Rajasthan High Court - Jaipur
Pandit Badri Prasad Training Anr vs Rakesh Kumar Bhaduka Ors on 24 January, 2014
Author: Amitava Roy
Bench: Amitava Roy
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR :: JUDGMENT :: D.B. CIVIL SPECIAL APPEAL (WRIT) NO.1178/2013 Pandit Badri Prasad Teacher Training College, Bandikui, District Dausa & Anr. Vs. Rakesh Kumar Bhaduka & Ors. Date of Judgment : 24th January, 2014 HON'BLE THE CHIEF JUSTICE MR. AMITAVA ROY HON'BLE MR.JUSTICE VEERENDR SINGH SIRADHANA Mr.Rajendra Prasad for the appellants. Mr.R.B.Mathur, Mr.Brij Sharma for the respondents. ***** BY THE COURT (PER HON'BLE THE CHIEF JUSTICE) :
Being aggrieved by the determination made by the judgment and order dated 8.7.2013 rendered in S.B.Civil Writ Petition No.7511/2010, the respondent No.5 therein and its authorized signatory, the respondent No.2 herein, are in appeal seeking redress. By the decision impugned, the action of the appellant-College in declaring the respondent No.1 to be deficient in the required percentage to appear in the B.Ed. Examination for the Session 2009-10 and in not forwarding his sessional marks therefor, has been adjudged to be illegal and null & void, and a direction to it has been issued to forward the said marks to the respondent-University and to declare his results afresh, after including the same. In the alternative, the respondent-University has been directed to allot sessional marks to the respondent No.1 on the basis of marks secured by him in the written examination. Further, the Chief Judicial Magistrate, Jaipur Metropolitan has been directed to proceed against the appellant No.2 herein and the District Education Officer (Secondary), Dausa, as named therein, under Section 340 of the Code of Criminal Procedure, 1973 (for short, hereafter referred to as 'Cr.P.C.') We have heard Mr.Rajendra Prasad, learned counsel for the appellants and Mr.R.B.Mathur, learned counsel for the respondents.
The pleaded facts, in essential details, have to be outlined to appropriately comprehend the issues seeking adjudication.
The respondent No.1, after qualifying in the PTET Examination in the year 2009 and being allotted the Pandit Badri Prasad Teachers Training College, Bandikui, Dausa, appellant No.1, for undertaking the B.Ed. Course, joined the Session 2009-10 therefor. Alleging that the Head of the Institution did demand illegal gratification under various heads for a number of times, which he had obliged by depositing the same and that he declined to do so vis-a-vis a further demand of Rs.2000/-, after he had submitted the examination form, for which not only, he was threatened that his attendance would be cut short, but also was misbehaved with, the respondent No.1 submitted a representation before the Collector, District Dausa. He also forwarded a representation, to the above effect, to the District Education Officer, Dausa, SDO, Bandikui, Vice Chancellor, Rajasthan University, Vice Chancellor, Jai Narayan University, Education Minister, President of Human Rights and Regional Director, National Council for Teachers Education. He alleged that being peeved by this initiative of his, the Head of the appellant-Institution did not allow him to attend the classes, and threatened to ruin his career, and also not allow him to take the Final Lesson and appear in the impending B.Ed. examination. According to the respondent No.1, the District Collector, Dausa, on receipt of his representation, directed the District Education Officer (Secondary), Dausa to enquire into the matter and the latter appointed the Principal, Abhaneri Government Secondary School as the Enquiry Officer.
The respondent No.1 further pleaded that on 16.4.2010, the Enquiry Officer though did go to the College, but the concerned records, though demanded, were not produced by the Head of the Institution, and he did not as well cooperate with him. On 19.4.2010, the Enquiry Officer revisited the College, and on a perusal of the relevant records and after recording the statements of the students present, submitted his report to the District Education Officer (Secondary), Dausa. In conducting the enquiry, the respondent No.1 mentioned that the some of the students also laid a complaint with the Enquiry Officer, wherein they mentioned that the Head of the Institution used to illegally demand money, and that, on being opposed, the respondent No.1, who otherwise was regular in attending his classes, had been restricted from doing so. The Enquiry Officer, while inter alia adversely commenting upon the attendance register produced before him also recorded that though the respondent No.1 was regular in attendance, the students were, out of apprehension, not in a position to make a statement in open, to that effect. He suggested that the affairs of the institution need be enquired into by a higher authority.
