Gujarat High Court
Thakkar vs Gujarat on 28 December, 2011
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
Gujarat High Court Case Information System
Print
SCA/18428/2011 18/ 18 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 18428 of 2011
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ? No
2
To be
referred to the Reporter or not ? No
3
Whether
their Lordships wish to see the fair copy of the judgment ? No
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? No
5
Whether
it is to be circulated to the civil judge ? No
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THAKKAR
KIRAN KAILASH - Petitioner(s)
Versus
GUJARAT
TECHNOLOGICAL UNIVERSITY THRO REGISTRAR - Respondent(s)
=========================================================
Appearance
:
MR
MEHUL S SHAH for,
MR SURESH M SHAH for Petitioner
MR DIPAN DESAI for
Respondent
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 28/12/2011
ORAL
JUDGMENT
Rule.
Mr.Dipan A.Desai, learned advocate, waives service of notice of Rule for the respondent.
By preferring the present petition under Article 226 of the Constitution of India, the petitioner has made the following prayers:
"(a) A writ of certiorari or any other appropriate writ, order or direction may kindly be issued quashing and setting aside the decision of the Respondent at Annexure `B' herein.
(b) A writ of mandamus or any other appropriate writ, order or direction may kindly be issued directing the Respondent herein to immediately declare the result of the Petitioner for the examination in question.
(c) A writ of mandamus or any other appropriate writ, order or direction may kindly be issued directing the Respondent herein and the college to immediately permit the Petitioner to attend the classes for the course of study in the college.
(d) Pending hearing and final disposal of the present Special Civil Application, the implementation, operation and execution of the decision at Annexure `B' collectively herein may kindly be ordered to be stayed.
(e) Pending hearing and final disposal of the present petition, the Respondent herein and the college may kindly be directed to permit the Petitioner to attend the classes for her course of study in the college.
(f) Any other appropriate writ, order or direction that may be considered necessary may be issued.
(g) Cost of the present petition may be awarded to the Petitioner from the Respondent herein."
Briefly stated, the relevant facts are as below:
The petitioner is studying in the First Year of the "Diploma in Pharmacy" course at the Diploma Pharmacy College, Rampura ("the College" for short), which is affiliated to the Gujarat Technological University (respondent herein). The petitioner appeared in the Final External Examination, in the subject of Health Education and Community Pharmacy, on 01.06.2011. According to the petitioner, she completed the said Examination without any complaint or warning being issued to her by the Supervisors / Monitors, present in the Examination Hall. On 08.07.2011, the respondent-University addressed a letter to the Principal of the College, stating that the petitioner, along with other students, has allegedly used unfair means and is required to appear before the Examination Committee for a hearing in connection with the same on the specified date and time. The petitioner remained present before the Examination Committee of the respondent-University on 20.07.2011. According to the petitioner, no effective hearing took place on that day. The petitioner gave written application to the Examination Committee, denying the allegations against her.
Thereafter, by communication dated 27.07.2011, the University informed the petitioner that punishments have been imposed upon her, as per Circular dated 03.11.2010. Consequently, result of all subjects of the First Year Examination has been cancelled, and the petitioner is debarred from appearing in the next two examinations, to be conducted by the respondent-University. Aggrieved thereby, the petitioner has approached this Court by way of this petition.
Mr.Mehul S.Shah, learned advocate for the petitioner, has submitted that before punishment was imposed upon the petitioner, the respondent-University did not supply relevant documents to the petitioner, and nor has an opportunity of hearing been granted to her before the impugned decision. As there is a clear violation of the principles of natural justice, the impugned decision deserves to be set aside.
It is further submitted that no show cause notice has been issued to the petitioner and she not informed regarding the alleged misconduct, purportedly committed by her, during the examination in question. The so-called hearing before the Examination Committee was merely an eye-wash, as no effective or substantive hearing took place. Further, no material was supplied to the petitioner, therefore, she was not in a position to put forth an effective defence, which has resulted in prejudice to her.
