Madhya Pradesh High Court
Mohd. Yakub Ansari vs Devi Ahilya Vishwavidyalaya, Indore on 11 December, 1985
Equivalent citations: AIR1987MP5, AIR 1987 MADHYA PRADESH 5, (1987) JAB LJ 291
JUDGMENT Sohani, J.
1. This is a petition under Article 226 of the Constitution of India.
2. The Material facts giving rise to this petition, briefly, are as follows : --
The petitioner had appeared for the B.A. Part III examination held by the respondent University in March 1984. The examination centre of the petitioner was Islamia Karimia Degree College and the roll number assigned to the petitioner was 328. On 23-3-1984, While the petitioner was answering the first paper in Political Science, the Superintendent of the examination centre noticed, while on round, that the petitioner was inserting a chit in his under garment. The petitioner was, therefore, brought by the Superintendent to the Control Room and the Superintendent requested Dr. Sakalla to make a search. On search being made, a chit was recovered from the pocket of the petitioner but the petitioner snatched away that chit and ran away. Dr. Sakalla and a Peon ran after the petitioner but the petitioner could not be apprehended. Hence a memorandum R/2 was drawn up by the Superintendent and a report to that effect was made by the Superintendent to the University. A show-cause notice dated 30-7-1984 was issued to the petitioner by the Registrar of the respondent University and the petitioner was informed that he should submit his reply within a fortnight and that in case he desired oral hearing, he should appear before the Committee on 18th August 1984 at 3.30 p.m. The petitioner submitted his reply on 13-8-84 but did neither pray for any oral hearing on nor did he appear on the date of the hearing before the Committee constituted to consider the cases of candidates found using unfair means at an examination. After consideration of the material before it, the Committee passed an order debarring the petitioner from appearing at any examination of the University till the main examination to be held in the year 1986. This order was communicated to the petitioner by the Registrar on 6-9-1984. It is this order that is assailed by the petitioner by this petition filed on 9-9-85.
3. On behalf of the petitioner, Shri Khan, the learned counsel, raised the following contentions; (1) That there was no foundation for taking action against the petitioner by the University as he was not been using or attempting to use any unfair means; (2) that in the show-cause notice sent to the petitioner, the material on which the action was proposed to be taken against the petitioner, was not disclosed; (3) that after receiving the reply of the petitioner, the Committee did not inform the petitioner that it was not acceding to the request of the petitioner to stay proceedings and was proceeding with the enquiry; (4) that no enquiry was held into the allegation made by petitioner; (5) that the provisions governing conduct of enquiries in such matters were not complied with; (6) that from a perusal of the order passed against the petitioner, it was apparent that there was no application of mind by the Committee; (7) that the Committee was not competent to impose the penalty, which it imposed on the petitioner and (8) that in any event, the petitioner could be debarred from appearing at any examination only for one year.
4. Before we proceed to appreciate the various contentions urged on behalf of the petitioner, it would be useful to refer to the relevant provisions of law and the settled principles of law governing enquiries against students found using unfair means at any examination conducted by educational institutions. Ordinance No. 5 framed under the provisions of Section 37(vi) of the M.P. Vishwavidyalaya Adhiniyam, 1973 (hereinafter referred to as 'the Act'), deals with the conduct of examination and Ordinance No. 6 framed under the provisions of Section 37(iii) of the Act deals with the subject of examinations. Clause 21 of ordinance No. 5 is as under:
"21. The Superintendent of an examination centre shall take action against an examinee, who is found using or attempting to use unfair means in the examination hall or within the premises of the examination centre during the hours of examination, in the following manner:
(i) The examinee shall be called upon to surrender all the objectionable material found in his or her possession including the answer-book and a memorandum shall be prepared with date and time.
(ii) The statement of the examinee and the invigilator shall be recorded.
(iii) The examinee shall be issued a fresh answer book marked 'Duplicate-Using Unfair Means' to attempt answer within the remaining time prescribed for the examination.
(iv) All the material so collected and the entire evidence along with the statement of the examinee and the answers books duly initialled shall be forwarded to the Registrar by name in a separate confidential sealed registered packet marked "Unfair Means'" along with the observations of the Superintendent.
