Andhra HC (Pre-Telangana)
R. Seshagiri Rao And Ors. vs University Of Hyderabad And Anr. on 11 November, 2002
Equivalent citations: 2002(6)ALD720
ORDER S. Ananda Reddy, J.
1. This writ petition is filed by the aggrieved students of the 1st respondent University against the order of rustication passed by the 2nd respondent in Proceedings, vide Ref.No.R/Acad/2002, dated 11-1-2002 under which all the petitioners were rusticated with immediate effect.
2. Subsequently, by way of amendment, the petitioners sought for quashing of the Proceedings, vide Lr.No.UH/R/ ACAD/ 2002, dated 31-3-2002 issued by the Executive Council of the 1st respondent University in appeal modifying the order passed by the 2nd respondent and reduced the period of rustication to two years in respect of some of the petitioners and to one year in respect of others.
3. The brief facts of the case are that the petitioners 1 to 6 are prosecuting their Research Study in various departments. Petitioner No.7 is doing M. Phil., in History, while the petitioners 8 and 9 are prosecuting their Post-Graduation in History and Anthropology respectively. It is stated that some of the petitioners are office bearers of Dr. B.R. Ambedkar Students Association (for short 'the Association'), which is stated to have been formed to protect the interest of unprivileged members of the Society. It is stated that there are number of hostels and separate wardens are in-charges of the respective hostels and in respect of one of the hostel, one Dr. Ratnam was the incharge. In respect of the same hostel, a second warden was appointed and while allocating the duties among the two wardens, the work of sanitary and hygiene work was entrusted to Dr. Ratnam, who belongs to the Scheduled Caste community. According to the petitioners, the said allotment of work has effected the sentiments of the students belong to that community and therefore, a representation was made to the Chief Warden bringing to his notice the sentiments of the students of that community on 9-1-2002. According to the petitioners, the Chief Warden, gave appointment to the students on 10-1-2002 at 4-30 p.m. On 10-1-2002, the petitioners along with other students went to the Chief Warden building to meet him. The Chief Warden was in his chamber along with some other Wardens including the one by name Dr. Rajashekar, who also incidentally belongs to the Scheduled Caste community. By the time the students went to the Chief Warden building, the Chief Warden had summoned the security staff. It is further stated by the petitioners that when they represented the matter to the Chief Warden, he refused to listen the students, saying that it is an internal matter of administration and he need not answer to the students. When the students were agitated, the security staff took him inside his office and bolted the room. Another warden, who was present, tried to obstruct the students, when they were raising slogans asking the Chief Warden to come out. There was some scuffle and they pacified the students and asked them to wait. Meanwhile, police arrived and they told them that they will look into the matter and asked them to disperse. Accordingly, the petitioners have dispersed. It is further stated that it appears that during the scuffle the warden fell down, but did not receive any injuries. The incident is termed as physical violence.
Further, it is stated that no complaint was lodged against the petitioners either by the Chief Warden or by the other Warden, but only the Registrar lodged a complaint before the Police, naming 11 persons, basing upon which a crime was registered. In fact, at the time of hearing, the learned Counsel stated that no complaint was lodged on 10-1-2002, but the complaint was lodged only on 11-1-2002. It is also further stated that no action was taken by the University authorities when the students belong to Scheduled Caste community were insulted and humiliated. It is further stated that a complaint was given by the Association under the SC and ST Act on 10-1-2002 against the Chief Warden, which was registered as Crime No. 22 of 2002.
On 11-1-2002 the police officials came to the Hostel and asked for the petitioners and others to come to the Police Station to enquire into the complaint made by the Association. According to the petitioners, the University gave a complaint against the petitioners and others on 11-1-2002. The police, who took the petitioners and others to the Police Station, detained the petitioners 1 to 4 and later arrested the petitioner No.6; in connection with the Crime No.21 of 2002, registered under Sections 147,148,452,427, 334 read with Section 149 of the Indian Penal Code, and read with Section 3 of the PDPP Act, the other petitioners have surrendered before the concerned Judicial First Class Magistrate and were enlarged on bail on 21-1-2002. It is further stated that while the petitioners were in the police custody, the University authorities tried to serve the impugned orders of rustication passed by the 2nd respondent, but due to the intervention of the police, the said orders were not served on the petitioners. But, however, the petitioners were subsequently enlarged on bail on 17th and 21st January 2002. Even after they were enlarged on bail, the petitioners were not allowed to enter the University. But, however, even after entering the hostel premises, they found that the rooms, which are allotted to the petitioners 1 to 6, were found locked by the Chief Warden. Even with reference to the other petitioners also, the independent cupboards provided to them, were also kept under lock by the University authorities. But, however, only with reference to one Vijay Kumar, who tendered apology, the order of rustication passed against him was modified. It is stated that the Association filed an appeal before the Executive Council, as provided under the provisions of the University of Hyderabad Act, 1974 (hereinafter referred to 'the Act'). Later, the individuals - petitioners also preferred appeals. Though the appellate authority issued a show cause notice to the petitioners for which a reply was given by the petitioners denying the charges levelled against them, without conducting any further enquiry and without providing any copies of the documents that are relied upon, the appellate authority also passed orders, confirming the order of rustication, but, however, confining it for a period of two years with reference to petitioners 1 to 6 and one year in respect of the petitioners 7 to 9.
It is further stated that it appears on 11-1-2002, there was a representation by the Chief Warden and others complaining that the Chief Warden was chased and beaten. Similarly, the other Warden Mr. Rajashekar; Mr. V. V.Sharma, Deputy Chief Warden and others were also assaulted by the petitioners including one Security Officer, by name Victor Kumar and they made a complaint to the 2nd respondent. Similarly, the Joint Action Committee of the Staff and also other organisations have also made representations condemning the alleged action of violence in the University Campus and therefore, the 2nd respondent constituted a committee of five members, who are the Deans of various Departments to conduct enquiry. The said Committee recorded the statements of various persons and submitted a report on the same day and the 2nd respondent also passed the impugned order of rustication on that day itself. According to the petitioners, the 2nd respondent-Vice Chancellor did not act according to his own, but was surrendered to the pressures created by the various organisations, which made representations for action against the petitioners. According to the petitioners, even the said representations have suggested the punishment by way of rustication and therefore, the 2nd respondent passed the impugned order of rustication.
4. The learned Counsel for the petitioners contended that the impugned orders were passed, violating all canons of law, including the violation of principles of natural justice, without issuing any notice calling for any explanation, without conducting any enquiry, without examining any witnesses and without providing opportunity to the petitioners to deny the alleged charge. It is also stated that the statements were recorded only in the Chambers of the 2nd respondent and submitted a report stating that the depositions are self-explanatory and accordingly recommended for suitable action. The 2nd respondent, thereafter, passed the order in consultation with the local members of the Executive Council, who are available. Therefore, the impugned order is liable to be quashed for non-compliance of the principles of natural justice, apart from other deficiencies. The learned Counsel also contended that though an appeal was filed, during the pendency of the writ petition, against the impugned order passed by the 2nd respondent, as the Executive Council has already been consulted by the 2nd respondent before passing the impugned order dated 11-1-2002, the said remedy of appeal is not an effective remedy and the order passed by the appellate authority is only reiteration of what was stated in the order of rustication passed by the 2nd respondent. The learned Counsel also contended that even post decisional enquiry was also not conducted by the 2nd respondent. The copies of the statements recorded by the respondents are not provided to the petitioners and hence the impugned orders are void and nullity.
5. The learned Counsel also contended that the petitioners were discriminated by taking action against the petitioners, while letting off the other sections of the students, though they have indulged in the distribution of pamphlets, insulting and humiliating the students of the Scheduled Caste community. The learned Counsel relied upon the following decisions in support of his contentions that the impugned orders are liable to be quashed on the ground that they are nullity and void for non-compliance of the principles of natural justice:
A.K. Kraipak v. Union of India, , Bihar School Examination Board v. Subhas Chandra, , Hira Nath v. Rajendra Medical College, Ranchi, , Maneka Gandhi v. Union of India, , Mohinder Singh Gill v. Chief Election Commissioner, , Swadeshi Cotton Mills v. Union of India, , Sri Sai Educational Society, Suryapet, Nalgonda v. State of A.P., and Ridge v. Baldwin, 1964 AC 40.
