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[Cites 11, Cited by 0]

Gujarat High Court

Pratipalsinh Mahavirsinh Vaghela vs Krantiguru Shyamji Krishna Verma ... on 10 December, 2018

Author: J.B.Pardiwala

Bench: J.B.Pardiwala

         C/SCA/14580/2018                                      JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 14580 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE J.B.PARDIWALA

==========================================================

1     Whether Reporters of Local Papers may be allowed to see the
      judgment ?                                                          YES

2     To be referred to the Reporter or not ?
                                                                          YES
3     Whether their Lordships wish to see the fair copy of the
      judgment ?                                                          NO

4     Whether this case involves a substantial question of law as to
      the interpretation of the Constitution of India or any order made
                                                                          NO
      thereunder ?


==========================================================
              PRATIPALSINH MAHAVIRSINH VAGHELA
                            Versus
     KRANTIGURU SHYAMJI KRISHNA VERMA KACHCHH UNIVERSITY
==========================================================
Appearance:
MR ASHISH M DAGLI(2203) for the PETITIONER(s) No. 1
MR INDRAVADAN PARMAR(2738) for the RESPONDENT(s) No. 1
NIKITA S BAROT(7417) for the RESPONDENT(s) No. 3
NILESHWARIBAHEN KANAIYA(8184) for the RESPONDENT(s) No. 3
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2
==========================================================

    CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                               Date : 10/12/2018

                              ORAL JUDGMENT

1 By this writ application under Article 226 of the Constitution of India, the writ applicant - a student pursuing his study in law, has Page 1 of 22 C/SCA/14580/2018 JUDGMENT prayed for the following reliefs:

"(A) Your Lordships be pleased to admit this Special Civil Application.
(B) Your Lordships may be pleased to allow the present special civil application by issuing writ of certiorari or any other appropriate writ, order or direction thereby quashing the letter dt. 05.05.2018 at Annexure
- A and be pleased to direct the respondent University to declare the result of the petitioner of Semester - IV without any bias and be further pleased to direct respondent to admit the petitioner to next semester (i.e. Semester
- V) in the interest of justice.
(C) Pending admission, hearing and final disposal of the present application, Your Lordships may be pleased to direct the respondent University to declare the result of the petitioner of Semester - IV without any bias and be further pleased to direct respondent to admit the petitioner to next semester (i.e. Semester - V) in the interest of justice subject to outcome of the petition.
(D) Grant such other and further relief(s) in favour of petitioner as may be deemed just and proper by this Hon'ble Court in the interest of justice."

2 The facts giving rise to this writ application may be summarised as under:

2.1 The writ applicant is a student of the respondent No.3 namely Tolani Institute of Law. The respondent No.3 - college is affiliated with the respondent No.1 - University. The writ applicant appeared in the Semester IV examination of LL.B. in the month of April, 2018 conducted by the University. He was alloted seat No.479204. It is alleged against the writ applicant that during the course of the examination of FC213 Page 2 of 22 C/SCA/14580/2018 JUDGMENT subject on 9th April 2018, he misbehaved with a lady water server on a very trivial issue. The materials on record would indicate that two observers appointed by the University prepared a report as regards the misbehavior of the writ applicant. The two observers namely Ms. Sneha Mehta and Ms. Shilpa Hadiya, in their joint report, have stated as under:
"This student has behaved in a threatening manner with the college staff and woman peon during the examination. In the past also, he used abusive words and misbehaved with the college staff. In addition to the same, this student has transgressed all the limits today. His conduct was to assault staff and peon. Though his exam was over, he was not willing to leave the campus. Though he was peacefully persuaded, he continued to act arbitrarily.
(1) Name/address of Observer :­ Sneha Mehta, Name of the college :­ P.G.D.H.R.M. College, Anjar Telephone No. :­ Sd/­(illegible) Signature of the Observer (2) Name/address of Observer :­ Shilpa Hadiya Name of the college :­ R.R.L.C., Bhuj Telephone No. :­ Sd/­(illegible) Signature of the Observer"

3 It further appears from the materials on record that in the course of the inquiry, Ms. Ruhi Trehan, Head of the faculty of Law of the college noted the following on the letter­pad of the college:

Page 3 of 22 
        C/SCA/14580/2018                                           JUDGMENT




      "Observer

The boy named Pratapsingh Vaghela who was in Block No.3 when scolded the waterwomen and misbehaved with her in front of our staff, I Sr. Supervisor scolded him not to behave in such a notorious manner, as it disturbs the dignity and peace of our college and students. He even scolded me and ordered me to remain mum, as he is above law and he knows all the discipline of exams.

This incident took place in front our following staff.

Senior Supervisor Ruhi Trehan Faculty of Law.

