Gujarat High Court
Jeet vs Gujarat on 16 November, 2011
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
Gujarat High Court Case Information System
Print
SCA/13441/2011 32/ 32 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13441 of 2011
With
SPECIAL
CIVIL APPLICATION No. 15424 of 2011
For
Approval and Signature:
HON'BLE SMT.
JUSTICE ABHILASHA KUMARI
=====================================================
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, 1950 or any order
made thereunder ? No
5
Whether
it is to be circulated to the civil judge ? No
=====================================================
JEET
PATEL - Petitioner(s)
Versus
GUJARAT
TECHNOLOGICAL UNIVERSITY & 1 - Respondents
=====================================================
Appearance
: (In SCA 13441/2011)
MR
MIHIR H JOSHI, SR. ADVOCATE with MR TATTVAM K PATEL for Petitioner
MR
DIPAN DESAI for Respondent No.1
Appearance
: (In SCA 15424/2011)
MS
MAMTA R VYAS for Petitioner
MR DIPAN DESAI for Respondent
No.1
=====================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 08/11/2011
COMMON
ORAL JUDGMENT
Learned advocate for the petitioner, in Special Civil Application No.13441 of 2011, has prayed for leave to correct the cause-title of the petition so as to reflect the correct name of the University. Leave to amend the cause-title accordingly, is granted.
Rule was issued on 19.10.2011 in both the petitions. It is stated by learned counsel for the petitioners that respondent No.2 has been served with notice of Rule and the affidavit of service shall be filed in the Registry by tomorrow. However, none have put in an appearance on behalf of respondent No.2 in each petition, even after service of notice. In any case, no relief has been sought against the said respondent, who is a formal party. On the facts and in the circumstances of the case, and with the consent of the learned advocates for the respective parties, the petitions are being heard and finally decided by a common judgment.
By preferring these petitions under Article 226 of the Constitution of India, the petitioners have, interalia, prayed for the issuance of an appropriate writ, order or direction, quashing and setting aside order dated 27.07.2011 passed by the respondent No.1 - Gujarat Technological University, whereby, the results of the petitioners in all the subjects of the current Semester examination have been cancelled, and they have been debarred from appearing in the next two summer / winter examinations, to be conducted by the respondent
- University. It has further been prayed that the Circular dated 03.11.2010 issued by the respondent - University, on the basis of which the punishment has been imposed, be quashed and set aside.
The factual matrix of both the petitions is similar. For the sake of brevity, the facts, as obtaining in Special Civil Application No.13441 of 2011, are being reflected. The petitioner in that case is a student, pursuing the course of Bachelor of Engineering (Mechanical) in the Sardar Vallabhbhai Institute of Technology (SVIT), Valsad (respondent No.2). He appeared for the 6th Semester Examination in the month of May/ June, 2011. Before the final results of the said examinations were declared, classes for the 7th Semester began on 28.06.2011, which were regularly attended by the petitioner. On 13.07.2011, respondent No.2
- College handed over to the petitioner, a communication addressed by the Gujarat Technological University (respondent No.1) to respondent No.2, dated 08.07.2011. By the said communication, respondent No.1 - University instructed the Principal of respondent No.2 - College to inform the petitioner to appear before the Examination Committee of respondent No.1 - University on 20.07.2011, at 10:30 a.m., in connection with an Unfair Means Case that had purportedly been registered against him. According to the petitioner, the said communication does not state the details of the Unfair Means Case, or ask for any explanation. However, the petitioner appeared before the said Examination Committee at the time and date stipulated in communication dated 08.07.2011. It is the case of the petitioner that he was informed for the first time by the Examination Committee, that he has been found guilty of indulging in unfair means and suitable punishment would be inflicted upon him. The petitioner asserted his innocence before the Examination Committee by submitting that he has not indulged in unfair means. According to the petitioner, the members of the Examination Committee informed him that, in the subject of Dynamics of Machinery, the answer to question No.3(a) of the petitioner and another student, (petitioner of Special Civil Application No.15424 of 2011) is identical, and contains the same mistakes, the petitioner has allowed the other student to copy the answer from his answer-sheet. According to the petitioner, the answer-sheets were not handed over to him but were only shown to him from a distance of approximately fifteen feet. The petitioner was made to record a statement, which he did, asserting that he is innocent and has not copied from the other student, though he was sitting behind him. Ultimately, on 18.08.2011, the authorities of respondent No.2 - College handed over to the petitioner, a copy of the impugned decision dated 27.07.2011 taken by respondent No.1 - University, whereby, the petitioner has been found guilty of indulging in unfair means. A penalty has been imposed upon the petitioner, cancelling the results of all subjects of the current Semester examination, and debarring him from appearing in the next two summer/ winter examinations. Aggrieved by the impugned decision, the petitioner has invoked the extra-ordinary jurisdiction of this Court.
