Gauhati High Court
Bidyut Bikash Dutta And 2 Ors vs The Dibrugarh University And 6 Ors on 5 March, 2020
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
Page No.# 1/12
GAHC010250882019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 7648/2019
1:BIDYUT BIKASH DUTTA AND 2 ORS.
SON OF SHRI MUKUT DUTTA, RESIDENT OF OLD AMOLAPATTY,
GOLAGHAT, DIST.- GOLAGHAT, ASSAM, PIN- 785621.
2: MRIGANKA KISHORE BARUAH
SON OF SHRI UTTAM BARUAH
RESIDENT OF NARENG PACHANI GAON
JAGDUWAR TINI ALI
P.O. TEOK
DIST. JORHAT
ASSAM
PIN- 785112.
3: BISHWAJIT DOWARI
SON OF SHRI KAMAL DOWARI
RESIDENT OF RUPAI SIDING P.S. DOOM DOMMA
DIST. TINSUKIA
ASSAM
PIN- 786153
VERSUS
1:THE DIBRUGARH UNIVERSITY AND 6 ORS.
DIBRUGARH, ASSAM 786001, REPRESENTED BY ITS REGISTRAR.
2:THE REGISTRAR
DIBRUGARH UNIVERSITY
DIBRUGARH
ASSAM 786004.
3:THE RETURNING OFFICER
DIBRUGARH UNIVERSITY POST GRADUATE STUDENTS UNION
ELECTION
2019
DIBRUGARH UNIVERSITY
Page No.# 2/12
DIBRUGARH
ASSAM 786004.
4:THE SCREENING COMMITTEE
DIBRUGARH UNIVERSITY POST GRADUATE STUDENTS UNION
ELECTION
2019
DIBRUGARH UNIVERSITY
DIBRUGARH
ASSAM
786004
REPRESENTED BY ITS RETURNING OFFICER.
5:GRIEVANCE REDRESSAL CELL
DIBRUGARH UNIVERSITY POST GRADUATE STUDENTS UNION
ELECTION
2019
DIBRUGARH UNIVERSITY
DIBRUGARH
ASSAM 786004.
6:SYAM SUNDAR BHUYAN
S/O GAURI DHANKAR BHUYAN
R/O POKAMURA BARUAH GAON
P.O. POKAMURA
P.S. PULIBOR
PIN 785004
7:KRISHNAMONI SAIKIA
D/O LATE KHAGEN SAIKIA
R/O BOKOTA NEMUGURI
DIMORUGURI VILL.
PIN 785674
DIST. SIVASAGAR
ASSAM
Advocate for the Petitioner : MR. P N GOSWAMI
Advocate for the Respondent : MR. R MAZUMDAR (SC, DIBRUGARH UNIVERSITY)
Page No.# 3/12
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
ORDER
Date : 05-03-2020 Heard Mr. P.N. Goswami, learned counsel for the petitioners and Mr. R. Mazumdar, learned Standing Counsel, Dibrugarh University. Also heard Mr. A.C. Borborah, learned Senior counsel, assisted by Mr. B.P. Borah, learned counsel for respondent Nos.6 and 7, who got themselves impleaded in this writ petition.
2. Before proceeding with the matter, it has been submitted by learned counsel for the petitioners that the petitioner No.1, during pendency of the writ petition, has expired and accordingly the petition is being pursued by the remaining two petitioners.
3. Petitioners No.2 and 3 were intending to be candidates in the elections for the posts of General Secretary and Cultural Secretary of the Dibrugarh University Post Graduate Students' Union (DUPGSU) for the year 2019-2020, which were earlier notified to be held on 16.09.2019. The nominations of the petitioner Nos.2 and 3 were accepted by the Returning Officer appointed for that purpose.
4. It appears that due to certain disputes regarding the candidature of respondent No.6, which resulted in certain disturbances in the University, the elections had to be cancelled. Accordingly, a fresh notification was issued on 20.09.2019 by which the schedule of the election was again notified including the date and time of issuing nomination papers, receipt of the same, etc. The election was notified to be held on 30.09.2019. It is after the aforesaid re-notification of the election that the problems as far as the petitioners are concerned have arisen.