Head Clerk sd/­ Junior Clerk sd/­ Peon sd/­ Watchman NARESH"

4 The learned counsel appearing for the college invited the attention of this Court from the original file the statement of the lady water server namely Durga, which reads as under:

"जब मे उस कलास मे पानी िपलाने गई तब उस लड़के ने बोला के बोतल लेकर आ तब मैने कहा िक बाद मे लेकर आती ह तो उसने मुझे बतमीज से िदखलाकर कहा ऐ जलदी लेकर आ और इस कलास मे कल से आना नही तब मेने कहा िचललाकर कयू बोल रहे हो ­ और मे बहार िनकल गई तब वो लड़का खड़ा हो गहा और दसरी कलास मे मेरे िपछे िपछे आ गया िक जेसे अभी मुजे चाटा मारडालेगा ओर कहता हे मुजे जानते नही िक मे कौन ह ओर सर कल भी लड़का मुजे कहकर िनकला िक ऐसी कलास मे पानी िपलाते ह सर कलास सॉफसतरी होती हे सर सब बचे अचछे है कलास की दगार "
Page 4 of 22 
        C/SCA/14580/2018                                         JUDGMENT




5     It appears that for some reason or the other, Ms. Trehan, the Head
of the faculty of Law, tried to help the writ applicant by addressing a letter to the Vice Chancellor of the concerned University dated 23rd July 2018, which reads thus:
"Date: 23/07/2018 To, The Registrar The K.S.K.V. Kachchh University Bhuj­Kachchh Subject : Regarding irregularity in the examination (Pratipalsinh Vaghela) Respected Sir, It is to be stated regarding irregularity on the part of Pratipalsinh Vaghela in the examination of March­June 2018 that any type of copy case has not been registered during examination against Pratipalsinh Vaghela. Any incident of irregularity has not taken place on 09/04/2018 being the date of the said examination. No one was threatened by this student or any incident of blocking of the entry of anyone has also not occurred. We were asked by the Observer Smt. Shilpa Hadiya to register a case in this matter and that case was registered forcefully. As she had come with an intention to file a copy case, this case has been registered by pressurizing the institution. Any such incident has not taken place or anyone has not been given threats, which may be noted.
Thanking you, Sd/­ Illegible Professor Ruchi Trehan"

6 The Director of Examination, Kachchh University, ultimately, by way of punishment, cancelled the result of the writ applicant of all the subjects of Semester IV, in which the writ applicant appeared. The writ Page 5 of 22 C/SCA/14580/2018 JUDGMENT applicant will now be permitted to appear for the 4th Semester Exam next year i.e. in March - June 2019.

7 This order of punishment imposed by the Director of Examination was taken into consideration by the Executive Council in its meeting dated 4th August 2018 and by resolution No.16, it was resolved to uphold the penalty imposed upon the writ applicant. The resolution No.16 passed by the Executive Council reads thus:

"Regarding copy case of Shri Pratipalsinh M. Vaghela.
Resolution - 16 It has been unanimously resolved to confirm the punishment imposed upon Shri Pratipalsinh M. Vaghela by accepting the report of the Examination Reforms Committee of the Katchchh University."

8 Being dissatisfied with the disciplinary action taken by the University, the writ applicant has come up with this writ application under Article 226 of the Constitution of India.

9 The following grounds of challenge to the order of punishment have been raised in the memorandum of the writ application:

"A. That the respondent University has passed an order which is unjust, improper and is liable to be quashed and set aside.
B. That no principle of natural justice was followed while giving punishment to the present petitioner. As per the principle of natural justice the petitioner should be made available with all the evidence against him, he should have been given an opportunity to present his case before the authorities, he should have given a chance to cross examination. In the present case no such opportunity was given to the petitioner and straight away the punishment was granted to the present petitioner which is unjust, improper and is liable to be quashed.
Page 6 of 22 
  C/SCA/14580/2018                                          JUDGMENT




C.     That the Respondent University has passed the punishment without
making any domestic inquiry against the present petitioner and such an order which is passed without following the principals of natural justice and has the decision has been given without making any domestic inquiry is unjust, improper and is liable to be quashed.
D. That from all the letters and communications it becomes clear that first the punishment was granted to the petitioner and thereafter an effort was made by the respondent university for collecting all the evidence against the petitioner. The Respondent University has acted in an arbitrary manner and the order passed by the Respondent University is liable to be quashed and set aside.
E. That there is no CCTV footage available of the present incident and there is no evidence against the present petitioner by which it can be proved that the present petitioner was involved in any offence of cheating or misconduct, moreover one of the professor has stated that the present petitioner is falsely implicated in the said case and have not done any wrong act. It is also stated that the observer Smt. Shilpa Hadiya had pressurised the institution to initiate false proceedings against the present petitioner. Looking to this fact the case of the present petitioner needs consideration.
F. That the College must has taken up the backup of the CCTV footage or must have controlled it manually as the CCTV footage were regarding the University examination and the college were alleging serious misconduct upon the students.
G. That the order passed by the Respondent University is very harsh and unfair, out of the total 56 copy cases such a harsh punishment is only imposed on the present petitioner, moreover no reasons are assigned for giving such barbaric punishment to the present petitioner. That the present petitioner has not been involved in any such activity in the past and looking to the career of the petitioner the case of the present petitioner needs consideration.
H. That the order passed by the Respondent University is without giving any opportunity to the present petitioner for presenting his case, or providing him opportunity to cross examine any witness which is against the principle of natural justice and looking to this fact the case of the present petitioner needs consideration."
Page 7 of 22 
        C/SCA/14580/2018                                           JUDGMENT