Mr.Mihir Joshi, learned Senior Advocate with Mr.Tattvam K.Patel, learned advocate, appearing for the petitioner, has made the following submissions:
(I) That no show cause notice has ever been issued to the petitioner by respondent No.1 - University. The University has merely addressed a letter to respondent No.2 - College, and the petitioner has been informed by the College to appear before the Examination Committee in connection with an unfair means case. However, the details of the unfair means alleged to have been adopted by the petitioner, and the charges against him, have not been specified in the said communication. At no stage, has the petitioner been informed of the allegations or supplied with the material against him. He has, therefore, not been able to give an adequate response or explanation in his defence. The petitioner, who was unaware of the charges against him, has been deprived of an opportunity of putting up an effective defence. The action taken by respondent -
University is against the principles of natural justice, and deserves to be quashed and set aside.
(II) That the impugned decision dated 27.07.2011, is no decision in the eyes of law, as it merely states that the petitioner has been found guilty of indulging in unfair means, and a penalty as per Clause-3(d) of the Circular of the University dated 03.11.2010, has been imposed upon him. No reasons, whatsoever, for arriving at this conclusion have been stated in the said communication. Considering that a severe penalty of cancellation of results of all subjects and debarring the petitioner from appearing in the summer/ winter examinations for the next two years has been inflicted upon him, the petitioner is, at least, entitled to know the reasons for arriving at a finding that has led to the infliction of such a harsh penalty. There is no material on record to prove the nature of the allegations against the petitioner, or the inferences drawn by the Examiner in this regard. The impugned decision, being devoid of facts and reasons, is not sustainable in the eyes of law. It is a settled position of law that a decision without reasons cannot be sustained and ought to be quashed and set aside.
(III) That at no point of time has the Report of the Examiner, which appears to have been the basis of the findings arrived at by the Examination Committee, been supplied to the petitioner. The petitioner has been unable to put up an adequate defence for lack of proper details or material against him. The manner in which the Examination Committee has conducted the proceedings is violative of the principles of natural justice.
(IV) That the petitioner was informed by the Examination Committee that he has permitted another student to copy from him, whereas in the affidavit-in-reply, the University has taken a stand that the petitioner has copied from the other student, and penalty as per Clause-3(d) of Circular dated 03.11.2010, has been imposed upon him. The said Circular is merely a table, that has been prepared by the University authorities, containing a list of the types of unfair means and the corresponding punishments to be imposed. Clause-3(d) stipulates that the punishment of cancellation of results of all the subjects of the current Semester examination and debarring the student from the next two summer/ winter examinations shall be imposed if the student has "copied from another examinee or deliberately allows other examinee to copy from his own answer book or pass on the exam relevant material or literature in any form to another examinee in exam hall." No show cause notice has been issued to the petitioner to indicate that he has copied from another student or has deliberately allowed the other student to copy from him or that he is purportedly guilty of passing on the relevant material or literature to another examinee in the examination hall. The impugned decision dated 27.07.2011 does not stipulate or clarify, what type of unfair means the petitioner has allegedly indulged in, that has led to a finding of his guilt, and infliction of penalty. The Circular dated 03.11.2010 of the respondent No.1 - University does not prescribe any procedure or guidelines for arriving at a conclusion whether the punishment indicated deserves to be inflicted or not. The word `deliberately' used in Clause-3(d) of the Circular indicates that a satisfaction has to be arrived at by the authorities that the alleged conduct of the examinee is deliberate. However, no procedure has been indicated as to how such a satisfaction is to be arrived at, and none appears to have been followed by the University, and the petitioner has simply been held to be guilty of unfair means and inflicted with the punishment. Further, it is not known what is the source of power for issuance of the Circular which is ex-facie arbitrary, inasmuch as it totally ignores the procedural aspects and merely states the punishments without holding any sort of enquiry.