6. On behalf of the respondents, a counter has been filed denying all the allegations made by the petitioners. In the original counter filed on 27-2-2002, it is stated by the respondents that an appeal lies under Section 32 of the Act to the Executive Council against the orders passed by the 2nd respondent. Therefore, according to the respondents, the writ petition is not maintainable, as the petitioners have already preferred appeals to the appellate authority. It is stated by the respondents that a violent incident of an unprecedented nature took place in the Office of the Chief Warden of the 1st respondent on 10-1-2002 between 4.30 and 5.00 p.m. One day prior to the said incident i.e., on 9-1-2002, a group of students representing Dr. B.R.Ambedkar Students Association, made a representation to the Chief Warden, protesting the allocation of the duty of hygiene and cleanliness along with other duties to Dr. Ratnam, one of the Wardens of New Research Scholars Hostel, as the same affected the sentiments of the Community to which they and Dr. Ratnam belongs to. They demanded the removal of the second Warden Dr.P.K.Panigrahi or reversal of the assigned duties between Dr. Ratnam and Dr. Panigrahi. They threatened the Chief Warden and the University with dire consequences, unless their demands were met within 24 hours. This was in the presence of the Deputy Chief Warden, Dr. B.V.Sharma and Dr. Raviranjan, Warden of Hostel-B. In view of the same, the Chief Warden, in consultation with the Registrar and Vice-Chancellor in-charge, issued an office note dated 9-1-2002 itself and changed the work allocation relating to hygiene and cleanliness to Dr. Panigrahi, although it had been pointed out earlier that the work allocation among the staff and Wardens was based purely on administrative experience and convenience. It is stated that on 10-1-2002, the same group of students came to the Chief Warden's Office and gathered in the corridor of the administrative building. The request of the Chief Warden to meet two to three students was not heeded and he had to come out of his chamber in order to address the crowd, whose strength by that time had swelled to about 50-60 from the earlier group of 20-25. There were several unknown faces in the new group. The Chief Warden affirmed to those assembled that in speediest response to their demand of the previous day, there had been a modification in the Office Note and that as per the latest order; Dr.Panigrahi would look after hygiene and cleanliness. This did not satisfy the students and all attempts on the part of the Chief Warden and other Wardens, namely Mr. B. Raja Sekhar, who belongs to the Scheduled Caste community and elected President (of the S.C/S.T Employees' Welfare Association), Dr. B.V. Sharma, and Dr. R.S.Sarraju as well as the Security Officer Sri Victor Kumar to pacify them have failed. While the shouting and slogans continued, the Chief Warden, Security Officer and the administrative staff present were pushed, chased and physically attacked. They were beaten. As they were entering the Chief Warden's Office, Dr. Rajasekhar came face to face in order to pacify them. However, Dr. Rajasekhar, who also belongs to the same community of the students, was also attacked. The shirt of Mr. Rajasekhar was torn; he was also trampled upon and kicked repeatedly as he fell and lay on the ground. The victims were shouted at and abused in filthy language. Dr. Rajasekhar was narrowly saved from being hit by a grass cutter. Dr. Sarraju and Dr. Sharma were dragged out of the Chief Warden's Office. The office furniture and computer were broken and the Chief Warden's Office was ransacked. The staff members of the Office of the Chief Warden were also attacked. The security guards too were not spared. Another violent group circled the building and hurled stones, small and big, from outside smashing the window panes, hurting and terrorising the employees trapped inside the Chief Warden's Office. One of the Wardens contacted the police to control the situation. The violent mob forced the closure of the main entrance to the Administrative Building and began shouting slogans. The medical team was not allowed to enter and give first aid to the badly injured Warden, Dr. Rajasekhar and the office staff. The members of the mob shouted slogans threatening to kill and burn the bodies of the injured, who lay with severe pain and suffering. Meanwhile the police came and sent out the students from the corridor. A formal complaint against those identified as responsible for violence was lodged with Chandanagar Police and a panchanama was drafted. The police collected the grass-cutter, while leaving out other tools like pipes used by the violent mob.
7. On the next day morning, a joint report of the Chief Warden and other Wardens, who were present, giving a detailed account of the incident, was submitted to the 2nd respondent, identifying ten students, including nine of the petitioners, who indulged in the said violent incident. There was also representations from the students community as well as faculty, non-teaching staff and as many as seven associations, including the University of Hyderabad S.C/S.T Employees' Association. They demanded immediate action against those persons, who involved in the incident. There was uproar among all those who are connected with the University cutting across all the barriers demanding speedy and effective action. It is also stated that Statute 31(1) vests all powers relating to discipline and disciplinary action in relation to the students of the University in the Vice-Chanceilor. As the situation demanded taking remedial measures, the 2nd respondent had constituted a Committee comprising five of the senior faculty members of the University to enquire and submit a report. The said Committee held an open enquiry immediately after its constitution and submitted a report after recording the statements of various persons including the representations from various associations, including the students. Thereafter, the 2nd respondent in consultation with the local members of the Executive Council passed the impugned orders.
8. It is also stated that even during the open enquiry, none of the petitioners have participated, but, however, the Students Association, in which some of the petitioners were office bearers, presented a letter to the 2nd respondent. It is stated that the enquiry conducted was an open enquiry and therefore, every person interested in bringing out the true facts of the incident was allowed to give the statement. Therefore, there was sufficient opportunity to all the students, including the petitioners, but the petitioners did not avaii the said opportunity to give their version about the incident. Basing on the report submitted by the Committee, in order to maintain discipline in the University premises and to avoid recurring of such incidents, the 2nd respondent was constrained to impose the punishment by the impugned order. It is stated that the allotment of work among the staff, including the Wardens, is a part of the administration of the University and the students have nothing to do with the same. It is also stated that inspite of such position, still on the representation made by the petitioners' Association, the work originally assigned to Dr.Ratnam was reassigned to other Warden. When such is the position, there was absolutely no occasion for the petitioners or other members of the Association to be aggrieved. The action of the petitioners and other members, who gathered and involved in the incident, does not deserve any lenient view. It is also stated that even the past conduct of the petitioners shows that they are involved earlier also in similar incidents and even criminal cases were also registered against some of the petitioners.
9. It is further stated that the 1st respondent University was conferred the status of "University with Potential for Excellence" and it had sanctioned a sum of Rs.5 crores for this recognition in the year 2001. The National Assessment and Accreditation Council, an autonomous institution of UGC at Bangalore, on the recommendation of Peer Team appointed by it declared the 1st respondent as "Accredited at the Five Star Level", which will be valid for a period of five years from the academic year 2000-2001. But for the relentless efforts of the 2nd respondent, the 1st respondent University would not have achieved these distinctions and having reached its pinnacle of glory, the University cannot be allowed to loose its hard earned image and position by compromising on the student discipline.
10. An additional counter has been filed by the respondents in response to the amendment petition, stating that though the petitioners were not specifically given any notices by the 2nd respondent, but, however, at the appeal stage, the appellate authority issued show-cause notices, furnishing copies of the documents, which were referred to and relied upon by the original authority, the 2nd respondent; and having received the explanations of the petitioners, the appellate authority, which consists of the eminent personalities, like Dr. K.Kasturirangan, Chairman, Indian Space Research Organisation, Bangalore, Dr. N.R. Madhava Menon, Vice-Chancellor, W.B. National University of Jurisdical Sciences, Kolkata, passed the orders modifying the order passed by the 2nd respondent, restricting the order of rustication to two years in respect of the petitioners 1 to 6 and for one year with reference to the other petitioners.