(v) The material so collected from the examinee together with both the answer books viz. the answer book collected while using unfair means and the other supplied afterward, will be sent to an expert in the subject appointed by the Kulapati for assessing both the answer books separately and to report if the examinee has actually used unfair means in view of the material collected. (E. C. 30-10-1982).
(vi) The cases of the use of unfair means at the examination as reported by the Centre Superintendent along with the report of the Examiner shall be examined by a Committee to be appointed by the Executive Council every year.
The Committee shall consist of : --
(a) One member of the Executive Council, one of the Deans of Faculties, and one teacher, who is a member of the Academic Council nominated by the Executive Council.
(b) One student, who in the academic session immediately preceding, was member of any Board of Study, nominated by the Kulpati;
(c) Registrar (Secretary) The Executive Council shall appoint one of the members included under (a) to be a Chairman of the Committee.
(vii) The Committee shall after examining the case, decide the action to be taken in each case and, report to the Executive Council alt cases of the use of unfair means together with the decision of the Committee in each case."
The relevant provisions of Sub-clauses (i) and (ii) of Clause 23(f) of Ordinance No. 6 are as follows : --
"23(f)(i) If a candidate is found guilty of using or attempting to use or having used unfair means at an examination such as copying from some book or notes or from the answer of some other candidate or helping or receiving help from any other candidate of keeping with him in the examination hall material connected with the examination or in any other manner whatsoever, the Executive Council or the Committee appointed for the purpose by the Executive Council may cancel his examination and also debar him from appearing at any of the examinations of the university for one or more years according to the nature of the offence.
(ii) The Executive council may cancel the examination of a candidate and/or debar him from appearing at any examinations of the Vishwavidyalaya for one or more years, if it is discovered afterwards that the candidate was in any manner guilty of misconduct in connection with his examination and/or was instrumental in or has abetted the tampering of Vishwavidyalaya records including the answer books mark-sheets, result charts, diplomas and the like."
5. It is well settled that a Committee appointed to enquire into the allegation of use of unfair means against any student functions as a quasi-judicial authority and that such enquiries held against students have to be conducted with due regard to the principles of natural justice. In this connection, we may usefully refer to the following observations of the Privy Council in University of Ceylon v. Fernando, (1960) 1 All ER 631 at page 637 :
"Their Lordships do not propose to review these authorities at length, but would observe that the question whether the requirements of natural justice have been met by the procedure adopted in any given case must depend to a great extent, on the facts and circumstances of the case in point. As Tucker, L. J. said in Russell v. Duke of Norfolk, (1949 (1) All ER 109 at p. 118).
"There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth."
Again at page 638, the Privy Council observed as follows :
"The last general statement as to the requirements of natural justice to which their Lordships would refer is that of Harman, J, in Byrne v. Kinematograph Renters Society Limited, (1958) 2 All ER 579, of which their Lordships would express their approval. The learned Judge said this :
"What then, are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made : secondly, that he should be given an opportunity to state his case; and thirdly, of course that the tribunal should act in good faith. I do not think that there really is anything more."
We may also usefully refer to the following observations of the Supreme Court in Board of High School and Intermediate Education, U.P., Allahabad v. Bagaleshwar Prasad, AIR 1966 SC 875 :
"In dealing with petitions of this type, it is necessary to bear in mind that educational institutions like the Universities or appellant No. 1 set up Enquiry Committees to deal with the problem posed by the adoption of unfair means by candidates, and normally it is within the jurisdiction of such domestic Tribunal to decide ail relevant question in the light of the evidence adduced before them. In the matter of the adoption of unfair means, direct evidence may some times be available, but cases may arise where direct evidence is not available and the question will have to be considered in the light of probabilities and circumstantial evidence. This problem which educational institutions have to face from time to time is a serious problem and unless there is justification to do so, Courts should be slow to interfere with the decisions of domestic Tribunals appointed by educational bodies like the Universities. In dealing with the validity of the impugned orders passed by Universities under Article 226, the High Court is not sitting in appeal over the decision in question, its jurisdiction is limited and though it is true that if the impugned order is not supported by any evidence at all, the High Court would be justified to quash that order. But the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify the said conclusion. Enquiries held by domestic Tribunals in such cases must, no doubt, be fair and students, against whom charges are framed, must be given adequate opportunities to defend themselves, and in holding such enquiries, the Tribunal must scrupulously follow rules of natural justice: but it would, we think, not be reasonable to import into these inquiries all considerations, which govern criminal trials in ordinary Courts of law."