(V) That the punishment inflicted upon the petitioner is highly disproportionate. The result of the petitioner in all subjects have been cancelled and he has been debarred from appearing in next two summer/ winter examinations in all subjects. The petitioner is only 20 years old and his entire future and career would be marred by infliction of such a severe punishment.
(VI) That neither the Observer nor the Supervisors in the Examination Hall have reported any incident of copying in connection with the petitioner, therefore, the allegation against the petitioner is unfounded.
Ms.Mamta R.Vyas, learned advocate for the petitioner of Special Civil Application No.15424 of 2011, states that she adopts the arguments advanced by the learned Senior Advocate for the petitioner in Special Civil Application No.13441 of 2011.
The petitions have been opposed by Mr.Dipan A.Desai, learned advocate for respondent No.1 - University, by making the following submissions:
(A) That the petitioners were made aware of the charges against them and the penalty to be imposed by the Examination Committee. Even in the communication dated 08.07.2011 addressed to respondent No.2 -
College, it has been stated by the respondent - University that the petitioners are to appear before the Examination Committee in connection with Unfair Means Cases registered against them. Therefore, the letter dated 08.07.2011 can be said to be a show cause notice, and it cannot be said that the petitioners were unaware of the case against them, thus, there is no violation of the principles of natural justice. Further, the petitioners would have to prove that prejudice has been caused to them, which is not the case. Reliance has been placed upon the following judgments, on this point:
(i) State of Karnataka And Another v. Mangalore University Non-Teaching Employees' Association And Others - (2002)3 SCC 302
(ii) City Montessori School v. State of Uttar Pradesh And Others - (2009)14 SCC 253
(iii) Haryana Financial Corporation And Another v. Kailash Chandra Ahuja - (2008)9 SCC 31 (B) That the action against the petitioners has been taken on the basis of the Report of the Examiner, who found that the answers to Question No.3(a) in the subject of Dynamics of Machinery of both petitioners are identical and contain the same mistakes. The Examination Committee has found substance in the Report of the Examiner and the punishment has been rightly imposed, in accordance with Circular dated 03.11.2010. There can be no direct evidence of copying in cases such as the present one. The punishment has been inflicted after considering the written statements given by the petitioners before the Examination Committee, therefore, interference of this Court is not called for. With regard to this submission, reliance has been placed on the following judgments:
(i) Union Public Service Commission v. Jagannath Mishra - (2003)9 SCC 237
(ii) Prem Parkash Kaluniya v. The Punjab University And Others - (1973)3 SCC 424
(iii) Maharashtra State Board of Secondary And Higher Secondary Education v. K.S.Gandhi And Others - (1991)2 SCC 716
(iv) Director (Studies), Dr.Ambedkar Institute of Hotel Management, Nutrition & Catering Technology, Chandigarh And Others - (2009)1 SCC 59
(v) Dr.J.P.Kulshrestha And Others v. Chancellor, Allahabad University And Others - (1980)3 SCC 418 (C) That a reasonable opportunity of hearing has been afforded to the petitioners by the Examination Committee, before imposing the punishment. The quantum of punishment would have to be decided by an Expert Body, and this Court, in exercise of jurisdiction under Article 226 of the Constitution of India, may not substitute its view and impose lesser punishment, as per the settled position of law. The Circular dated 03.11.2010 of the respondent-University is in accordance with law, and is aimed at curbing malpractices in examinations which have to be dealt with strictly, so as to achieve higher standards of education. In the absence of Regulations, which have not yet been framed, the University has to conduct its day-to-day affairs by issuing executive instructions and the said Circular has been issued in exercise of executive powers, by the Competent Authority of the University. On the ground of proportionality, the following judgments have been referred to by the learned advocate for the respondent-University:
(i) Charanjit Lamba v. Commanding Officer, Southern Command & Ors. - AIR 2010 SC 2462
(ii) Chairman, All India Railway Recruitment Board And Another - (2010)6 SCC 614 (D) Though the Observer and the Supervisors may not have reported any incident of copying with regard to the petitioners, it cannot be presumed that no such incident has taken place. In the absence of direct evidence of copying, the Examiner has formed an opinion on the basis of indirect evidence after examining the answer-sheets of the petitioners who have given identical answers, which is sufficient for the Examination Committee to come to the conclusion that the petitioners have indulged in unfair means. As it is difficult to gain direct evidence of copying in cases such as the present one, it cannot be said that the inference drawn by the Examiner, which has found favour with the Examination Committee, is arbitrary or not based on material on record.