It is next contended that the impugned decision contains no reasons or findings against the petitioner and neither is the alleged misconduct purported to have been committed by her been mentioned. The petitioner has not adopted unfair means during the examination, and at no point of time have the Supervisors/ Monitors, who were present in the Examination Hall during the examination, made any complaint or allegation in this regard. The imposition of penalty as per Circular dated 03.11.2010, is, therefore, highly unreasonable and harsh, and the impugned decision may be quashed and set aside on this ground as well.
Per contra, Mr.Dipan A. Desai, learned advocate for the respondent-University, has submitted that the petitioner was well aware that she had been called to appear before the Examination Committee for using unfair means. It cannot be said that she was taken by surprise, and no notice was given to her. As the petitioner appeared before the Examination Committee, there has been no violation of the principles of natural justice, and no prejudice has been caused to her by the impugned decision of the University.
It is further contended on behalf of the University that the answer-sheets of the petitioner were sent for checking to the Examiner, who found that she has copied answers from a Handbook by Shri Ashok Gupta. The Examiner has reached this conclusion as various answers of the petitioner are verbatim similar and identical to the material in the said Handbook. It is submitted that the Report of the Examiner is clear enough and the University has rightly imposed punishment upon the petitioner. That, the Examination Committee has considered the documents furnished by the Examiner, and having found substance in his Report, has rightly registered case of Unfair Means against the petitioner, who has been informed of the same by notice dated 08.07.2011, through the concerned College. The petitioner was shown the Report of the Examiner and her answer-sheets, therefore, it cannot be said that the related material was not supplied to her. Ample opportunity of hearing before the Examination Committee has been granted to the petitioner and there is no violation of the principles of natural justice by the University.
It is further contended that the case of the petitioner clearly fall within Clause-3 of the Circular dated 03.11.2010, and the penalty inflicted by the respondent-University, of cancelling the results of all the subjects of the current Semester and debarring her from appearing in the next two summer/ winter Examinations is just and proper. That this Court, in exercise of powers under Article 226 of the Constitution of India, would be wary of interfering with the decision taken by an educational institution. It is emphasized that in order to maintain high standards of education and proper conduct of examinations, and to have a deterrent effect on other students, misconduct of the kind that the petitioner has indulged in, ought to be dealt with an iron hand.
On the strength of the above submissions, it is prayed that the petition be dismissed.
I have heard the learned counsel for the respective parties, perused the averments made in the petition and contents of the documents on record. From perusal thereof, it is evident that no notice whatsoever, leave alone any show cause notice, has been issued to the petitioner by the respondent-University intimating her of the allegations levelled against her. The only communication issued by the respondent-University in this regard is dated 08.07.2011, to the College in which the petitioner is studying. The College, in turn, informed the petitioner to appear before the Examination Committee of the University on 20.07.2011 at 11:30 a.m. in connection with the Unfair Means case registered against her. There is no mention in the said communication regarding the details of the unfair means allegedly used by the petitioner and neither has the petitioner been asked to show cause. In view of the same, it appears from the record that the petitioner has been deprived of an opportunity of defending herself, and even of affording an explanation. Without doing so, she has straightaway been asked to appear before the Examination Committee.
It has been stated in the petition that no material was supplied to the petitioner relating to the allegations levelled against her and the hearing that took place before the Examination Committee was merely an eye-wash and that the petitioner had been asked to give statement in her defence, which she did. The contention raised by the learned advocate for the respondent-University is that the petitioner was aware of the charges against her and as the case of Unfair Means has been found to be proved on the basis of the Report of the Examiner, there is no violation of the principles of natural justice.
Examining the above submissions, it transpires from the record that what transpired before the Examination Committee is not on record. It does not appear from the record that the Report of the Examiner has been supplied to the petitioner before the impugned decision was taken or that the petitioner was granted an opportunity to offer any explanation in regard to the same. Further, the grounds on which the Examination Committee has arrived at the final decision inflicting the penalty upon the petitioner, and the reasons that have weighed with it in doing so, are undisclosed.
It is apparent that the Examination Committee was in agreement with the Report of the Examiner and the conclusion drawn by him that the petitioner has indulged in unfair means. Keeping in mind the severe nature of the punishment imposed upon the petitioner, it would stand to reason that further verification of the Report of the Examiner be made by the Examination Committee before imposition of the penalty. However, it does not appear that there has been further verification of the Report of the Examiner by an Expert Body before arriving at the final conclusion.
