Gujarat High Court
Pratapbhai Mahdevbhai Khandra vs Gujarat Gaun Seva Pasandgi Mandal on 7 March, 2014
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/12067/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12067 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
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 ?
5 Whether it is to be circulated to the civil judge ?
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PRATAPBHAI MAHDEVBHAI KHANDRA....Petitioner(s)
Versus
GUJARAT GAUN SEVA PASANDGI MANDAL....Respondent(s)
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Appearance:
MR. HEMAL SHAH, ADVOCATE for the Petitioner(s) No. 1
MS MOXA THAKKER,ASST.GOVERNMENT PLEADER for Respondent No.1
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 07/03/2014
ORAL JUDGMENT
1. Rule. Ms.Moxa Thakker, learned Assistant Government Pleader, waives service of notice of Rule for the respondent.
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2. This petition under Article226 of the Constitution of India has been preferred, interalia, with a prayer to quash and set aside the communication dated 10.06.2010, whereby the petitioner has been declared as disqualified from the examination of Talati (Revenue, ClassIII).
3. The brief factual background of the case is that the petitioner belongs to the SEBC category. The respondentGujarat Subordinate Services Selection Board had invited applications, vide publication No.04/09, from candidates willing to undergo the written examination for direct selection for post of Talati (Revenue, ClassIII). The petitioner applied for the said post and was given an examination hall ticket bearing No.69306150. The written examination conducted by the respondent was an objectivetype examination, in which the candidates were required to select the option which, according to them, was the correct one, by darkening the circles in the OMR Sheet against the correct answer. The examination was conducted on Sunday, 14.02.2010 and the provisional result was published on 12.03.2010. The seat number of Page 2 of 21 C/SCA/12067/2013 JUDGMENT the petitioner was shown in the said list. The respondent published the result in the daily newspaper and requested the selected candidates of the provisional list to remain present during 29.03.2010 to 05.04.2010, for further selection process. It was mentioned that the results of some candidates, including the petitioner, has been withheld for special checking of their answersheets. The petitioner was not informed that his result was withheld, therefore, he filed an application under the Right to Information Act, 2005 (RTI Act), seeking reasons for his nonselection even after clearing the written examination. In reply, he was informed that he has been disqualified/failed as, after the special checking, it was found to be a case of copying. According to the petitioner, no incident of copying took place during the examination and no person had found him cheating or copying. On filing another application under the RTI Act, the petitioner was informed, vide letter dated 25.08.2010, that since the matter falls under Section11(1) of the said Act, the information sought by him cannot be disclosed. The petitioner again filed an application under the RTI Page 3 of 21 C/SCA/12067/2013 JUDGMENT Act, requesting for information regarding the candidates sitting next to him, bearing seat Nos.69306149 and 69306151. The petitioner was informed, in reply, that those candidates have also been declared as failed. Aggrieved by the decision of disqualification, the petitioner has approached this Court by filing the present petition.
4. The respondent has filed an affidavitinreply, in which a stand has been taken that the provisional meritlist was verified by the Chairman of the respondentBoard and certain irregularities and discrepancies were found, therefore, the Committee Members of the Board had taken a decision to withhold the results of certain candidates, including the petitioner, for further verification. It is further stated that after verification of the documents of such candidates, a conscious decision was taken to disqualify certain candidates, including the petitioner, as it was found to be a case of copying. The petitioner was disqualified as his OMRsheet was found to be exactly similar to that of another candidate named Khakhkhar Prashantkumar Hashmukhlal, bearing seat No.69306138. The petitioner and the Page 4 of 21 C/SCA/12067/2013 JUDGMENT abovereferred candidate were both disqualified and the decision of the Board was communicated to the petitioner.
5. In the above factual background, this Court has heard Mr.Hemal Shah, learned advocate for the petitioner and Ms.Moxa Thakker, learned Assistant Government Pleader for the respondent.
