Madhya Pradesh High Court
Aashima Goyal vs Pandit Dwarka Prasad Mishra Iiitdm ... on 2 July, 2015
Equivalent citations: AIR 2015 MADHYA PRADESH 130, (2015) 147 FACLR 1090
Author: Vandana Kasrekar
Bench: Vandana Kasrekar
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 12126 of 2014
Aashima Goyal
- V/s -
Pt. Dwarka Prasad Mishra IIITDM and others
Present : Hon'ble Shri Justice Rajendra Menon.
Hon'ble Ms. Justice Vandana Kasrekar.
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Shri Amitabh Gupta, counsel for the petitioner.
Shri A.P. Singh, counsel for respondent Nos. 1, 2 and 4.
None for respondent No.5, even though reply filed.
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Whether approved for reporting: Yes / No.
ORDER
02/07/2015 Petitioner is a student of B. Tech (Electronics and Communication Engineering) in Pandit Dwarka Prasad Mishra IIITDM Institute, Jabalpur. On 30.11.2013, petitioner appeared in the First Semester, First Year Examination for the said course and when a paper in the Subject - Effective Communication (Subject Code HS101), was being conducted, petitioner was found to be in possession of a mobile in the Examination Hall. The Invigilator seized the mobile and according to the petitioner she handed over the mobile to the Invigilator and explained the reasons why she was carrying the mobile and tried to justify her bonafide in keeping the mobile at the time of the Examination.
2- It is said that after this incident took place, petitioner was communicated about cancellation of her Examination in the subject in Writ Petition No :: 12126 / 2014 2 Aashima Goyal Vs. Pandit Dwarka Prasad Mishra IIITDM, Jabalpur & ors question vide Annexure P/1. According to the petitioner, alongwith her four or five other students, who were also found carrying mobile were dealt with in the same manner and this communication - Annexure P/1 was to all such students. Apart from the aforesaid, it is said that in the subject and paper in question bearing Code HS101, petitioner was granted Grade D. After these punishments were imposed upon the petitioner, it is said that to her surprise on 27.3.2014 i.e... after about three months of issuance of Annexure P/1, on 5.12.2013, she was issued another order of punishment intimating her that she has been imposed with a punishment of drop in semester due to her involvement with regard to cheating in the examination.
3- Petitioner through her parents is said to have filed an appeal vide Annexure P/5 and when the same was also rejected, this writ petition has been filed.
4- Shri Amitabh Gupta, learned counsel for the petitioner, invited our attention to the Manual of Procedure and Guidelines for Bachelors of Technology Programme (UG Manual) [hereinafter referred to as „UG Manual‟] - Annexure P/8 and argued that the procedure for taking disciplinary action in case of academic dishonesty is contained 6.1 onwards of this Manual. Learned counsel refers to Clause 6.3 of the Manual to say that if a student is found using unfair means in the examination, the action proposed to be taken is contemplated from Clause 6.3.1 and Clause 6.3.2 indicates the four levels of punishment that can be imposed. It is argued by learned counsel that the concerned Instructor Incharge is authorized under this provision to impose any of the penalties contemplated from Level I to Level III, and in case of serious offence, the matter has to be referred to SACS, namely the Student Advisory Committee.
5- Shri Amitabh Gupta, learned counsel for the petitioner, submits that in this case the punishment contemplated under Level I, II and III was already imposed upon the petitioner and inspite of the Instructor Incharge having exercised his power, the matter was referred to the SACS and the punishment imposed i.e... drop of semester is Writ Petition No :: 12126 / 2014 3 Aashima Goyal Vs. Pandit Dwarka Prasad Mishra IIITDM, Jabalpur & ors contrary to the UG Manual. Apart from raising the aforesaid ground, learned counsel took us through the explanation given by the petitioner and argued that the explanation of the petitioner has been misconstrued as admission and the impugned action taken. Learned counsel submitted that except for seizure of the mobile from the petitioner, it was not proved that the petitioner was using the mobile for copying or cheating and no material in the mobile, which was useful for the subject and examination in question, is recovered. Learned counsel refers to the opinion received by the petitioner under the Right to Information Act vide Annexure P/4; the proceedings of the SACS and argues that if the aforesaid documents available and filed as Annexure P/9 are evaluated, it would be seen that there is nothing which goes to show that the petitioner was cheating by using the mobile. It is argued by him that inspite of the aforesaid, the petitioner has been visited with the severe punishment of drop of one semester.
6- Learned counsel further argued that alongwith the petitioner as indicated in Annexure P/1, four more students were proceeded against including one Simi Kumari, but in her case no such punishment of dropping of the semester was imposed. It is said that the same amounts to discrimination.