11. It is also stated by the learned Counsel that while considering the appeals of the petitioners, only 2 to 5 members of the Executive Council alone have considered the material, and decided the matter, as the other members were already consulted by the 2nd respondent, and therefore, they have excused themselves from the Council's deliberations, but concurred with decision arrived by the other members. Therefore, it is contended by the learned Counsel that there is absolutely no merit to hold that there is any violation of the principles of natural justice or the impugned orders are nullity or void on any other grounds.
12. The learned Counsel for the respondents also referred to and relied upon the provisions of Section 31 of the Act and contended that the said provision does not contemplate for the issue of any notice while a similar provision under Section 27 with reference to the employees a notice and hearing is provided before taking any disciplinary action. Therefore, the action of the respondents is in accordance with the statutory provisions. Alternatively, it is contended even if there is some deficiency while possessing the original order the same was cured by issuing a notice and opportunity to the petitioners by the appellate authority. The learned Counsel relied upon 1997 Commentary by the Author Mr. P.P. Craig on the Administrative Law, at page 316 and also relied upon the following decisions, in support of his contention:
United Planters Assn. of Southern India v. K.G. Sangameswaran, , High Court of Judicature. Bombay v. Udaysingh, , M.C. Mehta v. Union of India, , Aligarh Muslim University v. Mansoor All Khan, 2000 (7) SCC 527.
13. In reply the learned Counsel for the petitioners has reiterated that there was no enquiry as required under law. The authorities recorded only the statements and no proper enquiry was conducted. The learned Counsel contended that even though Section 31 does not contemplate the issuance of a notice and enquiry, the principles of natural justice implies such provisions. The defect, though it was stated to have been cured by the appellate authority by issuing a show-cause notice, as there was no proper enquiry after receiving the explanation, the defect still continues. Mere seeking explanation from the petitioners is not sufficient. The learned Counsel also contended that the decisions relied upon by the respondents have no application to the facts of the present case.
14. The issue to be considered is whether the impugned order of rustication is liable to be set aside on the ground of non-compliance of the principles of natural justice.
15. All the petitioners are the students, pursuing their education in the respondent University. They are also the members of Dr.B.R. Ambedkar Students Association (herein after referred to 'the Association'). From the material on record, it appears that the problem started when a second Warden was appointed to Men's Hostel-E (NRS Hostel), by the 2nd respondent, by his Proceedings dated 29-11-2001. After the second Warden was appointed, the then Chief Warden passed orders on 7-12-2001 allocating the duties to both the Wardens. Aggrieved by the said action of appointment of the second Warden as well as distribution of the duties, Dr. K.Y. Ratnam, who was the sole Warden, looking after the said Hostel, prior to the appointment of the second Warden, made a representation to the then Chief Warden, by his letter dated 20-12-2001. Though the letter shows that the allotment of the duty of maintenance of cleanliness and hygiene was objected to on the ground that it effects the sentiments of the community to which he belongs, though he was looking after the said duty, before the second Warden was appointed, but, in fact, his objection seems to be stripping of his duty to handle the hostel related bank accounts (financial matters). To the same effect, the Association to which the petitioners are members as well as office bearers made a representation. In its representation, the Association has even specifically referred to the entrustment of the financial responsibilities to the new Warden and further demanded the 2nd respondent among other things that any changes in the NRS Hostel Wardenship and division of the duties must be done democratically only in consultation with Dr. Ratnam. A copy of the said representation was also presented before the Chief Warden on the same day i.e., 9-1-2002. The petitioners and other members of the Association, while presenting the representation before the Chief Warden, threatened even the Chief Warden, if immediate action is not taken. Though the Chief Warden informed the petitioners and other members of their Association that it is for the convenience of the administration, the work was distributed among the Wardens, but, however, informed that he would make necessary alterations with reference to the objectionable duty. In fact, the proceedings were issued on 9-1-20092 itself, modifying the earlier proceedings dated 7-1-2002 regarding the responsibilities of the maintenance of hygiene and cleanliness, relieving the same from the duties of Dr. K. Y.Ratnam and was entrusted to the second Warden Dr. P.K. Panigrahi. Inspite of it, the petitioners, along with members of the Association, went to the Chief Warden's Office at 4-30 p.m., on 10-1-2002. Though the students were informed as to the modification of the duties, but, large number of students gathered outside and demanded that the Chief Warden should come out of his chamber and explain to them, though the Warden asked two or three students to come and meet him in his office. In order to satisfy the students, the Chief Warden along with the Deputy Chief Warden Dr. BVS Sharma, and another Warden Dr. Rajasekhar came out of the chamber and tried to communicate the changes already affected. Not satisfied with the said change, as it seems that their demand is more, they have started shouting slogans against the Chief Warden, and in fact, it appears that the Chief Warden was even chased and beaten, when the security person present tried to take him to his chamber. The other Wardens were also not spared when they tried to interfere and pacify them and in fact Dr. Rajasekhar, another Warden, who also belongs to the same community to which the members of the Association belongs, was pushed down and kicked, who received serious injuries. The security personnel were also not spared apart from the office staff of the Chief Warden. Though the security people tried to take the Chief Warden and other Wardens into the Chief Warden's rooms and bolt it from inside, but the doors were broken and the Members of the Association entered into the Chief Warden's room, ransacked and damaged computers and other furniture apart from manhandling even the office staff. Later, from outside also stones were hurled, causing damage to the windows etc., it is further stated that even the students did not even allow the medical team to enter into campus to give first aid to the injured. Later, on information, the police came into the campus and dispersed the students, and on the same day, a complaint was registered against the identified and name persons by the Registrar of the University, under various provisions of the Indian Penal Code as well as Prevention of Damage to the Public Property Act.
16. On the next day i.e., on 11-1-2002, the Chief Warden, Deputy Chief Warden and two Wardens, who were present at the time of the incident, gave a report to the 2nd respondent, narrating the entire incident as well as the assault that has been meted out to the Chief Warden and other Wardens as well as the members of the Security and the Office Staff. Apart from the said report, there were also complaints from the Students Associations, Teaching Staff, Non-Teaching and University Officers' Associations for taking immediate and stem action, condemning the illegal and brutal act of manhandling the teaching and non teaching staff, by the petitioners. The Associations of Scheduled Castes and Scheduled Tribes, Backward Classes and Economically Weaker Sections, were also parties to the said representations condemning the brutal act of violence committed by the petitioners against the staff. The Associations as well as the students have even demanded immediate action threatening suspension of the work in the University. Therefore, the second respondent, in order to ascertain the facts, constituted a Committee of five members representing the Deans of different Faculties, who were asked to enquire into the incident and submit a report immediately, The following are the members of the said Committee:
1. Professor K.D. Sen, School of Chemistry
2. Prof. E. Haribabu, Chairman, Disciplinary Committee
3. Prof. P. Mohanty, Centre for A.L. & T.S.
4. Prof. Probal Dasgupta, Centre for A.L. & T.S.
5. Dr. S.G. Kulkarni, Department of Philosophy.
17. The above Committee conducted an open enquiry on the same day i.e., 11-1-2002 and examined as many as nine persons, named in their report, dated 11-1-2002. During that enquiry also, on behalf of the petitioners' Association, a representation was made referring to the injustice meted out to Dr. Ratnam and also threatening that they would undertake hunger strike, in support of their demand. Thereafter, the Committee submitted a report enclosing all the depositions as well as the photographs of the Chief Warden's Office taken immediately after the incident. According to the Committee, the depositions are self-explanatory. Therefore, they did not separately summarised the depositions as they were also enclosed and recommended for suitable action on the students involved in the incident. Basing on the said report and the depositions, the 2nd respondent passed orders of rustication of all the ten students (including nine petitioners herein), who are identified and involved in the brutal incident. The said order is stated to have been passed after consulting the local Executive Members of the Council available. Assailing the said order of rustication, the petitioners filed the present writ petition, in the month of February, 2002. As there is a provision of appeal against the said order of the 2nd respondent to the Executive Council, the association preferred an appeal seeking to set aside the orders dated 1-1-2002 passed by the 2nd respondent. Subsequently, the individual members have also presented their appeals seeking to set aside the impugned orders. In response to that, the Executive Council issued individual notices dated 5-3-2002 to all the petitioners, enclosing therewith copies of all the reports and depositions, basing on which orders of rustication were passed and the petitioners were asked to submit their explanation within ten days from the date of receipt of the said notices. In response to the said notices, the petitioners have submitted their separate explanations on 15-3-2002, which are identical. In the explanations, the petitioners admitted that they were present along with other students and went to the Chief Warden's Office to represent the grievances, but denied their personal participation in the violent action. In order to appreciate the version of the petitioners, it would be proper to extract the relevant portion of their explanation, which is as under:
"When we came to know that one of the Wardens belonging to Scheduled Caste was insisted the duty of sanitation and gardening when no other was interested, with such jobs, we thought that it is affront on our caste and insulting us. We on behalf of Dr. B.R. Ambedkar Students Association and other concern students reported the matter to the Vice Chancellor, the Registrar and the Chief Warden on 9-1-2002. The Chief Warden directed us to meet him at his office at 4.30 p.m. on 10-1-2002. About thirty students including some office bearers of the Association and active members went to the Chief Warden's office. By the time three other Wardens including Mr. Rajasekhar and around 15 of the security persons were present. The Chief Warden assured us that he would change the duties of the NRS Warden since it effects our caste but refused to listen to other grievances stating that it is an administrative matter. Stating so he retired to his chamber and closed the doors. Some of the students were raising the slogans asking the Chief Warden to come out. The Chief Warden remained inside and the students were agitating and they confused Sri Rajasekhar who was trying to prevent the students from advance, there was a melee and in the process, Sri Rajasekhar fell down and the security personnel who were present took him inside. All the students remained there only peacefully and after some time police came and the students dispersed after the assurance of the police that the matter will be amicably settled. It is not correct that the students damaged the property in the Chief Warden's Office. No student hurled stones."
The Executive Council, which met on 27-3-2002 considered the representations of the petitioners and, in fact, only four 6f the Executive Council members, who were not consulted while passing the original order of the 2nd respondent alone, deliberated the issue and arrived at a decision with which the other members of that Executive Council concurred and accordingly the original order of complete rustication was modified and further taking into account the antecedents of each of the petitioners, the punishment was modified imposing rustication of two years on the petitioners 1 to 6 and one year on petitioners 7 to 9, while only one semester with reference to the another student, who is not the petitioner herein. According to the decision of the Executive Council, the individual orders were communicated to all the petitioners.
18. Now, the contention of the petitioners is that no enquiry at all was conducted by the respondents, while passing the original order dated 11-1-2002, and even the appellate authority though issued notices to the petitioners, in fact, it is contended that even the copies of the depositions were not furnished, which is an incorrect statement. The notice itself shows that the copies of the report as well as the depositions were furnished. The further contention of the learned Counsel was that even though a show-cause notice was issued calling for the explanation and an explanation was furnished denying the involvement of the petitioners in the violent incident, no further enquiry was conducted by way of examining any witnesses or any opportunity was given to the petitioners to lead evidence. Therefore, the impugned order passed by the appellate authority also amounts to contravention of the principles of natural justice and therefore liable to be quashed on that ground. In fact, the learned Counsel also did not question the quantum of punishment, but his main contention is only that the impugned orders are liable to be quashed for non-compliance of the principles of natural justice.
19. The stand of the respondents is that there was chaotic situation, immediately after the violent incident that was caused by the petitioners and members of the Association. Therefore, there was uproar in the campus of the University and all the University Associations have represented for immediate and proper action, suspending the regular work. In such circumstances, it is stated that an open enquiry was ordered by the 2nd respondent and though there was an opportunity to the petitioners to appear, participate and give their version in the said open enquiry, they did not come forward to do so. Therefore, it could not be considered as denial of any opportunity to the petitioners. It is also the stand of the University that the members of the Association are aware of the constitution of the committee and also the conducting of the enquiry by the said Committee. Even the Association gave its representation to the committee. Under such circumstances, according to the respondents, there is no violation of the principles of natural justice and as there was an emergent situation to take immediate action to restore peace in the campus, the 2nd respondent was compelled to take immediate action and accordingly the 2nd respondent passed orders imposing the punishment, which had resulted in restoring immediate peace in the campus of the University. It is also the contention of the respondents that even assuming that there is some deficiency or lapse on the part of the original authority, the appellate authority had issued show-cause notices, furnishing all the documents, which were based for passing the order by the original authority and called for the explanation. The petitioners though filed their explanations, admitting their presence in the Chief Warden's Office, but except denial there is no other material and the petitioners also did not propose even to lead any evidence before the appellate authority. In the absence of any such representation seeking any further opportunity to adduce evidence, there is nothing for the appellate authority to conduct any further enquiry and therefore, the appellate authority taking into account the nature of the incident in which the petitioners are involved and also their antecedent conduct, modified the punishment imposed by the 2nd respondent. The details of the antecedents of the petitioners 1 to 6 considered by the appellate authority are as under:
1. Name of the Students: Mr. R. Seshagiri Ran, Ph.D. Philosophy Sl. No Details of the criminal/Assault Cases Disciplinary-cum-Grievance committee Findings Punishmet given Relaxation in the punishment Warnings given
1.
Involved in the violent incident that took place on 29-8-2001 between a set of students belonging to Ambedkar Students Association and MCA students
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A joint written apology tendered on 29-8-01 and the case was dropped.
The student was warned of stern action if found involved in any such incident again
2. Name of the Student : Mr. D.V. Naqaraju, Ph.Histury Sl. No Details of the criminal/Assault Cases Disciplinary-cum-Grievance committeeFindings Punishment given Relaxation in the punishment Warnings given
1. During his M.Phil course the candidate was wanted by the Chandangar PS for his involvement in a criminal case. References of the Police Order is as follows:
1. Cr.No.249198 Ufs. 294, read with 34 IPC.
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II. Cr.No.250/98 Under Section 341, 290 read with 34 of IPC III. Cr.No.251/98 Under Section 290 Read with 30, Order No.249to251/0r/01/9f dated 15.11.1998 (Accused wanted)
2. Physical assault on Mr.Sarojkanitkar M.Phil. (Philosophy] on 20.4.1997 His involvement in the incident established Issued a show cause notice by DR (A&E) on 8.9.97 and was asked to tender a written apology for involvement in the incident.
After meeting the Vice-chancellor along with his supervisor the suspension was revoked by the Vice-Chancellor The student was warned of stern action if found involved in such an incident again.
3. Manhandled his supervisor on 15-4-1998
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Tendered written apologies on 24-4-1998 and 14-9-1998 to his supervisor and the case was dropped.
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4. Brutal physical assault with sticks and rods on Mr. V.Chandrasekhar, V.Anil Kumar, and N.Srinivasa Rao on the evening of 17-9-1998 A prima facie evidence of involvement of the student in this violent brutal act was found Suspended pending a thorough enquiry into into the inci-dent vide order No.UHfAcad/ 98/1454, dated 19-9-1998 Supension revoked, vide Order No.UHIAcad/98/ 1586, dated 23.11.1998 after the student tendered an apology.
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5. Involved in the violent incident that took place on 29-8-01 between a set of students belong ing to Ambedkar Students Association and MCA Students.
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A joint written apology tendered to the Registrar on 29-8-01 and the case dropped.
Warning issued.
6. Academic Column : Prof. G. Nancharaiah, the Ph.D Supervisor of Mr. D.V. Nagaraju assed the progress of the student and found that the candidate has not shown any progress at all and gave candidate a show cause notice, requesting the University authorities to cancel his Ph.D. admission. Accordingly the notice was issued to Mr. D.V. Nagarju under Lr. No,UH(CADIU1/2001, dated 5th November 2001. The student has never bothered to respond for the above notice till date.