10    On the other hand, this writ application has been vehemently
opposed by Mr. Indravadan Parmar, the learned counsel appearing for the respondent No.1 - University and Ms. Nikita S. Barot, the learned counsel appearing for the respondent No.3 - college. Mr. Parmar, the learned counsel appearing for the University placed strong reliance on the following averments made in the affidavit­in­reply filed on behalf of the respondent No.1:
"4. Before I deal with the petition in nutshell, I raise following preliminary Objections to its maintainability :
(a) The case of the Petitioner is based on false, misconceived and untenable foundation that suffers from vices, lacunae, infirmities, delay and lapses.
(b) The known principle in the field for invoking/resorting to the jurisdiction of this Hon'ble Court under Article 226 and/or 227 of the Constitution of India is that the Petitioner should approach the Court with clean hands. The concept of clean hand says that it should not be dirty or coloured. The Court expects a litigant before it, is duty­bound to place all relevant facts before the Court with all transparency and without suppressing and/or twisting them conveniently or otherwise. However, the Petitioner had made colourable presentation of his case throughout in his petition with unclean hands.
(c) In entire petition, neither any visibly bona fide issue had been contended nor anything contrary substantiated so as to demonstrate infraction of fundamental or legal right/s if any, of the Petitioner or violation of principles of natural justice.
(d) After unexplained inordinate delay of almost 4 ½ months, this petition has been preferred before this Hon'ble Court by resorting to a remedy under Article 226 and 227 of the Constitution of India for impugning a letter/communication dated : 05.05.2018 that itself makes the Petitioner disentitled for discretionary relief by this Hon'ble Court.
(e) Though a notification dated : 01.05.2018 published by Page 8 of 22 C/SCA/14580/2018 JUDGMENT Respondent No.2 (that annexed at pg.No.33 of the petition as Annexure­l) and averred about it, is not under dispute or challenge, wherein, total 56 students had been enlisted (that includes the present Petitioner at Sr. No. 56) who were found guilty and accordingly, different nature of punishment had been awarded to them after careful consideration of recommendation made by the Examination Reform Committee (known as Pariksha Shuddhi Samiti in Gujarati language) of Respondent No.1­University that had been approved in the meeting of Executive Council held on 30.05.2018. Hereto annexed and marked as Annexure R/1 is a copy of minutes of Executive Council Meeting dated : 30.05.2018.
(f) It is a settled law that while exercising discretionary and/or equitable jurisdiction, the Hon'ble Court always expects a litigant to come forward with clean hands and candidly disclose the full facts of his case without suppressing and/or twisting them otherwise. In the case on hand, the Petitioner had chosen to present and submit his case on misleading and distorted facts, alleging throughout for not providing any opportunity of hearing and violation of principles of natural justice prior to imposing the punishment though he appeared before the committee on 26.04.2018 to represent / defend his case.

The petition, thus, apart from being not maintainable on afore­stated preliminary objections, is simply bad, thoroughly misconceived and devoid of merits, it does not deserve any indulgence of this Hon'ble Court and required to be dismissed With costs in the interest of justice.

Brief factual overview of the case :