Not serving the show cause notices upon the petitioner would, in the view of this Court, amount to denying her an opportunity to meet the allegations levelled against her and to put up an effective defence. Further, by not supplying a copy of the Examiner's Report, which forms the basis of the action against her, the petitioner has been deprived of a reasonable and adequate opportunity of hearing which, in the view of this Court, amounts to a violation of the principles of natural justice. As the result of the petitioner for all the examinations in the current Semester has been cancelled and she has been debarred from appearing in the next two summer/ winter examinations, it follows that grave prejudice has been caused to her, as this penalty would have an adverse effect upon her academic career.
It cannot be disputed that standards of education in educational institutions should be maintained and malpractices should be discouraged. To achieve this end, educational institutions may be well within their rights in taking action in cases where use of unfair means is detected. Ordinarily, decisions taken by educational institutions in educational matters would not be lightly interfered with by Courts. At the same time, it is equally true that any action taken by an educational institution ought to conform to the settled principles of law and meet with the requirement of the principles of natural justice and fair play. This requirement would assume greater importance if the action taken against the concerned student entail civil consequences that are likely to cause serious prejudice to him/her.
It ought to be noted that an opportunity of hearing should not be reduced to a mere formality but should be a reasonable and adequate one. By not providing crucial documents to the petitioner and by not issuing a show cause notice specifying the nature of her alleged misdemeanor by granting her an opportunity of defending herself, the petitioner has been deprived of fair and reasonable opportunity of hearing which, in itself, would amount to violation of principles of natural justice.
In Malavkumar Arunbhai Patel v. Sardar University And Others - 2007(1) GLR 413, this Court, after considering various judgments of the Supreme Court, has held as below:
"22. The provisions of Section 23(xxxii) of the Act make it clear that the Syndicate was fully empowered to constitute the "Unfair Means Committee". Therefore, the ground taken by the petitioner that the Committee, being contrary to the Ordinance of the University, had no power to inflict the punishment upon the petitioner and that the proceedings should be declared null and void is not correct and is not accepted.
23. Any action taken by an administrative or quasi judicial authority which entails civil consequences should only be taken after complying with the principles of natural justice. Although the principles of natural justice cannot be put into a strait-jacket formula, it cannot be disputed that the doctrine of natural justice exists not only to secure justice but also to prevent the miscarriage of justice. It is true that strict rules of evidence do not apply in proceedings such as those which took place in the case of the petitioner before the "Unfair Means Committee". However, even the requirement of preponderance of probabilities has not been adhered to since the impugned Notification dated October 4,2000 as well as the Minutes of the proceedings which led to the passing of the impugned order do not disclose the material which was available with the committee which pointed out the involvement of the petitioner in the incident. In that view of the matter, the impugned order is also not a speaking one and does not disclose the reasons or the grounds on which the decision to permanently debar the petitioner has been taken.
24. In A.K.Kraipak v. Union of India, reported in AIR 1970 SC 150 the aim and relevance of the principles of natural justice have been clearly enunciated by the Constitution Bench of the Supreme Court in para 20 thereof, which reads as under:
"20.
The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet esse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (Audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala, Civil Appeal No. 990 of 1968, D/- 15-7-1968 = (AIR 1969 SC 198) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame-work of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case."
25. Further in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, reported in (2001)1 SCC 182, the Supreme Court has held as under in paragraphs 1 and 2 of the reported judgment:
"Since the decision of this Court in Kraipak's case (A. K. Kraipak v. Union of India) one golden rule that stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. What, however, does this doctrine exactly mean? Lord Reid about four decades ago in Ridge v. Baldwin very succinctly described it as not being capable of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances - who then is a reasonable man - the man on the clapham omnibus? In India, however, a reasonable man cannot but be a common man similarly placed. The effort of Lord Reid in Ridge v. Baldwin in not attributing a definite meaning to the doctrine but attributing it to be representing a fair procedure still holds good even in the millennium year. As a matter of fact this Court in the case of Keshav Mills Co. Ltd. v. Union of India upon reliance on the attributes of the doctrine as above stated as below (SCC p.387,para
8) "8.