3. Name of the Student : Mr. D.V. Lenin, Ph.D. Chemistry Sl. No. Details of the criminal/Assault Cases Disciplinary -cum-Grievance committee findings Punishment given Relaxation in the punishment Warnings given
1. Physical assault on Mr. Saroj Kumar Mahanda, Ph.D student of Transaction Studies (the candidate was Supreme Court had to leave the University under pressure Involvement of the student established.
Issued a stern warning and Ordered to tender a written apology for his conduct, vide order No.UHl Acad/Discl/2001/ 630, dated 6-10-2001
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The student directed to give a written undertaking that he will not indulge in any such acts of indisci-pline in future.
2. Involved in the violent incident that took place on 29-8 2001 between the students belonging to Ambedkar Students Association and MCA Students.
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A joint written apology tendered to the Registrar on 29-8-2001 and the case was dropped.
stern warning issued.
4. Name of the Student : Mr. B. Nageswara Rao, Ph.D., Economics:
Sl. No. Details of the criminal/Assault Cases Disciplinary-cum-Grievance committee Findings Punishment given Relaxation in the punishment Warnings given
1.
During his M.Phil course the candidate was wanted by the Chandanagar PS for his involvement in a criminal case. Reference of the Police Order is as follows:
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-
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I.Cr.No.249198 Under Section 294, Read with 34 IPC.
!I.Cr.No.250l98 Under Section 341, 290 read with 34 IPC.
III. Cr.No.251/98 Under Section 341, 290 read with 30, Order No.243 to 251IOr/01l98 dated 15-11 -1998 (Accused wanted)
2.
Physical assault on Mr.Sarojkamkar, M.Phil, (Philosophy) on 204-97 His involvement in the incident established Issued a show-cause notice (A&E) on 8-9-1997 and was asked to tender a written apology for involvement in the incident After meeting the Vice-Chancellor along with his supervisor the suspension was revoked by the Vice-Chancellor, The student waswarned of stern action if found involve in such an incident again.
3. Indulged in brutal physical assault with sticks and rods on V. Chandrasekhar, V.Anil Kumar, and N.Srinivasa Rao on the evening of 17-9-1998 A prima facie evidence of involvement of the student in this violent brutal act was found Suspended pendir a thorough enquiry into the incident vide order No.UHIAcadl98l 1454, dated 19-9-1998 V.C. again revoked suspension revoked, vide Order er No.UHIAcadl98l6336 dated 10-12-98 after the student tendered an apology and his supervisor Prof. G. Nancharaiah gave assurance.
The student was warned of stern action if found involved in another incident indisciplinary activity.
4. Again involved in the violent incident that took place on 29-8-01 between a set of students belonging to Ambedkar Students Association and MCA Students.
A joint written apotogy tendered to the Registrar on 29-8-01 and the case dropped.
Stern warning issued.
5. Name of the Student : Mr. G.V. Karunakar, Ph.D. Chemistry:
Sl. No. Details of trie criminal/Assault Cases Disciplinary-aim Grievance committee Findings Punishment given Relaxation in the punishment Warnings given
1.
Involvement in the violent incident that took place on 29.8.01 between a set of students belonging to Ambedkar Students Association and MCA students.
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-
A joint written apology tendered to the Registrar on 29.8.01 and the case dropped.
The student was warned of stern action if found involved in such an incident again
6. Name of the Student : Mr. D. Seshu Babu, Ph.D. Hindi:
Sl. No. Details of the criminal/Assault Cases Disciplinary-cum-Grievance committee Findings Punishment given Relaxation in the punishment Warnings given
1.
During his M.Phil course the candidate was wanted by the Chanda-nagar PS for his involve-ment in a criminal case. References of the Police Order is as follows:
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-
-
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1. Cr.No.249/98 uls. 294, r.w. 34 IPC.
II. Cr.No.250/98 uls. 341, 290, r.w. 34 IPC.
III.Cr.No.251/98 uls. 341, 290 r/w 30, Order No.249 to 251/ Or/01l98, dated 15.11.98 (Accused wanted)
2. Brutal physical assault with sticks and rods on V. Chandrasekhar, V. Anil Kumar, and N. Srinivasa Rao on the evening of 17.9.98 A prima facie evidence of involvement of the student in this violentl brutal act was found.
Suspended pending a thorough enquiry into the incident vide Order No. UHIAcadl98/145 dated 19.9.98 Suspension revoked, vide Order No.UHl Acad/98/6336, dated 10.12.98 after the 4, student tendered an apology and bis supervisor Prof. 6. Nancharaiah assured on the candidate behalf.
The student was warned.
3. Involved in the violent incident that took place on 29.8.01 between a set of students belongingto Ambedkar Students Association and MCA students.
-
-
A joint written apology tendered to the Registrar on 29.8.01 and the case dropped.
Again Stem Warning was issued.
20. At this stage, it would be proper to refer to the case law relied upon by the parties. The learned Counsel for the petitioners relied upon the following decisions, in support of their case:-
In the case of A.K. Kraipak v. Union of India (supra), while considering the scope and object of the applicability of principles of natural justice to the domestic enquiries, the Apex Court held as under:
"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 to two rules, namely (1) no one shall be a Judge in his own cause (Nemo deb et 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 administrative enquiries. An unjust decision in on 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 the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to 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."
In the case of Bihar School Examination Board v. Subhas Chandra (supra) a Division of the Apex Court had an occasion to consider the requirements of issuing notices and allowing to lead evidence before cancelling the whole examination at a particular centre on the ground of adoption of unfair means by vast majority of the examinees. It was held that in these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself, which of the candidates had not adopted unfair means, the examination as a whole had to go.
In the case of Hira Nath v. Rajendra Medical College, Ranchi (supra) the Apex Court while considering the case where some of the students of the medical college were expelled from the college, observed as follows, by referring and extracting the observations made in the English Case-Law:
"We think that under the circumstances of the case the requirements of natural justice were fulfilled. The learned Counsel for the respondents made available to us the report of the committee just to show how meticulous the members of the committee were to see that no injustice was done. We are informed that this report had also been made available to the learned Judges of the High Court who heard the case and it further appears that the Counsel for the appellants before the High Court was also invited to have a look into the report, but he refused to do so. There was no question about the incident. The only question was of identity. The names had been specifically mentioned in the complaint and, not to leave anything to chance, the committee obtained photographs of the four delinquents and mixed them up with 20 other photographs of students. The Girls by and large identified these four students from the photographs. On the other hand, if as the appellants say, they were in their own Hostel at the time it would not have been difficult for them to produce necessary evidence apart from saying that they were innocent and they had not gone to the girls Hostel at all late at night. There was no evidence in that behalf. The committee on a careful consideration of the material before them came to the conclusion that the three appellants and Upendra had taken part in the night raid on the girls Hostel. The report was confidentially sent to the Principal. The very reasons, for which the girls were not examined in the presence of the appellants, prevailed on the authorities not to give a copy of the report to them. It would have been unwise to do so. Taking all the circumstances into account it is not possible to say that rules of natural justice had not been followed. In Board of Education v. Rice, 1911 AC 179 Lord Loreburn laid down that in disposing of the question, which was the subject of an appeal to it, the Board of Education was under a duty to act in good faith, and to listen fairly to both sides, inasmuch as that was a duty which lay on everyone who decided anything. He did not think that the Board was bound to treat such a question as though it were a trial. The Board need not examine witnesses. It could, he thought, obtain information in any way it thought best, always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view. More recently in Russel v. Duke of Norfolk, (1949) 1 All ER 109 at p. 118, Tucker, U. observed: "There are, in my view, no words which are 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. Accordingly, do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case." More recently in Burne v. Kinematograph Renters Society Ltd. (1958) 2 All ER 579, Harman, J. observed "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."
In the case of Maneka Gandhi v. Union of India (supra), a Seven Judge Bench of the Apex Court while considering the action of the Government of India in impounding the passport without giving any notice and hearing, and without furnishing any reasons, in the interest of general public', in an action brought before it under Article 32 of the Constitution of India. One of the contentions of the petitioner was that Section 10(3)(c) of the Passport Act is void as conferring an arbitrary power since it does not provide for a hearing of the holder of the passport before the passport is impounded. The learned Chief Justice, M.H. Beg, in his separate judgment observed as under:
"It is well established that even where there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the rights of that individual, the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action."