6. It is submitted by the learned advocate for the petitioner that the petitioner was not found copying or cheating by any person during the examination. The respondentBoard has arrived at a conclusion that the petitioner has copied from another candidate, solely on the basis of conjectures as the answers of the petitioner are purportedly similar to the answers of the other candidate, namely, Khakhkhar Prashantkumar Hashmukhlal. It is submitted that the evidence of similarity of answersheets is a weak type of evidence, as has been held in the judgment of the Division Bench of this Court in Siddharth Mohanlal Sharma Vs. South Gujarat University, reported in 1982 GLH 648. 6.1 It is further submitted that the decision of the respondentBoard does not contain any reasons, Page 5 of 21 C/SCA/12067/2013 JUDGMENT inasmuch as it has not been disclosed whether the petitioner was sitting near the candidate from whom he has purportedly copied, or not. The sitting position of the candidates has not been disclosed, therefore, it cannot be assumed that it is a case of copying. 6.2 It is contended that, in fact, no case of copying or cheating has occurred during the entire duration of the examination. Moreover, before arriving at the impugned decision, the petitioner has not been granted an opportunity of hearing, therefore, the principles of natural justice have been violated by the respondentBoard. The decision to disqualify the petitioner would have an adverse effect on his career. 6.3 In this regard, reliance has been placed upon the decisions of this Court in (i) Jeet Patel Vs. Gujarat Technological University and another, reported in 2012 (1) GLH 226 and (ii) Malavkumar Arunbhai Patel Vs. Sardar University and others, reported in 2007 (1) GLR 413.
7. On the strength of the above submissions, it is prayed that the petition be allowed. Page 6 of 21
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8. Ms.Moxa Thakker, learned Assistant Government Pleader has more or less reiterated the averments made in the affidavitinreply filed on behalf of the respondentBoard. It is submitted by the learned Assistant Government Pleader that the answers of the petitioner was found to be identical to the answers of another candidate, therefore, there is a strong possibility that the petitioner has copied from the other candidate. Even the correct and incorrect answers of both the candidates are similar, which fortifies the decision of the respondentBoard. 8.1 It is further submitted by the learned Assistant Government Pleader that it is mentioned in Clause 19(7) of the advertisement that any person who is found to be cheating would be automatically disqualified.
9. On a query being raised by the Court whether an opportunity of hearing has been granted to the petitioner, the learned Assistant Government Pleader has replied in the negative, after taking instructions.
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10. Having heard learned counsel for the respective parties, it would be fruitful to advert to the decisions cited at the Bar.
11. In Siddharth Mohanlal Sharma Vs. South Gujarat University (Supra.), this Court has held as below :
"40. The catena of decisions leaves no room for doubt that it has been considered imprudent to base the conclusion of guilt based solely on the bare comparison of disputed and admitted writings, especially when it is made without the aid of evidence of expert opinion or microscopic enlargements or without guidance from some authoritative textbook and without any experience and knowledge on the part of the person making the comparison, since such inference has been held to be indecisive and it has been characterized as unsatisfactory and dangerous and inadvisable to take an adverse decision on the strength of mere comparison.
41. If it is the law governing the 'comparison evidence' at regular trials before Courts of law, where statute permits resort to comparison by an experienced Judge, and if this is how mere visual comparison of handwriting by a person who is learned in law and wise in the ways of life but who possesses no expertise in the science of handwriting, is frowned upon by the highest courts, can the 'comparison evidence', upon which Page 8 of 21 C/SCA/12067/2013 JUDGMENT the Committee acted in the instant case, by any stretch of imagination, be said to have any evidential value? Is it evidence which would reasonably support the conclusion recorded against the petitioner, or is it mere suspicion even if honestly and bona fide entertained? Is it evidence which tends logically to prove the crime of personation and is it material which, as a matter of reason, has some probative value? We are of the view, with respect, that the answer to these questions cannot but be in the negative. Apparent similarity of handwriting in the answer books, perceived on a bare visual comparison by a pair or even pairs of untrained, uninitiated and inexperienced eyes, may be sufficient to sustain a suspicion, but it cannot, without something more, constitute evidence reasonably capable of supporting the finding of guilt, especially when there was, in the instant case, a clean defence of denial based on the plea of alibi and the lack of any acquaintance with the candidate allegedly personated which does not appear to have been considered at all. The decision reached by the Committee, therefore, is apparently erroneous in law and it is manifestly contrary to natural justice."