I have heard the learned counsel for the respective parties at length, and perused the averments made in the petitions and the contents of the documents annexed thereto.
It is clear from the material on record that no show cause notices have ever been issued to the petitioners, regarding the alleged unfair means adopted by them, and neither have they, at any point of time, been asked to render their explanations, before being summoned to appear before the Examination Committee. The only communication issued by the respondent - University is dated 08.07.2011. It is addressed by the Incharge Controller of Examinations of respondent No.1 - University, to the Principal of respondent No.2 - College, instructing the College to inform the petitioners to remain present at the stipulated date and time before the Examination Committee in connection with cases of unfair means registered against them. This communication does not contain any details of the type of unfair means allegedly indulged by the petitioners and is merely an intimation to the College, which has further informed the petitioners. By no stretch of imagination can this communication be called a show cause notice, as it neither mentions the details of charges against the petitioners nor calls for any sort of explanation from them. As such, it cannot be said that the petitioners were in a position to defend themselves adequately, being unaware of the exact nature of the allegations against them. This would definitely put them at a disadvantage, insofar as their defences are concerned. The petitioners have been straightaway summoned before the Examination Committee. The exact nature of proceedings that took place before the Committee is not on record. However, it has been asserted by the petitioners that even their answer-sheets were not given to them, but were only shown to them from a distance of about fifteen feet. This allegation has not been refuted by the respondent-University in the affidavit-in-reply. There is no material on record to indicate that the petitioners have been supplied with material in support of the allegations against them. In such a situation, there can be no adequate or effective defence on the part of the petitioners, which would cause prejudice to them.
The exact nature of the charges against the petitioners is not very clear. Nothing is stated in the impugned order regarding which of the petitioners is alleged to have copied from the other, and which of them has permitted such copying. A perusal of the impugned order dated 27.07.2011 makes it evident that the said order is devoid of facts and shorn of reasons. It merely states that the petitioners have been found guilty and are being punished as per Clause-3(d) of the Circular dated 03.11.2010, entailing cancellation of results of all the subjects of the current Semester examination and debarring them to appear in the next two summer/ winter examinations. No reasons in support of the conclusions regarding the finding of guilt are stated in the said order. It, therefore, is not possible to gauge the grounds on which the Examination Committee has arrived at this finding and what the material was, on the basis of which, the decision has been taken. It is a settled position of law that unreasoned order is not sustainable in law.
Another noteworthy aspect of the matter is that the petitioners have not been supplied with a copy of the Report of the Examiner, on the basis of which the Examination Committee appears to have arrived at the impugned decision. By not issuing the petitioners a show cause notice, not supplying the Report of the Examiner and any other material against them, the petitioners have been prejudiced. There is no material on record to indicate that the Report of the Examiner has been subjected to further scrutiny by any Body of Experts. There is also no indication that any inquiry has been conducted into the allegations against the petitioners. This aspect would assume significance keeping in view the nature of punishment inflicted upon the petitioners. As such, it is evident from the record that the principles of natural justice have not been followed by the respondent - University. The petitioners are none the wiser regarding the allegations against them and even at the stage of their appearance before the Examination Committee, their defences would be rendered meaningless and a mere formality.
For the above reasons, which emerge strongly from the material on record, this Court cannot hesitate to state that, by not issuing the petitioners a show cause notice enumerating the charges or allegations against them, by not asking for their explanation in response to the same and, by not supplying them with the copies of the Report of the Examiner and other material against them, the principles of natural justice have been violated by the respondent No.1 - University, causing prejudice to the petitioners.
It is, no doubt, true that ordinarily, the Court would not lightly interfere in decisions taken by educational institutions, in educational matters. There can be no two opinions that the standards and purity of education ought to be maintained, and with this purpose in mind, the action taken by educational institutions in cases where unfair means are alleged to have been adopted, ought to be sustained. At the same time, it cannot be denied that any action taken by educational institutions is required to conform to the settled principles of law and fair play. The said action should be free from the taint of arbitrariness, which would go to the very root of the matter. When the action taken against any student (in this case, the petitioners) causes prejudice and entails civil consequences, it would be all the more necessary to follow the principles of natural justice. An opportunity of hearing should not merely be an empty formality, as in the present case, but should be a reasonable and adequate one, enabling the student to put up an effective defence. Not issuing a show cause notice or supplying the Report of the Examiner and other material to the petitioners, has resulted in a situation where the hearing before the Examination Committee has been rendered a mere formality, as the opportunity of hearing granted to the petitioners is neither reasonable, nor adequate. The petitioners have been deprived of an adequate opportunity to defend themselves which has caused prejudice, especially in view of the severe nature of the punishment imposed upon them.