Before I deal with the petition in nutshell, it is necessary to have brief overview of facts of the case and procedure followed by Respondent No.1 and 2 for taking legal and just action in erring cases of unfair means/practices, misbehavior and misconduct that adopted/resorted /committed by the students/candidates in respective examinations of their academic courses/programs conducted during March­June, 2018.
5. The Petitioner was pursuing his study in 2nd year/Semester­IV of Bachelor of Laws (LLB) (Regular) Course in Respondent No.3­ college/institute that affiliated to Respondent No.1University, who appeared in Paper of FC­213 Banking Law with Seat No.479204 in his university examination that conducted on 09.04.2016 during 03.00 p.m. and 06.00 p.m. at Adipur in Respondent No.3 being the Examination Page 9 of 22 C/SCA/14580/2018 JUDGMENT Centre. The Petitioner had misbehaved with college­staff and female peon anti threatened them crossing his all limits during the examination in examination hall on the said examination date of 09.04.2018 as per the report of Flying Squad' of Respondent No.1­University. In spite of having complete his question paper, the Petitioner was not ready to leave the campus and became arrogant and aggressive and therefore, Flying Squad (comprising of 2 female members) could not take his statement in view of his such aggressive and assaulting nature. Hereto annexed and marked as Annexure W2 is Report of Flying Squad Observers.
6. It is submitted that if any student/candidate resorting to any practices/acts of unfair means, misbehaviour and/or misconduct in the examinations conducted by Respondent No.1, he/she is being provided an opportunity to clarify/ explain his/her say/case in defense, so as to why action for imposing suitable penalty/punishment should not be taken for Such act/s if found guilty, by a special committee constituted under Ordinance 133 of Krantiguru Shyamji Krishna Verma Kachchh University Act, 2003 to deal with the matters pertaining to the cases of direct or indirect unfair practices resorted by the students before or during or after conduct of examinations, declaration of results, checking and re­ assessment etc. A special committee constituted, viz., Examination Reform Committee (also known as 'Pariksha Shuddhi Samiti' in local language), having powers under Ordinance 134 to examine such cases of unfair practice and after due process of natural justice by providing an opportunity of written and/or oral submission to the concerned students/candidates and recommend for award of the penalty to the Executive Council in light of the nature of unfair practice resorted. After following the procedure as stated above, appropriate decision taken in ,this regard for imposing/awarding the penalty/punishment if any, being communicated to the concerned student/s.

A conspectus of relevant provisions of aforesaid Act, regulations, ordinances and resolutions clearly cover the entire field of operations regarding the use of unfair means at the examinations, specify the competent authorities and the award of penalty/punishment and the procedure to deal with the same. Thus, under the scheme of the Act, for efficient and expeditious functioning and to prevent use of unfair means, misbehaviour and misconduct in the examinations, the procedure adopted and action taken qua the Petitioner (and all other students as mentioned in the notification) are clearly lawful, just and proper.

7. In this context, it is submitted that since behaviour and conduct of the Petitioner as briefly narrated above as 'unfair practice' and in express violation of rules framed for conducting fair examination and maintaining academic discipline amongst the students and preventing scope of unfair means during/in/after their examinations, he was issued notice dated :

17.04.2018 by Respondent No.2 being the Controller of Examination of Page 10 of 22 C/SCA/14580/2018 JUDGMENT Respondent No.1­university, advising him to offer his written explanation within 5 (five) days from the date of receipt thereof that why suitable action should not be taken for his said act of unfair practice/misconduct, besides advising him to remain present before the Examination Reform Committee (Pariksha Shuddhi Samiti) on 26.04.2016 at 11.00 am. at the office premises of the Respondent No.1 for making representation in person and producing witness/es or submitting the documentary evidence if any, in his defense with regard to his said act of unfair means practiced/resorted by him in afore­stated examination on 09.04.2018.

Accordingly, the Petitioner had remained present on 26.04.2018, however, he neither produced any witness/es nor submitted any satisfactory material or documentary evidence nor made satisfactory representation to clarify and justify his innocence in his defense and therefore, after examining the material of the case on record, the Committee had found the Petitioner guilty of unfair means and practices resorted by him on 09.04.2018, and imposed punishment of E2 that means cancellation of result of his all subjects of current semester viz. Semester­IV examination for March­June 2018 and debarred him from getting admission in college in any college if Respondent No.1 for next semester in academic ear of 2019­20 during the currency of said punishment that had been communicated to the Petitioner vide letter No. KU/E.D./PSS/Unfair Means/T.No.2/March­June/2018/2 of dated : 05.05.2018 which alone (and not notification) is under challenge in the present petition.

Hereto annexed and marked as Annexure R/3' is a copy letter ­ dated :

17.04.2018 of the Respondent No.2 and Annexure R/4 is a list of students who appeared before Unfair Practice 'Investigation Committee on 26.04.2018.
8. Thus, in the case of hand (as well as in respect of all other students who were enlisted in the aforesaid notification), the prescribed procedure had been followed before awarding punishment, providing the Petitioner (and all other students) fair and full opportunity to represent and defend his case effectively and suitably by communicating him in advance and offering him all necessary help/assistance which is quite evident from aforesaid letter dated : 17.04.2018 of the Controller of Examination of Respondent No.1 and therefore, false grievances of not affording him any opportunity of hearing, violation of principles of natural justice etc. being simply bad and thoroughly misconceived, did not sustain on self­ convenient allegations and evasive grounds.
9. The petition broadly and largely rests on baseless blames and evasive allegations without an iota of substance which in no way establishes innocence of the Petitioner in subject­controversy of resorting to unfair means and misconduct in the examination that held on 09.04.2018 Page 11 of 22 C/SCA/14580/2018 JUDGMENT or justifies challenge to an impugned letter dated : 05.05.2018, leaving aforesaid notification dated : 01.05.2018 undisputed and unchallenged, based on which, impugned letter had been served on the Petitioner.

