Gujarat High Court
Aditya Dayanand Tare vs Union Of India on 11 January, 2019
Author: J. B. Pardiwala
Bench: J.B.Pardiwala
C/SCA/6537/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6537 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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ADITYA DAYANAND TARE
Versus
UNION OF INDIA
==========================================================
Appearance:
MR. K.M. PATEL, Ld. Sr. Adv. with MR BHUSHAN B OZA(1072) for the
PETITIONER(s) No. 1
MR DEVANG VYAS(2794) for the RESPONDENT(s) No. 1,4
MR MITUL K SHELAT(2419) for the RESPONDENT(s) No. 2,3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 11/01/2019
CAV JUDGMENT
1. Almost three decades back, the Supreme Court poetically voiced its concerned in the case of Controller of Examinations v. G. S. Sunder, reported in 1992 (2) GLH 140, against the vice Page 1 of 59 C/SCA/6537/2018 CAV JUDGMENT of copying at the examination and described the unhealthy practice as poisonous weeds in the field of education which needs to be rooted out in order that the innocent and the intelligent students do not suffer. In para 10 of the judgment the Supreme Court expressed as under:
"The hour has come when we must clear the educational fields from poison arid from fear;
we must remould our standards build them higher, And clear the air as though by cleansing fire Weed out the damning traitors to education, Restore her to her ancient place of awe."
2. This we should do so that posterity does not blame us and learning is not ridiculed.
3. By this writ application under Article 226 of the Constitution of India, the writ applicant, a student pursuing his studies in engineering with the respondent No.2-Institute has prayed for the following reliefs;
"(A) To issue a writ of mandamus or a writ in the nature of mandamus, or any other appropriate writ, order or direction, quashing and setting aside order dated 27.12.2017 passed by the respondent No.2 suspending petitioner for two semesters during Dec.2017 Nov.2018 and directing petitioner to undertake 150 hours of Page 2 of 59 C/SCA/6537/2018 CAV JUDGMENT rigorous social service or community work for the reasons stated in the Memo of Petition and in the interest of justice.
(B) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside order dated 9.4.2018 passed by the respondent no.2 suspending petitioner for two semesters during Dec.2017-Nov.2018 and directing petitioner to undertake 100 hours of rigorous social service or community work and also directing the petitioner to vacate hosted accommodation and further be pleased to permit the petitioner to appear in the end semester examination starting from 23.4.2018 for the reasons stated in the Memo of Petition and in the interest of justice.
(C ) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent nos.2 & 3 to permit the petitioner to appear in the end semester examination starting from 23.4.2018 pending the final disposal of the appeal filed by the petitioner before respondent no.3 and subject to the final ou8tcome of the said appeal for the reasons stated in the Memo of Petition and in the interest of justice.
"34(CC) To issue a writ of mandamus or a writ in the nature of mandamus, or any other appropriate writ, order or direction, quashing and setting aside the report dated 21.5.2018 of Senate Students Affairs Committee (Annexure-R2/6) and the order rejecting the appeal for the petitioner for the reasons stated in the Memo of Petition and in the interest of justice.
(D) Pending admission, hearing and final disposal of this petition, to direct the respondent nos.2 & 3 to permit the petitioner to appear in the end semester examination from 24.4.2018 and to permit the petitioner to appear in the examination for the subject Fluid Mechanics dated 23.4.2018 in the makeup examination to be conducted by the respondent nos.2 & 3 on 30.4.2018 and 1.5.2018 and permit the petitioner to stay in the hostel accommodation pending the final disposal of the appeal before the respondent no.3 Page 3 of 59 C/SCA/6537/2018 CAV JUDGMENT 34(DD) Pending admission, hearing and final disposal of this petition, to direct the respondent nos.2 & 3 to permit the petitioner to appear in the end semester examination and to permit the petitioner to appear in the examination for all subject in the makeup examination to be conducted by the respondent nos.2 & 3 or to conduct special examination for the petitioner.
(E) To grant ad-interim relief in terms of Para-34(B).
(F) The Hon'ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require.
(G) To award the cost of this Petition."
4. The facts giving rise to this writ application may be summarized as under;
4.1 The writ applicant is a student. He claims to be physically handicapped- hearing impaired to the extent of 64%. The writ applicant is a native of the State of Maharashtra. The writ applicant passed his JEE Mains and Advanced Examination necessary for the purpose of securing admission in the Indian Institute of Technology. The writ applicant was successful in securing the admission on the seat reserved for the physically handicapped candidates on the basis of his score in the JEE Mains and Advanced exam result. The writ applicant got himself admitted in the Mechanical Branch of the B. Tech Course. At present, he is studying in the second year.
4.2 The respondent no.2-Institute noticed that the writ applicant had indulged in plagiarism in the philosophy assignment. In such circumstances, the respondent No.2- Institute held him guilty of plagiarism. The Institute passed an order dated 27th December, 2017, imposing punishment upon Page 4 of 59 C/SCA/6537/2018 CAV JUDGMENT the writ applicant being guilty of plagiarism. The order reads thus;
"To Aditya Tare Roll No.16110168 llT Gandhinagar Sub: Decision on your reported violation of honor code The Senate Student Affairs Committee considered charges against you and found that you are guilty of plagiarism In the philosophy assignment.
It has been decided that:
1. You are suspended for two semesters during December 2017- November 2018. However, the suspension for both the semesters be kept in abeyance and would come into effect immediately, if you are involved in another act of misconduct.
2. You are not eligible for any scholarships/recognitions from the Institute for the rest of your tenure as student at IITGN.
3. You are not eligible to participate in internships awarded through the Institute.
4. You will not be allowed to opt for minor(s)/honor(s) streams.
5. You are not eligible to participate in campus placement and incubation facility/seed fund for business startup through the Institute.
6. You are not allowed to hold any offices related to curricular or extracurricular activities during rest of your stay at IITGN.
7. You are not allowed to represent IITGN in any of the events/activities/initiatives inside or outside the campus.Page 5 of 59 C/SCA/6537/2018 CAV JUDGMENT
However, in case you volunteer to conduct 150 hours of rigorous social service or community work under the supervision of Dean, Student Affairs, sanctions at serial number 3,4,5,6 and 7 may be waived by the Chairman, Senate on recommendation of the Dean of Student Affairs.
The decision is in effect from December 22, 2017."
4.3 It appears that the writ applicant accepted the order of punishment imposed upon him by the Institute. However, that was not the end of the matter.
4.4 The Institute, thereafter, initiated proceedings against the writ applicant on the charges of having indulged in cheating and unfair means in the subject of ES212 Fluid Mechanic Course, mid semester exam. In such circumstances, the Institute passed an order dated 9th April, 2018 imposing the following punishment;
"To, Aditya Tare Roll No: 16110168 IlT Gandhlnagar Sub: Decision on your reported violation of honor code The Senate Student Affairs Committee considered charges against you and found that you are guilty of cheating in ES 212 Fluid Mechanic course mid semester exam.
It has been decided that:
1. You are suspended for two semesters during December 2017- November 2018.
2. You are not eligible for hostel accommodation during your suspension. Any visit to IITGN campus during your suspension period would require prior Page 6 of 59 C/SCA/6537/2018 CAV JUDGMENT permission from Dean, Student Affairs.
3. You are not eligible for any scholarships, recognitions, awards and fellowship (except the benefit of tuition fees waiver, if applicable) from the Institute for the rest of your tenure as student at IITGN.
4. You are not eligible to participate in internships awarded through the Institute.
5. You will not be allowed to opt for minor(s)/honor(s) streams.
6. You are not eligible to participate in campus placement and incubation facility, seed fund for business startup through the institute. .
7. You are not allowed to hold any offices related to curricular or extracurricular activities during rest of your stay at IITGN.
8. You are not allowed to represent IITGN in any of the events/activities/initiatives inside or outside the campus.
However, in case 'you volunteer to conduct 100 hours of rigorous social service or community work under the supervision of Dean, Student Affairs, sanctions at serial number 4,5,6,7 and 8 may be waived by the Chairman, Senate on recommendation of the Dean of Student Affairs.
The decision is in effect from April 06, 2018.."
4.5 Being dissatisfied with the disciplinary action taken by the Institute, the writ applicant is here before this Court with this writ application under Article 226 of the Constitution of India.
5. Submissions on behalf of the writ applicant;
Page 7 of 59 C/SCA/6537/2018 CAV JUDGMENT5.1 Mr. K..M. Patel, the learned senior counsel assisted by Mr. Bhushan B. Oza, the learned counsel appearing for the writ applicant vehemently submitted that the respondent No.2 committed a serious error in holding the writ applicant guilty of adopting unfair means in the ES212 Fluid Mechanic Course, Mid Semester Exam.
5.2 Mr. Patel vehemently submitted that the case on hand is one of "No Evidence". According to the learned senior counsel, the entire matter proceeds on suspicion. It is submitted that suspicion, however, strong cannot take the place of proof. According to Mr. Patel, the allegations of cheating and adopting unfair means in the exam is based on presumption. It is submitted that when the charge against a student is against presumption, then the standard of proof become stricter and the charge must be established beyond reasonable doubt. To put it in other words, the submission of the learned senior counsel is that presuming that the student may have cheated is in itself an allegation where the charge rests on doubt. The charge must be based, after having been examined upon strict proof. The learned senior counsel would submit that the institute should have been conscious of the fact that before a student is to be charged on presumption, the allegation must rest beyond a reasonable doubt.
5.3 Mr. Patel submitted that so far as the charge of plagiarism is concerned, the writ applicant did admit before the concerned faculty about the same, but at the same time, also offered an explanation that the writ applicant being a handicapped, hearing impaired, was not able to clearly understand the instructions given by the faculty so far as the Page 8 of 59 C/SCA/6537/2018 CAV JUDGMENT assignment was concerned. In such circumstances, the writ applicant took assistance from the textbooks and other articles for the purpose of the assignment.