7- Shri Amitabh Gupta, learned counsel further invites our attention to the recommendations of the SACS as contained in Annexure P/2 dated 6.1.2014 and submits that one of the Members of the Council had dissented from the decision taken by the Council and if the dissent note is perused, it would be seen that no case of cheating is made out, except for the fact that the petitioner was in possession of the mobile, there was no evidence to show that the mobile was used for cheating. 8- Shri A.P. Singh, learned counsel appearing for the Institute refuting all the contentions took us through the return, the additional documents and the other material filed and argued that in this case the action is taken against the petitioner on the basis of the procedure contemplated and prescribed in the Manual of Guidelines and Procedures of Students Advisory Committee of the Senate (SACS) - Writ Petition No :: 12126 / 2014 4 Aashima Goyal Vs. Pandit Dwarka Prasad Mishra IIITDM, Jabalpur & ors Annexure R/8 {hereinafter referred to as „SACS Manual} and as the punishment is imposed in accordance to this Manual, petitioner cannot have any grievance. Learned counsel took us through the provisions of Clause 3.2.2.7 of the aforesaid Manual and argued that the punishment imposed is proper. Learned counsel further submits that the UG Manual
- Annexure P/8 relied upon by the petitioner is not applicable. It came into force on 4.6.2014 and was not applicable in November 2013, when the incident took place.
9- That apart, Shri A.P. Singh - learned counsel, submits that in this case as respondent No.5/Incharge Instructor was herself a witness, therefore, the Dean of the Academic Council on 11.12.2013 referred the matter to SACS as is evident from the endorsement made in Annexure R/1, the report of cheating, and he further took us through the admission made by the petitioner in her communication filed as Annexure R/7 to say that the petitioner having admitted the guilt, now she cannot have any grievance in the matter. Learned counsel also invites our attention to the document - Annexure R/9 dated 12.2.2014, statement of respondent No.5, and submits that the entire action is taken in accordance with the Rules. As far as the question of discrimination is concerned, learned counsel argues that the grounds of discrimination are not made out, the case of each individual is different, it depends on the facts and circumstances of each case and by referring to the proceedings of the SACS - Annexure R/2, he submits that with regard to Simi Kumari, a different consideration has been made and the SACS itself has distinguished the case of the present petitioner with that of this person. Shri Singh, learned counsel, argues that the petitioner having been caught cheating in the examination, no further indulgence in the matter is called for.
10- Shri Amitabh Gupta, in rebuttal, argued that at the instance of respondent No.5 and the competent authority, once the entire case was considered and an appropriate punishment was issued in accordance to the UG Manual, then there is no occasion for taking further action by referring the matter to SACS. Learned counsel for the petitioner submits Writ Petition No :: 12126 / 2014 5 Aashima Goyal Vs. Pandit Dwarka Prasad Mishra IIITDM, Jabalpur & ors that the statement - Annexure R/9 submitted by respondent No.5 is nothing but an after-thought, it is a concocted document and once the matter was decided by imposing the punishment under the UG Manual, there was no occasion for obtaining statement from respondent No.5 on 12.2.2014.
11- WE have heard learned counsel for the parties at length and perused the records.
12- The first and foremost question which we are required to consider is as to what is the procedure contemplated in the establishment of the respondent for dealing with such cases. It is the case of the petitioner that the procedure is contemplated in Annexure P/8 - UG Manual; whereas it is the case of the respondents that it is covered under Annexure R/8 - SACS Manual. That being so, at the very outset we propose to take note of both these documents and consider this question. 13- The UG Manual - Annexure P/8 is an elaborate manual and the preamble of this Manual indicates that it has been issued detailing the objectives for conducting the UG Programme in the Institute of the respondent. The UG Manual sets out the requirement of the UG Programme and contains detailed procedure for conduct of the Programme. The UG Manual lays down the procedure for admission; academic session; semester registration; various aspects pertaining to conduct of the course; grading; performance; assessment; examination; manner of awarding of Grades; Auditing of the course; Academic deficiencies; and, various other technical aspects for conduct of the Course and finally Clause 6 of this Manual speaks about academic dishonesty. Under Clause 6.1 of the preamble, unfair means is treated to be academic dishonesty and a detailed procedure for taking action against students using unfair means is laid down under this Chapter and in Clause 6.3 the action to be taken is provided. Clause 6.3.1 contemplates that the Instructor Incharge of a Course shall have the power to debar a student from the Examination in which the student is found using unfair means and in Clause 6.3.2, it is indicated that if Writ Petition No :: 12126 / 2014 6 Aashima Goyal Vs. Pandit Dwarka Prasad Mishra IIITDM, Jabalpur & ors someone is suspected to be using unfair means, the procedure contemplated therein has to be followed.