The respondent No.1 alleged further that the attendance register produced on 19.4.2010 had been manipulated, so much so, that amongst others, it disclosed that classes were held even on holidays. That meanwhile, by order dated 6.3.2010 issued by the Principal of the appellant-College, he was rusticated from the institution on the grounds, as set out therein, was mentioned. He imputed as well that the College, in every session, used to intimidate the students to comply with similar illegal demands with the threat that otherwise their career would be ruined and that, some students of the Session 2008-09, being faced with the said predicaments, had approached this Court with S.B.Civil Writ Petition No.10370/2009 (Udai Singh Meena & Ors. Vs. The Secretary, Higher Education & Ors., who, on the intervention of this Court could appear in the B.Ed. examination, but were eventually, declared to be unsuccessful on declaration of results, rendering their legal pursuit infructuous.
Contending that the B.Ed. examination of his session was likely to be held in the last week of May or first week of June 2010, and that, the Final Lesson for the related Course was to be imparted at any time prior thereto, the respondent No.1 sought to invoke the writ jurisdiction of this Court, thereby seeking a declaration that the action of the respondents, in not allowing him to appear in the B.Ed. Examination 2010 as well as to avail the Final Lesson pertaining thereto, was illegal and arbitrary. He also sought a direction to allow him to appear/participate therein. He also prayed for a direction to the appellant-College to send his sessional marks to the University for declaration of his results, and also cause necessary action to be taken against the institution for manipulation of the attendance register with oblique motives.
By order dated 13.7.2010, while issuing notice, the learned Single Bench issued the following interim directions:-
In view of above, the respondents are directed to issue permission letter to the petitioner forthwith and thereafter, permit him to appear in B.Ed. examination, which is scheduled to be commenced from 14.7.2010. However, the respondents are directed to keep the result of the petitioner in a sealed cover, which shall be declared after seeking prior permission from this Court.
On an application filed subsequent thereto, by order dated 18.8.2010, the following order was passed by the learned Single Judge:-
???????? ?? ?????? ??????? ?? ???????? 226 ?? ??????? ?? ????????????? ???????? ?? ????????? ?? ?? ?? ??????? ?????? 2 ? 5 ?? ??????? ???? ???? ?? ?? ???????? ?? ????? ?????? ????? (????? ????) ??? ???????? ?????????? ?? ?????? 21.8.2010 ?? ???? ???? ??????? ??? ??? ???? ?? ?????? ?????? ??? ! ??????? ?????? 2 ? 5 ?? ??????? ???? ???? ?? ?? ?? ???????? ?? ????? ?????? ????? (????? ????) ??? ???????? ?????????? ?? ?????? 21.8.2010 ?? ???? ???? ??????? ??? ??? ???? ?? ?????? ?????? ??? ?????? ???? ?????? ??? ?????? ?? ?????? ?? ???? ???? ! The results of the B.Ed. Examination 2010, in which the respondent No.1 could participate in view of the interim order of this Court, were declared thereafter, and he was shown to have been unsuccessful therein. In course of the perusal of the results to the above effect by this court, it was however, contended on his behalf that he had not been granted marks for the internal examination, in retaliation to his challenge made against the illegal action of the College. During the pendency of the proceedings, on the prayer of the respondent No.1, the writ petition was permitted to be amended, and in his amended writ petition, he stated further that pursuant to the interim orders of this Court, he had appeared in the concerned B.Ed. examination as well as in the practical and final lessons, and that, though he had otherwise secured pass marks, he had been declared to have failed, as his sessional marks had not been forwarded to the University by the appellant-College.
In its reply, the respondent No.2(in the writ petition)-the Controller, B.Ed. Examination, Rajasthan University, Jaipur, pleaded that the examination form filled by the respondent No.1 for the B.Ed. Examination 2010 had been received by it and he had been allowed to appear therein, as per the order of this Court, but his results were kept in a sealed envelope, as directed. No reply to the other averments, as such, was made.
The respondents No.1, 3 & 4, in their joint reply, affirmed by the District Education Officer (Secondary), Dausa, respondent No.4, did admit that the respondent No.1 had submitted a representation before the District Collector, Dausa, which had been forwarded to the District Education Officer (Secondary), Dausa on 9.3.2010, to enquire into the matter. That the Principal, Abhaneri Government Secondary School was appointed as the Enquiry Officer, and that, the latter had submitted a report inter alia recommending a high level enquiry, was also admitted. The respondents averred that the District Education Officer (Secondary), Dausa thereafter, did appoint a Committee of two members on 27.7.2010 for conducting an enquiry, and that, the same was pending. They further stated that due to absence from classes by the respondent No.1, he was rusticated from the College, and therefore, initially was not permitted to appear in the examination, but in view of the interim order of this Court, he was allowed to do so. Incidentally, this reply was filed on 27.9.2010. This is significant, in view of the fact that the Committee of two members had meanwhile, submitted its report on 9.9.2010.