The learned Chief Justice referred to the observations of the Apex Court in the case of State of Orissa v. Dr. (Miss) Binapani Dei , which are as under:
"The rule that a party to whose prejudice an order is intended to be passed is entided to a hearing applies alike to Judicial Tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed: it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of Saw and importance thereof transcends the significance of a decision in any particular case."
The learned Chief Judge also referred to the views expressed by Byles J, England, in Cooper v. Wandsworth Board of Works, (1863) 14 CB (NS) 180, which are as under:
"The laws of God and man both give the party an opportunity to make his defence, if he has any, I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. "Adam (says God), where art thou? Hast thou not eaten of the tree whereof I commanded the that thou shouldest not eat," And the same question was put to Eve also."
Justice Bhagwati, J., dealing with the issue of principles of natural justice having found that there is no provision in the Passports Act, 1967, which requires that the audi alterant partem rule should be followed before impounding a passport, but that is not conclusive of the question, if the statute makes itself clear on this point, then no more question arises. But even when the statute is silent, the law may in a given case make an implication and apply the principle as stated by Byles, J., in Cooper v. Wandsworth Board of Works, which is as under:
"A long course of decisions, beginning with Dr. Bentley's case (1723) 1 Str 557 and ending with some very recent cases, establish that although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the Legislature. The principle or audi alteram partem which mandates that no one shall be condemned unheard, is part of the rules of natural Justice."
Then referred to the decision of the House of Lords in Wiseman v. Borneman (1971 AC 297), which is as under:
"... that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analyzed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions, which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only "fair play in action". Nor do we wait for directions from Parliament. The common law has abundant riches: there may we find what Byles, J., called "the justice of the common law".
Thus, the soul of natural justice is 'fair-play in action' and that is why it has received the widest recognition throughout the democratic world. In the United States, the right to an administrative hearing is regarded as essential requirement of fundamental fairness. And in England too it has been held that 'fair-play in action' demands that before any prejudicial or adverse action is taken against a person, he must be given an opportunity to be heard. The rule was stated by Lord Denning. MR. in these terms in Schmidt v. Secretary of State or Home Affairs "where a public officer has power to deprive a person of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf. The same rule also prevails in other Commonwealth countries like Canada, Australia and New Zealand. It has even gained access to the United Nations (vide American Journal of International Law, Vol. 67, page 479). Magarry, J., describes natural justice "as a distillate of due process of law" (vide Fontaine v. Chastarton). It is the quintessence of the process of justice inspired and guided by 'fair-play in action'. If we look at the speeches of the various Law Lords in Wisemen 's case, it will be seen that each one of them asked the question "whether in the particular circumstances of the case, the Tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded", or, was the procedure adopted by the Tribunal 'in all the circumstances unfair'? The test adopted by every Law Lord was whether the procedure followed was fair in all the circumstances and 'fair-play in action' required that an opportunity should be given to the tax-payer "to see and reply to the counter-statement of the Commissioners" before reaching the conclusion that "there is a prima facie case against him". The inquiry must, therefore, always be: does fairness in action demand that an opportunity to be heard should be given to the person affected?"
The Court also noted certain exceptions, which are as under:
"There are certain well recognised exceptions-to the audi alteram partem rule established by judicial decisions and they are summarised by S.A. de Smith in Judicial Review of Administrative Action, 2nd ed. pages 168 to 179. If we analyse these exceptions a little closely, it will be apparent that they do not in any way militate against the principle, which requires fair play in administrative action. The word 'exception' is really a misnomer because in these exclusionary cases, the audi alteram partem rule is held inapplicable not by way of an exception to "fair-play in action", but because nothing unfair can be inferred by not affording an opportunity to present or meet a case. The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law 'lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation'. Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed to secure the rule of law and the Court should not be too ready to eschew it in its application to a given case. True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The Court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that "natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances". The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise. That is why Tucker, L.J., emphasised in Russel v. Duke of Norfolk that "whatever standard of natural justice is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case". What opportunity may be regarded as reasonable would necessarily depend on the practical necessities of the situation. It may be a sophisticated full-fledged hearing or it may be a hearing, which is very brief and minimal: it may be a hearing prior to the decision or it may even be a post-decisional remedial hearing. The audi alteram partem rule is sufficiently flexible to permit modifications and variations to suit the exigencies of myriad kinds of situations, which may arise."
In the case of Mohinder Singh Gill v. Chief Election Commissioner (supra), the Constitution Bench of the Apex Court made the following observations, while considering the case of re-poll ordered by the Election Commission:
"Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of authority. It is the bone of healthy government, recognised from earliest times and not a mystic testament of judge-made law. Indeed, from the legendry days of Adam and of Kautilya's Arthasastra - the rule of law has had this stamp of natural justice, which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not newfangled. Today its application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system.
Law cannot be divorced from life and so it is that the life of the law is not logic but experience. If, by the experimental test, importing the right to be heard will paralyse the process, law will exclude it. It had been said that no army can be commanded by a debating society, but it is also true that the House of Commons did debate, during the days of debacle and disaster, agony and crisis of the Second World War, the life-and-death aspects of the supreme command by the then British Prime Minister to the distress of all our friends and to the delight of all our foes' - too historic to be lost on Jurisprudence. Law lives not in a world of abstractions but in a cosmos of concreteness and to give up something good must be limited to extreme cases. If to condemn unheard is wrong, it is wrong except where it is overborne by dire social necessity. Such is the sensible perspective we should adopt if ad hoc or haphazard solutions should be eschewed.
Normally, natural justice involves the irritating inconvenience for men in authority, of having to hear both sides since notice and opportunity are its very marrow. And this principle is so integral to good government, the onus is on him who urges exclusion to make out why. Lord Denning expressed the paramount policy consideration behind this rule of public law (while dealing with the nemo judex aspect) with expressiveness:
'Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking the Judge was biased.' We may adapt it to the audi alteram situation by the altered statement:
'Justice must be felt to be just by the community if democratic legality is to animate the rule of law. And if the invisible audience sees a man's case disposed of unheard, a chorus of 'no-confidence' will be heard to say, 'that man had no chance to defend his stance'.
So let us examine them each. Speed in action versus soundness of judgment is the first dilemma. Ponnuswamy has emphasised what is implicit in Article 329(b) that once the process of election has started, it should not be interrupted since the tempo may slow down and the early Constitution of an elected parliament may be halted. Therefore, think twice before obligating a hearing at a critical stage when a quick re-poll is the call. The point is well taken. A fair hearing with full notice to both or others may surely protract; and notice does mean communication of materials since no one can meet an unknown ground.
Otherwise hearing becomes hollow, the right becomes a ritual. Should the cardinal principle of 'hearing' as condition for decision-making be martyred for the cause of administrative immediacy? We think not. The full panoply may not be there but a manageable minimum may make-do.
In Wiseman v. Borneman (1967) 3 All ER 1045 there was a hint of the competitive claims of hurry and hearing. Lord Reid said "Even where the decision has to be reached by a body acting judicially, there must be a balance between the need forgxpedition and the need to give full opportunity to the defendant to see material against him". We agree that the elaborate and sophisticated methodology of a formalised hearing may be injurious to promptitude so essential in an election under way. Even so, natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances. To burke it , altogether may not be a stroke of fairness except in very exceptional circumstances."
In Swadeshi Cotton Mills v. Union of India (supra), the Apex Court, while considering the provisions of the Industries (Development and Regulation) Act, giving power to take over an undertaking without investigation, held that hearing of a pre-decisional stage must be given and while considering the word 'immediate action' used in Section 18-AA, held as under:-
"(iv) 'Immediacy' does not exclude a duty to act fairly, because, even an emergent situation can co-exist with the canons of natural justice. The only effect of urgency on the application of the principle of fair-hearing would be that the width, form and duration of the hearing would be tailored to the situation and reduced to the reasonable minimum so that it does not delay and defeat the purpose of the contemplated action.
