head Post Office, Nellore to RMS at Railway Station, Nellore had reached the Apartment of their Professor, who is A1 in C.C.No.5155/2021. There they filled the answers on the empty papers of the answer booklet and thereby they committed malpractice in the public examination. On credible information, the police claimed to have caught the petitioners and some other accused red handedly. The police of Dargamitta Police Station, Nellore registered Cr.No.112/2021 for the offences under Sections 417, 427, 120B IPC and Sections 8 & 10 of the A.P. Public Examinations (Prevention of Malpractices and Unfair Means) Act, 1997 and after investigation laid charge sheet which was taken cognizance by the learned V Additional Judicial Magistrate of First Class, Nellore and registered as C.C.No.5155/2021.
9. The departmental proceedings initiated against the petitioners and the employees of the University are concerned, Memos dated 21.10.2021 were issued to the petitioners calling for their explanation and the petitioners have submitted their written explanation to 4th respondent denying the allegations leveled against them. Their version is that by phone call the police of IV Town Police Station summoned them to Flat No.102 of Pooja Sathyadevam Apartment, which belongs to their Professor, and there a lady Police Officer 9 instructed them to write some text matter on some answer sheet apparently for comparison of their handwritings and the petitioners obliged and later they were implicated in a false case. Having not satisfied with their explanation the Malpractice Committee found them guilty and recommended to the Vice Chancellor / 3rd respondent, to take action against them. Consequently the 3rd respondent awarded punishment of disqualifying them for three years.
10. It should be noted that as per Section 3 of the A.P. Public Examinations (Prevention of Malpractices and Unfair Means) Act, 1997, use of unfair means at or in connection with any public examination by any person is prohibited and as per Section 8 of the said Act, any person who contravenes or attempts or conspires to contravene the provisions of Section 3 or Section 4 or Section 5 or Section 6 or Section 7, shall be punishable with imprisonment for a term which shall not be less than three years, but which may extend upto seven years and shall also liable to pay fine. Thus, as per the Act 25 of 1997, use of unfair means at or in connection with any public examination is a penal offence. That apart, the Standing Orders issued by the Executive Council of the 2nd respondent University, prescribed different types of punishments for using different unfair means in public examinations. Standing Order 13 is germane for our purpose which reads thus:
13) A candidate found guilty of:
(i) Smuggling in answer book or a continuation sheet, or 10
(ii) taking out or arranging to send out an answer book or continuation sheet, or
(iii) Replacing or getting replaced his answer book or continuation sheet, during or after the examination with or without the help or connivance of any person connected with the examination centre, shall be disqualified from appearing in any university examination for a period of three years.
The candidate shall also be liable to such other punishment as may be decided by the Vice-Chancellor.
13(a) If a candidate during the course of a practical / clinical examination presents to the examiner a practical or class work note book which does not belong to him, he shall be disqualified from passing the examination.
Thus, exercising the powers conferred under the Standing Orders of the Executive Council, the Vice Chancellor imposed punishment on the petitioners as per the impugned proceedings dated 19.11.2021.
11. As can be seen, the impugned proceedings are in the nature of in-house proceedings i.e., departmental enquiries/disciplinary proceedings conducted by the University. The scope and ambit of the judicial review against the departmental enquiries, disciplinary proceedings etc. is no more res integra. The Hon'ble Apex Court and various High Courts have delineated the cardinal principles showing the circumstances when review power can and cannot be exercised under Article 226 of the Constitution of India. Broadly speaking while exercising the power of judicial review on administrative actions of the public authorities and in the matters relating to the departmental enquiries and the findings recorded therein, the constitutional Courts do not exercise power of Appellate Authority. The jurisdiction of the constitutional Courts in such cases is very limited. On the occasions, when the domestic enquiry is vitiated for non-observation of the principles of natural justice; lack of fair and 11 reasonable opportunity; findings are based on no evidence and the punishment is wholly disproportionate to the proved misconduct of the delinquent etc., the Courts will exercise the power of judicial review. The writ Courts therefore loath to act upon on the findings recorded by the departmental authority unless it was observed that the said authority recorded the finding unsupported by any evidence or where the finding was such that no reasonable person could have arrived at or enquiry itself was vitiated on account of violation of principles of natural justice or where there was total non-application of mind by the enquiry officer or the disciplinary authority and non- recording of reasons in support of the conclusions arrived at by them etc. [Indian Oil Corporation Limited v. Ashok Kumar Arora1 and Allahabad Bank v. Krishna Narayan Tewari2].