The appellant-College (respondent No.5 in the writ petition) however, asserted in its reply that the respondent No.1 did not attend the classes regularly, as per the relevant rules/regulations of the State Government/National Council for Teachers Education, inspite of several letters to him requiring him to do so, for which eventually, being left with no option, his name had to be deleted from the Course on 6.3.2010. The appellant-College imputed insolent and reprehensible conduct of the respondent No.1 stating that he not only used to continuously harass the Principal, teachers and students of the institution, but also make unfounded complaints against the College. They averred as well that the complaint of the respondent No.1 had been enquired into, in course whereof, the statements of other students were also recorded, and finally, the Deputy Director (Secondary), Jaipur dismissed the same on 15.7.2010. While categorically refuting the allegation of the demand of illegal gratification and also endorsing the fact that the respondent No.1 wilfully absented from the classes, the answering respondents reiterated that he did not attend the classes of the Course regularly, for which his attendance fell short of the required 75%. They asserted that the allegation made by the respondent No.1 against the appellant-College and the Head of the Institution was spurred by the refusal of the latter to mark his attendance, though he had not attended the classes. That no other student did have any grievance of any illegal demand, and that, several of them had submitted affidavits to that effect, on a consideration, amongst others whereof, the Deputy Director (Secondary), Jaipur had dismissed the respondent No.1's complaint, was underlined. According to the answering respondent, the report of the enquiry officer was not accepted by the higher authorities, as the enquiry had not been conducted properly. The respondent asserted that out of 157 working days, the respondent No.1 was absent for 89 days.
In his rejoinder, the respondent No.1, while reaffirming the averments already made, dismissed the allegation contained in the letter dated 6.3.2010 of the Principal of the College that on 5.3.2010 he, alongwith his father, had threatened and misbehaved with Secretary of the Institution, as on that date, his father was ill and was under treatment at Jaipur. Restating that the attendance register had been manipulated by the College, and that, the order of the Deputy Director (Secondary), Jaipur passed on 15.7.2010 dismissing the complaints ex parte without affording him any opportunity of hearing, was ab initio void, the respondent No.1 avowed that as would be evident from the report dated 9.9.2010 of the Committee of two members constituted by the District Education Officer (Secondary), Dausa, the affairs of the institution were not being conducted properly, and that, an unduly harsh action had been taken against him on extraneous considerations. He also repudiated the veracity of the affidavits said to have been filed by the students of the College, rejecting the same to be manipulated. Alongwith the rejoinder, the respondent No.1 also filed, amongst others, the copy of the report dated 9.9.2010.
In this backdrop, the learned Single Judge, by order dated 19.5.2012, directed the appellant-College to send the sessional marks of the respondent No.1 to the University, being aggrieved whereby, it preferred D.B. Special Appeal (Writ) No.753/2012, and a coordinate Bench of this Court, by order dated 29.5.2012, while issuing notices, stayed the operation of the said direction.
While the matter rested at that, an application was filed on behalf of the College seeking the leave of the Court to bring on records certain documents, including the letter dated 30.9.2009 said to have been addressed by the respondent No.1 to the Principal of the institution admitting his absence from the classes from 1.9.2009 to 30.9.2009 and an official communication dated 28.5.2010 from the Deputy Secretary-I, Government of Rajasthan, Education (Group-I) Department to the Director, Secondary Education, Rajasthan, Bikaner instructing the latter to conduct an enquiry into the complaints, as mentioned therein. The prayer was resisted by the respondent No.1, and it was alleged in his reply that the letter dated 30.9.2009 had not been written by him, and that, it was a manufactured document.
On this, the learned Single Judge, vide order dated 19.7.2012, on a perusal of the admitted signature of the respondent No.1 and the one appearing on the letter dated 30.9.2009, directed that the two signatures be examined by the Director, Forensic Science Laboratory(FSL) and a report be submitted on the basis of such examination. In the report, that was submitted, it was indicated that the signatures were different. The impugned judgment and order followed.