14- Under sub-clauses (i), (ii) and (iii) of Clause 6.3.2, the following procedure and punishment is laid down:
"(i) Concern Instructor-in-charge will investigate the case at his level. If it is in examination hall, invigilator will investigate the case.
(ii) The student must be informed in writing as soon as possible and given the opportunity to provide an explanation for their actions. Instructor-in-charge of the course will decide the level of unfair means and takes a decision out of;
Level I : Making assessment of that part of the exam zero.
Level II: Imposing a penalty of decrease in final grade by one or two grade points.
Level III: Marking „F‟ in that particular course.
Level IV: Instructor may refer a more serious case to SACS, providing there is sufficient and clear evidence to demonstrate the serious use of unfair means. Claims by the student not to have understood the nature of unfair means, to have included the material unintentionally, or to have personal mitigating circumstances, should not be accepted as good reason for the case to go unreported. These may be significant issues for the student not the facts of the case.
(iii) In case, the case is referred to SACS, SACS will investigate it. Student will be called in person to be interviewed by the committee. The SACS will take a decision on the same and will inform to the Academic section."
15- As far as Annexure R/8 is concerned, it is a Manual of Guidelines and Procedures of Students Advisory Committee of the Senate - referred to as SACS Manual, and in Clause 2, procedure for advising defaulting students and various other aspects with regard to complaint against the student and power of this Committee are indicated. Writ Petition No :: 12126 / 2014 7 Aashima Goyal Vs. Pandit Dwarka Prasad Mishra IIITDM, Jabalpur & ors 16- If we go through the detailed procedure contemplated under Clause 6 in the UG Manual - Annexure P/8 and if we see the procedure laid down in Clause 6.3.2, which is reproduced hereinabove, it would be clear that under the UG Manual, the Instructor-in-charge is given the power to investigate the case of unfair means at his level and after giving opportunity to the student, three level of punishments are contemplated under this Clause, which can be imposed by the Instructor-in-charge. Level I punishment is making assessment of that subject or examination zero. Level II - imposing a penalty of decrease in final grade by one or two grades. Level III - marking „fail‟ in the particular course. Thereafter, Level IV indicates that if the Instructor-in-charge feels that the allegations are more serious, he may refer the matter to SACS. 17- It is, therefore, clear from the procedure contemplated in this UG Manual - Annexure P/8 that the Instructor-in-charge of the course is the first person who is authorized to take action in cases of unfair means and impose the punishment contemplated under Levels I, II and III; and, if he feels that the matter is serious, instead of imposing punishment under Level IV, he may refer the matter to SACS, and it is when the matter goes to SACS that the procedure contemplated under Annexure R/8 - SACS Manual, which is to be followed. 18- That being so, we are unable to accept the contention of Shri A.P. Singh to say that the procedure contemplated under UG Manual - Annexure P/8 is not to be followed and it is only the procedure contemplated under SACS Manual - Annexure R/8 which has to be followed. Infact, when a UG student is found using unfair means in the examination, the Instructor-in-charge is to follow the procedure laid down in UG Manual - Annexure P/8 and if he finds that the matter is so serious that it has to be referred to SACS without taking any action, he may refer the matter to SACS and it is then that the procedure contemplated under Annexure R/8 which is to be followed, that is when the matter is placed for consideration before the SACS. 19- In this case, once the Instructor-in-charge or the authorized person has already taken a decision in accordance to the requirement of Writ Petition No :: 12126 / 2014 8 Aashima Goyal Vs. Pandit Dwarka Prasad Mishra IIITDM, Jabalpur & ors Clause 6.3.2 of Annexure P/8 and has imposed the punishment as contemplated in Levels I, II and III, then there is no question of referring to the matter to SACS under Level IV. That being so, we find much force in the arguments advanced by Shri Amitabh Gupta, learned counsel for the petitioner.
20- During the course of hearing Shri A.P. Singh tried to indicate that the UG Manual came into force on 4.6.2014 and as this incident took place in November 2013, the same is not applicable. This argument of Shri A.P. Singh is wholly misconceived. In the document Annexure P/8 it is only indicated that the UG Manual was last updated on 4.6.2014. It speaks about updation of the Manual and not about its enforcement from 4.6.2014.
21- A complete reading of Annexure P/8 and Annexure R/8 makes us to come to a conclusion that Annexure P/8 is a complete Manual detailing the complete procedure for conduct of the UG Course, apart from laying down various procedures to be followed for conduct of the course, the Manual contemplates a procedure for taking disciplinary action and, therefore, in this case when the action is taken by the Instructor-in-charge in accordance to the requirement of UG Manual, we see no reason as to why after this was concluded the matter was referred to SACS.