5. According to the petitioners, though they were found to be eligible to contest the Page No.# 4/12 election in terms of the earlier notification issued on 02.09.2019, their names were found to be missing in the final list of candidates of DUPGSU election as notified on 26.09.2019 in terms of the second election notification.
6. Before publication of the said final list of candidates, when the petitioners were informed that their candidatures were cancelled on the ground of discrepancy in their names, the petitioners approached the Grievance Redressal Cell (GRC) on 25.09.2019 by submitting complaints against non-acceptance of their nomination papers. However, before the GRC pass any order, the final list for DUPGSU election was published in which the names of the petitioners were found to be missing. In other words, rejection of the nomination papers of the petitioners was upheld by the authorities, however, without addressing their grievances raised before the GRC.
7. It is against the aforesaid rejection and non-consideration of the grievances by the GRC, the petitioners have approached this Court contending that by denying the opportunity to contest the elections, the University authorities have violated their fundamental rights to contest elections as guaranteed under Article 19(1)(g) of the Constitution of India. Various other grounds have been raised in the writ petition in challenging rejection of their nominations.
8. The respondents have contested the writ petition by filing affidavit-in-opposition. One of the grounds for opposing the writ petition is that the petition is not maintainable as there are sufficient alternative remedies available to the petitioners under the relevant Rules.
9. It has been submitted by Mr. Borborah, learned Senior counsel that the petitioners themselves also admit to the applicability of the J.M. Lyngdoh Commission report which had Page No.# 5/12 been directed to be implemented by order of the Hon'ble Supreme Court dated 22.09.2006 directing that the recommendations of the Committee be implemented and shall be followed in all College/University elections as intimated vide official communication made in November, 2006. It is submitted that the aforesaid report of the Committee is an exhaustive and self contained one as regards conduct of elections in College and Universities. It is also submitted that the said report also provides for grievance redressal mechanism in paragraph 6.8.1. Under the aforesaid paragraph, it has been provided that there should be a Grievance Redressal Cell with the Dean (Student Welfare)/teacher in charge of student affairs as its Chairman and other Members. In paragraph 6.8.2, it has been further provided that the Grievance Cell shall serve as the Court of original jurisdiction and the Institutional Head shall have appellate jurisdiction. Detail procedures have been also prescribed in the said paragraph regarding the modalities and functions of the said Grievance Redressal Cell. It has been further provided that any party aggrieved by the decision of the Grievance Redressal Cell may file an appeal with the Institutional Head within 24 hours. It has been further provided that the Grievance Redressal Cell may pass temporary restraining order also.
10. Accordingly, it has been submitted that since the Lyndgoh Committee report provides an exhaustive alternative forum for redressal of grievances relating to students' election of the College and Universities, approaching this Court by invoking Article 226 may not be proper.
11. Accordingly, it has been submitted that the present writ petition is not maintainable.
12. Learned counsel for the petitioners, however, relying on a decision of the Allahabad High Court in Brahma Baksh Singh 'Gopal' Vs. University of Lucknow and others, Page No.# 6/12 AIR 2001 ALL 244 : 2000 SCC Online All 305 has submitted that the decision by the Vice-Chancellor holding that the candidate is not a regular student of the University and thereby ineligible to contest the election adversely affects the statutory rights of the candidate to education as well as the fundamental rights available under Article 19(1)(a)(b) of the Constitution and under such circumstances, a writ petition under Article 226 is maintainable.
13. Relying on the aforesaid decision, learned counsel for the petitioners submits that in the present case, similar situation has arisen as the Returning Officer has wrongly not accepted the nomination papers of the petitioners resulting in denial of their right to contest the election, which is a part of their fundamental right as guaranteed under Article 19(1)(a)
(b) of the Constitution and, as such, nothing bars this Court from entertaining this writ petition under Article 226 of the Constitution of India.
14. However, the aforesaid decision is sought to be distinguished by learned Senior counsel for respondent Nos.6 and 7 by contending that this decision is a pre-Lyngdoh Committee report decision and once the Lyngdoh Committee has given a detailed exhaustive mechanism providing for redressal of grievances and thus providing an effective alternative remedy, perhaps this decision may not be applicable to the facts and circumstances of the present case.