5.4 Mr. Patel, the learned senior counsel, submitted that so far as the charge of indulging in unfair means is concerned, the same is on the premise that many parts of the answer in the answer-sheet were found to be the verbatim reproduction of the solution given in the textbook. The second incriminating circumstance taken into consideration by the institute is that although the equations were written incorrectly, yet the numerical result matched with the test to the same number of significant digits. Mr. Patel further pointed out that it is also the case of the institute that the writ applicant started calculating with the water density 1000kg/m3 but later used the figures calculated, based on the value of water density as 997kg/m3 as given in the reference book. All this, according to Mr. Patel, the learned senior counsel, is nothing but suspicion. According to Mr. Patel, such accusation and the materials on record do not constitute legal evidence for the purpose of proceeding against a student for the alleged acts of misconduct.
5.5 Mr. Patel also submitted that even if everything alleged against the writ applicant is accepted as true, the punishment which has been imposed is quite harsh, more particularly, keeping in mind that the writ applicant is physically handicapped-hearing impaired to the extent of 64%.
5.6 Mr. Patel also submitted that the entire inquiry initiated and completed against the writ applicant was in violation of Page 9 of 59 C/SCA/6537/2018 CAV JUDGMENT the principles of natural justice. It is submitted that no reasonable opportunity of hearing was given to the writ applicant. No specific charges were framed against the writ applicant and no charge-sheet was issued to the writ applicant.
5.7 In such circumstances, referred to above, Mr. Patel, the learned senior counsel prays that there being merit in this writ application, the same be allowed and the impugned order passed by the institute may be quashed.
5.8 Mr. Patel, in support of his submissions, has placed reliance on the following decisions;
(i) Siddharth Mohanlal Sharma vs. Sought Guj. University, 1982 GLH 648
(ii) Canara Bank vs. V.K. Awasthy, AIR 2005 SC 2090
(iii) Suresh Koshy George vs. University of Kerala & Ors., AIR 1969 SC 198
(iv) Siddharth Ashwinbhai Parekh vs. VIR Narmad Gujarat University & Ors., Letters Patent Appeal No.394 of 2016, decided on 11.07.2016.
6. Submissions on behalf of the respondent No.2- Institute 6.1 Mr. Mitul K. Shelat, the learned counsel appearing for the respondent No.2-Institute, on the other hand, has vehemently opposed this writ application. Mr. Shelat would submit that the writ applicant admitted with regard to the allegation of plagiarism. However, the writ applicant raised a very feeble Page 10 of 59 C/SCA/6537/2018 CAV JUDGMENT defence that as he was not clear about the instructions which were given by the faculty, he took assistance from the materials collected from the internet. Mr. Shelat pointed out that the cases of plagiarism are classified in two categories. First category is of very high case of plagiarism and the second category is of high case of plagiarism. The case of the writ applicant falls within the category of "very high case of plagiarism".
6.2 Mr. Shelat submitted that the writ applicant has been found to have adopted unfair means at the examination that was held in February, 2018. A complaint was received from the concerned professor as regards the use of unfair means of copying from a reference book in the test paper of Fluid Mechanic Course. Mr. Shelat submitted that the charge of the institute against the writ applicant having employed unfair means, cannot be said to be based on "no evidence". The findings of the inquiry committee, based upon the probabilities and circumstantial evidence could not be said to be based on no evidence as in this type of matters, direct evidence is seldom available.
6.3 Mr. Shelat submitted that in dealing with the cases of unfair means, the problem faced by the educational institutions should be appreciated by the Court, and so long as the inquiry held is fair and afforded the student an opportunity to defend himself, the matter should not be examined with the same strictness as applicable to the criminal charges in the ordinary courts of law.
6.4 Mr. Shelat further submitted that in the matter of Page 11 of 59 C/SCA/6537/2018 CAV JUDGMENT enforcement of discipline in the educational institutions is concerned, the courts should be very slow in interference. The authorities in charge of the education and whose duty is to conduct the examination fairly and properly are the best people to know how to deal with the situations of this character.
6.5 Mr. Shelat has placed strong reliance on the following averments made in the affidavit-in-reply filed on behalf of the respondents Nos.2 and 3;
"i) I state that the petitioner was granted admission in the course of B.Tech (Mechanical) in July 2016 under the Person with Disability (PwD) category.
ii) I submit that any student granted admission in the answering respondent Institute is governed by the Student Honour Code and is bound by the same; violation of any of the conditions laid down in the Honour Code shall result into disciplinary actions and imposition of penalty.
Annexed hereto and marked as Annexure R2/1 (colly.) is a copy of the Student Honour Code along with other declarations issued at the time of granting of admission.
Iii) I state that looking at the class performance and attendance of the petitioner, the answering respondent was constrained to issue a letter of warning to the petitioner in his very first year of the said course. The said letter was issued on 03 November 2016. Despite the said warning issued to the petitioner, there was no progress or improvement found in the academic performance of the petitioner. Hence, once again the answering respondent communicated the same to the petitioner vide letter dated 30th January, 2017. Thereafter, the petitioner completed his First Year in April 2017b by securing 4.11/10 CPI (Cumulative Performance Index).
Page 12 of 59 C/SCA/6537/2018 CAV JUDGMENTiv) I state that the petitioner thereafter started with the 2 year of the said course. During the 2nd academic year nd students were given assignment work and the same was to be submitted with the concerned Professor within a stipulated time frame. The petitioner along with other students submitted their assignment projects. While assessing the same. the subject Professor noticed plagiarism in the case of seventeen students including the present petitioner.
v) Each of the students was called by the subject Instructor and the matter was thereafter referred to the SSAC (Senate Students Affairs Committee). SSAC is a Committee of Senate of the Institute and Senate is a Statutory body of the Institution and is the authority for all academic matters and policies. The SSAC Committee consists of representatives from the faculty (six members) and students (four members). The following were the members of the Committee:
1. Prof. Jaison Manjaly, Dean (Student Affairs)-
Chairman
2. Prof. Atul Bhargav Member
3. Prof. Nithin V. George-Member
4. Prof. Sharmistha Majumdar-Member
5. Prof. Arnab Dutta-Member
6. Prof. Angus McBIane-Member
7. Mr. Nikhil A. Roy, Gen Secy Student Council Member
8. Mr. Ayushman Tripathi, Convenor Student Senate- Member
9. Ms. Arushi Shah, Student RepresentativeMember
10. Mr. Jaldhir Trivedi, Student Representative-Member
vi) The SSAC met on 27th November and discussed the issues in question. The Petitioner and other students appeared before the Committee and offered their response to the allegation of plagiarism. The Petitioner admitted to the misconduct but sought to assert that on account of his hearing deficiencies he was unaware of the instructions that the assignment should be based on original material only. Instruction to use original material have seen issued by email as well and are within the knowledge of all students. The SSAC found that as far as Page 13 of 59 C/SCA/6537/2018 CAV JUDGMENT the cases of plagiarism is concerned, with which the present petitioner is concerned, the same was put under two different categories; "very high case of plagiarism"
and "high case of plagiarism". The case of the Petitioner was falling under the category of "very high case of plagiarism". The committee further recommended the penalty to be imposed for both the categories.
vii) I state that pursuant to the recommendations passed by the SSAC, the petitioner was communicated about the penalty imposed by way of communication dated 27th December, 2017. It is further pertinent to note at this stage that the penalty imposed upon the petitioner and other students was that of suspension for two semesters along with other strictures; however. the same was kept in abeyance with a condition that the said penalty would automatically come in force if the student is found guilty of any other misconduct. The students were further given an opportunity to purge their misconduct by way of rendering social service or community work for 150 hours.
viii) I state that the petitioner accepted the said penalty and did not make any grievance regarding the same. The Petitioner during this very period was again found to have adopted unfair means at the examination that was held in February, 2018 (21/02/2018). I state that a complaint was received from the concerned professor regarding suspected use of unfair means of copying from a reference book by the petitioner in the test paper of Fluid Mechanic Course.
ix) I state that the Petitioner was called by the Course Instructor and confronted with the complaint and was asked to explain his conduct. The matter was then referred to the SSAC (Senate Students Affairs Committee). I state that a meeting was held on 20'"
March, 2018 to consider the complaint made against the petitioner and a chance was given to the petitioner to offer any explanation to the same. The SSAC after discussing the compiaint received and taking into consideration the explanation given by the petitioner, decided to meet once again on 27th March, 2018. I state that after considering all the aspects on record it was found that the Petitioner was guilty of having used unfair means at the examination. It was found that the many Page 14 of 59 C/SCA/6537/2018 CAV JUDGMENT part of the answer appeared to be verbatim reproduction of the solution given in the text and in some cases, equations were written incorrectly yet the numerical result matched with the text to the same number of significant digits. It was also found that the student started calculating with generally used water density 1000 kg/m3 but later used the figures calculated based on the value of water density as 997 kg/m3, as given in the reference book; Even when given an opportunity to solve the problem before the Committee, the Student expressed his inability to do the same. The Committee further found that during the hearing on multiple occasions the student was attempting to distort facts and mislead the Committee Members. The Committee concluded that the Petitioner had used unfair means while attempting the examination in Fluid Mechanics. The Committee then deferred the meeting for recommending the sanctions. The Committee thereafter met on 27th March, 2018 and imposed the sanction which amongst other things gave effect to the penalty of suspension for two semesters during December 2017-November 2018.
x) I state that pursuant to the meeting and the conclusions derived therefrom, the petitioner was communicated the decision taken by SSAC vide letter dated 9 April, 2018. The said th communication is already annexed to the petition at page 28 (Ann. E).
xi) I state that all the students involved in the previous case of plagiarism, except the petitioner, have so far not been involved in any other misconduct and their punishment orders are still kept in abeyance.