In Malavkumar Arunbhai Patel v. Sardar University And Others - 2007(1) GLR 413, this Court, after considering various judgments of the Supreme Court, has held as below:
"22. The provisions of Section 23(xxxii) of the Act make it clear that the Syndicate was fully empowered to constitute the "Unfair Means Committee". Therefore, the ground taken by the petitioner that the Committee, being contrary to the Ordinance of the University, had no power to inflict the punishment upon the petitioner and that the proceedings should be declared null and void is not correct and is not accepted.
23. Any action taken by an administrative or quasi judicial authority which entails civil consequences should only be taken after complying with the principles of natural justice. Although the principles of natural justice cannot be put into a strait-jacket formula, it cannot be disputed that the doctrine of natural justice exists not only to secure justice but also to prevent the miscarriage of justice. It is true that strict rules of evidence do not apply in proceedings such as those which took place in the case of the petitioner before the "Unfair Means Committee". However, even the requirement of preponderance of probabilities has not been adhered to since the impugned Notification dated October 4,2000 as well as the Minutes of the proceedings which led to the passing of the impugned order do not disclose the material which was available with the committee which pointed out the involvement of the petitioner in the incident. In that view of the matter, the impugned order is also not a speaking one and does not disclose the reasons or the grounds on which the decision to permanently debar the petitioner has been taken.
24. In A.K.Kraipak v. Union of India, reported in AIR 1970 SC 150 the aim and relevance of the principles of natural justice have been clearly enunciated by the Constitution Bench of the Supreme Court in para 20 thereof, which reads as under:
"20.
The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet esse judex propria causa), and (2) no decision shall be given against a party 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 as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala, Civil Appeal No. 990 of 1968, D/- 15-7-1968 = (AIR 1969 SC 198) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the 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."
25. Further in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, reported in (2001)1 SCC 182, the Supreme Court has held as under in paragraphs 1 and 2 of the reported judgment:
"Since the decision of this Court in Kraipak's case (A. K. Kraipak v. Union of India) one golden rule that stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. What, however, does this doctrine exactly mean? Lord Reid about four decades ago in Ridge v. Baldwin very succinctly described it as not being capable of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances - who then is a reasonable man - the man on the clapham omnibus? In India, however, a reasonable man cannot but be a common man similarly placed. The effort of Lord Reid in Ridge v. Baldwin in not attributing a definite meaning to the doctrine but attributing it to be representing a fair procedure still holds good even in the millennium year. As a matter of fact this Court in the case of Keshav Mills Co. Ltd. v. Union of India upon reliance on the attributes of the doctrine as above stated as below (SCC p.387,para
8) "8.
The second question, however, as to what are the principles of natural justice that should regulate an administrative act or order is a much more difficult one to answer. We do not think it either feasible or even desirable to lay down any fixed or rigorous yard-stick in this manner. The concept of natural justice cannot be put into a strait-jacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly. See, for instance, the observations of Lord Parker in H. K. (an infant), In re. It only means that such measure of natural justice should be applied as was described by Lord Reid in Ridge v. Baldwin case as 'insusceptible of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances'. However, even the application of the concept of fair-play requires real flexibility. Everything will depend on the actual facts and circumstances of a case. As Tucker, L.J observed in Russell v. Duke of Norfolk:
"The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with and so forth."
2. While it is true that over the years there has been a steady refinement as regards this particular doctrine, but no attempt has been made and if we may say so, cannot be made to define the doctrine in a specific manner or method. Strait-jacket formula cannot be made applicable but compliance with the doctrine is solely dependent upon the facts and circumstances of each case. The totality of the situation ought to be taken note of and if on examination of such totality, it comes to light that the executive action suffers from the vice of non-compliance with the doctrine, the law courts in that event ought to set right the wrong inflicted upon the person concerned and to do so would be a plain exercise of judicial power. As a matter of fact the doctrine is now termed as a synonym of fairness in the concept of justice and stands as the most-accepted methodology of a governmental action."