Before adverting to the competing arguments, it would be appropriate, at the outset, to enter the findings recorded by the learned Single Judge. Referring to the report dated 9.9.2010 of the Committee of two members or of the Committee constituted by the District Education Officer (Secondary), Dausa, it was held that as apparent therefrom, the respondent No.1 and some other students had been harassed by the College, so much so, that their future had been toyed with by reducing their attendance on their failure to accede to the illegal demand of money, on one pretext or the other. That on various holidays, admitted to be so, attendance of students had been wrongly recorded, was noticed. It was held as well that the respondents had not denied that the respondent No.1 had appeared in the B.Ed. examination as well as in the practical and final lessons, as per the direction of this Court, and that, though he had otherwise secured pass marks, he was declared to have failed, as his sessional marks had not been forwarded to the University by the appellant-College. The allegation that on 5.3.2010, as contained in the letter dated 6.3.2010 of the College that the respondent No.1 and his father had threatened and misbehaved with the Secretary of the College, was also disbelieved, as the father of the respondent No.1 was ill and was undergoing treatment at Jaipur, as revealed by the medical certificate as well as the order granting medical leave to him (the father of the respondent No.1). The order of the Deputy Director (Secondary), Jaipur dated 15.7.2010 dismissing the complaint of the respondent No.1 to be baseless, was also held to be void, being in violation of the principles of natural justice, as he (respondent No.1) was neither intimated of the fact that his complaint had been laid with that authority for consideration nor was he afforded any opportunity to support the same.
The learned Single Judge recorded as well that there was nothing on record to prove that the letters of warning, said to have been issued by the College to the respondent No.1, had ever been received by him. The affidavits by some students filed before the Deputy Director (Secondary), Jaipur to the effect that there was no such illegal demand, and that, the respondent No.1 did not attend the classes, were also dismissed as doubtful, as those were in the same language and had been notarized on the same date i.e.10.7.2010. It was held as well that the imputation of the College that the respondent No.1 was irregular in attending classes, and that, he used to misbehave, was incomplete and general in nature, and that its (College) denial to the imputations made by him, was also not in specific terms. It was concluded that the respondent No.1 had been shown to have failed in the examination, as inspite of the order dated 17.5.2012 and 19.5.2012, the College had not sent his sessional marks to the University. Noticing the report of the Director, FSL that the signature bearing on the letter dated 30.9.2009 said to have been written by the respondent No.1 to the College, was different from his admitted signature, the learned Single Judge took a strong exception of the attempt made by the institution to introduce a manufactured document in a court proceeding. The learned Single Judge took as well, a serious view of the averment made in the reply of the respondents No.1, 3 & 4 affirmed by the concerned District Education Officer (Secondary), Dausa, that the enquiry by the two man committee was pending, though meanwhile, it had submitted its report on 9.9.2010. This was more so, as the reply had been filed on behalf of the respondents No.1, 3 & 4 on 27.9.2010, that is after 9.9.2010. That the students of the College for the Session 2008-09 had faced a similar situation, for which they had to approach this Court, was also taken note of. The learned Single Judge recorded that in terms of the order of the Court, the respondent No.1 had attended the final lessons, but he was shown to be absent, for which his sessional marks had not been forwarded to the University. It was thus, concluded, on an overall assessment of the pleaded facts and the documents on record, that the appellant-College had wrongly declared that the respondent No.1 was deficient in attendance and had acted arbitrarily in not forwarding his sessional marks to the University. Such action was thus, held to be illegal and null & void, and the College was directed to send the sessional marks of the respondent No.1 to the University, requiring the Controller thereof to declare his results afresh, after including the same. The learned Single Judge, in the alternative, directed the Controller of Examination, University of Rajasthan to award sessional marks to the respondent No.1 on the basis of the marks secured by him in the written examination. The learned Single Judge being further of the view that the letter dated 30.9.2009 filed by the appellant-College was prima facie a forged one, as indicated by the FSL Report dated 23.7.2012, returned a finding that the appellant No.2 was liable in law therefor. That the District Education Officer (Secondary), Dausa, as named therein, was also prima facie liable for filing a false affidavit, was observed as well. As a corollary, the learned Single Judge directed the Chief Judicial Magistrate, Jaipur Metropolitan to proceed against the appellant No.2 and the District Education Officer (Secondary), as named therein under Section 340 Cr.P.C and initiate appropriate criminal proceedings against them.