9. I submit that the sanction imposed upon the Petitioner is commensurate to the nature of misconduct committed by the Petitioner and is in accordance with law. I submit that it is necessary or pertinent for the Answering Respondent to impose sanction so as to ensure that academic discipline is maintained, and the same yard stick has been used in all other cases at the Institute in the recent past.
Page 15 of 59 C/SCA/6537/2018 CAV JUDGMENT10. .I submit that the concept of makeup exam is limited to the cases wherein the applicant is able to prove any medical emergency or otherwise, and it is the ultimate decision of the answering respondent institute to hold any such make up exam. In the present case the petitioner sanction is imposed owing to the misconduct on the part of the petitioner, therefore, the petitioner has no right whatsoever to claim to sit in the said makeup exam.
11. | submit that the course offered by the answering respondent institute is a four year course and the same is divided into normally 8 semesters and maximum 12 semesters. The student pursuing the said course has to have 170 credits in order to successfully complete the course of B. Tech (Mechanical). The penalty imposed upon the petitioner, if the same remains unchanged in the appeal proceedings, is that of suspension for two semesters; it would be open for the petitioner to resume his studies with the answering respondent Institute once the penalty period comes to an end. The suspended semesters, in which he is not allowed to register at the Institute, do not count towards the number of maximum semester 12 within which a student has to complete the programme.
12. I submit that the answering respondent is an institute of national importance, with the avowed object of ensuring academic excellence with the highest standards of discipline. It is submitted that the Petitioner has been provided adequate opportunity of hearing before the sanction has been imposed. It is submitted that the proceedings have been conducted before a Committee which consists of 4 student's representatives recommended by the Student Senate, an elected body by the students, which ensures that proceedings are not only fair but also inclusive and transparent. It is denied that the Institute has not considered the relevant evidence. It is denied that the decision suffers from non- application of mind as alleged of for the reasons alleged.
6.6 Mr. Shelat also placed reliance on the following averments made in the additional affidavit filed on behalf of the respondents Nos.2 and 3;
Page 16 of 59 C/SCA/6537/2018 CAV JUDGMENT"I, Prem Kumar Chopra Aged Adult, Indian Inhabitant, or IIT, Gandhinagar, solemnly affirm and state on oath as under:-
1. I state that the answering respondent is filing the present affidavit in deference to the proceedings on 28.11.2018 with a limited purpose of bringing on record the submissions in reference to the assessment of the Answer Book of the Petitioner and the conclusion regarding use of unfair means having been adopted by the Petitioner.
2. I state that the Density of water Q depends on its temperature and the mass of solid substance dissolved in it. For simplicity of calculation, in absence of given data, it is assumed to be 1000 kg/m3. If the value is prescribed.
one has to use it in place of 1000. But using two different values 1000 & 997 at different places is suspect, as the question in the class test did not prescribe the value of Q, where as in the book it was given as 997 kg/m3. Mr. Tare rightly started with 1000 and calculated mass flow rate m = 1.166 kg/s following the sequence of equations exactly as in the worked example. But towards the end of the problem used the value of m = 1.163 kg/s. The error is small, hence negligible, but the source of error is significant. Because, he has not calculated the later m, it is the value given in the worked example, calculated with Q value of 997 kg/m3.
3. Mr. Tare had during his interaction with Senate Student Affairs Committee (SSAC) and with members of the Committee constituted by the Director to examine his appeal, never denied the fact that his answer to the question no. 2 in the class test in Fluid Mechanics (ES
212) was almost identical to that of an worked out example in a reference book. He rather forwarded his good memory as an explanation for the reproduction. The reproduction was often too verbatim, even without taking care of differences in both questions, namely in values of q' and 'B' the momentum flux correction factor. A consideration from the start of Mr. Tare's solution of this problem:
Page 17 of 59 C/SCA/6537/2018 CAV JUDGMENTMr. Tare writes Worked out Example Assumption Assumption
1) The flow is steady & 1 The flow is steady and incompressible, incompressible 2 The flow at the inlet and
2) The flow at the inlet & outlet is turbulent and fully outlet is turbulent [Momentum developed so that the flux correction factor 1.03]* momentum flux correction factor is about 1.03.**
3) The. 'pipe diameter at the 3 The pipe diameter at the outlet is same. As in the inlet outlet of the faucet is the same as that at the flange.
** Strangely in this example, *Momentum flux correction the author has not used this factor was not mentioned in value of B in the calculation, the test question, as it had not without giving any reason.
been covered in class till then.
If not mentioned, it is Thus the numerical result assumed to be 1, but Mr. Tare comes out as if the value of B has written again the same was 1.
value 1.03 as in the worked example Equation: Equation:
Page 18 of 59 C/SCA/6537/2018 CAV JUDGMENT Page 19 of 59 C/SCA/6537/2018 CAV JUDGMENT4. But as mentioned eariler, Mr. Tare is not faulted for Page 20 of 59 C/SCA/6537/2018 CAV JUDGMENT the mathematical calculation nor for using the formula as in the book. The use of unfair means arose as demonstrated in the above table, due to the use of almost same language and symbols as in the worked out example including the use of some numbers like value of β and Q as in the book, though they found no mention in the test paper. His claim of writing from memory of a mathematical problem was not at all convincing, especially as he was not willing to demonstrate his claim of strong memory. This lead to the only conclusion of copying by Mr. Tare."
6.7 Mr.Shelat, in support of his submissions, has placed reliance on the following decisions;
"(i) Maharashtra State Board of Secondary & Higher Secondary Education vs. K.S. Gandhi & Ors., (1991) 2 SCC 716
(ii) The Saurashtra University, Through Registrar * Anr. vs. Gautambhai Nareshbhai Chaudhari & Anr., Letters Patent Appeal No..1351 of 2012;
(iii) Board of High School & Intermediate Education, U.P., Allahbad & Anr. vs. Bagleshwar Prasad & Anr., (1963) 3 SCR 767;
(iv) Triambak Pati Tripathi vs. The Board of High School, AIR 1973 ALL 1;
(v) Desai Devang & Ors. vs. The Registrar, Sough Gujarat University & Ors., AIR 1996 Guj. 96;
6.8 In such circumstances, referred to above, Mr. Shelat prays that there being no merit in this application, the same be rejected.
7. ANALYSIS Page 21 of 59 C/SCA/6537/2018 CAV JUDGMENT 7.1 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the respondent No.2 committed any error in punishing the writ applicant for indulging in plagiarism and adopting unfair means in the exam.
7.2 I have given my thoughtful consideration to the respective contentions in the background of the facts of this case. Before deciding whether the writ applicant is entitled to any relief, I deem it necessary to reiterate the well established principle that the Courts should give due respect to the opinion expressed by the academicians and the decisions of the academic bodies on matters relating to admissions, examinations and discipline in the educational institutions. However, this does not mean that the Courts should worship such opinions and decisions blind folded and refuse to discharge its constitutional obligations to protect the fundamental, constitutional and legal rights of the citizens. In the scheme of our Constitution the argument that the decisions of academic bodies and educational institutions should remain immune from the power of judicial review vested in the Courts cannot be accepted. What to say of such decisions, the power exercisable by the President under Article 72 to grant or not to grant pardon and the power exercised by the Government to impose emergency under Article 356 do not enjoy immunity from judicial review. In Kehar Singh v. Union of India, (1989) 1 SCC 204 : (AIR 1989 SC 653) and S. R. Bommai v. Union of India, (1994) 3 SCC 1 : (AIR 1994 SC 1918), the Apex Court has recognised the Court's power of Page 22 of 59 C/SCA/6537/2018 CAV JUDGMENT judicial review even in these matters though the grounds on which the orders passed in such matters can be subjected to judicial scrutiny are extremely limited and it is always desirable not to interfere with the same unless it becomes imperative. It cannot also be ignored that the decisions of educational institutions and academic bodies, which are required to be taken in accordance with the relevant statutes, at times affect the students, teachers and employees and they are always subject to constitutional limitations contained in Articles, 14, 15, 16, 20 etc. Therefore, if the Court finds that such decisions are violative of the statutory or constitutional provisions, then it is the constitutional duty of the Court to intervene and protect the rights of citizens.
7.3 The absence of arbitrariness in the actions and decisions of the public authorities is a sine qua non to save them from the attack of unconstitutionalities or ultra vires. It is trite to say that every public authority must act reasonably and its decisions must be free from arbitrariness and bias and must be in public interest. If a decision is arbitrary then it is necessarily violative of Article 14 of the Constitution.
7.4 Professor H. W. Wade in his book on Administrative Law (6th Edition) observed that the powers of the public authorities are essentially different from those of private persons and proceeded to say :--
".....The whole conception of unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good.
There is nothing paradoxical in the imposition of such legal limits. It would indeed be paradoxical if they were Page 23 of 59 C/SCA/6537/2018 CAV JUDGMENT not imposed. Nor is this principle an oddity of British or American law; it is equally prominent in French law. Nor is it a special restriction which fetters only local authorities: it applies no less to ministers of the Crown, Nor is it confined to the sphere of administration : it operates wherever discretion is given for some public purpose, for example, where a Judge has a discretion to order jury trial. It is only where powers are given for the personal benefit of the person empowered that the discretion is absolute. Plainly this can have no application in public law.
For the same reasons there should in principle be no such thing as unreviewable administrative discretion, which should be just as much a contradiction in terms as unfettered discretion. The question which has to be asked is what is the scope of judicial review, and in a few special cases the scope for the review of discretionary decisions may be minimal. It remains axiomatic that all discretion is capable of abuse, and that legal limits to every power are to be found somewhere."
7.5 The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. The Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite Page 24 of 59 C/SCA/6537/2018 CAV JUDGMENT that 'be you ever so high, the laws are above you'.