12. In the present case, there is no material on record to indicate that any incident of cheating/copying took place during the examination. Page 9 of 21
C/SCA/12067/2013 JUDGMENT The Invigilators have not reported any such incident of cheating or copying in the case of the petitioner or any other person. Hence, it is obvious that the conclusion arrived at by the respondentBoard is not based upon any report of an actual incident. It appears that the respondentBoard has compared the OMRsheet of the petitioner with another candidate and has found that there is a similarity in both the OMR answersheets, inasmuch as the correct and incorrect answers have been similarly marked by both candidates. On the basis of this comparison, a conclusion has been drawn that the petitioner is guilty of cheating, leading to his disqualification. As held by the Division Bench of this Court, a bare visual comparison may not be sufficient to sustain a suspicion. In any case, suspicion cannot take the place of proof. In the present case, it appears that the Board has acted only on the basis of suspicion, in the absence of any other concrete evidence. It may be kept in mind that the examination was an objective type of examination, where the candidates were required to select the option which they consider is the correct one, by darkening the circles in the OMRsheet. Attempting the Page 10 of 21 C/SCA/12067/2013 JUDGMENT same question, in a more or less a similar manner, may be a coincidence, and in the absence of any evidence cannot be considered as conclusive proof of cheating. There is another aspect to the matter, regarding the sitting arrangement of the candidates. It has not come on record that the petitioner was sitting near enough to the other candidate so as to be able to copy from him. All these aspects ought to have been considered by the respondentBoard. Without having gone into these aspects, a decision has been taken unilaterally disqualifying the petitioner.
13. The most glaring aspect of that matter is that the petitioner has been condemned unheard and has been disqualified without granting him an opportunity of hearing. The basic principles of natural justice have not been followed by the respondentBoard, before taking the impugned decision.
14. In Jeet Patel Vs. Gujarat Technological University and another (Supra.), this Court has, after placing reliance upon Malavkumar Arunbhai Patel Vs. Sardar University and others (Supra.), held as below :
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C/SCA/12067/2013 JUDGMENT "14. In Malavkumar Arunbhai Patel v. Sardar University And Others2007(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 straitjacket 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 Page 12 of 21 C/SCA/12067/2013 JUDGMENT 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 Page 13 of 21 C/SCA/12067/2013 JUDGMENT 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 quasijudicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasijudicial in character. Arriving at a just decision is the aim of both quasijudicial 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/1571968=(AIR 1969 SC 198) the rules of natural justice are not Page 14 of 21 C/SCA/12067/2013 JUDGMENT 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 framework 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 Page 15 of 21 C/SCA/12067/2013 JUDGMENT 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 (SCCp.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 yardstick in this manner. The concept of natural justice cannot be put into a straitjacket. 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 Page 16 of 21 C/SCA/12067/2013 JUDGMENT 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 fairplay 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 subjectmatter 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. Straitjacket 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 noncompliance with the doctrine, the law Courts in that event ought to set right the wrong inflicted upon the Page 17 of 21 C/SCA/12067/2013 JUDGMENT 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 mostaccepted 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 quasijudicial 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 para66 on page 440 is relevant in this context and reads as below:
"What is civil consequence, let us ask ourselves, by passing verbal boobytraps? 'Civil consequences' undoubtedly cover infraction of not merely property or personal rights but of civil liberties material deprivation and nonpecuniary 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 Page 18 of 21 C/SCA/12067/2013 JUDGMENT 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.
The Committee such as the "Unfair Means Committee" constituted by the respondent No.1 can be said to be acting quasijudicially, 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 Page 19 of 21 C/SCA/12067/2013 JUDGMENT which affects the rights of a person." (emphasis supplied)
15. The principles of law enunciated in the above judgment apply squarely to the facts of the present case. The disqualification of the petitioner from the examination has marred his career prospects, in addition to casting a stigma upon him, which may further hamper his future employment. As such, the decision would have civil consequences upon the petitioner. In such a situation it was incumbent upon the respondentBoard to take a decision after complying with the principles of natural justice and granting an opportunity of hearing to the petitioner. As this has not been done, the decision of the respondentBoard disqualifying the petitioner, cannot stand the scrutiny of law. Hence, it deserves to be quashed and set aside.
16. For the aforestated reasons, the impugned decision, as communicated vide communication dated 10.06.2010, of respondent No.1Board, is quashed and set aside.
17. It is open to the respondentBoard to take fresh action, if so inclined, and pass an order, after Page 20 of 21 C/SCA/12067/2013 JUDGMENT complying with the principles of natural justice after giving the petitioner an adequate opportunity of hearing.
18.In the event that the respondentBoard contemplates to take a fresh action, the entire exercise be completed within a period of three months from the date of the receipt of this order.
19. It is clarified that nothing in this order shall be construed to be an expression on the merits of the case.
20. The petition is partlyallowed, as above. Rule is made absolute, accordingly.
21. Direct service of this order is permitted.
(SMT. ABHILASHA KUMARI, J.) Gaurav+ Page 21 of 21