The learned counsel for the appellants, with particular reference to Ordinances 142 to 144 of the respondent-University, has argued that 75% of attendance at the lectures and at the practicals, for the examination involved, is an essential condition to make a candidate eligible to appear therein, and in absence of any finding that the respondent No.1 had in fact secured the required attendance, the reliefs granted could not have been awarded to him. By the same analogy of reasoning, the interim arrangement whereunder, pending the adjudication of the writ petition, the respondent No.1 was allowed to take the examination, is of no consequence, he urged. Mr.Prasad argued that the internal test, in which sessional marks had been granted, was held between 19.3.2010 to 12.4.2010, during which, admittedly, the respondent No.1 was not allowed to attend the College, and thus, not only his claim for taking the said test is fallacious, no such marks could have been secured by him. According to the learned counsel, in that view of the matter as well, his claim to have appeared in the internal test pursuant to the interim orders of this Court, is also untrue. As the overall results is contingent of the marks obtained by a candidate in the written examination, internal tests on completion of final lessons and computer practicals, in the facts and circumstances of the case, the respondent No.1 cannot be construed to have been participated in all these essential segments of assessment, and thus, his results, that he had failed, cannot be faulted with. While contending that the allegations with regard to manipulation of attendance register, demands for illegal gratification etc., as stoutly denied by the appellant-College, give rise to seriously contentious questions of fact. The writ court is not the appropriate forum, and that, the findings recorded in the impugned judgment and order lack in finality, and thus, ought to be interfered with, he insisted. Mr.Prasad argued that not only the enquiry reports belied the allegations levelled by the respondent No.1, the affidavits filed by the other students of the College demonstrated the falsity thereof as well, and thus, the contrary conclusions recorded by the learned Single Judge are not sustainable on facts. The learned counsel pleaded that the medical certificate and the document of leave of the father of the respondent No.1 per se did not demonstrate against the correctness of the contents of the letter dated 6.3.2010 vis-a-vis the episode of intimidation and misbehaviour, as referred to therein. He referred to the relevant extract of the despatch register to maintain that the letters, in fact, had been issued to the respondent No.1 asking him to attend the classes and improve his attendance. Vis-a-vis the directions for initiating a proceeding under Section 340 Cr.P.C., the learned counsel argued that not only a copy of the FSL report had not been furnished to the appellant-College so as to enable it to rebut the findings recorded therein, in absence of any mala fide motive on the part of the persons concerned, such a course was impermissible in law. He further urged that even otherwise in absence of any imputation that the letter dated 30.9.2009 had been interfered with, after having been filed before this Court, action under Section 340 Cr.P.C. was not warranted in law. The learned counsel argued further that as the adjudication in the writ proceedings had strayed into areas uncalled for, on that ground as well, the assailed decision is liable to be interfered with. To reinforce his arguments, Mr.Prasad placed reliance on the decision of the Kerala High Court in Narayana Reddiar Vs. State of Kerala & Ors. (W.A.No.714/99 B, d/d 25.8.2000).
Mr.Mathur appearing for the respondent No.1, in reply, has argued that a bare perusal of the attendance register would reveal, in no uncertain terms, that the same had been manipulated in material particulars, and therefore, the finding to that effect, as recorded by the learned Single Judge, is unassailable. According to the learned counsel, both the reports did establish the imputations levelled by the respondent No.1. Mr.Mathur argued that not only from the first report, it is apparent that the Course involved was complete in all respects, including the final lessions, direction to the appellant-College, in that event, to forward the sessional marks of the respondent No.1 to the University, was fully justified. According to him, the affidavits filed by the students, to the effect that the respondent No.1 was irregular in attending classes, and that, there had never been any demand for illegal gratification, are manipulated on the face of the records. The impugned action of the appellant-College in not permitting the respondent No.1 to appear in the concerned examination and in not forwarding his sessional marks, was patently illegal and arbitrary, and thus, the reliefs to him, as contained in the impugned judgment and order, have been rightly granted.
The rival pleadings with the documents on record as well as arguments based thereon, have received our due consideration.