Bearing the aforesaid principles in mind, we have now to consider the various contentions urged on behalf of the petitioner assailing the order passed against him.
6. The first contention urged on behalf of the petitioner was that there was no foundation for taking action against the petitioner for using unfair means at the examination. It was urged that the petitioner was not seen using or attempting to use any unfair means, that in fact the entire case against him was fabricated and that even assuming the version of the Superintendent of examination centre as reported to the University to be correct, there was no material for coming to the conclusion that the alleged chit was in any manner connected with the examination. To appreciate this contention, it is necessary to bear in mind that under provisions of Sub-clause (f)(i) of Clause 23 of Ordinance No. 6, keeping with him in the examination hall any material connected with the examination, renders a candidate guilty of use of unfair means. Now, the statement of the invigilator, as reported to the University vide report Ex.R-1 was as follows :
"While on round, I saw Roll No. 328 inserting a chit in the under garments. I took him to Control Room and requested Dr. Sakalta to make a search. He picked up a chit from his pocket but the examinee ran away from an open side of the newly constructed building. Dr. Sakalla and a Peon ran after him but could not get hold of him."
When the petitioner was asked to show cause, he contended, vide his reply Annexure 'C' that there was some dispute in the Islamia Karamia Society in the year 1976 that Mr. Kazmi and Dr. Sakalla bore some grudge against the petitioner, who was at the material time Joint Secretary of the Students Union and that a false case was therefore, being set up against him. In the words of the petitioner.
"I did not use any unfair means in the examination of Political science paper. I peacefully did my paper and went away after submitting my answer-book to the invigilator. No search was made and nothing was recovered and this is false to say that search was made in the control room by Mr. Sakalla and I ran away with the chit. Nothing such has happened."
It is significant to note that it was not contended by the petitioner in his aforesaid reply that the chit alleged to be in his possession was not in any way connected with the examination. It was, however, urged on behalf of the petitioner by Shri Khan the learned counsel for the petitioner, that the chit alleged to have been found with the petitioner might or might not have been connected with the examination and the possibility that the chit was not connected with the examination could not be ruled out. But if the report of the invigilator was to be believed, as it was in fact believed by the Committee the petitioner alone could have thrown light on the contents of the chit because he had ran away with the chit and did not thereafter produce it before the authorities concerned. It is not disputed that by virtue of condition No. 6 of the conditions of the Admission Card issued to the petitioner for appearing at the examination, the petitioner was prohibited from keeping any note or chit with him in the examination hall. In view of this prohibition coupled with the conduct of the petitioner, the contention advanced on behalf of the petitioner that there was no foundation for proceedings to take action against the petitioner for using unfair means, cannot be upheld. To hold otherwise would mean a candidate in possession of incriminatory material could always successfully evade any liability for use of unfair means by merely managing to destroy or run away with the incriminatory material.
7. It was then contended that the notice issued to the petitioner to show cause why action be not taken against him for using unfair means at the examination, was quite vague as there were no particulars at all regarding the nature of unfair means alleged to have been used by the petitioner. The contention in brief was that the petitioner was not adequately informed of the case he had to meet. This contention would have been well founded had the petitioner been unaware of the precise facts, on which the allegation of use of unfair means was based. It was, however, very fairly admitted before us by Shri Khan, the learned counsel for the petitioner, that in the instant case, the petitioner was fully conversant with the facts, on which the charge of use of unfair means was based because criminal proceedings had already been initiated against the petitioner for use of unfair means. In these circumstances, we may usefully refer to the following observations of the Supreme Court in Prem Prakash Kaluniya v. Punjab University, AIR 1972 SC 1408 :
"The law on this point is well settled that an examinee must be adequately informed of the case he has to meet and given a full opportunity of meeting it. As to what the extent and content of that information should or ought to be would depend on the facts of each case. The examinee can ask for more information or details with regard to the material or evidence, which may be sought to be used against him and normally if he makes a request in that behalf, the University authorities in order to inform him adequately of the case he has to meet, would supply him the necessary particulars or details of the evidence. In the very nature of things, no hard and fast rule can be laid down and so long as the Court is satisfied that the opportunity, which was afforded to the examinee, was adequate and sufficient, it will not interfere with any orders prejudicial to him, which may have been made by the University authorities."