(v) where the civil consequences of the administrative action - as in the instant case - are grave and its effect is highly prejudicial to the rights and interests of the person affected and there is nothing in the language and scheme of the statute which unequivocally excludes a fair pre-decisional hearing, and the post-decisional, hearing provided therein is not a real remedial hearing equitable to a full right of appeal, the Court should be loath to infer a legislative intent to exclude even a minimal fair hearing at the pre-decisional stage merely on ground of urgency.
In the case of Sri Sai Educational Society, Suryapet, Nalgonda v. State of A.P. (supra), a learned single Judge of this Court had an occasion to consider the non-compliance of "the principles of natural justice. In that case the petitioner assailed the Proceedings of cancellation of affiliation on the ground that the grounds mentioned in the show-cause notice are not specific, therefore, violate the principles of natural justice. The learned Judge, having found that the reasons were not furnished in the show cause notice, quashed the order for non-compliance of the principles of natural justice.
The learned Counsel for the petitioners also relied upon a decision of the House of Lords in the case of Ridge v. Baldwin (supra). In the said decision, it was held that the breach of principles of natural justice was in itself treated as prejudice and that no other de facto prejudice needed to be proved. But since then the rigour of the rule has been relaxed not only in England but also in India.
21. Coming to the decisions relied upon by the learned Counsel for the respondents, in the case of United Planters Assn. of Southern India v. K.G. Sangameswaran (supra), the Apex Court had an occasion to consider that omission to afford an opportunity during the domestic enquiry, whether curable by adducing evidence before the appellate authority in support ofthe charges which had culminated in the dismissal of the person concerned and post-decisional hearing when sufficient and held :
"It has always been the philosophy of Industrial Jurisprudence that if the domestic enquiry held by the employer was defective, deficient, incomplete or not held at all, the Tribunal, instead of remanding the case to the enquiry officer for holding the enquiry de novo, would itself require the parties to produce their evidence so as to decide whether the charges, for which disciplinary action was taken against the employee, were established or not. The pending proceedings keep the employer and the employee in a state of confrontation generating further misgivings and bitterness. It is, therefore, of paramount importance that such proceedings should come to an end at the earliest so as to maintain industrial peace and cordial relations between the management and the labour."
The Court after referring to its earlier decisions made the following observations:
"The learned Counsel, in support of his arguments that the defect is not curable has placed reliance on the decision of this Court in Institute of Chartered Accounts of India v. LK. Ratna, . It was, no doubt, laid down in mis case that a post-decisional hearing cannot be an effective substitute of pre-decisional hearing and that if an opportunity of hearing is not given before a decision is taken at the initial stage, it would result in serious prejudice, inasmuch as if such an opportunity is provided at the appellate stage, the person is deprived of his right of appeal to another body. There may be cases where opportunity of hearing is excluded by a particular service or statutory rule. In Union of India v. Tulsiram Patel pre-decisional hearing stood excluded by the second proviso to Article 311 (2) of the Constitution and, therefore, the Court took the view that though there was no prior opportunity to a government servant to defend himself against the charges made against him, he got an opportunity to plead in an appeal filed by him that the charges for which he was removed from service were not true. Principles of natural justice in such a case will have to be held to have been sufficiently compiled with. In Maneka Gandhi v. Union of India and in Liberty Oil Mills v. Union of India, an opportunity of making a representation after the decision was taken, was held to be sufficient compliance. All depends on facts of each case."
In the case of High Court of Judicature. Bombay v. Udaysingh (supra), the Apex Court had an occasion to consider the standard of proof required in the criminal trial vis-a-vis a departmental enquiry, and held:
"The scope of enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt. However, in the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of 'proof beyond doubt' also has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test is to see whether there is evidence on record to reach the conclusion that the delinquent committed misconduct and whether as a resonable man, in the circumstances, would be justified in reaching that conclusion."
In the case of M.C. Mehta v. Union of India (supra), the Apex Court had an occasion to consider to what extent the principle of natural justice is to be followed and held that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there has been a violation of the principles of natural justice. The Apex Court also referred to the decision of the House of Lords in the case of Ridge v, Badwin (supra) and how the view of the House of Lords varied by the Apex Court is as follows:
"It is true that in Ridge v. Baldwin it has been held that breach of the principles of natural justice is in itself sufficient to grant relief and that no further de facto prejudice need be shown. It is also true that the said principles have been followed by this Court in several cases but we might point out that this Court has not laid down any absolute rule. This is clear from the judgment of Chinnappa Reddy, J., in S.L. Kapoor v. Jagmohan, . After stating (at SCC p.395, para 24) that--
'principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed' and that 'non-observance of natural justice is itself prejudice of any man and proof of prejudice independently of proof of denial of natural justice is unnecessary', Chinnappa Reddy, J. also laid down an important qualification as follows: (SCC p.395, para 24) 'As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs'."
The Apex Court also, after referring to various decisions rendered by other Courts, drew a distinction where notice contemplated in the individual interest as against the public interest in the following words:
"Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a 'real likelihood' of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the Courts can, in exercise of their 'discretion', refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma, , Rajendra Singh v. State of M.P.. , that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived."
In the case of Aligarh Muslim University v. Mansoor Ali Khan (supra), the Apex Court considered the doctrine of 'useless formality', as an exception to the compliance of the principles of natural justice. In that case, a non-teaching employee was given two years extraordinary leave on 18-4-1979 to join a job in Libya. Before expiry of two years, the employee sought for extension of the leave for three more years. The University granted only one year and further informed that he will not be granted any further extension. However, another extension was sought for, which was rejected, but granted joining time upto 30th June, 1982. He was also informed that if he fails to join on 1-7-1982, the University deemed him to have vacated the post. Thereafter, the employee preferred departmental appeal, which was dismissed. Then a writ petition before a learned single Judge was also dismissed. But on appeal, the same was allowed on the ground that no notice was issued; and the matter was taken in appeal before the Supreme Court, which was allowed, after referring to various decisions rendered by the same Court. The relevant portion of the judgment of the Apex Court is as under:
"The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India, ; Sabyasachi Mukharji, J, (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade's Administrative Law 15th Edn., pp.472-75), as follows: (SCC p.58, para 31) 'It is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. ... There must also have been some real prejudice to the complaint; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the Tribunal is acting, the subject matter to be dealt with, and so forth.' Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S.K. Sharma . In that case, the principle of 'prejudice' has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P. .
The 'useless formality, theory, it must be noted, is an exception. Apart from the class of cases of 'admitted or indisputable facts leading only to one conclusion' referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like 'Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the Court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.
22. At this stage it would be proper to refer to the decision of the Privy Council in the case of Calvin v. Carr, 1980 AC 574. In that case, the Privy Council had an occasion to consider the scope of compliance of principles of natural justice. The plaintiff in that case was part owner of a horse, which failed to win a race. Acting under the Rules, the Stewards ruled that the plaintiff and Jockey were guilty of the charges and disqualified for a year. The plaintiff and the jockey appealed to the committee of the Jockey Club. But the Committee dismissed the appeal. Then action was brought to declare that the disqualification was void and for an injunction. The Judge held that although stewards might have failed to observe the rules of natural justice in certain specified respects, the Proceedings before the committee constituted a hearing de novo and cured any defects in the stewards' inquiry and he dismissed the action. On further appeal to the Judicial Committee, it was held, 'dismissing the appeal, that notwithstanding that a decision of an administrative or domestic Tribunal which had been reached in breach of the rules of natural justice might for certain purposes be void it was nevertheless susceptible of appeal and that therefore, assuming (without deciding) that there had been a failure of natural justice in the stewards' inquiry, the Jockey Club committee had jurisdiction to entertain the plaintiff's appeal from the stewards* decision to disqualify him.' The Law Lords of the Judicial Committee, after noting to existence of a conflict in various decisions, finally, made the following observations:
"Although, as will appear, some of the suggested inconsistencies of decisions disappear, or at least diminish, on analysis, their Lordships recognise and indeed assert that no clear and absolute rule can be laid down on the question whether defects in natural justice appearing at an original hearing, whether administrative or quasi-judicial, can be 'cured' through appeal proceedings. The situations in which this issue arises are too diverse, and the rules by which they are governed so various, that this must be so...."
