Patna High Court
Rakesh Kumar Thakur vs The Union Public Service Commission And ... on 28 February, 1984
Equivalent citations: AIR1984PAT357, AIR 1984 PATNA 357, 1984 BBCJ 517
Author: Lalit Mohan Sharma
Bench: Lalit Mohan Sharma
JUDGMENT Sharma, J.
1. The petitioner who appeared at the examination for appointment to the Indian Forest Service conducted by the Union Public Service Commission has been, by the impugned order, held to have abetted another student in using unfair means and he has, accordingly, been debarred from appearing at the examinations conducted by the Union Public Service Commission for a period of ten years. His candidature in the aforesaid examination has also been cancelled.
2. According to the case in the writ petition, the petitioner has been a good student having obtained first class in the University examinations. He appeared at the Central Civil Service Preliminary Examination in 1982 and qualified for sitting at the final examination. In the meantime, the examination for appointment to the Indian Forest Service was also held and the petitioner became a candidate. He sat at the examination and was thereafter preparing for his final examination for appointment to Civil Service when he received the show cause notice, Annexure 3, asking him to explain as to why steps should not be taken against him. The letter stated that one Jitendra Kumar Singh was seated immediately before the petitioner in the same row in the examination hall and it was observed that the answers to questions 2 and 5 in Physics paper were almost identical. The answers to questions (l)(a) and l(d) and some portion of question l(c) were also identical with Jitendra Kumar Singh. The letter further stated that the similarity suggested that Jitendra Kumar Singh had copied out the answers from the answer books of the petitioner and this could not have been possible without his connivance.
3. The Rule 10 of the Rules of the Indian Forest Service Examination, 1982, permits the authorities to make an inquiry in such circumstances and penalise a guilty person. According to the petitioner, he received the show cause notice in the midst of his examination for Civil Services and since the time for filing the show cause was inadequate, he hurriedly gave his explanation as contained in Annexure 4. The impugned order in Annexure 5 was thereafter passed. The present writ application has been filed for quashing the same.
4. In his show cause, the petitioner stated that questions 1(a), 1(c) and 1(d) were pure mathematical questions, and similarity in the answers does not lead to any inference of copying out. The question No. 5 was also described as involving numerical problems.
5. This writ application was filed on the 17th May, 1983 and was placed for admission on 19-5-83. The Bench hearing the admission matter directed the learned counsel appearing for the Union of India to produce before this Court the answer books of the petitioner and Jitendra Kumar Singh in Physics paper. The matter was placed for further orders on 11-7-83. The Bench hearing the matter entertained the plea of the petitioner that he was entitled to know the reasons on the basis of which the authorities passed the impugned order. On behalf of the respondents, it was suggested that the documents are privileged and reasons cannot be intimated to the petitioner. The Bench considered this question at considerable length and then held that the stand taken by the respondents was untenable, and, accordingly, directed the respondents to supply the petitioner the reasons on which the impugned order was passed. The case was finally placed on 29-8-83. In the meantime, the petitioner filed an application on 18-8-83, which is at page 47 of the records. He attached a copy of the letter indicating the reasons for the order as Annexure 9 and stated that a report not known to him submitted by the Examiner had been taken into consideration. The petitioner made a prayer to this Court for a direction for supplying copies of the two answer books and the report mentioned in Annexure 9. On 29-8-83, another application was made for quashing Annexure 9. The case was admitted on that date and has now been placed for final hearing before us.
6. A counter-affidavit has been filed on behalf of the respondents stating that the answer scripts are secret and privileged documents and, therefore, the petitioner coul not be allowed to inspect the same nor he can get copies thereof. It is further mentioned in one of the counter-affidavits that the answer books were produced in open Court in presence of the petitioner's lawyer and it is, therefore, not necessary to give further opportunity to the petitioner and his counsel to examine them.
7. The learned counsel appearing in support of the application contended that the order is penal in nature and is likely to prejudice the career of the petitioner seriously. It was stated by Mr. Tara Kant Jha that the petitioner has stood first in the examination held recently in connection with appointments in the Oil and Natural Gas Commission, but is not likely to be appointed on account of the impugned order; and even if he is appointed, he may be prejudiced in future when the question of promotion arises.