In the instant case, though the show cause notice issued to the petitioner was lacking in particulars, the facts that the petitioner had full knowledge of the case he had to meet, is not disputed and is borne out by the reply given by the petitioner (Annexure 'C'). In the circumstances of this case, therefore, it cannot be held that the petitioner was not aware of the case he had to meet.
8. It was then contended' that the Committee did not inform the petitioner that it was not acceding to the request of the petitioner to stay the proceedings of the enquiry as prayed for by the petitioner vide his reply Annexure 'C' that no enquiry was held into the allegation of mala fide made by the petitioner and that the provisions of Clause 21 of Ordinance No. 5 were not complied with. Now as regards compliance with the provisions of Clause 21 of Ordinance No. 5, suffice it to say that the petitioner by his own conduct in running away from the scene of occurrence rendered it impossible to comply with all the formalities prescribed by Clause 21. Nevertheless a memorandum Annexure R/2 was prepared and the report of the Superintendent incorporating the statement of the invigilator vide Annexure R/1 was sent to the university. As regards conduct of the enquiry the petitioner did not seek any opportunity of oral hearing though he was specifically asked to remain present before the Committee on the date and time fixed for that purpose if he desired personal hearing. In the reply to the show cause notice, the petitioner did not make any prayer that he wanted to adduce evidence before the Committee. The Committee was not bound to stay the enquiry as prayed for by the petitioner. Such enquiries, in the very nature of things, have to be : conducted expeditiously. The petitioner, instead of making full use of the opportunity afforded to him to meet the case against him, sought stay of proceedings. The Committee was not bound to stay the proceedings and to enter into any further correspondence with the petitioner in that behalf, when he did not choose to appear before the Committee at 3.30 p.m. on 18th Aug., 1984 the date of hearing given in that behalf.
9. The contention of the petitioner that though he did not appear before the Committee on the date and at the time fixed for hearing, nonetheless the Committee should have proceeded to enquire into the allegation of mala fide made by him, is not well founded. It was for the petitioner to substantiate his allegation that the action of the Superintendent was mala fide. The petitioner did not choose to adduce any material is support of his allegations, under the circumstances, the Committee was not bound to enquire into the allegations of enmity between him and the authorities, vide his reply Annexure 'C'.
10. It was then contended that the Committee did not examine any witness in support of the charge levelled against the petitioner. In this connection, we may usefully refer to the following observations in Miss Vimla Chaudhari v. Punjab University, Chandigarh, AIR 1968 Punj & Har 555.
"There is no quarrel with this proposition and it is indeed well established. Each case, however, depends on its own facts. It has been held by their Lordships of the Supreme Court in Board of High School & Intermediate Education. U.P. Allahabad v. Ghanshyam Das Gupata, AIR 1962 SC 1110, that an administrative body like an Examination Committee while performing its quasi-judicial duties, can prescribe its own procedure so long as the principles of natural justice are followed and adequate opportunity of presenting his case is given to the examinee. So far as I am aware, it has never been held that in the absence of any statutory rules and regulations to that effect, enquiry proceedings by an Examination Committee of a University or a Board of Education must be held like a trial in a Criminal Court. Nor am I prepared to hold that in order to satisfy the principles of natural justice, it is always necessary for a quasi-judicial Tribunal to orally examine witnesses whose statement in writing are available before it."
We may also refer to the following observations of a Division Bench of this Court in Abdul Haque Naseem v. Board of Secondary Education, Bhopal. AIR 1966 Madh Pra 228.