15. Heard learned counsel for the parties.
16. As can be seen from the pleadings and submissions advanced, the matter essentially pertains to the issue as to whether rejection of the nomination papers of the petitioners was valid or not.
Page No.# 7/12
17. It is the contention of the petitioners that as the nomination papers of the petitioners were accepted on earlier occasion in the same election process, but which was aborted by the authorities for reasons best known to the authorities, rejection of the nomination papers filed subsequent to the fresh notification was illegal and in fact mala fide and was merely to help some other candidates and, as such, if the petitioners are not allowed to approach this Court at this stage, they will not be able to contest the elections and in that event, right of the petitioners would be virtually wiped out and it is in this context that the petitioners have approached this Court under Article 226 of the Constitution of India as the most efficacious remedy available to them.
18. It is no doubt true that since the University conducts the election, perhaps the petitioners may have a right to approach this Court for enforcing their legal or fundamental rights before this Court but it is well-settled that if effective alternative remedy is available, Court will be reluctant to entertain a writ petition till the aggrieved person exhausts such alternative remedy.
19. This Court has also noted, as submitted by learned counsel for the respondents, that Lyngdoh Committee report has been directed to be implemented by the Supreme Court in elections of all Colleges and Universities. This Court has also gone through an extract of the report, which is annexed to the writ petition.
20. Paragraph 6.8 deals with the grievance redressal mechanism. Paragraph 6.8.1 provides that there should be a Grievance Redressal Cell with the Dean (Student Welfare)/teacher in charge of student affairs as its Chairman with other Members mentioned therein.
Paragraph 6.8.2 provides that the Grievance Redressal Cell shall serve as the Court of Page No.# 8/12 original jurisdiction and the institutional head shall have the appellate jurisdiction in all cases or controversies arising out of the conduct of the elections in which the Grievance Redressal Cell has issued a final decision.
Paragraph 6.8.3 further provides that the Grievance Redressal Cell shall conduct proceedings and hearings necessary to fulfill those duties mentioned therein for which the Grievance Redressal Cell shall have a right to issue a writ of subpoena to compel candidates, agents and workers and to request the students to appear and give testimony as well as produce necessary records and to inspect the financial report of any candidate and make these records available for public scrutiny upon request.
It has been further provided under Paragraph 6.8.4 that the Grievance Redressal Cell shall act on all complaints within 24 hours after they are received by either dismissing or calling a hearing.
It has been further provided under Paragraph 6.8.8 that at the time of notice of a hearing being issued, the Grievance Cell, by majority vote, may issue a temporary restraining order, if it determines that such action is necessary to prevent undue or adverse effects on any individual or entity. Any restraining order, once issued, will remain in effect until a decision of the Grievance Redressal Cell is announced after the hearing or until rescinded by the Grievance Redressal Cell. It has been also provided in Paragraph 6.8.9 that all hearings, proceedings and meetings of the Grievance Redressal Cell must be open to the public.
It has also been provided in Paragraph 6.8.12 that any party adversely affected by a decision of the Grievance Redressal Cell may file an appeal with the Institutional Head within 24 hours after the adverse decision is announced and the Institutional Head shall have Page No.# 9/12 discretionary appellate jurisdiction over the Grievance Redressal Cell in all cases in which error on the part of the Grievance Redressal Cell is charged. It has been further provided that the decision of the Grievance Redressal Cell shall have full effect until the appeal is heard and decided by the Institutional Head. It has also been provided that the institutional head shall review the findings of the Grievance Cell when appealed and the Institutional Head may affirm or overturn the decision of the Grievance Cell, or modify the sanctions imposed.
21. From the above, what is seen is that an elaborate grievance redressal mechanism has been put in place in the Lyngdoh Committee's report. In the opinion of this Court, the aforesaid mechanism provides a robust and effective alternative remedy to deal with any grievance relating to the election.
22. In fact, from the pleadings, it appears that the petitioners had approached the Grievance Redressal Cell by submitting their complaints on 25.09.2019 and on the basis of such complaint, a restraint order was issued by the Chairperson, Grievance Redressal Cell to withhold the final list of the candidates against the DUPGSU election, 2019. It also appears that the Grievance Redressal Cell decided the grievance on the next day, i.e., on 26.09.2019, by dismissing the grievance raised by the petitioners and thereafter, the final list was published.