26. It is now an accepted proposition of law that any statutory body which is entrusted by statute with discretion, must act fairly. It does not matter whether its functions are described as judicial or quasi-judicial on the one hand, or as administrative on the other. Even an administrative order, which involves civil consequences must be made consistently with the rules of natural justice. Although the expression 'civil consequences' has not been defined anywhere, the observation made in Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 at para-66 on page 440 is relevant in this context and reads as below:
"What is civil consequence, let us ask ourselves, by passing verbal booby-traps? 'Civil consequences' undoubtedly cover infraction of not merely property or personal rights but of civil liberties material deprivation and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence"
27. The permanent debarring of the petitioner from appearing in any examinations conducted by the University and from seeking admission in any of the courses to be conducted by the University, no doubt entails serious civil consequences. In these circumstances, the rule of Audi Alteram Partem should have been followed by the respondents. The principle that no man should be condemned unheard and both sides must be heard in order to ensure fairness on the part of the deciding authority or body before passing any order is well known. A person against whom any action is sought to be taken which entails civil consequences must have knowledge about the allegations/ charges/materials against him on the basis of which such a decision is sought to be taken.
28. The Committee such as the "Unfair Means Committee"
constituted by the respondent No.1 can be said to be acting quasi-judicially, although the Statute may not provide, in so many words, that the authority passing the order is required to act judicially. The very nature of rights affected are such that the authority passing the order is, in fact, required to act judicially and in accordance with the rules of natural justice. Fairness in action is a fundamental ingredient of the principles of natural justice wherein justice should not only be done but should also manifestly be seen to be done, in order to ensure that the authority arrives at a just decision which affects the rights of a person."
As already noted hereinabove, the impugned decision dated 27.07.2011 is totally devoid of reasons and indicates non-application of mind, rendering it unsustainable in law. In this regard, reference may be made to a judgment of the Supreme Court in State of Rajasthan v. Rajendra Prasad Jain - JT 2008(3) SC 159.
The relevant extract is reproduced below:
"7.
The trial Court was required to carefully appraise the entire evidence and then come to a conclusion. If the trial Court was at lapse in this regard, the High Court was obliged to undertake such an exercise by entertaining the appeal. The trial Court on the facts of this case did not perform its duties, as was enjoined on it by law. The High Court ought to have in such circumstances granted leave and thereafter as a first court of appeal, re-appreciated the entire evidence on the record independently and returned its findings objectively as regards guilt or otherwise of the accused. It has failed to do so. The questions involved were not trivial. The effect of the admission of the accused in the background of testimony of official witnesses and the documents exhibited needed adjudication in appeal. The High Court has not given any reasons for refusing to grant leave to file appeal against acquittal, and seems to have been completely oblivious to the fact that by such refusal, a close scrutiny of the order of acquittal, by the appellate forum, has been lost once and for all. The manner in which appeal against acquittal has been dealt with by the High Court leaves much to be desired. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief in its order, indicative of an application of its mind; all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court order not sustainable.
Similar view was expressed in State of U.P. v. Battan and Ors. (JT 2000(8) SC 50: 2001(10) SCC 607). About two decades back in State of Maharashtra v. Vithal Rao Pritirao Chawan (AIR 1982 SC 1215) the desirability of a speaking order while dealing with an application for grant of leave was highlighted. The requirement of indicating reasons in such cases has been judicially recognized as imperative. The view was re-iterated in Jawahar Lal Singh v. Naresh Singh and Ors. (JT 1987(1) SC 388 : 1987 (2) SCC 222). Judicial discipline to abide by declaration of law by this Court, cannot be forsaken, under any pretext by any authority or Court, be it even the highest Court in a State, oblivious to Article 141 of the Constitution of India, 1950 (in short the 'Constitution').
8.
Reason is the heartbeat of every conclusion, and without the same it becomes lifeless. (See Raj Kishore Jha v. State of Bihar and Ors. [JT 2003 (Suppl.2) SC 354]).
9. Even in respect of administrative orders, Lord Denning M.R. in Breen v. Amalgamated Engineering Union [1971 (1) All E.R. 1148] observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120](NIRC) it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.
10. The above position was highlighted in State of Orissa v. Dhaniram Luhar [JT 2004 (2) SC 172 : 2004(5) SCC 568].
11. Therefore, the impugned order of the High Court cannot be sustained and is set aside, and matter is remitted to it. The High Court shall take up the matter afresh and dispose of the same in accordance with law. The appeal is allowed without any order as to costs."