"The principles to be gathered from the decisions referred to can be stated thus. If the relevant statute or Regulations or Bye-laws made thereunder, prescribe a particular procedure, which the authority entrusted with the duty of enquiring into allegations of use of unfair means, has to follow in such an enquiry, then that procedure has to be followed. In the absence of any such express provision, the authority is a liberty to determine the procedure to be followed as it thinks best suited to discharge its duty efficiently. The procedure it may adopt need not follow the pattern of procedure of a trial in a Court or of a disciplinary enquiry against a delinquent civil servant under the Civil Service Regulations. The authority need not examine any witnesses. But it must give a fair opportunity to the examinee to correct or controvert any relevant statement brought forward to his prejudice. The governing principle is one of 'fairness'. As was succinctly put by Lord Shaw in the case of 1915 AC 120 (Local Government Board v. Arlidge) the authority concerned 'must do its best to act justly, and to reach just ends by just means'. If after following the requirements of natural justice, the competent authority reaches a conclusion, which is supported by material, then it would not be open to this Court to examine whether the conclusion of the authority is right or wrong. No doubt, if there is no evidence at all to support the conclusion then this Court would be justified is quashing the decision of the authority." We respectfully agree with the aforesaid observations.
11. It was then contended that there was no application of mind by the Committee and that its finding holding the petitioner guilty of use of unfair means was mechanical. In this connection, it has to be noted that the Committee was not required to write any elaborate report. As observed by the Division Bench of this Court in AIR 1966 Madh Pra 228 (supra), if after following the requirements of natural justice, the competent authority reaches a conclusion which is supported by material, then it would not be open to this Court to examine whether the conclusion of the authority is right or wrong. Now what was the material in the instant case before the Committee ? The material consisted of the statement of the invigilator, as recorded in the report sent to the University, a memorandum drawn in that behalf, the reply of the petitioner and the answer book of the petitioner. The reply of the petitioner that he had peacefully answered the question paper and had gone away after submitting his answer book to the invigilator, was not borne out by the answer book of the petitioner, which was produced before us and which indicated that the entire answer-book of the petitioner consisted of a partial answer of one question only. This fact lends assurance to the report of the Superintendent that the petitioner ran away from the examination centre, when he was caught with the chit. There was no material before the Committee for holding that the entire report against the petitioner was fabricated and the product of a mala fide action. The petitioner had not sought any opportunity to adduce evidence in support of his allegations of mala fide. In the affidavit submitted by the Registrar, who was the Secretary of the Committee, it is averred as follows:
"I state on oath that on 18-8-84 at about or after 3.30 p.m. we took up the case of the petitioner for consideration in 'the Committee'. The petitioner was absent. We had before us the statement-cum-report of the centre Superintendent, Shri M. A. Kazmi, the 'Panchanama' signed by Prof. Sakalle. Shri M.A. Kazmi and Prof. Miss Shaukat Nihal and the answer book of the petitioner. We also had before us the explanation dated 13-8-84 submitted by the petitioner (Annexure 'C' to the petition). Considering all these documents and also considering the probabilities of the case, we found that the allegations made against the petitioner were true and that action under Section 23(f)(ii) of Ordinance No. 6 was called for against the petitioner."
There is no material on record for not relying on the aforesaid statement made by Secretary to the Committee. In the circumstances, it cannot be held that the finding of the Committee that the petitioner was guilty of use of unfair means was mechanical and was arrived at without any application of mind.
12. The contention that the Committee was not competent to impose the penalty in question is devoid of any merit. Under Clause 23(f) of Ordinance No. 6, the Committee appointed by the Executive Council for the purpose of holding enquiry into the case of use of unfair means by examinee at an examination was competent to debar the petitioner from appearing at any examination of the University for one more year. From the minutes of the meeting of the Committee Annexure R-3, it is clear that the Committee had formulated guidelines for the disposal of cases relating to the use of unfair means. The decision of the Committee in the case of the petitioner was in terms of the said guidelines. The ground urged in the petition that the penalty imposed on the petitioner was discriminatory inasmuch as other students found guilty of using unfair means were debarred for one or two examinations only, was not pressed before us and rightly so, because in the case of the petitioner, apart from the use of unfair means, the conduct of the petitioner was an aggravating circumstance. If there was sufficient material before the Committee on the basis of which the Committee imposed the penalty, which it had power to impose, then the appreciation of the material on record by the Committee has to be respected. Once it is found that the Committee was not biased and had acted fairly, the High Court has no power, under Article 226 of the Constitution, to interfere with the decision of the Committee.
13. For all these reasons, this is not a fit case, in our opinion, for interference under Article 226 of the Constitution; The petition, therefore, fails and is accordingly dismissed with costs. Counsel's fees Rs. 250/- (Two Hundred and Fifty), if certified.