That at the relevant time, the respondent No.1/writ petitioner had been pursuing B.Ed. Course with the appellant-College, he having joined the Session 2009-10, and that, to qualify to appear in the written examination, in terms of the relevant regulations of the Rajasthan University, he was to secure 75%, are matters of records. The nucleus of the dissension leading to the lis is the representation of the respondent No.1 laid with the Collector, District Dausa alleging that the Head of the Institution (the College) had been demanding illegal gratification under various heads, which he had been meeting from time to time, and that, on his ultimate refusal to abide by such demands, after he had submitted his examination form to appear in the final exams on the completion of the Course, he was threatened that his attendance would be reduced to disqualify him, and that, he was also misbehaved with. He was eventually, rusticated from the institution on 6.3.2010 on the imputation that he and his father had approached the Secretary of the College and being unsuccessful in persuading her to improve his attendance, which was otherwise short, also intimidated her, used abusive language and also threatened her with assaults. The representation submitted before the Collector, District Dausa was dated 9.3.2010, whereupon an enquiry was ordered by the District Education Officer (Secondary), Dausa, for which the Principal, Abhaneri Government Secondary School was nominated as the Enquiry Officer. The said Enquiry Officer conducted the enquiry by visiting the College on 16.4.2010 and 19.4.2010, in course whereof, not only he examined, amongst others, the attendance register, but also the other documents laid before him by the authorities of the institution on 19.4.2010, as is evident from the letter of the even date of the Principal thereof. As records would reveal, a representation signed by the respondent No.1 and some other students, was also submitted to the Enquiry Officer, in substance, reiterating the allegation that the College administration had, on various heads, been demanding extra amounts, which was impermissible and reiterating as well that the respondent No.1 had been regularly attending the classes, and even otherwise, participating in all the institutional activities. In the report, that was submitted by the Enquiry Officer with the District Education Officer (Secondary) Dausa, it was inter alia recorded that on his first visit in connection with the investigation on 16.4.2010, the Principal of the College was not available, and though, the Secretary was present, the required records were not produced and he (Enquiry Officer) was requested to visit again on 19.4.2010. The Enquiry Officer mentioned that on that day, though about 49 students were in all present, the attendance of all enrolled was registered, which was a noticeable irregularity. Further, the teaching staff, as shown to be present, were also not found to be in attendance. The Enquiry Officer further mentioned that though the respondent No.1 was shown to be absent for 10/12 days in the month of August, it transpired that regular classes had commenced from the month of September, 2009. Further, though he was shown to be absent in the month of September, 2009, no action was taken against him and teaching lessons in full had been completed and subsequent thereto, in the month of March 2010, his name was removed. This, according to the Enquiry Officer, suggested that the rustication of the respondent No.1 had been wrongful. In course of the enquiry, the respondent No.1 reiterated his imputations, and that, the other students, on being interrogated, did endorse that the College administration from time to time, used to demand and realize additional sums, for which no receipts used to be issued, and that, they (students) could not object thereto, as not only their sessional marks used to be with the teaching faculty, but also they apprehended that the same consequence, as had ensued to the respondent No.1, would befall them. The Enquiry Officer also referred to an earlier episode of the same kind, for which a court proceeding had been initiated. At the end he, in view of the irregularities noticed by him as well as to address the problems of the students, suggested a detailed enquiry by a high level committee. It is significant to note that the documents provided by the Principal of the College to the Enquiry Officer on 19.4.2010, included inter alia the attendance register, the despatch register pertaining to the letters written by and to the respondent No.1, information to that effect that the academic sessions had started from 1.8.2009, the final lessons had been conducted from the last week of October till December, and that, his percentage was much less than the prescribed 75%.
On the receipt of this report, the District Education Officer (Secondary), Dausa constituted a Two Member Committee for another enquiry, as suggested, on 27.7.2010. This Committee conducted the enquiry accordingly and submitted its detailed report on 9.9.2010 recording its findings on various issues, as enumerated therein, which, for the sake of convenience, are set out hereunder in an English translation:
1. Lack of qualified teaching staff:
On the basis of the records furnished by the College administration, adequate qualified teaching staff was found available.
2. Illegal realization of fee and other demands :
The College administration denied the allegation and no other student also did make any statement in support thereof. Though the respondent No.1 reiterated the imputation, he could not produce any proof to that effect. Accordingly, this allegation was not established.
3. Mental and physical operation of the students :
The College administration stoutly denied this allegation and the students also could not produce any evidence in support thereof. This allegation thus, was not proved.
4. Untoward incident of assault in connection with registration of attendance :
No evidence to this effect was available, but the students did refer to a representation submitted in the year 2007 before the SDM, Bandikui and also some newspaper reports mentioning about ill treatment to them and demand for realization of additional fees from them. No such input or feedback vis-a-vis the episode involving the respondent No.1 was available.