7.6 Almost 50 years ago, Ramaswamy, J. highlighted the need of administrative decisions being free from arbitrariness in S. G. Jaisinghani v. Union of India, AIR 1967 SC 1427. His Lordship observed (at p. 1434 of AIR) :--
"In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey -- "Law of the Constitution"
7.7 The question then arises as to whether it is open to this Court under Article 226 of the Constitution to accept the explanation offered by the writ applicant or to interfere with the decision of the institute on appraisal of the writ applicant's answers. Before I proceed to answer this question, it is necessary to consider the scope of High Court's jurisdiction in a writ for certiorari.
7.8 Under Article 226 the High Court has jurisdiction to quash the decision or orders of the subordinate tribunals and statutory authorities entrusted with the quasi-judicial functions, if they act without jurisdiction or in excess of it or in violation of the principles of natural justice or if there is an Page 25 of 59 C/SCA/6537/2018 CAV JUDGMENT error apparent on the face of the record. The jurisdiction of the High Court under Article 226 of the Constitution is wide, yet it is limited as it exercises supervisory jurisdiction over the subordinate tribunals or courts and it does not exercise appellate jurisdiction. In G. Veerappa Pillai v. Raman and Raman Ltd. (AIR 1952 SC 192) the Supreme Court while considering the scope of Article 226 observed thus (at p. 196):
"However extensive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made".
7.9 In Hari Vishnu Kamath v. Ahmad Ishaque (AIR 1955 SC
233), a constitution Bench of the Supreme Court laid down principles with regard to the character and scope of the writ of certiorari and the conditions under which it can be issued. The Supreme Court held (at p. 243):--
"The Court issuing a writ of certiorari acts in exercise of supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or Tribunal even if they be erroneous. This is on the principle that a court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right and when the legislature does not choose to confer a right of appeal against the decision it would be defeating its purpose and policy if a superior court were to re-hear the case on the evidence and substitute its own findings in certiorari."
7.10 These principles' were affirmed by the Supreme Court in Nagendra Nath v. Commissioner of Hills Division (AIR 1958 SC
398); Kaushalya Devi v. Bachittar Singh (AIR 1960 SC 1168); Major U. R. Bhatt v. Union of India (AIR 1962 SC 1344); State of Andhra Pradesh v. S, Sree Rama Rao (AIR 1963 SC 1723)5 Page 26 of 59 C/SCA/6537/2018 CAV JUDGMENT Syed Yaqub v. K. S. Radha Krishna (AIR 1964 SC 477); State of Madras v. G. Sundaram (AIR 1965 SC 1103) and State of Andhra Pradesh v. C, Venkatrao (AIR 1975 SC 2151). It is not necessary to further multiply authorities as now it is well settled that the Court while exercising jurisdiction under Article 226 of the Constitution cannot sit in appeal over the findings recorded by Tribunals or quasi-judicial authorities and it has no jurisdiction to interfere with the order of quasi-judicial authorities if the decision is arrived at bona fide after complying with the principles of natural justice. The High Court cannot substitute its own opinion for that of the subordinate Tribunal or authority and it has no jurisdiction to interfere with the findings on appraisal of evidence even if those findings may be erroneous. No doubt, if the order is based on no evidence or if the findings are arbitrary and so capricious that no reasonable person could come to those findings, the order would be quashed. But the High Court should not interfere with the order on the ground of probative value of evidence or adequacy or inadequacy of evidence. To judge the credibility of a particular piece of evidence is the function of an appellate court and that function does not fall within the writ jurisdiction of the High Court under Article 226 of the Constitution.
7.11 It is the function of the appellate court to take a different view of the evidence and not the function of a writ or supervisory court to interfere with the order on the ground of a different possible view. While it is open to the High Court to interfere with the order of a quasi-judicial authority if it is not supported by any evidence or if the order is passed in contravention of the statutory provisions of law, or in violation Page 27 of 59 C/SCA/6537/2018 CAV JUDGMENT of the principles of natural justice, but the court has no jurisdiction to interfere with the order merely on the ground that the evidence available on the record is insufficient or inadequate or on the ground that a different view could possibly be taken on the evidence available on the record. The Examinations Committee has the jurisdiction to take decision in the matter of use of unfair means not only on direct evidence but also on probabilities and circumstantial evidence. There is no scope for importing the principles of criminal trial while considering the probative value of probabilities and circumstantial evidence. The quasi-judicial authorities including the Examinations Committee are not bound by the technical rules of evidence and procedure as are applicable to the courts, 7.12 In Board of High School and Intermediate Education v. Bagleshwar Prasad (AIR 1966 SC 875), the Supreme Court considered the precise question which I am called upon to consider. Gajendragadkar, J., speaking for the Court, spoke thus (at p. 878):
"In the matter of adoption of unfair means, direct evidence may sometimes be available, but cases may arise where direct evidence is not available and the question will have to be considered in the light of probabities and circumstantial evidence. This problem which the educational institutions have to face from time to tune is a serious problem and unless there is justification to do so, the courts should be slow to interfere with the decision of the domestic tribunals appointed by the educational bodies like University. In dealing with the validity of the impugned orders passed by Universities under Article 226, the High Court is not sitting in appeal over the decision in question, its jurisdiction is limited and though it is true that if the impugned order is not supported by any evidence at all, Page 28 of 59 C/SCA/6537/2018 CAV JUDGMENT the High Court would be justified to quash that order. But the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify the said conclusion."
Proceeding further the Supreme Court emphasised:
"...... but it would, we think, not be reasonable to import into these enquiries all considerations which govern criminal trials in ordinary courts of law. In the present case no animus is suggested and no mala fides have been pleaded. The enquiry has been fair and the respondent has had opportunity of making his defence. That being so, we think the High Court was not justified in interfering with the order passed against the respondent".
7.13 In Bagleshwar Prasad's case, the Examinations Committee of the Board of High School and Intermediate Education had cancelled the examination of Bagleshwar Prasad on the ground that he had used unfair means in answering the question No. 4 of Hindi III paper. In doing so it relied on the answer given by another examinee containing identical mistakes. Bagleshwar Prasad denied that he had used any unfair means. The Examinations Committee was not satisfied with his explanation and it held him guilty even though there was no direct evidence to support its decision. On a petition of Bagleshwar Prasad under Article 226 of the Constitution, the Allahbad High Court held that the conclusion of the Enquiry Committee that Bagleshwar Prasad had used unfair means was not supported by any evidence. In coming to that conclusion, the High Court had reassessed the circumstantial evidence. The Supreme Court did not approve of the procedure adopted by the High Court and laid down the principles as quoted Page 29 of 59 C/SCA/6537/2018 CAV JUDGMENT earlier.
7.14 What inference should be drawn from the available circumstances is essentially within the exclusive 'domain of a quasi-judicial authority or the tribunal and it is not open to the High Court to interfere with the drawing of inference under Article 226 of the Constitution if the inference drawn was possible on the material before the authority, 7.15 In Kaushalya Devi v. Bachittar Singh (AIR 1960 SC 1168) the Supreme Court set aside the order of the High Court interfering with the order of the Deputy Custodian General. The High Court held that there was no evidence in support of the order passed by the Custodian General and the inference drawn by him on the existing circumstances did not constitute evidence to support the order. The Supreme Court disapproved the High Court's judgment and observed:
"A finding based on no evidence is an error of law apparent on the face of the record but errors in appreciation of documentary evidence or errors in drawing inferences cannot be said to be errors of law and can be corrected only by a court sitting as a court of appeal and not under Article 226."
7.16 In State of Andhra. Pradesh v. S. Sree Rama Rao (AIR 1963 SC 1723), the Supreme Court set aside the order of the High Court interfering with the findings of the Enquiry Officer holding the public servant guilty at the departmental enquiry of certain charge. The court observed (at, pp. 1726, 1727):
"Where there is some evidence which the authority entrusted with the duty to hold enquiry has accepted and which evidence may reasonably support the conclusion Page 30 of 59 C/SCA/6537/2018 CAV JUDGMENT that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence."
7.17 In Syed Yaqub v. K.S. Radha Krishna (AIR 1964 SC 477), the jurisdiction of the High Court to issue a writ of certiorari against the orders of the domestic tribunal was considered at length. The Supreme Court held that while exercising supervisory jurisdiction, it was not open to the High Court to interfere with the findings of fact reached by the inferior court or tribunal on appreciation of evidence as the error of law which is apparent on the face of the record can be corrected by a writ but not an error of fact, howsoever grave it may appear to be. The Court further held (at pp. 479, 480):
"A finding of fact recorded by the tribunal cannot, however, be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding being within the exclusive jurisdiction of the tribunal, the points cannot be agitated before a writ Court."
7.18 In State of Andhra Pradesh v. C. Venkatrao (AIR 1975 SC 2151) the Supreme Court set aside the High Court's judgment interfering with the findings of the domestic tribunal during the departmental enquiry against a public servant. The Tribunal held that the charge framed against the public servant was proved on circumstantial evidence. The High Court interfered with that finding of the Tribunal on the ground that the prosecution had utterly failed to adduce any evidence to exclude the possibilities of Venkat Rao's innocence. The Page 31 of 59 C/SCA/6537/2018 CAV JUDGMENT Supreme Court re-affirmed the principles laid down in S. Sree Ramarao's case and observed (at p. 2154):
"First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the court must be applied. If that rule be not applied by a domestic tribunal of enquiry, the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authority holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding departmental enquiry against a public servant............ where there is some evidence which the authorities entrusted with the duty to hold enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence......... The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of the facts and if there is some legal evidence on which their finding can be based the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court In a proceeding under Article 226."