23. The petitioners have contended that they were not heard, nor such decision was communicated to the petitioners. However, this Court is not entering into that area of dispute as the authorities contend that the decision was uploaded in the University website and, as such, there was no necessity to furnish personal copies to the petitioners.
24. This Court does not wish to enter into that aspect of the matter as it involves disputed Page No.# 10/12 questions of fact. However, this Court would like to make the following observations.
Paragraph 6.8.5 of the Lyngdoh Commission report provides that the GRC may dismiss a complaint, if (i) the complaint was not filed within the timeframe prescribed in terms of Recommendation 8.4, (ii) the complaint fails to state a cause of action for which relief may be granted, and (iii) the complainant has not and/or likely will not suffer any injury or damage.
It is only when the complaint is not dismissed, hearing has to take place and such hearing has to be held at the earliest possible time, but not within 24 hours after receipt of the notice, unless all the parties agree to waive the 24 hour time constraint.
How the hearing has to be conducted has been elaborately described in the subsequent paragraphs.
25. The crucial issue is whether the GRC had acted properly while dismissing the complaint. The circumstances in which a complaint can be dismissed is elaborately described in Paragraph 6.8.5. However, perusal of the dismissal of the complaint by the GRC does not indicate that the GRC had considered any of the above three conditions enumerated in paragraph 6.8.5.
26. The reason for dismissal of the grievance is that since there were discrepancies in documents submitted by the candidates, the decision taken by the Scrutiny Committee may be kept upheld. In other words, GRC upheld the decision taken by the Screening Committee in rejecting the nominations of the petitioners. In the opinion of this Court, the aforesaid ground is not one such ground which is available to the Grievance Cell to dismiss a complaint as provided in Paragraph 6.8.5. In fact, said rejection goes to the root of the grievances and Page No.# 11/12 the dismissal of the complaint ought not to be taken lightly and the dismissal of the complaint by the GRC could not have been done in a manner which goes to the root of the complaint without hearing the complainant. Nothing is mentioned in the order that the grievances were dismissed after hearing the petitioners.
27. This Court would like to clarify that Paragraph 6.8.5 of the Lyngdoh Commission report does not specifically mention that a complainant has to be heard before such complaint is dismissed as it is well-settled and well established in the Indian legal jurisprudence that if any adverse action is sought to be taken by the authorities, which prejudices accrued legal or fundamental right, an opportunity of hearing must be afforded in tune with the principles of natural justice. Therefore, this Court would like to observe that even while dismissing the complaint as provided under Paragrah 6.8.5, the complainant must be heard by the GRC before dismissing any complaint.
28. In the present case, this Court as mentioned above has seen that the dismissal of the complaint of the petitioners by the GRC is not certainly in terms of the mechanism provided under the Lyndgoh Committee. Moreover, this Court having gone through the order, does not find it to be valid for the reasons discussed above including that it was issued in violation of the principles of natural justice.
29. Under such circumstances, the normal course for the petitioners would be to approach the Institutional Head. This Court is of the view that since there is a specific provision under the Committee report of another alternative appellate remedy available, under normal circumstances, the petitioners could have been directed to approach the Institutional Head being the appellate authority. However, under the facts and circumstances as narrated above, Page No.# 12/12 when this Court has observed that the dismissal by the GRC was totally in violation of not only the mechanism provided under the Committee but also in violation of the principles of natural justice, it will be more appropriate that the GRC re-considers the complaint filed by the petitioners on merit after hearing the complainants, i.e., the petitioners herein.
30. Accordingly, the matter is remanded to the GRC for reconsideration of the complaints lodged by the petitioners which will be decided in terms of the provisions provided under the Lyngdoh Committee report as well as after hearing the petitioners and the respondents also, as expeditiously as possible and if the petitioners are aggrieved by any such decision, they will be at liberty to approach the appellate forum, i.e., the Institutional Head.
31. It is also made clear that till the GRC passes appropriate orders, the interim order passed by this Court shall remain in force.
32. For the reasons discussed above, and with the above observations and directions, the writ petition is disposed of.
JUDGE Comparing Assistant