8. It cannot be denied that if the impugned order stands, the petitioner is likely to suffer serious prejudice involving civil consequences. In such a situation, the principles of natural justice must be followed before condemning an examinee. Mr. Jha has relied on the decisions in Pramila Dei v. Secy., Board of Secondary Education, AIR 1972 Orissa 224 (FB), Indra Methi v. Board of Secondary Education, AIR 1975 Raj 116 and E. V. Kumar v. University of Madras, AIR 1964 Mad 460, all relating to cases where the examinees were accused of using unfair means at examinations. The question, therefore, arises as to whether the inquiry which has been held in the present case violates the principles of natural justice by denying the petitioner a fair opportunity to prove his innocence.
9. The relevant facts in the case do show that the opinion formed by the authority is based on circumstantial evidence. It is not suggested that anybody observed the petitioner or Jitendra Kumar Singh using any unfair means during the Course of the examination. It was only after the answer books were examined by the Examiner that the similarity in some of the answers was observed. On the basis of this similarity, it is inferred that Jitendra Kumar Singh must have copied out the answers from the petitioner's answer books and further that this was not possible unless the petitioner connived. In these circumstances, the nature and extent of similarity in the two answer books become relevant and if the petitioner claims an opportunity to examine the two answer books, it is difficult to reject the same. It cannot be assumed at this stage that the petitioner did either dictate the answers to Jitendra Kumar Singh or that he handed over his answer books for copying out the same and, therefore, it cannot be further presumed that the petitioner knows the extent and degree of the similarity in the two sets of answers. He should, therefore, be allowed to examine the two answer books. The petitioner also prays for a direction to the respondents to hand over a copy of the report of the Invigilator and/or Examiner in this regard. The prayer does not appear to be unreasonable.
10. Mr. K. K. Prasad, learned Standing Counsel on behalf of the respondents strenuously contended that the documents are privileged documents and, therefore, they should not be directed to be made public. The privilege question was considered by the seven Judges decision in S. P. Gupta v. Union of India, AIR 1982 SC 149 and it was pointed out that instead of suppressing such documents and not permitting the general public to examine them, more harm than good is done. While deciding a question of principle, one has to consider the matter from two angles. It may be against the public interest to disclose certain informations or documents, for example, secret State documents in connection with the defence of the country. On the other hand, there are cases in which the secrecy is not required and exclusion of relevant materials from public scrutiny instead of serving any cause excites suspicion and distrust in public. As has been held, the point must be examined with reference to the facts of each case and if it cannot be pointed out that any harm is likely to be caused, then the plea of privilege should not be allowed to succeed. In the instant case, I am not in a position to imagine as to how the petitioner by examining the two answer books can jeopardize the position of the Committee. If he is further given a copy of the Examiner's report, he may be helpful to the Commission with his explanation. In the circumstances, I overrule the plea of the Commission that the documents in question are privileged documents and cannot be disclosed and I direct the Commission to permit the petitioner to inspect the two answer books and the Examiner's report. Further this question has already been considered and decided against the Commission. So far as the Commission's objection on the ground that the answer books had already been shown to the petitioner's counsel in open Court at the time of admission of the case is concerned, Mr. Jha, the learned counsel for the petitioner, stated that neither he nor the petitioner actually examined the answer books at any stage and their mere production in Court without proper opportunity to compare the relevant answers is not helpful. He appears to be right. It was also urged by Mr. Standing Counsel that as the petitioner did not claim an opportunity to examine the documents at the time of filing his show cause, the prayer now should be rejected. Mr. Jha explained the situation by recapitulating the facts that the petitioner who was in the midst of the Civil Service examination had to hurriedly file his show cause due to inadequate time allowed. He also emphasised the fact that the necessity of examination of documents became more pressing after the petitioner was given a copy of the reasons (Annexure 9) in pursuance of this Court's direction and he immediately thereafter made an application for the purpose. The argument appears to be well founded.
11. Mr. Jha strenuously contended that on the basis of the circumstances mentioned by the Commission, it is not legally possible to record a finding of guilt against the petitioner. He also said that the punishment awarded is too excessive. The learned Standing Counsel argued that a writ Court cannot act as an appellate Court and should not entertain these pleas. He relied on the judgment in Ghazanfar Rashid v. Secy., Board of High School and Intermediate Education, AIR 1979 All 209 (FB). I do not consider it necessary to express any opinion on these points at this stage.