7.19 A Full Bench of the Allahbad High Court in Triambakpati Tripathi v. Board of High School, (AIR 1973 All 1) held that while considering the question of use of unfair means the Examinations Committee would be justified to draw inferences on the basis of answer books and other materials that the examinee had answered the question by adopting some improper method. The Examinations Committee is entitled to base its evidence (conclusion) on intrinsic evidence provided by the petitioner's own answer book. The Bench observed (at p. 7):--
Page 32 of 59 C/SCA/6537/2018 CAV JUDGMENT"In dealing with the validity of the order passed by such authorities, the High Court does not sit in appeal over the decision of the authority concerned, its jurisdiction is limited and it is true that if the order in question is not supported by any evidence at all, the High Court may quash it, but the conclusion that the order is not supported by any evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify that conclusion."
7.20 If the Examinations Committee relying on the probabilities and circumstantial evidence and the intrinsic evidence available in the answer book of the examinee cones to the conclusion that unfair means was used it is outside the jurisdiction of the High Court to reappraise and re-assess the evidentiary value of those circumstances to take a different view. The Examinations Committee and the Screening Committee are constituted of experts, they are the sole judges to determine the question of use of unfair means on the basis of the materials present on record. Their decision should not be interfered with by this court under Article 226 of the Constitution unless the decision is mala fide, arbitrary or capricious. Any decision of an authority, quasi judicial or, administrative, is vitiated on the ground of mala fides. Similarly, decision of a quasi judicial authority would be vitiated if it is based on no evidence or if it is arbitrary and the conclusion which the authority has arrived at could not be reached by any reasonable person or body of persons.
7.21 These principles are well settled but the real difficulty arises in their application to the particular facts of a case, While applying these principles it must be borne in mind that in case of no evidence the order would be vitiated only when Page 33 of 59 C/SCA/6537/2018 CAV JUDGMENT there is not a single piece of evidence direct or indirect, oral or documentary, or even circumstantial evidence based on probabilities to sustain the decision of the authority concerned, but if there is some evidence of circumstantial nature, which may even include probabilities, it would not be a case of no evidence. Inadequacy of evidence does not fall within the principle of no evidence. If there be any evidence, howsoever weak it may be in its probative value, it will not be a case of no evidence and the High Court has no jurisdiction to interfere with the finding. Similarly, while considering the question of arbitrariness it must be kept in mind that if two views are possible on the material on record and if the Examinations Committee has bona fide taken one view, it is not open to the High Court to interfere with that finding merely because a different view is possible. The High Court can interfere if the order is wholly arbitrary and so capricious that no reasonable person could come to the conclusion on the material on record, but if a person can reasonably come to that conclusion, the High Court has no jurisdiction to interfere with the order. An arbitrary decision of a quasi judicial authority would be perverse and liable to be quashed. It is however not permissible to assume possibilities or circumstances in support of the examinee's innocence and then to interfere with the decision of the Examinations Committee on the ground that there was no conclusive evidence to hold the examinee guilty of the charge of use of unfair means. If several probabilities are available in the circumstances of a case, some of which support the examinee's innocence, while other circumstances support the decision of the Examinations Committee holding the examinee guilty, in that situation it is not permissible to interfere with the decision of the Examinations Committee as Page 34 of 59 C/SCA/6537/2018 CAV JUDGMENT that would amount to appraisal of evidence.
7.22 I may also refer to and rely upon a Full Bench decision of the Allahabad High Court in the case of Ghazanfar Rashid vs. Secretary, Board of High School and Intermediate Education, U.P. Allahbad & Ors, AIR 1979 Allahbad 209, wherein the Full Bench has observed as under;
"As discussed earlier, It Is not open to this Court to interfere with the order of the Examinations Committee on the ground that another view could be taken on the material on record. In answering questions relating to mathematics and Physics or Chemistry if necessary answer is arrived at by an examinee through wrong working it would be reasonably possible for the Examinations Committee to draw an inference that the examinee had used unfair means. Even if it is possible that the examinee may have omitted the necessary steps due to inadvertence or certain reasons, it is for the Examinations Committee to consider that explanation and it is not open to this Court to reassess the circumstances and to interfere with the decision of the Examinations Committee. If the Examinations Committee relying upon the probabilities and circumstantial evidence comes to the conclusion that the examinee had used unfair means, it is not open to this Court to interfere with that order merely on the basis of other possibilities. In all the aforesaid oases relied upon by the petitioner this Court held that absence of certain requisite steps did not necessarily imply that the examinee must have used unfair means. In each of the aforesaid cases the principle of criminal trial was applied as it was held that omission to record requisite calculation or to take requisite steps could not be conclusive proof of the fact that the examinee had used unfair means. These decisions are in our opinion contrary to the principles laid down by the Supreme Court in the cases discussed earlier. For the same reason we do not approve the view taken by a learned Single Judge of this Court in Promod Kumar Mittal's case (1973 All LJ 625). In view of the law laid Page 35 of 59 C/SCA/6537/2018 CAV JUDGMENT down by the Supreme Court in Bagleshwar Pra-sad's case (AIR 1966 SC 875) and the Full Bench decision of our Court in Triambakpati Tripathi's case, (AIR 1973 All 1) we are of the opinion that the cases relied upon by the petitioner, namely, Udai Prakash Gautam v. Board of High School, Sarman Lal v. Board of High School; Prem Nath Khanna v. Board of High Court; Promod Kumar Mittal v. State of U. P. and Ajai Kumar v. Madhyamik Shiksha Parishad, do not lay down correct law.
22. In the instant case the petitioner while answering question No. 1 of Chemistry Second Paper had not taken necessary steps, yet he arrived at the correct formula. We have earlier quoted the answer given by the petitioner and also the steps which were necessary to be undertaken before the formula could be arrived at. The petitioner without proper working and requisite steps arrived at the correct formula. The Screening Committee as well as the Examinations Committee both were of the opinion that the petitioner had no knowledge of the question and he got the correct answer by means of some external source. Therefore he was held guilty for having used unfair means. The petitioner's answer to question No. 1 contains intrinsic evidence to support the decision of the Examinations Committee. The inference drawn by the Examinations Committee that the petitioner solved the question by using unfair means is a reasonable inference which cannot be interfered with by this Court even if some other view is also possible. The petitioner's contention that the impugned order is not based on any evidence and there is no material on record to support the finding of the Examinations Committee is without any substance. 23, in view of the above discussion, we do not find any apparent error in the impugned order of the Board warranting interference under Article 226 of the Constitution. The petition fails and is accordingly dismissed, but there will be no order as to costs. "
7.23 In BAGLESHWAR PRASAD (supra), it was held that the identity of the wrong answers given by the respondent in that Page 36 of 59 C/SCA/6537/2018 CAV JUDGMENT case with that of other candidate bearing the consecutive Roll Number rendered the charge of the respondent having employed unfair means highly probable and that the findings of the enquiry committee based upon such probabilities and circumstantial evidence could not be said to be based on no evidence as in such matters direct evidence quite often cannot be available. It was further pointed out that in dealing with those cases, the problems faced by such institutions should be appreciated by the High Court and so long as the enquiry held was fair and afforded the candidate an opportunity to defend himself, the matter should not be examined with the same strictness as applicable to criminal charges in the ordinary Courts of law.
7.24 The same view has been taken by the Supreme Court in the case of UNION PUBLIC SERVICE COMMISSION v.
JAGANNATH MISHRA reported in 2000 (O) GLHEL-SC-
33503.
7.25 I may, at this stage, also refer to the following observations of the Supreme Court in the case of CONTROLLER OF EXAMINATIONS v. G.S. SUNDER AND ANOTHER reported in 1992 (2) GLH 140 SC:-
"10. We have given our careful consideration to the above submissions. One thing must put beyond doubt, in matter of enforcement of discipline this Court must be very slow in interference. After all, the authorities in charge of education whose duty it is to conduct examination fairly and properly, know best how to deal Page 37 of 59 C/SCA/6537/2018 CAV JUDGMENT with situations of this character. One cannot import fine principles of law and weigh the same in golden scales. In the present system of education, the system of examination is the best suited to assess the progress of the student so long as they are fairly conducted. Interference by court in every case may lead to unhappy results making the system of examination a farce. For instance, we cannot but strongly condemn copying in the examination which has grown into canker of mass copying. Such unhealthy practices which are like poisonous weeds in the field of education must be rooted out in order that the innocent and the intelligent students are not affected."
7.26 The writ applicant, being aggrieved by the penalty imposed upon him, preferred an appeal to the Director of the Institute. The Director constituted a Committee of the following three members;
"Prof. D.P. Roy, PIC (GA) Prof. Umashankar Singh, Assit. Prof. Bio Engg. Mr. Pranav Rohit, AR, Convenor (Reservation Cell)"
7.27 The report of the Appellate Committee reads as under;
"The Committee has two major points to examine, first to see whether all procedural requirements had been followed from accusing Mr.'Tare of malpractice in an examination till passing of the order for penalty, and next to weighing in the measure of penalty vis-a-vis the findings of the SSAC in Mr. Tare's conduct.
The Procedural Requirements for Investigation of
Academic Misconduct:
(i) In the Institute of Technology Act, 1961, the 'Function of Senate' is defined in its Article 15 as 'Subject to the provisions of this Act, the Statues and the Ordinances, the Senate of an Institute shall have the control and general regulation, and be responsible for the maintenance of standards of instruction, education and examination in the Institute and shall exercise such other Page 38 of 59 C/SCA/6537/2018 CAV JUDGMENT powers and perform such other duties as may be conferred or imposed upon it by the Statutes'.
(ii) The Statutes of the institute, when describing' power and duties etc. of senate' says in Article 5/2
(a).....Senate is empowered to sanction academic programs and courses, approve their contents and any changes thereof, and oversee their conduct. It further adds under 5/2(d) In the pursuit of its duties, the senate is empowered to constitute permanent and other subcommittees, appoint their members and set their powers that shall not equal or exceed the powers of the Senate as a whole'.