In the case of Union Carbide Corporation v. Union of India, , a Constitution Bench of the Apex Court, after referring to various decisions rendered in other countries including the decision of the Privy Council in the case of Calvin v. Carr (supra), with approval, made the following observations:
"Omission to comply with the requirements of the rule of audi alteram partem, as a general rule, vitiates a decision. Where there is violation of natural justice no resultant or independent prejudice need be shown, as the denial of natural justice is, in itself, sufficient prejudice and it is no answer to say that even with observance of natural justice the same conclusion would have been reached. The citizen Ms entitled to be under the Rule of Law and not the Rule of Discretion' and 'to remit the maintenance of constitutional right of judicial discretion is to shift the foundations of freedom from the rock to the sand'. But the effects and consequences of non-compliance may alter with situational variations and particularities, illustrating a 'flexible use of discretionary remedies to meet novel legal situations'. Natural justice should not degenerate into a set of hard and fast rules. There should be a circumstantial flexibility."
The Apex Court, thereafter, considered and explained its decision in the case of Charan Lal Sahu v. Union of India, , as under: -
"In Sahu case this Court held that there was no compliance with the principles of natural justice but also held that the result of the non-compliance should not be a mechanical invalidation. The Court suggested curatives. The Court was not only sitting in judicial review of legislation; but was a Court of construction also, for, it is upon proper construction of the provisions, questions of constitutionality come to be decided. The Court was considering the scope and content of the obligations to afford a hearing implicit in Section 4 of the Act. It cannot be said to have gone beyond the pale of the enquiry when it considered the further question as to the different ways in which that obligation could be complied with or satisfied. This is, in substance, what the Court has done and that is the law of the case. It cannot be said that these observations were made by the way and had no binding force."
23. From a conspectus of the above case-law, it is clear that there is a change in the view of the Courts that though originally the non-compliance of the principles of natural justice itself was sufficient to issue a writ, but the said view was relaxed and the 'useless formality theory' was developed and it was even held that even if the deficiency that had occurred at the original stage is cured at the appellate stage, by giving sufficient opportunity, and that itself would be sufficient compliance of principles of natural justice and there is no need to issue a writ.
24. If we examine the facts of the present case in the light of the above, though notice was not issued at the stage of the original order passed by the 2nd respondent, but, however, the appellate authority issued a shows-cause notice providing all the documents, which were available before the original authority at the time of passing the order and sought for the explanation of the petitioners. The petitioners have filed their separate but identical explanations, denying their involvement, but they did not deny the happening of the incident and did not even dispute the correctness or otherwise of the statements recorded by the Committee, constituted by the 2nd respondent to enquire into the episode. The petitioners, in fact, admitted, their presence and the fact that they have gone to Chief Warden's office on 10-1-2002 at 4-30 p.m. The petitioners did not file any material either in the form of affidavits or in any other form, except self surviving denial of their participation. The petitioners also did not even choose either to examine themselves or to adduce any other evidence. In the light of such explanation filed by the petitioners, the appellate authority took into account the explanation and passed appropriate orders modifying the original order passed by the 2nd respondent restricting the rustication order in respect of the petitioners 1 to 6 for two years, and in respect of petitioners 7 to 9 for one year.
25. In fact, a perusal of the explanation of the petitioners also shows that the Chief Warden assured the petitioners that he would change the duties of the Wardens with reference to which they have made representation. But according to the petitioners, the Chief Warden refused to listen their grievances, which the petitioners did not specify. The cause, which the petitioners and other members of the Association, took up is not at all relevant to the petitioners and other members of the Association, who are students. Prior to December 2001, Dr. Ratnam was the sole Warden for Hostel-E, when he was even discharging the functions of cleanliness and hygiene and there was no grievance to the petitioners or to anybody at that time. The dispute started only when a second Warden was appointed, and in fact, when the bank related duties were allotted to the other warden. If the petitioners and other members of the Association were only effected sentimentally by the entrustment of the work of cleanliness and hygiene to Dr. Ratnam, one of the Warden, when once there was a change in the said duties, transferring the same to the other Warden, the petitioners and other members of the Association had no occasion to go before the Chief Warden or demanding his explanation before a big group of students (including non-students of the respondent University, according to witnesses), gathered before the Chief Warden's Office. In fact, their earlier representations clearly show their intention that the petitioners and other members of the Association were acting at the behest of Dr. Ratnam to see that the other duties entrusted to the second Warden, have to be restored to him. In fact, that was the demand in their representation, which was rightly rejected by the Chief Warden stating that it is an administrative action. The facts also clearly show mat there were two Wardens, earlier with reference to the said Hostel. Then how can there be any grievance either to the Warden or to the students, who have no concern. The Wardens are expected to discharge the duties entrusted them and it is not for them either to chose or demand for any particular duties. The entire episode was given the colour, as if as an oppressive act was done against particular individuals or community, though, in fact, it is not. In fact the second Warden was appointed by the Vice-Chancellor, the 2nd respondent hi the month of December 2001 and even the allocation of the duties were made by the former Chief Warden on 7-12-2001 and not by the Chief Warden, who was in the office as on the date of the incident. Then how mere can be any grievance against the Chief Warden, who was meted with such a bad treatment of chasing and beating. It is not the case of the petitioners or any of the members of the Association that the Chief Warden or other Wardens, who have complained that they were beaten up are enemical to them in order to involve them in the incident. Even assuming that there is some grievance to the petitioners and other members of the Association, they would have made a representation and peacefully demanded or demonstrated, but they should not resort to this type of vandalism in the University Campus, which is a place of learning. In fact, the respondent University was recognised as one of "the University with potential" for excellence by the University Grants Commission and in fact, released rupees five crores for further development of the university. The University was also granted the certificate of accreditation by the National Assessment and Accreditation Council. If this type of vandalism, which had occurred on 10-1-2002 could not be curtailed, the entire atmosphere of the University would be vitiated and the good name and fame secured by the long drawn efforts of the persons, holding the office in the University would be lost and ultimately it would loose its credibility, as an institution of excellence and would become the centre for other activities, such as vandalism, goondaism etc.
26. One of the contentions advanced by the learned Counsel for the petitioners is that the 2nd respondent was pressurised suggesting that a rustication order should be passed against the petitioners and therefore, the second respondent passed such orders without applying his mind independently. There is absolutely no merit in the said contention. Any sensible person, in the position of the 2nd respondent, would have done the same or similar act in order to curb the vandalism and restore peace and tranquility in the premises/campus of the University. The petitioners and the members of the Association were there in the University campus to pursue their education and not to indulge in criminal activities. The incident that had occurred on 10-1-2002 is worse than a criminal act by criminals. The students, who are admitted into the University to pursue their education, are not expected to indulge in violence of this sort. When the appellate authority had given sufficient opportunity to submit their explanation, the petitioners did not even produce any evidence under such circumstances.
There is absolutely no merit in contending that still there is violation of the principle of natural justice. The appellate authority is headed by eminent persons, like Dr. K. Kasturirangan, Chairman, Indian Space Research Organisation, Bangalore, Dr. N.R. Madhava Menon, Vice-Chancellor, West Bengal National University of Jurisdical Sciences, Kolkata, etc., and they have taken into account even the previous conduct of the petitioners. In fact, as already referred, the previous involvements of the petitioners clearly show that some of the petitioners were indulged in similar acts of violence even earlier and the imposition of punishment of rustication of two years on petitioners 1 to 6 and one year on petitioners 7 to 9, in the facts and circumstances of the case, is just and proper and does not call for any interference.
27. Therefore, the writ petition is dismissed. No costs.