In this brief factual score, now I deal with the petition in nutshell :

10. With reference to para 1, it does not require comment to an extent facts that are available on record, however, it is clarified that no fundamental or legal right of the Petitioner had been infracted or infringed by virtue of a letter dated : 05.05.2018 that had erroneously been impugned by evasively alleging in para 2 that the Petitioner was made scapegoat and punished without providing him any opportunity of hearing or providing any evidence for finding him guilty as alleged. In this context, I categorically and specifically deny and submit that the Petitioner being found guilty for resorting to unfair means and misconduct in his aforesaid examination, action/decision of awarding the punishment had been taken after affording him opportunity of hearing and complying with the principles of natural justice and following necessary procedure which is quite evident from the submission made herein and papers/documents annexed hereto.

11. With reference to paras 3.1 and 3.2, I do not offer any comment at this stage, whereas, with reference to averments made in para 3.3 to 3.8 and material annexed in connection thereof, viz., representations dated :

06.06.2018 and 06.07.2018 made by the Petitioner and letters dated :
18.05.2018, 04.07.2018, 09.7.2018 and 23.07.2018 have no relevance now, if notification dated : 01.05.2018, letters dated : 05.5.2018 (impugned) and 17.04.2018 of Respondent No.2 are read together.

12. With reference to para 3.9, I submit that reference of belated letter dated : 23.07.2018 of a professor is of no value or consequence which appears to have' been written] obtained for the reasons unknown. Had it been really so, the Petitioner was already at liberty to produce her as witness in his defense on 26.04.2018 itself when he was called upon to remain present before the Examination Reform Committee (Pariksha Shuddhi Samiti) for making representation and prove his innocence. It is clarified and submitted that the said letter that appears to be written so belatedly on 23.07.2018 did not prove innocence of unfair practice and misconduct resorted by the Petitioner on 09.04.2018, for which punishment has been awarded by communicating him as per impugned letter dated : 05.05.2018 in pursuance of notification dated : 01.05.2018. In this context, it is submitted that after awarding the punishment to the Petitioner, he had employed pressure­tactics and therefore, his case was referred to Executive Council that had unanimously resolved to keep the punishment unchanged/unaltered.

Page 12 of 22

C/SCA/14580/2018 JUDGMENT Hereto annexed and marked as Annexure R/5 is a copy of minutes of Executive Council Meeting dated : 04.08.2018.

13. With reference to para 3.10, I submit that in view of gravity of unfair practice and misconduct of the Petitioner in examination conducted on 09.04.2018 as stated in detail above, appropriate punishment had been awarded to him and therefore, I deny that the said punishment was ruthless for which no inquiry was made and he was not given any opportunity to put his case forward as evasively alleged which I deny. In this context, I submit that though a notification dated : 01.05.2018 published by Respondent No.2 (that annexed at pg.No.33 of the petition as Annexure­I) and averred about it, has not been under dispute or challenge, wherein, total 56 students had been enlisted (that includes the present Petitioner at Sr. No. 56) who were found guilty and accordingly, different nature of punishment had been awarded to them after providing them fair and full opportunity of hearing and defend their case and only thereafter, having careful consideration of recommendation made by the Examination Reform Committee (known as " Pariksha Shuddhi Samiti in Gujarati language) of Respondent No.1­University that had been approved in the meeting of Executive Council held on 30.05.2018."

11 Mr. Parmar, the learned counsel submitted that having regard to the nature of the misconduct prayed to have been committed by the writ applicant being a law student, no interference is warranted at the end of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. He prays that there being no merit in this writ application, the same be rejected.

12 By way of an affidavit­in­rejoinder, the writ applicant has raised one more issue and that is with regard to the quorum of the members of the Executive Council. In the affidavit­in­rejoinder, the following has been stated:

"I further say and submit that so far as Annexure R1 is concerned, which, enlisted 56 students who were allegedly found guilty according to Respondent University, and which is purportedly approved by Executive Council meeting dt.30.05.2018, it is required to be noted that it is very shocking to see that the same is in blatant violation of the provisions of Page 13 of 22 C/SCA/14580/2018 JUDGMENT the KSKV Act, 2003. It is submitted that Sec. 19(1) of the KSKV Act, 2003 which reads as under:
Executive Council 19. (1) The Executive Council shall be the executive authority of the University and shall consist of the following, namely :
(i) the Vice­Chancellor Ex­officio Chairperson; (ii) the Pro­Vice­ Chancellor, if any;
(iii) the Director of Higher Education, Gujarat State or the officer designated under clause(i) of paragraph (B) of Class­I of sub­ section (1) of section 16;
(iv) the Director of Technical Education, Gujarat State or the officer designated under clause (ii) of paragraph (B) of Class­I of sub­section (I) of section 16;
(v) the Director of Health and Medical Services and Medical Education, Gujarat State, or the officer designated under clause (fit) of paragraph (B) of Class­I of sub­section (1) of Section 16;
(vi) two Deans of Faculties nominated by the Vice­Chancellor from amongst the Deans of Faculties by rotation in the manner prescribed by the Statutes;
(vii) two persons to be elected by the Court from amongst its members who are not teachers or members of the teaching staff of the University affiliated colleges, recognised institutions and approved institutions and students;
(viii) two Principals of the affiliated colleges nominated by the Vice­ Chancellor by rotation in the manner prescribed by the Statutes;
(ix) one University professor not being a Dean of a Faculty nominated by the Vice­Chancellor by rotation in the manner prescribed by the Statutes;
(x) one Reader nominated by the Vice­Chancellor by rotation in the manner prescribed by the Statutes;
(xi) two persons to be nominated by the Chancellor from amongst distinguished educationists, teachers and such other class of persons irrespective of whether they are members of the Court or not.
Page 14 of 22
C/SCA/14580/2018 JUDGMENT It is submitted that in pursuance to the said section, members of the Executive Council has been nominated vide notification dt.04.10.2017 which is at Annexure A1 hereto for kind perusal of this Hon'ble Court.

It is submitted that bare perusal Of the said notification, if it is read along with the Executive Council meeting dt.30.05.2018, it can be seen that though the Executive Council comprises of 14 members, the meeting dt.30.05.2018 was attended only by 6 members and rest of the members including Director of Technical Education, Director of Higher Education, Director of Health and Medical Services and Medical Education, and one Dean Shri DM Bakraniya were absent. It is submitted that apart from this, two Court members as contemplated under Sec. 19(1)(vii) and Statute 24.0(vii) were absent and two persons to be nominated by the State Government under Sec. 19(1)

(xi) and Statute 24.0 were absent. It is submitted that out of 14 members, only six members were present and have purportedly approved the recommendation made by Examination Reform Committee. It is submitted that this, ex­facie, is patently illegal.

(5) I say and submit that as long as I am dealing with this issue of incomplete quorum of the Executive Council, I may also deal with the meeting of Executive Council dt. 04.08.2018. I say and submit that identically, Director of Technical Education, Director of Higher Education:

Director of Health and Medical Services and Medical Education, and one of the two Court members as contemplated under Sec. 19(1)(vii) and Statute 24.0(vii) and one Shri Dr. S.G.Dharmani, a principal, were absent whereas, one Shri Dr. Tejal Shah, who is not a member of Executive Council, has attended the meeting of Executive Council for reasons best known to the Council. I say and submit that this has resulted into grave illegality as the quorum is incomplete as stated herein before and one person who is not a member of Executive Council, has illegally attended the meeting and this has resulted into grave injustice to the petitioner.

(6) I further say and submit that as if the aforementioned illegality in quorum is not enough, the Respondent University has produced the minutes of meeting which doesn't bear the signatures of members of the Executive Council. I say and submit that in absence of signatures, those two minutes of meetings cannot be relied upon at all, and I request the Hon'ble Court accordingly. I say and submit that while the Affidavit­in­ Reply filed on behalf of University is very strong on the language, however, the same is meritless as it does not speak of the evidence which was available and which was considered against the petitioner. I say and submit that it is very strange that CCTV footages are not being produced despite the fact that very serious allegations of misconduct in examinations Page 15 of 22 C/SCA/14580/2018 JUDGMENT are made.

(7) I further say and submit that as far as Annexure R2 is concerned, the same has been produced is relating to the wrongful conduct of the petitioner during the examination, I say and submit that the report which has been created by the flying squad is made belatedly i.e. after I had left the premises of the college and due to this reason my statement is not been recorded. By the flying squad and moreover no evidence has been produced no CTV footage, no statements are recorded to prove the wrongful conduct of the petitioner.

(9) I further say and submit that after receiving the letter from the university I came to know that some kind of case is registered against the me and on inquiring from the University the I was asked to remain present before the university on 26.04.2018 and all the details would be provided to him at the university itself. I say and submit that the petitioner remained present before the committee on 26.04.2018 and denied all the allegations in writing and specifically asked them to collect the CCTV footage from the college of the date of the incident as the petitioner was not involved in any of the act as alleged. I say and submit that there is no reply by Respondent University as to after' passing the punishment on dt.05.05.2018, the Respondent University is still collecting evidence in the month of July, 2018.

(10) I further say and submit that the punishment which has been granted to the present petitioner is very harsh in nature looking to the type of allegations made against the present petitioner and also looking to the fact that no evidence is present against the present petitioner the punishment deserves to be quashed and set aside." 