(iii) For the first time during the 3rd Senate Meeting of the institute on 19/7/2010 under item No. 16 the Senate was informed that the approval of the Senate Chairman had been accorded on 28/4/2010 for 'Appointment of Senate Student Affairs Committee (SSACY comprising of faculty and student members to look into the issues related to the student discipline, conduct, welfare, hostels and related nonacademic matters and make recommendations to the Chairman, Senate.
(M Again during the 8th Senate Meeting on 10/09/2011, when considering proposal for formation of 'Standing Committees of the Senate' under item No.2011.4.14, the responsibilities of SSAC were reiterated in the Annexure 14.1 as "This committee shall take up matters related to counselling, discipline, hostel life and welfare of the students".
Further, in the same Senate Meeting, when considering the Report of the SSAC under item No.2011.4.7, The Senate noted with concern the reported cases of Academic deviance/copying, and departure from acceptable norms of conduct and behavior including non- academic matters, leading to the issuance of the Student Affairs Advisory 03 (Version 1.0, July 2012) describing 'Procedure for Handling of Academic Misconduct' which spells out the guidelines to deal with all such cases with 'utmost seriousness'. The Senate further decided that the Standing Committees would normally have a tenure of one year. The present SSAC was constituted viz office order No.IITGN/DiROO/2017/50 on 29/09/2017.
Page 39 of 59 C/SCA/6537/2018 CAV JUDGMENTObservations of the Committee:
in the matter of the accusation of copying against Mr. Tare, during evaluation of his mid-Semester examination answer book for Fluid Mechanics (ES 212) paper, the evaluator found that his answer to the question no.2 was almost a reproduction of the answer in a reference book. inspite of the differences in the input data in the two questions. He along with the Course instructor approached the "SSAC suspecting malpractice by the student. As has been mentioned above, the SSAC is the right statutory committee to deal with such incidents. The SSAC in its meeting on March 20, 2018 dealt with this case, when six of its members out of 10 were present. Mr. Tare was called to the meeting, was explained about the accusation of Copying against him in his mid-sem exam, and was asked to explain how his answer was a reproduction of the printed material, to which he avoided answering directly, and failed to give any satisfactory explanation. Though all the members (3 faculty 3 students) agreed with the accusation they decided to meet again to assign a punishment for Mr. Tare.
The next meeting of SSAC was held on March 27, 2018 in which again 6 of 10 members (with One change in faculty) being present, the quantum of penalty for Mr. Tare was recommended to the Chairman, Senate, for his approval.. On receiving this approval on April 5. 2018, the Chairman of SSAC conveyed the order to Mr. Tare on April 9, 2018.
Findings of the Committee:
The procedural requirements as spelled out in the Act & Statutes have all been observed in pursuance of the accusation of copying against Mr. Tare, and further he was given a due Chance to prove his innocence in this process.
Mr. Aditya Tare's appeal against the SSAC order, including his complain about it being too harsh:
The committee members went through the contents of the appeal and its background happenings before calling Mr. Tare for a hearing at the Institute Campus on May 1, Page 40 of 59 C/SCA/6537/2018 CAV JUDGMENT 2018. Mr Tare wanted his father and lawyer to accompany him to the hearing, with the plea that he is hearing impaired and may not understand the queries properly. Hence, as a special case he was informed to bring one student of IITGN with him to help him understand the .proceedings properly. However, he came alone to attend the meeting after about 30 minutes delay.
The committee discussed each aspect of Mr. Tare's appeal with him going line by line of his three pages of statements, trying to get clarification to some inconsistencies and background of some of his accusations.
Observations of the Committee
(i) Mr. Tare had brought copies of statement of his appeal of April 16, 2018 to the meeting, and distributed them amongst members
(ii) The answer to question no.2 of Fluid Mechanics (ES
212) by Mr. Aditya Tare, is almost identical with the solution of a question, in a reference book, inspite of minor differences in in-put data in the two questions, was not disputed by Mr. Tare.
(iii) Though the term 'attractive' was probably used sarcastically in his appeal to describe the presumption of 'copying,' because of his answer being identical to that of the reference material, using the very word 'attractive' in this context, indicated Mr. Tare's acceptance of the fact that such an unusual Incidence like 'his answer being identical with a published material can only but lead to the conclusion that the same was copied.
(iv) Mr. Tare's contention that he could not have copied anything was based on the fact that the invigilators had not complained about him carrying any electronic or hard copy material to the examination hall. However use of unfair means can also be identified during the course of assessment. As is evident in the case of Mr. Tare where despite the difference in input data, the solutions are verbatim Equal. Merely because the misconduct was not noticed during the examination, it would not entice Mr. Tare to claim immunity from enquiry.Page 41 of 59 C/SCA/6537/2018 CAV JUDGMENT
v) To the query, if not by copying, how did he reproduce the reference book answer, he avoided giving a direct reply, continuing with vague statements as in his appeal.
When pressed for a simple explanation for his answer being identical with that of the book, he fell back on oft repeated statement of 'I did not copy'..
vi) On being asked, whether he has 'photographic memory' a couple of times, he started to use the same term. He would still not admit to any time frame he needs to remember what he reads, specially of mathematical contents.
Vii) 'After speaking about months, days and hours, when he finally said to be able to reproduce a similar answer after two hours of reading and agreed to demonstrate it, there was a possibility for a window to open to establish some ground to justify his claim of innocence.
Viii) When a real question-cum-answer of a similar nature was given to him he talked with his father, and backed out from the test of his perceived strong memory saying the test not being 'relevant'.
Recommendations of the Committee Mr.. Adltya Tare did not use the opportunity to provide a possible reply to how he reproduced a published answer without copying, by refusing to put his (claimed) 'strong memory' to a test. Thus the appealer failed to provide any further material in support of his appeal.
* The penalty Imposed on Mr. Tare on March 27, 2018 is not 'too harsh', being drawn from guide lines spelled out in 'Honour' code of the Students' of the Institute, after he repeated the code violation, being already once penalized for plagiarism and awarded a suspended sentence.
* The prayer for supply of copy of Answer Book can not be entertained as it is against the practice of Institute. Mr. Tare, though has already been shown the Answer Book. Minutes of the meetings of committees Page 42 of 59 C/SCA/6537/2018 CAV JUDGMENT being part of an adjudication process can not be supplied, as prayed for. The constitution of the committees by the Director, as Chairman of Senate, has the sanction of the statutes of the Institute [Article 5/2
(a). (d) and 5/3(I)] * The committee concurs with the Findings of the SSAC and sees no reason for any alteration in its order dated April 9, 2018. "
7.28 Thus the committee constituted by the Director for the purpose of looking into the appeal filed by the writ applicant concurred with the findings of the SSAC.
7.29 Krishna Iyer J., as he then was, is Kurian v. Raghavan (1969 Ker LT 253): (AIR 1970 Ker 142), in his separate but concurring judgment observed as follows (at p. 157):
"While scrupulous adherence to the rules of procedure and the principles of natural justice, in the sense of acting in good faith after giving a reasonable opportunity to be heard, is insisted upon. Courts 'fear to tread' and decline 'to rush in', to quash decisions of responsible academic bodies. This does not mean a licence for doing injustice being judicially accorded to such bodies, but a fair expectation that they will not deviate ordinarily from the path of fair-play. If they palpably do, the writ must go. The ultimate test is the response of the judicial conscience to the doings of these bodies, in the given case, remembering the incurable wound on the career and the indelible stain on the character of the student that may follow upon an unjust accusation and verdict."
7.30 It is unnecessary to multiply the precedents Courts have generally set certain limitations and self-imposed restrictions on them while exercising their discretionary power under Article 226 in dealing with the decisions of academic bodies. The Courts have consistently kept their hands off high Page 43 of 59 C/SCA/6537/2018 CAV JUDGMENT academic bodies unless flagrant violation of fair-play based on bias or mala fides is brought to their notice in the orders passed by them. Even formal violation of principles of natural justice have been winked at by Courts if allegation of such violation is inconsequential in nature and when the aggrieved is assured of such opportunity in parallel proceedings.
7.31 I have reached to the conclusion that I should not be wiser than the academicians and educationists. The SSAC of the institute as well as the Committee appointed to look into the appeal filed by the writ applicant took into consideration all the relevant aspects of the matter and ultimately reached to the conclusion that the case is one of unfair means. The persons who have looked into the matter are experts in the field of education and the concerned subject. With their vast experience and expertise in the field of education as also in the subject, they are in a better position to make out, understand and arrive at a conclusion whether a particular student has adopted unfair means while answering the paper. I do not find any merit in the argument of the learned senior counsel that the case on hand is one of "No evidence". I also do not find any merit in the submission canvassed on behalf of the writ applicant that the principles of natural justice have not been complied with.
7.32 Mr. Patel, the learned senior counsel placed strong reliance on a decision of this Court in the case of Patel Jagrutiben (supra) to contend that the case on hand is one of "No evidence". According to Mr. Patel, "No evidence" does not mean only total dearth of evidence. Mr. Patel would submit Page 44 of 59 C/SCA/6537/2018 CAV JUDGMENT that where the evidence taken as a whole is not reasonably capable of supporting the finding; or where, in other words, no tribunal could reasonably reach that conclusion on that evidence, then the case could be said to be fall within the ambit of "No evidence". To fortify his submission, Mr. Patel has placed strong reliance on the following observations made by the learned Single Judge in the above referred decision;
"21. It is, thus, clear that 'no evidence' does not mean only total dearth of evidence. It extends to any case where the evidence taken as a whole is not reasonably capable of supporting the finding; or where, in other words, no tribunal could reasonably reach that conclusion on that evidence. It is well established that to reach a conclusion on 'no evidence I is to commit an error of law apparent on the face of the record. Again to base a decision on 'no evidence' is that the decision is perverse, unreasonable and ultra vires.