5. Irregularities in the administration of the College :
In the representation submitted by the respondent No.1, it was submitted that the district administration had declared holidays from 12.1.2010 to 14.1.2010 and 20.1.2010 to 22.1.2010. On these dates as well, the College was found functioning. This was in contravention of the orders of the administration by the College authorities. The College administration however, did clarify that it had to be done to catch up with the attendance required by the students. No administrative order or notice was produced, and thus, it was clear that the administration of the College was being conducted in an arbitrary and autocratic manner.
6. Attendance of absent students :
The respondent No.1 alleged that the College administration arbitrarily used to record the attendance of students. The attendance register, on a scrutiny, revealed incongruencies, for instance, one student Raju Lal Meena, though had joined the Delhi Police, his attendance was continued. One student, Siya Ram Gurjar though after receiving serious burn injuries, was admitted in the SMS Hospital at Jaipur, his attendance was continued to be recorded. The total made of the attendance entries was also incorrect. The explanation provided by the College authorities was not logical and acceptable. If the attendance of one student was being recorded on the request of another, it was a clear irregularity. It thus, appeared that the grievance of the respondent No.1 that he had been wrongly shown to be absent, was well founded.
7. Other issues :
The College administration had produced affidavits by various students, substantially to the effect that in course of the earlier enquiry, their statements had not been recorded, and that, there was no flaw in the conduct of the administration of the College. These affidavits seemed to have been obtained at the instance of the College by exerting pressure on the students concerned. The preparation of the attendance register, in the face of entries in the attendance register, even on days of the holidays declared by the district administration suggested that the said documents had been prepared later on for several days together or for a month.
8. Conclusion :
There were irregularities in the matter of conduct of the administration of the College. The authorities of the College had acted unreasonably and unjustly with the respondent No.1 and the action taken against him had been harsh. The attendance register had not been prepared in the manner ought to be done. The allegation of demanding and realizing additional fees had not been proved, but it appeared that there was a fear psychosis amongst the students in this regard.
The quintessence of the conclusions recorded by this Committee is that though the imputation of illegal realization of fee and other demands was not established, there existed an environment of awe, alarm and apprehension in the minds of the students with regard thereto and the consequences stemming therefrom. That not only a litigation in the past on the issue had been initiated, the Committee recorded as well, in unequivocal terms, that the affairs of the College were being administered in an arbitrary and whimsical manner, and at times, attempts were also made to conduct the College in contravention of the orders of the District Administration. The Committee was categorical in entering a finding that the attendance register of students was laden with discrepancies and mistakes, and that, the grievance of the respondent No.1 that he had been wrongly shown to be absent in his classes, was well founded. The affidavits filed by the students in support of the stand of the College, were rejected on merits. It was observed further that the attendance register was seemingly prepared at a time for several days together or for a month. The Committee also concluded that the College had meted out unreasonable and unjust treatment to the respondent No.1, which according to it, was also harsh.
Though it had surfaced from the pleadings that the Deputy Director (Secondary), Jaipur had by his letter dated 15.7.2012, dismissed the complaint of the respondent No.1 to be baseless, no opportunity whatsoever to him to support the imputations seem to have been accorded. In that view of the matter, the conclusion of the learned Single Judge that such a decision was violative of the principles of natural justice, having regard to the consequences that visited him, cannot be faulted with. No attempt, in course of the arguments on behalf of the respondents and/or the State-respondents, has been made to affirm the validity of this decision.
Be that as it may, having regard to the composition of the Committee, that had conducted the enquiry culminating in the report dated 9.9.2010 as well as the nature, extent and quality of the inquisition made by it, we feel persuaded to accept the findings recorded by it. As it is, being a writ court, such conclusions having been recorded on the basis of a fact finding enquiry, in absence of any overwhelming materials to the contrary, there is no justifiable reason to either differ therefrom or discard the same, as absurd or untenable.