●     ANALYSIS:
13    Having heard the learned counsel appearing for the parties and

having gone through the materials on record, the only question that falls for my consideration is whether the respondents committed any error in taking the disciplinary action against the writ applicant and imposing punishment.

14 Let me first deal with the submission as regards the quorum of the members of the Executive Council. This issue raised by the writ applicant Page 16 of 22 C/SCA/14580/2018 JUDGMENT is without any merit. The Regulation of the University provides for quorum and non­quorum meeting. The Regulation 65.3 reads thus:

"65.3 Quorum : 5(five) members shall constitute a quorum for a meeting of the Executive Council and all proposals shall be decided by a majority of votes of the members present. The Chairman at such meetings, shall have a vote, and in the case of equality of votes, a second or a casting vote."

15 The Regulation 65.4 reads thus:

"65.4 Non­quorum meeting : If there is no quorum at the commencement of the meeting the Chairman shall adjourn the meeting for half an hour and on the expiration of the said half an hour, the meeting shall entertain the business as per agenda provided at least 3 (three) members are present. In case if 3 (three) members are not present after the expiration of the said half an hour. The meeting shall forthwith be adjourned to such a date as the Chairman may decide. Such adjournment shall be recorded by the Registrar under the signature of the Chairman. In the case of such an adjourned meeting for want of a quorum, no quorum will be required at the next sitting."

16 Thus, the plain reading of the regulations would indicate that five members would constitute a quorum for a meeting of the Executive Council and all proposals are to be decided by a majority of votes of the present persons. If there is no quorum at the commencement of the meeting, the Chairman would adjourn the meeting for half an hour and on the expiration of the said half an hour, the meeting shall, thereafter, entertain the business as per the agenda provided at least three members are present. The writ applicant has stated in his affidavit­in­rejoinder that out of fourteen members, six members had attended the meeting. Thus, on the date of the meeting of the Executive Council, there was a Page 17 of 22 C/SCA/14580/2018 JUDGMENT quorum in accordance with the regulations, and in such circumstances, it cannot be said that the decision taken by the Executive Council of the University upholding the punishment is not in accordance with law.

17 The facts of this case are quite eloquent. I do not propose to go into the issue whether the incident occurred in the examination hall or outside the hall. The fact remains that the incident in question occurred at a point of time while the writ applicant was appearing in the Semester IV Exam. He picked up an altercation with a lady hailing from a poor strata of the society. It appears that it was not just an altercation. The writ applicant behaved very badly and this is reflected from the report prepared by the two observers appointed by the University referred to above. Not only that, but the statement of the water server herself makes the picture abundantly clear. The report of Ms. Ruhi Trehan, faculty of Law, dated 9th April 2018 is also very clear. It also appears on plain reading of the report that the Head Clerk, Junior Clerk, Peon and Watchman of the college were eyewitnesses to the incident.

18 I had to request Ms. Ruhi Trehan, the faculty of Law, to remain personally remained present before this Court to explain the contents of her letter dated 23rd July 2018 at Annexure : 'H' to this petition (Page :

31). Ms. Trehan personally remained present before this Court. To few questions put by me to Ms. Trehan, she replied that although the writ applicant misbehaved badly, yet the matter should not have been carried further. I was unable to understand what Ms. Trehan wanted to convey.

However, what I could gather is that Ms. Trehan was not in favour of taking any disciplinary action against the writ applicant. I may only say that Ms. Trehan, in her capacity, as a faculty member, has no say in the matter of taking action, which is required to be taken against the student for his misbehavior or misconduct. I do not want to carry further the issue of Ms. Trehan.

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        C/SCA/14580/2018                                     JUDGMENT




19    I am not inclined to grant any relief to the writ applicant, in

exercise of my writ jurisdiction, more particularly, having regard to the way he behaved. In every case, it cannot be insisted that there must be a memorandum of charge, an inquiry and a finding arrived at like a Court or a judicial proceeding. It is well settled by now that a student, so long as he behaves properly, in a disciplined way in other words, as a student ought to behave, has every right to prosecute his studies. Such a right cannot be interfered with. As against this, should there be any act of indiscipline which is not conducive to the interests of the Institution, and which will pollute the educational atmosphere to the interests of the Institution or the calm of the Institution, certainly, the University and the college authorities have every right to see that such a student who would not behave himself in a disciplined way is appropriately punished. Apart from the fact that such an indisciplined student is not only an undesirable element who spoils his own future, his conduct and character will have deleterious effect on others as well.

20 As it is found on the facts that there was an inquiry and the requirements of the principles of natural justice being fulfilled, this Court should not interfere with the finding of the inquiry committee and the consequential order of imposing punishment.