7.33 Mr. Patel also invited the attention of this Court to the fact that in Patel Jagrutibern (supra), the learned Single Judge relied upon a Division Bench decision of this Court in the case of S.M. Sharma vs. South Gujarat University, reported in 1982 (1) GLR 233. Mr. Patel placed reliance on the following observations made by the Division Bench in the said case;
"30. On gleaning through these illustrative decisions and examining their rationales closely, it would appear that the 'no evidence' rule has the same content and meaning in our country as in England. 'No Evidence' does not merely signify total dearth of evidence; evidence which does not reasonably support the conclusion is also comprehended within the meaning of the said expression. In other words, cases where there is complete lack of evidence and cases where the evidence, if any, is incapable of rationally leading to the conclusion reached, are both treated, on a par so far the applicability of the rule of 'no evidence' is concerned. In none of these decided cases, there was 'no evidence' in the sense of there being utter paucity of evidence. There Page 45 of 59 C/SCA/6537/2018 CAV JUDGMENT was some evidence, direct or circumstantial, on the basis of which the domestic tribunal had reached the conclusion of guilt. The grievance that there was 'no evidence' was examined by applying the test whether or not, accepting the whole of the evidence as it stood, the impugned conclusion followed legally or logically. In cases where direct evidence was not available, the totality of circumstances was carefully considered and the challenge that there was no evidence in support of the decision was examined by applying the test whether probabilities and circumstantial evidence justified the conclusion. Where direct evidence was available, the challenge was examined by applying the test whether it was so thoroughly inconsistent with the rest of the evidence as to make it impossible of acceptance. Mere suspicion, even if honestly and bona fide entertained on the basis of apparently cogent circumstances, was held to be out of bounds even in domestic inquiries, where the principle that in punishing the guilty scrupulous care must be taken to see that the innocents are not punished was found to apply as much as it applies to regular criminal trials. In the ultimate analysis, the test which appears to have been applied is whether there was some material capable of having any evidential value. If not, the case was held to fall within the mischief of the rule of 'no evidence'. "
7.34 I am of the view that the principle of "No evidence" was applied in the case of Patel Jagrutiben (supra) having regard to the facts of that case. The principle of "No evidence" cannot be applied in all cases like a straight jacket formula. To put it in other words, this principle of "No evidence" should not be applied mechanically in all cases in which some doubt here or there is created as regards the allegations against the concerned student of adopting unfair means or indulging in cheating. In the case of Patel Jagrutiben (supra) itself, the learned Single Judge has observed that the problems which the educational institutions have to face from time to time is a serious problem and unless there is justification to do so, the Page 46 of 59 C/SCA/6537/2018 CAV JUDGMENT courts should be slow to interfere with the decisions of the domestic Tribunal appointed by the educational bodies. The learned Single Judge also clarified that in the said case, there was no evidence whatsoever which could be said to be having some probative value in the eye of law and merely on the basis of suspicion, the action could be termed as arbitrary, irrational and perverse. I may quote the observations made by the learned Single Judge in para-26 of Patel Jagrutiben (supra);
"26. 1 am in respectful agreement with the views expressed by the Division Bench of this, court in S. M. Sharma's case (1982 (1) 23 Guj LR 233) (supra). It is undoubtedly true that the problems which the educational institutions have to face from time to time is a serious problem and unless there is justification to do so, Courts should be slow to interfere with the decisions of the domestic Tribunal appointed by educational bodies like the respondent-Board. But at the same time the orders passed by the authorities like the respondent Board must be supported by some evidence. It may be in form of direct evidence or indirect and circumstantial evidence. As mentioned above, in Bagleswar's case (AIR 1966 SC 875) (supra) though there was no direct evidence, indirect evidence in, form of a number of circumstances was there which was considered by the University as sufficient and when the action was quashed by the High Court, the Supreme Court rightly set aside the order of the High Court observing that it was for the authorities to consider the evidence and the High Court was not iustified in interfering with the said order. The High Court was not a court of appeal and cannot enter into sufficiency, adequacy. or otherwise of the evidence before the authority. At the same time, however, it should not happen that a student is punished and his career is jeopardised only on the basis of suspicions, surmises and conjectures without there being any evidence worth the name. In my opinion, in this case there is no evidence whatsoever which has some probative value in the eye of law and merely on the basis of suspicion that the impugned action is taken by the Page 47 of 59 C/SCA/6537/2018 CAV JUDGMENT respondent Board which is arbitrary, irrational, perverse and no reasonable man in the facts and circumstances of the case would reach to that conclusion and, therefore, it is required to be interfered with in the exercise of the powers under Art. 226 of the Constitution of India. "
7.35 I take notice of the fact that in S.M. Sharma (supra), the allegation against the student was based substantially on the circumstantial evidence of apparent similarity of admitted handwriting in the answer-book of that student and disputed handwriting in the "answer-book of another student who had admitted having not appeared at the examination and had stated that the answer-book purported to be his was not in his handwriting. The Court observed that there is left in the field "sole circumstance consisting of the apparent similarity of handwriting perceived on visual inspection". In that background the Court considered that the case fall within the mischief of "No evidence" rule. After reviewing the authorities, the Court found that it was imprudent to base the conclusion of guilt solely on the bare comparison of disputed and admitted handwritings especially when it is made without the aid of evidence of expert opinion or miscroscopic enlargements or without guidance from some authoritative text books and without any experience or knowledge on the part of the persons making the comparison. It was observed that the apparent similarity of handwriting in the answer-books perceived on a bare visual comparison by untrained, uninitiated and inexperienced eyes may be sufficient to sustain a suspicion but it cannot, without something more, constitute evidence reasonably capable of supporting the finding of guilt especially when there was a clear defence of denial based on the plea of alibi and the lack of any acquaintance with the Page 48 of 59 C/SCA/6537/2018 CAV JUDGMENT candidate allegedly personated. It will be at once noticed that the decision in S. M. Sharma's case (supra) turns on a finding of "No evidence".
7.36 In the present case, the facts are entirely different. The case against the writ applicant herein does not rest only on suspicion. The facts in the present case are quite eloquent. The circumstantial evidence or the intrinsic evidence on record bears eloquent testimony to the fact that the writ applicant did indulge in unfair means. The authorities concerned have been able to reason it out as to on what basis, they have reached to the conclusion that the case is one of unfair means. In such circumstances, should this Court substitute the decision of the authorities with its own decision saying that this is a case of "No evidence". As observed by me earlier, the answer- books, the pattern of the answer, the manner in which the student has proceeded with the calculation of the problem can constitute important material while considering the allegations of copying made against the students. The act of copying is usually done clandestinely and there cannot be direct evidence but there can be intrinsic evidence in the manner the answers are written which could be clearly a pointer to the conclusion that copying was done by the concerned students.
7.37 In the aforesaid context, I may refer to one decision rendered by a learned Single Judge of this Court in the case of Desai Devang V. & Ors. vs. The Registrar, South Gujarat University & Ors., AIR 1996 Guj. 96. This was also a case of unfair means at the end of a student of the South Gujarat University. The learned Single Judge observed in para-5 as Page 49 of 59 C/SCA/6537/2018 CAV JUDGMENT under;
"5. It is trite thing to say that Court exercising writ jurisdiction is not required to reappreciate the evidence and come to a different finding of fact than the one arrived at by the concerned authority. However, if the findings are perverse or based on no evidence, the Court can interfere with them. When there is a total lack of evidence which can reasonably support the conclusion arrived at by the authority, it would be a case of no evidence. Mere presence of material on record which is not relevant to the finding will not preclude the Court from interfering with a finding, which is based on irrelevant material on the ground that there is no evidence in support of the conclusion arrived at. In case where direct evidence is not available, circumstantial evidence if available would also constitute material for the finding if it is capable of rationally leading to that finding."
7.38 Besides the above, the absence of evidence is for the Judge under Article 226 but the adequacy of it is for the tribunal. Evidence, unless there be specific statutory provision, does not mean, in this context, only what is admissible and proved under the Indian Evidence Act; it embraces everything that appeals to commonsense as having probative force, untrammelled by technical rules. Lord Denning M. R. in a decision T.A. Miller Ltd. v. Minister of Housing and Local Government, 1968-1 WLR 995, has this to say on the subject:
"A tribunal of this kind is master of its own procedure, provided that the rules of natural justice are applied. Most of the evidence here was on oath, but that is no reason why hearsay should not be admitted where it can fairly be regarded as reliable. Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a Court of law: See Reg v. Deputy Industrial Injuries Commissioner, Ex parte Moore, 1965-1 QB 456. During this very week in Parliament we have had Page 50 of 59 C/SCA/6537/2018 CAV JUDGMENT the second reading of the Civil Evidence Bill. It abolishes the rule against hearsay, even in the ordinary Courts of the land. It allows first-hand hearsay to be admitted in civil proceedings, subject to safeguards. Hearsay is clearly admissible before a tribunal. No doubt in admitting it, the tribunal must observe the rules of natural justice, but this does not mean that it must be tested by cross-examination. It only means that the tribunal must give the other side a fair opportunity of commenting on it and of contradicting it: See Board of Education v. Rice, 1911 AC 179 at p. 182: 1965-1 QB
456. The Inspector here did that. Mr. Fogwill's letter of November, 19, 1964, was put to the witnesses and they contradicted it. No application was made for an adjournment to deal further with it. In these circumstances I do not see there was anything contrary to natural justice in admitting it".
7.39 In the instant case, there is evidence intrinsic or circumstantial in nature, in support of the conclusion arrived at by the College Authorities and I am unable to interpose my judgment on this evidence since its quality and quantum are within the exclusive domain of the Institute Council except where it acts irrationally, perversely or malafide.
7.40 So far as the principles of natural justice is concerned, I may only say that with the advancement of this branch of Administrative Law it is settled that the proceedings against a student on the ground of misconduct or malpractice at an examination are quasi-judicial proceedings and the principles of natural justice must be observed. The principles of natural justice, are not embodied rules and there is no invariable standard of reasonableness in the matter of hearing and whether in a particular case, natural justice has been contravened or not is for the courts to decide.