22- Accordingly, we are of the considered view that once punishment was imposed by following the procedure contemplated under the UG Manual then taking recourse to the remedy under Level IV of Clause 6.3.2 to refer the matter to SACS was not at all warranted. To that extent the action of the respondents is illegal and cannot be upheld by us.
23- We may also take note of certain other features in this case which makes us to interfere into the matter and quash the punishment imposed by the SACS.
24- If we take note of the procedure followed in the present case, it would be seen from the documents available on record that when the examination was being held on 30.11.2013, the petitioner was found Writ Petition No :: 12126 / 2014 9 Aashima Goyal Vs. Pandit Dwarka Prasad Mishra IIITDM, Jabalpur & ors to be carrying a mobile in the examination hall. In the answer book of the petitioner, first page of which is filed by the respondents as Annexure R/1. On the top of the answer-sheet, the invigilators - two of who are present and whose name is given as M.S. Parihar and Varun Bajaj, indicates that the candidate is caught using a mobile and they affixed their signatures on 30.11.2013. The signature of the examinee is available and thereafter an endorsement is made by the petitioner to say that „I was having mobile in my possession during the exam‟. Now, after this is done on 30.11.2013, Annexure P/1 is issued imposing the punishment of cancelling the semester examination of the petitioner for the subject HS101 and the petitioner is communicated the same. After this is done and when action is taken and the petitioner is also granted „D‟ Grade in the subject and she is declared „fail‟, as is evident from her Grading - Annexure P/3, it is not known as to why an endorsement is made in the answer book on 11.12.2013 to say that the case be referred to SACS for a decision. Once the entire matter was concluded in accordance to the requirement of UG Manual, the reason for referring the matter to SACS on 11.12.2013 is not clear.
25- It was the specific case of the petitioner that respondent No.5, who is the instructor-in-charge has not referred the matter to SACS. In answer to this respondents say that respondent No.5 was a witness and had gone to the hall and seized the mobile from the petitioner, therefore, it was some higher authority which referred the matter to SACS. But in her statement - Annexure R/9, respondent No.5 does not say so. That apart, respondents have not indicated as to why the matter was referred to SACS once the punishment vide Annexure P/1 was imposed and the Grading - Annexure P/3 issued to the petitioner. Therefore, it is a case where reference of the matter to SACS after the entire proceedings were completed as per Level I, II and III of the UG Manual seems to be illegal. Further, we find that when the matter was taken up before the SACS and in the proceedings of SACS dated 8.2.2014 - Annexure R/2, the discussion with regard to the petitioner in paragraph 3 is taken note of, it only indicates that the petitioner was in Writ Petition No :: 12126 / 2014 10 Aashima Goyal Vs. Pandit Dwarka Prasad Mishra IIITDM, Jabalpur & ors possession of a mobile and there is no finding in this that the mobile was containing material which could be used for copying in the examination or it contained material which could be useful for the subject and the examination in question. The proceedings of this Committee only show that the petitioner had the mobile, she is seen to be looking at the mobile and, therefore, an inference is drawn to say that she is copying. On the contrary, one of the Members of the Committee who has given a dissent note says that the petitioner was actually ill during the examination time that was the reason why she carried the mobile into the hall. This dissent note also says that there is serious mis-communication in the matter and in the mobile there was no material in the form of PDF or otherwise. On the contrary, the mobile was kept in a hanged state. Further to this document the information supplied to the petitioner under the Right to Information Act i.e.... vide Annexure P/9 by the Deputy Registrar of the Institute, it seems to be a report of a Committee, signed by four members. It is not dated and it is addressed to the Chairperson, the Senate of the Institute. According to the petitioner and the affidavit filed by her, this is a recommendation of the Committee which was given to the petitioner when she asked for the same under the Right to Information Act. If we go through the proceedings of this Committee, it indicates that as recommended by the Chairperson, the SACS committee was called on 17.1.2014 at 4.00 PM. The petitioner was asked to present additional facts before the Committee and after considering the same, the Committee took note of the following six points:
"(1) Ashima was carrying mobile during examination. (2) Mobile was in on-condition (she pleaded out of ignorance).
(3) She was keeping mobile on her lap (she pleaded that out of anxiety she did it).
(4) Invigilators of that room reported that she was seen looking down continuously as if looking for something.
Writ Petition No :: 12126 / 2014 11 Aashima Goyal Vs. Pandit Dwarka Prasad Mishra IIITDM, Jabalpur & ors (5) As soon as Mr........ reported about Ashima being cheating, they requested Dr. ...... to come and check about use of unfair means. The case was registered and the mobile was seized.