The second question, however, as to what are the principles of natural justice that should regulate an administrative act or order is a much more difficult one to answer. We do not think it either feasible or even desirable to lay down any fixed or rigorous yard-stick in this manner. The concept of natural justice cannot be put into a strait-jacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly. See, for instance, the observations of Lord Parker in H. K. (an infant), In re. It only means that such measure of natural justice should be applied as was described by Lord Reid in Ridge v. Baldwin case as 'insusceptible of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances'. However, even the application of the concept of fair-play requires real flexibility. Everything will depend on the actual facts and circumstances of a case. As Tucker, L.J observed in Russell v. Duke of Norfolk:
"The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with and so forth."
2. While it is true that over the years there has been a steady refinement as regards this particular doctrine, but no attempt has been made and if we may say so, cannot be made to define the doctrine in a specific manner or method. Strait-jacket formula cannot be made applicable but compliance with the doctrine is solely dependent upon the facts and circumstances of each case. The totality of the situation ought to be taken note of and if on examination of such totality, it comes to light that the executive action suffers from the vice of non-compliance with the doctrine, the law courts in that event ought to set right the wrong inflicted upon the person concerned and to do so would be a plain exercise of judicial power. As a matter of fact the doctrine is now termed as a synonym of fairness in the concept of justice and stands as the most-accepted methodology of a governmental action."
26. It is now an accepted proposition of law that any statutory body which is entrusted by statute with discretion, must act fairly. It does not matter whether its functions are described as judicial or quasi-judicial on the one hand, or as administrative on the other. Even an administrative order, which involves civil consequences must be made consistently with the rules of natural justice. Although the expression 'civil consequences' has not been defined anywhere, the observation made in Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 at para-66 on page 440 is relevant in this context and reads as below:
"What is civil consequence, let us ask ourselves, by passing verbal booby-traps? 'Civil consequences' undoubtedly cover infraction of not merely property or personal rights but of civil liberties material deprivation and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence"
27. The permanent debarring of the petitioner from appearing in any examinations conducted by the University and from seeking admission in any of the courses to be conducted by the University, no doubt entails serious civil consequences. In these circumstances, the rule of Audi Alteram Partem should have been followed by the respondents. The principle that no man should be condemned unheard and both sides must be heard in order to ensure fairness on the part of the deciding authority or body before passing any order is well known. A person against whom any action is sought to be taken which entails civil consequences must have knowledge about the allegations/ charges/materials against him on the basis of which such a decision is sought to be taken.
28. The Committee such as the "Unfair Means Committee"
constituted by the respondent No.1 can be said to be acting quasi-judicially, although the Statute may not provide, in so many words, that the authority passing the order is required to act judicially. The very nature of rights affected are such that the authority passing the order is, in fact, required to act judicially and in accordance with the rules of natural justice. Fairness in action is a fundamental ingredient of the principles of natural justice wherein justice should not only be done but should also manifestly be seen to be done, in order to ensure that the authority arrives at a just decision which affects the rights of a person."
In view of the principles of law enunciated in the above-quoted judgment, the impugned decision dated 27.07.2011 of the respondent-University in respect of the petitioner deserves to be quashed and set aside on the ground of violation of the principles of natural justice.
For the aforesaid reasons, the petition is partly-allowed. The impugned communication dated 27.07.2011, of the respondent-University, is quashed and set aside, as being violative of the principles of natural justice. However, liberty is reserved to the respondent-University to take fresh action, in accordance with law, by following the principles of natural justice and providing the petitioner with all relevant material, including the Report of the Examiner and the actual decision of the Examination Committee, before any further action is taken.
If the result of the examinations in which the petitioner has appeared has not already been declared, the same may be declared and the petitioner may be permitted to continue to attend classes and take further examinations, until and unless she is debarred from doing so by an order passed by the Competent Authority, in accordance with law.
It is clarified that this Court has interfered only on the ground of violation of the principles of natural justice and not on the merits of the case.
Rule is made absolute, to the above extent. There shall be no orders as to costs.
(Smt. Abhilasha Kumari, J.) (sunil) Top