21 Further, it has also been held by the Supreme Court in the judgment reported in (1991) 2 SCC 716 (Maharashtra State Board of Secondary and Higher Secondary Education vs. K.S. Gandhi and others) that the power of judicial review in case of student indiscipline is very limited and in such cases this Court does not sit in appeal over decisions of the school authorities.



22    I may, at this stage, also refer to the following observations of the


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        C/SCA/14580/2018                                          JUDGMENT

Supreme Court in the case of CONTROLLER OF EXAMINATIONS v. G.S. SUNDER AND ANOTHER reported in 1992 (2) GLH 140 SC:­ "10. We have given our careful consideration to the above submissions. One thing must put beyond doubt, in matter of enforcement of discipline this Court must be very slow in interference. After all, the authorities in charge of education whose duty it is to conduct examination fairly and properly, know best how to deal with situations of this character. One cannot import fine principles of law and weigh the same in golden scales. In the present system of education, the system of examination is the best suited to assess the progress of the student so long as they are fairly conducted. Interference by court in every case may lead to unhappy results making the system of examination a farce. For instance, we cannot but strongly condemn copying in the examination which has grown into canker of mass copying. Such unhealthy practices which are like poisonous weeds in the field of education must be rooted out in order that the innocent and the intelligent students are not affected."

23 The same view has been taken by the Supreme Court in the case of UNION PUBLIC SERVICE COMMISSION v. JAGANNATH MISHRA reported in 2000 (O) GLHEL­SC­33503.

24 The maintenance of moral standards among students is inherent in the very idea of education. The reputation of an institution is not mere commercial asset depending on the length or duration of its existence. It has its position on the moral plane, secured mostly by the moral stature of its alumni, and in this respect it would also not make any difference whether the Institution is adhoc or a permanent one. Any educational institution worth its name should have for its purpose, the improvement of the moral and intellectual standards of its students. The enforcement of discipline helps to maintain the standards; laxity in such Page 20 of 22 C/SCA/14580/2018 JUDGMENT enforcement, will defeat the very purpose of the institution and bring it to disrepute.

25 The power of the head of an educational institution to correct erring pupils is generally stated to be the same as that of a parent. Thus, he will have a moderate degree of authority in the matter of punishing or even chastising (subject of course to the rules etc. made in that behalf) his pupils whenever he finds them misconducting themselves. But the responsibility of the school­master or the head of an educational institution is not just confined to the pupil who errs. He has a greater responsibility of protecting the morale of the other students. He further owes a duty to maintain the reputation of the institution. Cockburn C. J. in Fitzerald v. Northcote, (1865) 176 ER 734­756 observed that it was for the general benefit of the society and especially of its youth that the authority of those charged, with good order and peace of the establishment should be maintained.

26 In Sekkilar v. Krishnamurthi, [1951­2 Mad LJ 568 : (AIR 1952 Mad 151)], Subba Rao J. (as His Lordship then was) upheld the right of a principal of a college or head of any other educational institution to maintain discipline and to do such act as is reasonable for the upkeep of the necessary tone and standards of behaviour in a body of students.

27 In Laxmikant Shripat v. C. R. Gerrald [AIR 1947 Bom 193], it has been observed that the principle i.e. the headmaster of an educational institution while taking disciplinary action against a student who had misbehaved should take into account not only the interests of the particular pupil concerned but also that of the other pupils. But it goes without saying that such a right cannot arbitrarily be exercised. Punishment proposed or imposed should reasonably be related to the offence committed. It should be aimed with a view to maintain discipline Page 21 of 22 C/SCA/14580/2018 JUDGMENT and to keep up the necessary tone and moral standards amongst the students and cannot be imposed with an ulterior object or prompted by an indirect motive.

28 The learned counsel in the last submitted that this Court may take a lenient view so far as the punishment that has been imposed upon the writ applicant. In this case, the entire result of the Semester IV Exam of the writ applicant has been ordered to be cancelled and the writ applicant will now be permitted to appear for the Semester IV Exam in June 2019. The main purpose of punishment is to correct the fault on the student concerned by making him more alert in future and to hold out a warning to the other students to be careful so that they may not expose themselves to similar punishment. In order not to attract the criticism that the action is a result of arbitrariness, it has to be ensured that the penalty imposed is in commensurate with the magnitude of the fault.

29 I am of the view that the writ applicant is fortunate enough to get away with a lighter punishment. Otherwise, the maximum punishment of expulsion from the college could also have been imposed.

30 As the writ applicant has not made any allegation of any mala fide or personal bias at the instance of the University, in my opinion, in the facts and circumstances of the present case, it does not deserve interference with the decision of the University authorities.

31 In the result, this writ application fails and is hereby rejected. Notice stands discharged.

(J.B.PARDIWALA, J) CHANDRESH Page 22 of 22