As a corollary thereof, it cannot be conclusively held that the respondent No.1 had lacked in required percentage of attendance, so as to disqualify him to appear in the B.Ed. Final Examination for the Academic Session 2009-10. The findings in both the enquiries, qua the attendance register maintained by the College and acted upon to disqualify the respondent No.1 on the ground of shortage of percentage have rendered it highly suspect. A perusal of the orders dated 13.7.2010 and 18.8.2010 passed in the writ petition reveals that thereby the respondent No.1 was permitted to appear in the said B.Ed. examination, which was scheduled to commence from 14.7.2010, with the rider that his result would be kept in sealed cover to be declared with the leave of the court. Further, he was permitted to participate in the Final Teaching Plan(Final Lesson) and appear in the computer practical to be held on 21.8.2010. By the letter dated 21.8.2010 of the respondent No.2 addressed to the Principal of the College, he, on the basis of this court's order dated 18.8.2010, sought permission to appear in the computer practical examination to be held on that date. The appellant-College had, in course of the first enquiry, amongst others, laid the information that the final lessons in the Course had been imparted from the last week of October to December. This information was furnished by its letter dated 19.4.2010, and thus, it follows that the period referred to i.e.last week of October to December, is relatable to the year 2009. The Enquiry Officer of the first enquiry did mention as well that the name of the respondent No.1 had been removed from the rolls of the College after, amongst others, the teaching lessons had been completed. To reiterate, on the prayer made by the respondent No.1, as referred to hereinabove, this Court had also permitted him to partake in Final Teaching Plan(Final Lesson).
From the above narration, it can thus, be postulated that the respondent No.1 could not have been held to be lacking in attendance to disqualify him to appear in the B.Ed. Examination 2009-2010. That he did write the said examination however, on the intervention of this Court, is also an admitted fact. His results, as produced in the Court, when examined, revealed that he had been declared to have failed, as his sessional marks not being sent to the University and, thus, had not been added to those secured by him in the written examination.
In the above factual scenario, in the opinion of this Court, the direction contained in the impugned judgment and order to the appellant-College to forward his sessional marks to the University and to declare his results by incorporating the same, is unassailable. The direction, in the alternative, that in case due to some reason, sessional marks to the respondent No.1 had not been awarded by the College, the same be quantified by the University, and on addition thereof, to those secured by him in the written examination, his results be declared, also cannot be faulted with in the singular facts and circumstances of the case, but without creating a precedent.
Qua the aspect of the proceedings directed to be lodged under Section 340 Cr.P.C., it is worthwhile to record that it was not seriously disputed on behalf of the respondents, in course of the arguments, that no opportunity had been granted to the appellant-Institution to test and/or controvert the report of the Director, FSL vis-a-vis the signature claimed by it to be of the respondent No.1 appearing in the letter dated 30.9.2009. Though admittedly, the affidavit filed by the District Education Officer (Secondary), Dausa on behalf of the respondents No.1, 3 & 4 was submitted on 27.9.2010, and that, prior thereto, on 9.9.2010, the Two Member Committee had submitted its report, the averment that the enquiry was still pending, per se, in our opinion, does not irrefutably suggest any deliberate attempt on the part of the said State functionary either to mislead the Court or to withhold the report from it. However, the averment that the enquiry is pending, is apparently wrong, and the remiss ought not to be taken lightly, it being not expected of a responsible public officer of the level involved. We are however, of the comprehension that such a lapse ipso facto, in absence of any other material on record, cannot unmistakably be construed to be redolent of any criminal intention to suppress any relevant fact or document from this Court to misguide its adjudicative pursuit. In view of this determination on these two aspects qua the letter dated 30.9.2009 and the averment in the affidavit affirmed by the District Education Officer (Secondary), Dausa vis-a-vis the enquiry conducted by the Two Member Committee, we are in respectful disagreement with the deduction drawn by the learned Single Judge, that a false affidavit and a fabricated document was filed, leading to the ultimate direction to initiate a proceeding against the District Education Officer (Secondary), Dausa, as named therein, as well as the appellant No.2 under Section 340 Cr.P.C. The decision of the Kerala High Court in Narayana Reddiar (supra) to the effect that for a preliminary enquiry envisaged in Section 340(1) Cr.P.C., the offence affecting administration of justice should have been committed during the time, when the document was in custodia legis, and not prior thereto, is also of formidable significance.
On a cumulative consideration of the relevant facts bearing on this aspect of the scrutiny, we are thus, inclined to interfere with the direction issued to the Chief Judicial Magistrate, Jaipur Metropolitan to proceed under Section 340 Cr.P.C to initiate criminal proceedings against Mr.Kamlesh Sharma, District Education Officer, Dausa and the appellant No.2-Ms. Tripta Sharma. Ordered accordingly.
The appeal is thus allowed to the extent indicated hereinabove. The impugned judgment and order stands modified accordingly. The stay application also stands disposed.
(VEERENDR SINGH SIRADHANA),J. (AMITAVA ROY),C.J. Skant/-
All the corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Shashi Kant Gaur, PA