12. In the light of the above jurimetrical jurisprudence, it is pellucidly clear that this Court cannot sit as an Appellate Authority on the impugned orders to test the veracity of the findings and punishment imposed by 3rd respondent. What is germane for consideration is whether (i) principles of natural justice were followed by giving fair opportunity to the petitioners to present their case (ii) whether due procedure was followed and (iii) whether the punishment imposed was authorized by law? Thus this Court is concerned only to the extent whether procedural fairness was observed. 1 MANU/SC/0236/1997 = AIR 1997 SC 1030 2 MANU/SC/0006/2017 = AIR 2017 SC 330 12
13. Tested on the above anvil, the prime contention of the petitioners is that they were asked to submit their explanation without furnishing the relevant material i.e., (i) copy of FIR No.112/2021 dated 30.04.2021 of the Dargamitta Police Station, Nellore and (ii) detailed report prepared and furnished by the Sub-Divisional Police Officer, Nellore Town to the University authorities. In the absence of those reports, the petitioners claimed, they could not effectively submit their explanation. They would contend that the Malpractice Committee of the University has placed reliance on those unserved documents i.e., FIR and report of the Sub-Divisional Police Officer and came to the conclusion that the petitioners were guilty of the malpractice and recommended for their punishment to 3rd respondnet. Thus they claim that there was a fragrant violation of principles of natural justice.
14. On a careful scrutiny, I find no substance in the arguments of the petitioners. The documents referred in the memos given to the petitioners are as under:
(i) News Paper clippings of Sakshi & Hindu dt. 01.05.2021
(ii) FIR No.112 of 2021 dt. 30.04.2021 of Police Station Dargamitta of Nellore District under 417, 427, 420B IPC, 8, 10 A.P. Public Examinations (prevention of malpractices)
(iii) Detailed report in case of malpractice of supplementary examinations of 1 MBBS Biochemistry Paper-II from sub divisional Police Officer, Nellore Town
(iv) Legal opinion dated 27.09.2021 of Standing Counsel, Dr. NTR UHS, VJA.
15. So far as the newspaper clippings of Sakshi and Hindu dated 01.05.2021 are concerned, they are only the news items regarding the 13 events that transpired on 30.04.2021 and more than that they cannot be said to have any impact on the Malpractice Committee to take any decision. Similarly the legal opinion dated 27.09.2021 of the Standing Counsel of the University is concerned, it is a private correspondence between the University and its Standing Counsel, on which the petitioners cannot lay any claim. Moreover the impugned proceedings dated 19.11.2021 would show that the Malpractice Committee has not made its decision on the basis of newspaper clipping and legal opinion. So far as the document No.2 is concerned, it is the FIR No.112/2021 which was registered on 30.04.2021 itself. After registration of FIR and before submission of their explanation, the petitioners and other accused were summoned by the police under Section 41A Cr.P.C. and enquired them with reference to the FIR allegations. So, the contents of FIR are very much to the knowledge of the petitioners as the said document is not an unknown one. So also document No.3 is concerned, it is a report furnished by the Sub- Divisional Police Officer, Nellore with regard to the mediator's proceedings drawn on 30.04.2021 in Flat No.102. Since the petitioners themselves were present at that place and time and they were examined by the police, the contents of the report will not assume much importance for submitting their explanation. Therefore, in my considered view, the petitioners cannot take an objection that they were not furnished the documents relied upon by the University. What is germane for consideration is whether a fair opportunity was given to the petitioners to present their case or not. In this case 14 admittedly the University served Memos to them calling for their explanation and they submitted their written explanations. It must be stated that this Court cannot sit as an Appellate Authority to test the veracity of the allegations leveled against the petitioners and to test the veracity of their explanation and consequential action taken against them. What is to be looked into under the power of judicial review is whether there was any procedural violation involved in the entire gamut of events. In my considered view, there was no such procedural violation.
16. When the entire admitted facts are taken into consideration, the petitioners were very much present in Flat No.102 on the night of 30.04.2021 and they also knew about the contents of FIR and also the mediator's report, which are only replicated in the Sub-Divisional Police Officer's report. The petitioners owe explanation for their presence at the scene of offence at the relevant time independent of any documents. So, at the outset, the petitioners cannot clamour about violation of principles of natural justice or other procedural deviations. Hence, I find no merits in the writ petitions.
Accordingly, the Writ Petitions are dismissed. No costs. As a sequel, interlocutory applications, if any, pending for consideration shall stand closed.
_________________________ U.DURGA PRASAD RAO, J 07.01.2022 KRK/MVA