Page 51 of 59 C/SCA/6537/2018 CAV JUDGMENT7.41 In educational institutions, in the matter of conducting disciplinary proceedings a full fledged enquiry or trial as in a criminal action is neither expected nor feasible as part of requirement of natural justice. In educational institutions in the matter of maintaining discipline, requirement of natural justice varies with circumstances in each case and nature of indiscipline to be dealt with by the authorities.
7.42 So far as the charge of "plagiarism" is concerned, it was sought to be argued that the same would not apply to assignments. I do not find any merit in this argument canvassed on behalf of the writ applicant. In this regard, I must look into the University Grants Commission (Promotion of Academic Integrity and Prevention of Plagiarism in Higher Educational Institutions) Regulations, 2018.
7.43 Section 2(l) defines the term "plagiarism". It reads as under;
"Plagiarism" means the practice of taking someone else's work or idea and passing then as one's own."
7.44 Section 2(o) defines the term "script". It reads as under;
"Script includes research paper, thesis, dissertation, chapters in books, full-fledged books and any other similar work, submitted for assignment / opinion leading to the award of master and research level degrees or publication in print or electronic media by students or faculty or researcher or staff, of an HEL, however this shall exclude assignments/term papers//project reports/ course work/ essays and answer script etc;"Page 52 of 59 C/SCA/6537/2018 CAV JUDGMENT
7.45 Section 2(p) defines the term "source". The same reads as under;
""Source" means the published primary and secondary material from any source whatsoever and includes written information and opinions gained directly from other people, including eminent scholars, public figures and practitioners in any form whatsoever, as also data and information in the electronic form be it audio, video, image or text Information being given the same meaning as defined under Section 2(1)(v) of the Information Technology Act, 2000 and reproduced here in Regulation 2(1)."
7.46 Rule 6 provides for curbing plagiarism. The same reads as under;
"6. Curbing Plagiarism
a) HEI shall declare and implement the technology based mechanism using appropriate software so as to ensure that documents such as thesis, dissertation, publications or any other such documents are free of plagiarism at the time of their submission.
b) The mechanism as defined at (a) above shall be made accessible to all engaged in research work including student, faculty, researcher and staff etc.
c) Every student submitting a thesis, dissertation, or any other such documents to the HEI shall submit an undertaking indicating that the document has been prepared by him or her and that the document is his/her original work and free of any plagiarism.
d) The undertaking shall include the fact that the document has been duly chccked through a Plagiarism detection tool approved by the HEI.
e) HEI shall develop a policy on plagiarism and get it approved by its relevant statutory bodies/authority. The approved policy shall be placed on the homepage of the HEI website.Page 53 of 59 C/SCA/6537/2018 CAV JUDGMENT
f) Each superv'isor shall submit a certificate indicating that the work done by the researcher under him / her is plagiarism free.
g) HEI shall submit to INFLIBNET soft copies of all Masters, Research program's dissertations and thesis within a month after the award of degree for hosting in the digital repository under the "Shadh Ganga e-
repository.
h) HEI shall create Institutional Repository on institute website which shall include dissertation/ thesis/paper/publication and other in-house publications."
7.47 Rule 8 provides for the levels of plagiarism. The same reads as under;
"Plagiarism would be quantified into following levels in ascending order of severity for the purpose of its definition.
I) Level 0: Similarities upto 10%- Minor similarities, no
penalty
II) Level 1: Similarities above 10% to 40%
III) Level 2: Similarities above 40% to 60%
IV) Level 3: Similarities above 60%"
7.48 Rule 9 provides for detention/reporting/handling of
plagiarism. It reads as under;
"If any member of the academic community suspects with appropriate proof that a case of plagiarism has happened in any document, he or shell shall report it to the Departmental Academic Integrity Panel (DAIP). Upon receipt of such a complaint or allegation the DAIP shall investigate the matter and submit its recommendation to the Institutional Academic Integrity Panel (IAIP) of the HEI.
The authorities of HEI can also take suomotu notice of an act of plagiarism and initiate proceedings under these regulations,. Similarly, proceedings can also be initiated by the HEI on the basis of findings of an examiner. All Page 54 of 59 C/SCA/6537/2018 CAV JUDGMENT such cases will be investigated by the IAIP."
7.49 Rule 12 provides for the penalties in the cases of plagiarism. The same reads as under;
"Penalties:
Penalties in the cases of plagiarism shall be imposed on students pursuing studies in the level of Masters and Research programs and on researcher, faculty & staff of the HEI only after academic misconduct on the part of the individual has been established without doubt, when all avenues of appeal have been exhausted and individual in question has been provided enough opportunity to defend himself or herself in a fair or transparent manner. "
7.50 Thus, in view of the above and also the admission on the part of the writ applicant that the assignment was prepared by him on the basis of the materials collected from the internet, the charge of plagiarism could be said to have been proved. What has not appealed to me is the feeble explanation put forward by the writ applicant that because of the hearing deficiency, he was not able to understand the instructions given by the professor in the classroom as regards the assignment. In any view of the matter, so far as the charge of plagiarism is concerned, the writ applicant was not much serious or concerned and did not deem fit to take any legal steps in that regard. It is only when he came to be punished for adopting unfair means in the exam that he thought fit to even question the action taken by the experts against him so far as the charge of plagiarism is concerned.
7.51 It was also submitted that the punishment imposed is quite harsh and not in proportion with the gravity of the Page 55 of 59 C/SCA/6537/2018 CAV JUDGMENT charge. I may only say that where the college authorities take the disciplinary action against a student for misbehaviour, unfair means, misconduct etc., the quantum of punishment awarded to the delinquent student should not be changed or reviewed by the High Court in the proceedings under Article 226 of the Constitution of India. Such question should be left best to the authority to decide. The authorities of the institute are responsible for the maintenance of the discipline in the institute. Such authority, being responsible for the welfare of the student as a whole, is the best judge to say what punishment could be awarded, regard being had to the welfare of the general student body of the institute and the indiscipline committed by a particular student, its effect on the administration of the institution, its future effect on the morale and efficiency of the institution and its students. These are matters which can best be determined by the head of the institution subject to the principles and regulations in that regard.
7.52 I may only say that the reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of courts tends to degenerate into misplaced sympathy and generosity and private benevolence. It is essential to maintain the integrity of legal reasonings and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mode of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial Page 56 of 59 C/SCA/6537/2018 CAV JUDGMENT process of its dignity, authority, predictability and respectability. (see Kerala Solvent Extractions Ltd. v. A.Unnikrishnan and another, (1994)2 LLJ SC 888)
8. I have gone through all the decisions relied upon by Mr. Patel, the learned senior counsel appearing for the writ applicant. They are of no avail to the writ applicant. There need not be any debate with regard to the principles of law explained in all the decisions, but those are in the facts of the case.
9. In the overall view of the matter, I have reached to the conclusion that I should not interfere with the decision taken by the institute. The writ applicant is not entitled to any relief as prayed for in this writ application. All that I want to say is that the writ applicant is a young student and has a long way to go in life. He should graciously accept his mistake and remember this for the rest of his life. The punishment imposed by the institute is not the end of his life. This is an eye opener for the writ applicant. In this type of matters, it would not be proper or even in accordance with law to show any mercy or take a sympathetic view of the matter.
10. In the result, this writ application fails and is hereby rejected.
11. At this stage, I take notice of one fervent appeal made by the learned senior counsel appearing for the writ applicant. In a brief note given to this Court in writing on behalf of the writ applicant, it has been stated as under;
Page 57 of 59 C/SCA/6537/2018 CAV JUDGMENT"Considering the totality of the facts and circumstances of this case, it is desirable that the petitioner pursues his further studies at IIT, Bombay in the interest of justice. Authorities concerned may take into account the following two factors and sympathetically consider his application to transfer him and/or admit him at IIT, Mumbai in his subject of mechanical engineering. (1) The petitioner is a domicile of Thane, Maharashtra (2) The petitioner is hearing impaired. Therefore, proximity of the family can help him in effectively and efficiently carrying on his studies."
12. Having regard to the materials on record, prima facie, it appears to me that the writ applicant is not able to cope up with the pressure of studies. There could be many reasons for this problem. I am also not disputing the fact that the writ applicant is handicapped-hearing deficient by 64%. At the same time, he is a very promising sportsman. I am told that the writ applicant is a very good tennis player. I am of the view that if he remains close to his family, then the family can keep a watch over all his movements and problems including his studies.
13. George Eliot said;
"More helpful than all wisdom or counsel is one draught of simple human pity that will not forsake us."
14. Here is one draught from this Court. In the facts and circumstances of this case, I direct the respondent No.2- Institute to sympathetically take into consideration the request made on behalf of the writ applicant to transfer him at IIT, Mumbai, of course, subject to the rules and regulations in this regard. However, some humane approach is necessary for the purpose of taking such kind of decision. If the writ Page 58 of 59 C/SCA/6537/2018 CAV JUDGMENT applicant goes back to his home, probably, it could be a changing point or a major turn in his life. Let this be looked into by the Institute at the earliest.
(J. B. PARDIWALA, J) After the judgement was pronounced, Mr. Bhushan B. Oza, the learned counsel appearing for the writ applicant pointed out that the appropriate authority for the purpose of taking decision to transfer the writ applicant to IIT, Mumbai would be the respondent No.1, i.e, the Union of India, Ministry of Human Resources Department, New Delhi. In such circumstances, the respondent No.1 is requested to look into the matter at the earliest and take an appropriate decision keeping in mind the observations made by this Court. The respondent No.2-Institute shall take up this issue with the respondent No.1 at the earliest in accordance with law.
(J. B. PARDIWALA, J) Vahid Page 59 of 59