12. For the reasons stated above, I direct the respondents to fix place, date and time for the petitioner to inspect the answer books and the Examiner's report and permit him to examine the documents. The petitioner may approach the respondent No. 2 in this regard. The inquiry will thereafter be disposed of after considering the case of the petitioner. The earlier orders passed against the petitioner are quashed and shall not be taken into consideration while deciding the matter again. The writ application is accordingly allowed but without costs.
Verma, J.
13. I have heard the judgment delivered by learned Brother.
All the aspects of the case have been dealt with quite elaborately.
14. The writ petitioner has raised his grievances on the grounds whether the orders of the respondents debarring the petitioner from appearing at the examination of the Union Public Service Commission (for brevity 'Commission') for a period of ten years is arbitrary and whether the satisfaction of the authority in passing the impugned order is based on relevant materials. It has also been questioned whether the petitioner was entitled to inspect the relevant documents or to get copies thereof as also personal hearing before he was awarded punishment:
15. The, petitioner, all through in the past, had a brilliant academic career. In his Post-Graduate study, he got first class in all the papers in the Patna University and got Lecturership as well. But being more ambitious, he started taking competitive tests. The petitioner claims that in the present examination conducted by the Commission, he did well and expected to qualify, when to his surprise, he was informed of the charges made against him by the Commission, of using unfair means in writing answer books. The allegation is that the petitioner had allowed another examinee Jitendra Kumar Singh to copy from his own answer books. The petitioner, in his defence, had made an outright denial of the charges that he, in any way, connived and allowed Jitendra Kumar Singh to copy out the answers from his own answer books. It has also been stated that if there was some resemblance or similarity in a few answers in the papers of the two candidates, that does not necessarily prove that Jitendra Kumar Singh had copied out the answers from the petitioner's papers. Lastly, it has also been argued that the punishment awarded is very severe which cuts the rising career of the petitioner, casting stigma on his life all through.
16. In the judgment, my learned Brother has rightly observed that there is no direct evidence to support the fact that the petitioner himself adopted unfair means in the examination hall in writing out the answer books. There is no such report of the Invigilators of the hall. The findings of the respondents, therefore, are based on inference and not on any direct evidence. It is true that in dealing with a case like this, the principle of trial or rules or technicalities of the Evidence Act cannot be adhered to. The respondents, as it appears, acted more like a fact finding Commission and it is equally true that it is within its domain to appreciate the facts and to give findings on available materials and circumstances.
17. Mr. K. K. Prasad, counsel for the respondents, in aforesaid context, has argued that in the instant case the presumption of. guilt weighs very heavily against the petitioner. It may weigh so, but. in my opinion, any amount of presumption cannot take the place of proof of guilt. The case of the respondents is that both the candidates, that is; the petitioner and Jitendra Kumar Singh were sitting in the same row. It, therefore, cannot be said with certainty that the petitioner connived or permitted Jitendra Kumar Singh to copy out the answers or that Jitendra Kumar Singh succeeded in doing so in a clandestine manner without notice to the petitioner taking advantage of the situation. My learned Brother, in his judgment, has put it differently by stating that the possibility of giving dictation might also be there. The third possibility is the 'conclusion' arrived at by the Commission itself that the petitioner connived with the conduct of Jitendra Kumar Singh in allowing him to copy out the answer books from his own answer papers. It, therefore, must be remembered that in a case if circumstantial evidence admits of different interpretations or different probabilities and presumptions, it can never be safe to act on it and to hold a delinquent guilty of the charge. In cases of this nature, surely, the principle of Evidence Act may not be applicable but the authorities will remember that for indicting an individual for such charges and to hold guilty there must be sufficient evidence, for any prudent man to act upon it, and the findings should not be based on non est materials.
18. The next question is with regard to non supply of documents to the petitioner to enable him to file an effective show cause. The contention of Shri K. K. Prasad, counsel for the respondents that those documents are privileged documents, has rightly been ruled out by my learned Brother Sharma, J. I need not cover this field. In a case in which the documents are the subject-matter of the charge, a delinquent is entitled to inspect or get copies thereof, and he should also be heard. Any violation of these conditions offends the principle of audi alteram partem.
19. In the circumstances, I entirely agree with the views expressed by my learned Brother in his judgment and I also agree with the order passed therein. The respondents, if so advised, may issue fresh notice and will grant hearing to the petitioner after affording reasonable opportunity to the petitioner to inspect the documents and making him available the copies thereof. I may further add that the authorities even in awarding punishment will act with a sense of reasonableness and not arbitrarily.