(6) Next day she requested Mr. ......, ......... to allow her take down important phone numbers. He as well as Mr. ....... saw her deleting the pdf files that have been used as evidence."
And, if we peruse the original document available on record, we find that after the word „Mr.‟ the name has been scored off by dark black ink and finally the Committee records the following opinion:
"Looking at the above mentioned facts, committee is of the opinion that her intention can been seen as ignorance or anxiety. Though, the committee neither could get witness nor that she was cheating using her mobile (lack of evidence). Committee could not get Mr........ version as she was out station."
(Emphasis supplied) 26- This clearly shows that the Committee could not get any witness to indicate that she was cheating using the mobile and the Committee classifies this case as a case „lacking in evidence‟. Inspite of this, it is surprising that the petitioner has been severely punished. This aspect of the matter has been totally lost sight of by the competent authority while imposing the impugned punishment on the petitioner. 27- That apart, it was vehemently argued by Shri A.P. Singh that in her statement petitioner had admitted to have committed the allegation levelled against her and in this regard reference was made to her statement filed alongwith the return - Annexure R/7. Annexure R/7 is the statement given by the petitioner on 13.1.2014, it is in her own handwriting and it is signed by her. We have gone through the statement and we find that it is a letter addressed to the Dean of Students, and she says that she is sorry for having broken the Rules of the Institute by carrying the Mobile into the Hall. She feels sorry for the same and she Writ Petition No :: 12126 / 2014 12 Aashima Goyal Vs. Pandit Dwarka Prasad Mishra IIITDM, Jabalpur & ors says that from morning of that day she was not well, she had taken medicines that were given by the Doctor, she was having dysentery and her mother had advised to keep the mobile with her. She says that by mistake the mobile was kept in her jeans back pocket. She noticed the same after 30 minutes of the commencement of the examination, she took it out and kept it on her lap. A complete reading of this letter goes to show that in this letter the petitioner only speaks about the mobile being present with her and she gives her justification for keeping the mobile with her, but she nowhere says that she was using the mobile for the purpose of cheating and there is no whisper by her so as to say that she admits the allegation of cheating, by use of the mobile. Contention of the respondents that the petitioner admits about cheating in the examination in her communication - Annexure R/7 is not correct. What the petitioner admits in this communication is that she was carrying the mobile with her at the time of examination. If that be so and if the overwhelming documents, including the proceedings of the Committee referred to by us as indicated hereinabove and received by the petitioner under the Right to Information Act, is taken note of, it would be seen that what is found proved against the petitioner is that she was carrying a mobile in the examination hall, may be in an unauthorized manner contrary to the rules, but there is no evidence or material to show that the mobile was being used by her for the purpose of cheating. 28- If that be the position, then the proceedings of SACS filed by respondent as Annexure R/2 dated 8.1.2014, indicates that one Simmi Kumari with Roll No.2011146 was also found carrying a mobile in the examination hall. She also surrendered the mobile and in her case treating it to be ignorance she had been warned not to repeat the same in future. Contention of Shri Amitabh Gupta to say that the petitioner has been discriminated upon seems to be correct.
29- WE have bestowed our anxious consideration to the totality of the facts and circumstances that are indicated hereinabove, and we are of the considered view that once after following the procedure contemplated under the UG Manual, the punishment as contemplated Writ Petition No :: 12126 / 2014 13 Aashima Goyal Vs. Pandit Dwarka Prasad Mishra IIITDM, Jabalpur & ors under Level I, II and III was imposed upon the petitioner, there was no necessity or occasion for referring the matter to SACS and as already held by us the whole action stands vitiated as the entire proceedings before SACS was illegal. That apart, the decision taken by the respondents in the matter of cancelling the entire semester of the petitioner i.e... drop of semester vide Annexure P/2, impugned in this petition is nothing but an arbitrary, illegal and unreasonable action and we have no hesitation in interfering with the same and quashing it. 30- Accordingly, we allow this petition. The impugned order and directions contained Annexures P/4 and P/7 i.e.... imposing the punishment of drop in semester and further rejecting her appeal and upholding the action contained in Annexure P/4 is quashed. Respondents are directed only to enforce the punishment as imposed upon the petitioner vide Annexure P/1 and the Grading granted to her vide Annexure P/3; and, not take any further action in the matter. 31- With the aforesaid, the petition stands allowed and disposed of. No order as to costs.
( RAJENDRA MENON ) ( VANDANA KASREKAR )
JUDGE JUDGE
Aks/-