(emphasis supplied) Insofar as the Circular dated 03.11.2010 is concerned, it is in the nature of executive instructions, issued by the University. Section 43 of the Gujarat Technological University Act, 2007 ("the Act"
for short) empowers the Board of Governors of the University constituted under Section 15, to make regulations regarding the procedure to be followed by the Board or any Committee or Body constituted under the Act or by the Regulations in the conduct of business, exercise of powers and discharge of its functions. Clause
(ix) of sub-section (2) of Section 43 permits the framing of Regulations for the conduct of examinations, including the term of office and appointment of examiners. It is an admitted position that no Regulations have been framed by the respondent - University and the Examination Committee appears to have been constituted on the basis of executive instructions. It is also an admitted position that the Circular dated 03.11.2010 is the result of exercise of executive power. A perusal of the said Circular reveals that it is merely a table enumerating different types of unfair means, with corresponding penalties to be imposed for them. It does not prescribe any procedure or guidelines, or provide for any sort of enquiry before imposition of the penalty. Neither does the said Circular indicate which authority of the University is vested with the discretion and power to arrive at a satisfaction, that a case of unfair means, as indicated in the Circular, has been made out, and penalty ought to be imposed. Clause-3(d) of the Circular, which is the clause applied in case of petitioners, reads thus:
"d. Copied from another examinee or deliberately allows other examinee to copy from his own answer book or pass on the exam relevant material or literature in any form to another examinee in exam hall."
It is not at all clear in the present cases which of the petitioners is alleged to have copied from whom, or vice-e-versa. The use of the phrase "deliberately allows" in Clause-3(d) indicates that a satisfaction has to be arrived at by the Competent Authority to indicate that the action of the examinee is deliberate. It is not clear who the said authority is, and what procedure is to be adopted before arriving at a finding of guilt. The impugned decision does not throw any light on this aspect. No doubt, the respondent - University would have to resort to issuance of executive instructions in order to conduct its day-to-day affairs, in the absence of Regulations. However, executive instructions are required to meet with the requirements of law. In the present case, the wording of Clause-3(d) of the impugned Circular would indicate that some kind of inquiry is contemplated before the Competent Authority arrives at a satisfaction that an examinee has copied from the other, or deliberately allowed the other to copy from his, or her, answer-sheet. No procedure or enquiry has been prescribed in the said Circular, and none appears to have been followed by the respondent - University before taking the decision. As such, mere recital of the said clause and imposition of the corresponding punishment, may leave room for arbitrariness, vitiating the decision. The Court is consciously not quashing the Circular dated 03.11.2010 as no Regulations have been framed by the University in this regard, though it is found to be far from satisfactory. If the Circular is quashed, the University would be left with no means to tackle cases of unfair means, which situation ought to be avoided. It is stated by the learned advocate for the respondent - University, that Draft Regulations have been framed but have not yet been passed by the Competent Authority of the University. The University has been established in the year 2008, and it would be in the interest of the University and its students that Regulations for conduct of examinations be framed and brought into operation at the earliest.
Insofar as the proportionality of the punishment is concerned, this Court does not consider it appropriate to go into this aspect, in view of the conclusion arrived at.
It cannot be denied that the punishment imposed upon the petitioners entails serious civil consequences. In the view of this Court, the stricter the punishment, the more the need arises to adhere scrupulously to the principles of natural justice, and follow the rule of Audi Alteram Partem.
It is a settled position of law that even an administrative order, which entails civil consequences, must be passed in consonance with the principles of natural justice. In the present case, not only have the principles of natural justice been given a go-bye, but the petitioners have been gravely prejudiced by this action of respondent-University.
For the aforestated reasons, the petitions are partly-allowed. The impugned communication dated 27.07.2011, in respect of both the petitioners, is quashed and set aside, as being violative of the principles of natural justice, devoid of reasons. If the results of the examinations in which the petitioners have appeared, have not already been declared, they may be declared, and the petitioners be permitted to continue to attend classes and take further examinations, until and unless they are debarred from doing so, by an order passed in accordance with law.
It is clarified that this Court has interfered for the reasons indicated above, and not entered into the merits of the case, therefore, the judgments cited by the learned advocate for the respondent - University have not been discussed in detail. It is, however, always open to the respondent - University to take action, in accordance with law.
Rule is made absolute, to the above extent. There shall be no orders as to costs.
(Smt. Abhilasha Kumari, J.) (sunil) Top